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https://www.courtlistener.com/api/rest/v3/opinions/7218566/	Keywords: Interim Attorneys’ Fees and Costs; 42 U.S.C. § 300aa-15(e)(l); Motion for Review; 42 U.S.C. § 300aa-12(e)(2)(B); Forum Rate Rule; Davis County Exception. OPINION AND ORDER KAPLAN, Judge. This case is currently before the Court on the government’s motion to review the Special Master’s award of interim attorneys’ fees and costs pursuant to the Rules of the United States Court of Federal Claims (RCFC), Appendix B, Vaccine Rules 23 and 24. ECF No. 42. For the reasons set forth below, the government’s motion for review is DENIED and the Special Master’s decision is AFFIRMED. BACKGROUND 1. Proceedings Before the Office of Special Masters On August 22,2014, Kristina Garrison filed a petition pursuant to the National Vaccine Injury Compensation Act, 42 U.S.C. §§ 300aa-l et seq. (2012) (Vaccine Act). Petition at 1, ECF No. 1. In that petition, Ms. Garrison alleges that as a result of receiving the trivalent influenza (flu) vaccination on October 28, 2011, she developed narcolepsy with cataplexy. Id, ¶¶ 1-2. She claims that her symptoms are the cause of her continued unemployment, and that they diminish her quality of life. M. ¶¶ 8-9. On October 29, 2015, Special Master Thomas L. Gowen issued a Ruling on Entitlement finding in favor of Ms. Garrison on the issue of liability. ECF No. 23. The Special Master reviewed Ms. Garrison’s medical records and treatment records, as well as expert opinions on narcolepsy and cataplexy, and several pieces of medical literature. Id at 1, The Special Master concluded that Ms. Garrison had provided reliable and persuasive evidence to support her claim and held that she was entitled to compensation. Id. at 2. The parties then began the damages phase of the proceeding, which is now ongoing. See Damages Order, ECF No. 24. II. Petition for Interim Attorneys’ Fees and Costs Ms. Garrison is represented in this action by Mr. Curtis R. Webb, a solo practitioner in Twin Falls, Idaho, who has substantial experience representing Vaccine Act petitioners. See infra. On January 7, 2016, Ms. Garrison filed a petition for interim attorneys’ fees and costs in accordance with 42 U.S.C. § 300aa-15(e)(1), ECF No. 27, requesting that the Special Master award $62,086.50 in attorneys’ fees and $12,626.51 in costs incurred. Id. at 1-2. To determine the fee award, Ms. Garrison proposed that that Special Master 102apply a rate of $415 per hour, which she contended was the reasonable rate that would apply to Mr. Webb’s services in the forum for this action—Washington, DC. Id. at 1, 9. On March 1, 2016, the government filed a brief in opposition to Ms. Garrison’s petition. ECF No. 31. Citing Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir.2008), the government argued that any fee awarded to Ms. Garrison should be based on the local rate for Twin Falls, Idaho (which the government argued was $275 per hour), rather than the rate for Washington, DC, because counsel had performed all work on the case outside of Washington, DC, and because the difference between the local and forum rates was a substantial one. Id. at 3-4. III. The Special Master’s Decision On April 29, 2016, Special Master Gowen issued his decision on interim attorneys’ fees and costs. Decision on Interim Attorneys’ Fees and Costs (Dec. on Fees), ECF No. 38. For the reasons set forth in his opinion, he awarded Ms. Garrison $56,801.25 in attorneys’ fees and $12,626.51 for costs. Id. at 13. Critically for purposes of the motion for review, Special Master Gowen ruled that the difference between the forum rate for Mr. Webb’s services (which he determined was $387.50 per hour) and the local rate (which he pegged at $327 per hour) was not “very significant” within the meaning of Avera. Id. at 9 (citing Avera, 515 F.3d at 1347-48). Therefore, he used the forum rate as the basis for determining reasonable attorneys’ fees in this case. Id. Special Master Gowen began his analysis by observing that a reasonable hourly rate under the Vaccine Act is “the prevailing market rate defined as the rate prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Id. at 2 (quoting Avera, 515 F.3d at 1347-48). He noted that, under Avera, “a court should generally use the forum rate, i.e., the District of Columbia rate,” when determining a fee award. Id. “However,” he explained, “an exception to the forum rule applies where [as in this case] the bulk of an attorney’s work is performed outside of the forum, and where there is a Very significant’ difference in compensation rates between the place where the work was performed and the forum.” Id. (quoting Avera, 515 F.3d at 1349 (citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. United States Envtl. Prot. Agency (Davis County), 169 F.3d 755, 758 (D.C.Cir.1999))). The Special Master began his analysis of the prevailing market rate in Twin Falls, Idaho by reviewing the previous fee awards to Mr. Webb in vaccine cases, which Mr. Webb’s affidavit identified as the basis for setting his local rate in this case. See Dec. on Fees at 3. He observed that in 2013 two special masters determined that $270 per hour was a reasonable local hourly rate for work that Mr. Webb performed in 2013. Id. Special Master Gowen adjusted that rate upward by 3.7%, which was the annual rate of growth in attorneys’ fees since 2008 that he had applied in a previous case. Id. at 3 (citing McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323 (Fed.Cl.Spec. Mastr. Sept. 1, 2015)). He concluded that “if local rates are determined by adjusting the previously awarded $270 per hour rate in vaccine cases, a reasonable local rate for work performed in 2014-2015 would be $285 per hour.” Id. at 4; see also Pet. for Interim Fees and Costs, Aff. of Curtis R. Webb ¶ 11 (“In my opinion, $285 an hour would be a