Fire-Trol Holdings LLC v. United States Forest Service

MEMORANDUM *

Fire-Trol Holdings, LLC, which manufactures fire retardant chemical products used to fight wildland fires, appeals the district court’s judgment dismissing for lack of jurisdiction its challenge to the United States Forest Service’s adoption and application of new purchase requirements for the chemical content of wildland fire retardant. We reverse as to FireTrol’s claim that the Service failed to comply with the public notice and comment requirements of the Administrative Procedure Act (APA), but otherwise affirm.

Allegations that the Forest Service’s pre-2005 contract cycle decisions are arbitrary and capricious, and that they violate the requirements of the Federal Acquisition Regulation (FAR) for modifying qualification specifications and the open competition requirements of the Competition in Contracting Act (CICA), are “in connection with a proposed procurement” of fire retardant and have already been resolved by the Court of Federal Claims. See Fire-Trol Holdings, LLC v. United States, 68 Fed.Cl. 281 (2005) (rejecting Fire-Trol’s bid protest for the 2005 contract cycle); Fire-Trol Holdings, LLC v. United States, 66 Fed. Cl. 36 (2005) (holding that the Forest…

concurring in part and dissenting in part.

I agree that a federal district court lacks concurrent jurisdiction over claims that are within the jurisdiction of the Court of Federal Claims under the Administrative Dispute Resolution Act of 1996 (ADRA). 28 U.S.C. § 1491 (b)(1). As this is so, it follows that Fire-Trol’s allegations that the Forest Service’s pre-2005 contract cycle decisions are arbitrary and capricious, and that they violate the requirements of the Federal Acquisition Regulation (FAR) and the Competition in Contracting Act (CICA), are “in connection with a proposed procurement” of fire retardant and thus are within the exclusive jurisdiction of the Court of Federal Claims under ADRA. This is not affected by the fact that when Fire-Trol first went to the Court of Federal Claims after the district court’s dismissal, the Court of Federal Claims also dismissed the action because it found that Fire-Trol lacked standing as an “interested party” to pursue the relief requested before a specific solicitation for bids was announced. See Fire-Trol Holdings, LLC v. United States, 62 Fed.Cl. 440, 443-45 (2004). That was simply a matter of timing, not subject matter jurisdiction.…