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GUAM INDUSTRIAL SERVICES, INC. v. RUMSFELD

August 24, 2005.

GUAM INDUSTRIAL SERVICES, INC., Plaintiff,
v.
DONALD H. RUMSFELD, Secretary of Defense et al., Defendants.



The opinion of the court was delivered by: RICARDO URBINA, District Judge

MEMORANDUM OPINION

DENYING THE PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER

I. INTRODUCTION

  This matter comes before the court on the motion of Guam Industrial Services ("GIS") for a temporary restraining order ("TRO"). GIS owns and operates Guam Shipyard, which repairs and otherwise services maritime vessels. Compl. ¶ 2. The Guam Shipyard is the only U.S.citizen owned and controlled commercial shipyard west of the International Dateline. Id. GIS claims that the United States Navy's ("Navy") bid proposal and contract award practices with shipyards not located in the United States or Guam violate 10 U.S.C. § 7310. GIS seeks to enjoin the defendants*fn1 from soliciting bid proposals and contracting for repairs of Navy vessels from shipyards not located in either the United States or Guam. GIS now seeks a TRO to prevent the defendants from servicing the Navy vessel SS Petersburg by a shipyard in Singapore. Because GIS has not demonstrated that the SS Petersburg's homeport is in the United States, it fails to demonstrate a substantial likelihood of success on the merits. Because the harms alleged by the plaintiff concern loss of business, GIS fails to demonstrate irreparable harm. Because the Navy's military interest in expeditious Navy vessel repairs is compelling, the public interest does not favor the plaintiff. Accordingly, the court denies the plaintiff's motion for a TRO.*fn2

  II. BACKGROUND

  The plaintiff owns and operates Guam Shipyard, located in the U.S. Territory of Guam. Pl.'s Mot. at 4. The Guam Shipyard employs approximately two hundred and fifty people — all U.S. citizens, and is "the only United States-citizen owned and controlled shipyard that can service United States Navy, Military Sealift Command ("MSC"), and [Maritime Administration, ("MARAD")] ships that are under the jurisdiction of the Secretary of Navy and located in the Pacific and Indian Oceans." Id.

  A select group of Navy vessels are part of the Navy's Prepositioning Program, a program funded and administered by the Navy and controlled by the Navy's Sealift Command. Id. at 4; Defs.' Opp'n at 2. These ships are positioned by the Navy in strategic oceanic locations, "making it possible to deploy equipment, fuel, and supplies to support U.S. military forces on short notice during times of war or as a result of other contingencies." Id. at 5.

  The Navy also maintains a fleet of maritime vessels in the United States Ready Reserve Force ("RRF"), which are a select group of ships within the National Defense Reserve Fleet, are maintained by the DOT's MARAD, and are funded from the Navy-controlled National Defense Sealift Fund. Id. at 2; Pl.'s Mot. at 2-3.

  The Navy vessel SS Petersburg is designated both within the Prepositioning Program and the National Defense Reserve Fleet. Id. at 4-5. While on assignment as a vessel in the RRF, the SS Petersburg is maintained and controlled by the DOT's MARAD, but when activated under the Navy's strategic Prepositioning Program, the vessel is maintained and controlled by the Navy and the Navy's Military Sealift Command. Def.'s Opp'n at 2.

  The SS Petersburg has been located or "prepositioned" in the U.S. Territory of Guam at the Delta-Echo Pier in Apra Harbor for the past three years. Id. at 5. Daily control of the SS Petersburg is delegated to one of three Maritime Prepositioning Ship squadrons ("MSPRONs"). Id. The vessel's specific mission while located in Guam is to provide offshore petroleum distribution services to the Defense Logistic Agency. Id.

  On June 21, 2005, the Interocean American Shipping Corporation ("IASC"), a corporation that provides ship management services to MARAD for the SS Petersburg, Defs.' Opp'n, Attach. 2, Cahill Decl. ¶ 6, began soliciting bids for drydock work and repairs of the SS Petersburg, Pl.'s Mot., Attach. 1, Pothen Decl. ¶ 9. In response to this solicitation, the Guam Shipyard submitted a bid proposal. Id. On August 16, 2005, IASC accepted a bid from the Keppel Shipyard in Singapore for the repair work to the SS Petersburg. Cahill Decl. ¶ 11; Pl.'s Mot. at 1.

  Although the SS Petersburg will not enter the drydock portion of the Singapore shipyard until August 28, 2005, repair work on the SS Petersburg commenced on August 23, 2005. Cahill Decl. ¶ 11. Upon learning that repair work on the SS Petersburg had begun, the plaintiff, on August 23, 2005, filed its instant motion for a TRO. Because the plaintiff's alleged harm had already commenced, the court ordered an expedited briefing schedule. As all submissions have now been made, the court turns to the merits of the plaintiff's motion.

  III. ANALYSIS

  A. Legal Standard for a Motion for a Temporary ...


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