Defendant’s Motion to Dismiss — AirBoss Defense Group, LLC v. United States

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
BID PROTEST

AIRBOSS DEFENSE GROUP, LLC,

                                   Plaintiff,

             and

STRING KING LACROSSE, LLC,

                                   Plaintiff-Intervenor,

                v.

THE UNITED STATES,

                                    Defendant,

                and

NEW YORK EMBROIDERY STUDIO, INC.,

                                     Defendant-Intervenor.

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    No. 24-365
    (Judge Hadji)

DEFENDANT’S MOTION TO DISMISS
Pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims,
defendant, the United States, respectfully requests that the Court dismiss this case because the
Department of Health and Human Services’ (HHS) corrective action is complete and moots the
current protest.  As the Government has reported in previous status reports and during status
conferences with the Court, HHS made contract awards to plaintiff, plaintiff-intervenor, and
defendant-intervenor, and on September 13, 2024, HHS issued post-award debriefing letters.
Status Report, ECF No. 89.  There is no indication that a live case or controversy remains for
the Court to resolve.  Cf. Nat’l Air Cargo Grp., Inc. v. United States, 127 Fed. Cl. 707, 717
(2016) (“In cases where the agency has taken corrective action that resulted in a new evaluation
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and source selection decision, the court must review the agency’s new decision. . . . The initial
agency decision typically will not present a live controversy after corrective action, making
moot those errors alleged in an initial decision.”) (citing Tenica & Assocs., LLC v. United
States, 123 Fed. Cl. 166, 171 (2015) and Coastal Envt’l Grp., Inc. v. United States, 114 Fed.
Cl. 124, 129 (2013)).
On September 20, 2024, when undersigned Department of Justice counsel informed the
parties that the Government would be seeking dismissal on mootness grounds, counsel for
plaintiff AirBoss indicated, “ADG’s position is that it’s protest is not moot, but that a
settlement agreement is feasible based on the award decision if the parties will simply commit
to not challenging the awards in new protest litigation.”  Counsel for plaintiff-intervenor String
King indicated that “[i]t is StringKing’s preference that the matter be settled as proposed by
Airboss to allow all parties certainty as they move forward on this contract.  In the event that
does not occur, StringKing would be agreeable with dismissal even though the agency’s actions
have not necessarily mooted the protest, so long as the dismissal does not impact its ability to
protest in the future (utilizing the arguments pressed here) if it is displaced from all or part of
its award in the future.”
In the Government’s September 20, 2024 status report, we advised the Court that if
plaintiff and plaintiff-intervenor had not moved to voluntarily dismiss this case by September
27, 2024, the Government would file a motion to dismiss this case for lack of subject-matter
jurisdiction on mootness grounds.  Status Report, ECF No. 89.
Plaintiff and plaintiff-intervenor have failed to demonstrate any basis, and none exists,
for the Court to retain jurisdiction over this protest.  It is well-established that justiciability,
including mootness, is a question of subject-matter jurisdiction.  CW Gov’t Travel, Inc. v.
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United States, 46 Fed. Cl. 554, 556 (2000) (citing N.C. v. Rice, 404 U.S. 244, 246 (1971)).
Because the Court does not possess jurisdiction to decide moot claims, dismissal is warranted.

                       Respectfully submitted,

BRIAN M. BOYNTON
Principal Deputy Assistant Attorney
General

PATRICIA M. McCARTHY
Director

s/ Franklin E. White, Jr.
FRANKLIN E. WHITE, JR.
Assistant Director

s/ Jana Moses
JANA MOSES
Senior Trial Counsel
Commercial Litigation Branch
Civil Division
U.S. Department of Justice
P.O. Box 480
Ben Franklin Station
Washington, DC  20044
Tel:  (202) 616-2279
Fax:  (202) 307-0972
Jana.Moses@usdoj.gov

Attorneys for Defendant

OF COUNSEL:

Megan R. Nathan
Anthony E. Marrone
Attorneys
U.S. Department of Health and Human
Services
Office of the General Counsel,
General Law Division
Washington, D.C. 20201

October 3, 2024

Case 1:24-cv-00365-PSH     Document 92     Filed 10/03/24     Page 3 of 3

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