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BANNUM, INC. v. SAWYER

February 7, 2003

BANNUM, INC., PLAINTIFF
v.
KATHLEEN H. SAWYER, DIRECTOR, FEDERAL BUREAU OF PRISONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Walton, District Judge.

MEMORANDUM OPINION

This matter comes before the Court upon the defendants' motion to dismiss the plaintiff's complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The plaintiff seeks to enjoin the defendants from pursuing an investigation into the wages and benefits it paid its employees. The defendants assert that the complaint should be dismissed because: (1) the Court lacks jurisdiction, because there is no final agency action when an agency decides to initiate an investigation; (2) the plaintiff has failed to state a claim upon which relief can be granted, as the defendants have both the statutory and contractual right to investigate the plaintiff's actions; and (3) the Bureau of Prisons is not a proper defendant. Upon consideration of the parties' submissions regarding the defendants' motion and for the reasons set forth below, the Court will grant the defendants' motion to dismiss this case because the Court lacks subject-matter jurisdiction, because there has been no final agency action.*fn1

I. Factual Background

The origin of the instant case can be traced to another case currently pending before the United States Court of Federal Claims involving a suit by the plaintiff against the Bureau of Prisons ("BOP"). First Amended Complaint ("Compl.") ¶ 14. The plaintiff is "a service contractor that operates community corrections centers ("halfway houses") for the BOP." Memorandum of Law in Opposition to Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction and in Support of Defendants' Renewed Motion to Dismiss ("Defs.' Mem.") at 4. Apparently, "[d]uring the course of [the plaintiff's] performance of various contracts with the BOP, the BOP issued various unilateral modifications incorporating revised Wage Determinations under the Service Contract Act of 1965 ("SCA") . . . requiring [the plaintiff] to pay higher wages and fringe benefits to its employees working on the contracts." Compl. ¶ 6. These "revised Wage Determinations were issued by the DOL [the Department of Labor] to the BOP." Id. At the heart of the plaintiff's dispute with the BOP in the case pending before the Court of Federal Claims is their position that they had a right to be compensated by the BOP for these increased Wage Determinations, that they submitted claims (i.e., a Request for Equitable Adjustment ("REA")) to the BOP for these wage and fringe benefit increases, and that they have never been paid by the BOP for the increases. Defs.' Mem. at 4-5.

After the complaint was filed in the Court of Federal Claims on November 13, 2001, the plaintiff asserts that in "April of 2002, the [DOL] commenced an investigation, purportedly under the [SCA], into two of [the plaintiff's] contracts with the BOP." Compl. ¶ 16. The plaintiff contends that this investigation was initiated in retaliation for the monetary claims submitted in its REAs and the complaint it filed with the Court of Federal Claims. Id. ¶ 18. The defendants counter that the "investigation in this case was initiated in response to a complaint filed with the Wage and Hour Division [of the DOL], alleging that [the plaintiff] had underpaid employees in violation of the SCA prevailing wage provisions and the overtime provisions of the Contract Work Hours and Safety Standards Act . . ." Defs.' Mem. at 22 (citing attached Declaration of Nicolas Ratmiroff). The complaint filed in this Court on April 22, 2002, seeks, among other things, an order from the Court enjoining the DOL's investigation. On October 11, 2002, this Court heard arguments from counsel and denied the plaintiff's motion for a temporary restraining order and for a preliminary injunction to enjoin the defendants from pursuing the investigation. For the same reason the plaintiff's motion was denied, its complaint, which essentially seeks the same relief, is now dismissed.

II. Standards of Review

(A) Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) requires the plaintiff to bear the burden of establishing by a preponderance of the evidence that the court has jurisdiction to entertain her claims. Fed.R.Civ.P. 12(b)(1); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp.2d 9, 13 (D.D.C. 2001); Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp.2d 15, 18 (D.D.C. 1998); Darden v. United States, 18 Cl. Ct. 855, 859 (Cl. Ct. 1989). While the Court must accept as true all the factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993), because the plaintiff has the burden of establishing the Court's jurisdiction, the "`plaintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge of Fraternal Order of Police, 185 F. Supp.2d at 13-14 (citation omitted). Moreover, the Court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Id. at 13. Finally, the Court notes that in deciding a Rule 12(b)(1) motion, it is well established in this Circuit that a court is not limited to the allegations in the complaint but may consider material outside of the complaint in an effort to determine whether the court has jurisdiction in the case. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n. 3 (D.C. Cir. 1997); Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987); Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986); Grand Lodge of Fraternal Order of Police, 185 F. Supp.2d at 14.

(B) Rule 12(b)(6)

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), this Court must construe the allegations and facts in the complaint in the light most favorable to the plaintiff and must grant the plaintiff the benefit of all inferences that can be derived from the alleged facts. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court need not accept inferences or conclusory allegations that are unsupported by the facts set forth in the complaint. Kowal, 16 F.3d at 1276. In deciding whether to dismiss a claim under Rule 12(b)(6), the Court can only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice. St. Francis Xavier Parochial Sch., 117 F.3d at 624-25. The Court will dismiss a claim pursuant to Rule 12(b)(6) only if the defendant can demonstrate "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46, 78 S.Ct. 99.

III. Legal Analysis

It is undisputed by the parties that this Court must turn to the Administrative Procedures Act ("APA") when reviewing the plaintiff's complaint. Particularly significant in this regard is the requirement that when "review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the `agency action' in question must be `final agency action.'" Lujan v. National Wildlife Fed'n, 497 U.S. 871, 882 (1990) (citing 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review" (emphasis added))). Thus, if there is no "final agency action[,]" this Court lacks the subject-matter jurisdiction to entertain the plaintiff's complaint. See Beverly Enter., Inc. v. Herman, 50 F. Supp.2d 7, 11 (D.D.C. 1999).

When agency action is considered final under the APA is well established in the law. In determining finality, the question the Court must ask "is whether the agency has `impose[d] an obligation, denie[d] a right, or fixe[d] some legal relationship . . .'" Role Models Am., Inc. v. White, No. 02-5037, slip op. at 7 (D.C. Cir. Feb. 4, 2003) (quoting Meredith v. Fed. Mine Safety and Health Review Comm'n, 177 F.3d 1042, 1047 (D.C. Cir. 1999) (internal quotation marks and citation omitted in the original)). It is clear that generally an investigation "is not a definitive statement of position . . . [but only] represents a threshold determination that further inquiry is warranted . . ." FTC v. Standard Oil Co. of Cal.("SOCAL"), 449 U.S. 232, 241 (1980). Thus, "an agency's initiation of an investigation [in and of itself] does not constitute final agency action." Jobs, Training and Serv., Inc. v. East Tex. Council of Gov't, 50 F.3d 1318, 1324 (5th Cir. 1995) (quoting Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994)); see also Aluminum Co. of Am. v. United States, 790 F.2d 938, 941 (D.C. Cir. 1986) ("It is firmly established that agency action is not final merely because it has the effect of requiring a party to participate in an agency proceeding"). As noted by the ...


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