reasonable local rate for work done in 2014-2015 for an attorney of my experience (31 years as an attorney), specialization, and reputation in Twin Falls, Idaho.”). Special Master Gowen, however, chose not to use the rates previously employed by other special masters as the basis for determining a reasonable local hourly rate in this matter. Instead, he examined the local rates approved in several decisions of the federal district court in Boise, Idaho, which Ms. Garrison had cited for the first time in her reply brief in support of her motion for fees. Dec. on Fees at 4-6 (citing Pet’ris Reply in Supp. of Her Mot. for Interim Attorneys’ Fees and Costs at 3, ECF No. 33 (arguing that the cases established that the appropriate local rate actually “may be as high as $400 an hour”)). The Special Master concluded that 103the cases cited “support a finding that a reasonable local rate for Mr. Webb’s work in 2014 and 2015 is higher than $285 per hour.” Id. at 5. Two of the cases upon which the Special Master relied were civil rights cases decided in 2014 in which the district court judges had awarded $400 per hour to several attorneys with some 21 to 34 years of experience. Id. at 4 (citing Latta v. Otter, No. 1:13-cv-00482-CWD, 2014 WL 7245631, at 1-4 (D.Idaho, Dec. 19, 2014), and Community House, Inc. v. City of Boise, No. 1:05-cv-00283-CWD, 2014 WL 1247758, at 6-7 (D.Idaho, Mar. 25, 2014). Latta was a facial constitutional challenge to Idaho laws that defined marriage as the legal union between a man and a woman. See Latta, 2014 WL 7245631, at 1. Community House was an action brought by a shelter for the homeless in Boise, Idaho, alleging that its residents had been unlawfully evicted from the shelter in violation of the Fair Housing Act, the Idaho and United States Constitutions, and various laws of the State of Idaho. See Community House, 2014 WL 1247758, at 1. The two other cases the Special Master examined were slightly older breach of contract cases in which the district court judges had awarded fees to attorneys with 41 and 30 years of experience at rates of $300 and $350 per hour respectively. Dec. on Fees at 4-5 (citing J.R. Simplot Co. v. Nestle USA, Inc., No. CV 06-141-S-EJL-CWD, 2009 U.S. Dist. LEXIS 62439 (D.Idaho, July 20, 2009) and LaPeter v. Canada Life Ins. of America, No. CV-06-121S-BLW, 2007 WL 4287489 (D.Idaho, Dec. 4, 2007)). The Special Master explained that, in his view, “the judgment of federal judges located in Idaho should be awarded significant respect, particularly on an issue such as local attorney rates with which they are presumably familiar.” Id. at 5. He concluded, therefore, “that the rates awarded in Latta, Community House, J.R. Simplot, and LaPeter are appropriate points of reference for determining Mr. Webb’s local rate.” Id. at 6. In that regard, the Special Master opined that while the four eases “vary in complexity of subject matter and procedure,” they “represent a range of complex litigation cases that I find to be generally of the same complexity as a vaccine case.” Id. He concluded that the rates awarded in these district court cases “suggest that a reasonable local rate for complex litigation matters similar to Laffey Matrix 1 cases for Idaho attorneys with over 20 years of experience in 2014 and 2015 is approximately $400 per hour.” Id. at 8. In the four cited cases that Special Master Gowen used as points of reference, attorneys’ fees were available only to prevailing parties. By contrast, attorneys’ fees may be awarded in vaccine cases regardless of whether petitioners prevail on their underlying ’claims. See 42 U.S.C. § 300aa-15(e) (permitting the special master to award attorneys’ fees and costs whether or not the special master awards the petitioner any compensation). Therefore; the Special Master reduced the $400 per hour rate awarded in the Idaho district court cases by 18.3% to eliminate what he called the “risk premium.”2 Dec. on Fees at 8. So reduced, he concluded that “a reasonable local rate for Mr. Webb’s work performed in 2014 and 2015 is $327 per hour.” Id. 104Special Master Gowen then compared this 'local rate to the Washington, DC rate. In determining the forum rate, Special Master Gowen relied on a determination he had made in McCulloch that $350 to $425 per hour was “a reasonable range for attorneys with more than 20 years of experience” who take Vaccine Program cases in Washington, DC. Id. at 10 (citing McCulloch, 2015 WL 5634323). Special Master Gowen found that “[b]ased on the quality of Mr. Webb’s advocacy and years of vaccine program experience”3 Mr, Webb should be awarded the median forum rate in Washington, DC of $387.50 per hour. Id. at 11. The Special Master then addressed whether the difference between the local rate and the forum rate was sufficiently large to require use of the local rate to calculate the award of fees consistent with Avera. He concluded that the local rate of $327 per hour is “not very significantly different” from the median forum rate of $387.50 per hour. Indeed, he concluded that whether the forum rate is $387.50, $415, or $425 per hour, the local rate “is different, but not very significantly so, from the forum rate range in McCulloch.” Id. at 10 (original emphasis). Therefore, the Special Master ruled that, under Avera, the fee award should be calculated on the basis of the forum rate. Id. IV. Request for Review Pursuant to RCFC, Appendix B, Vaccine Rules 23 and 24, the government filed a Motion for Review of the Special Master’s decision on May 31, 2016. Def.’s Mot. for Review (Def.’s Mot.), ECF No. .42. The petitioner filed a response, and oral argument was held on August 9, 2016. DISCUSSION I. Jurisdiction and Standard of Review The Court of Federal Claims has jurisdiction under the Vaccine Act to review a special master’s decision upon the timely request of either party. See 42 U.S.C. § 300aa-12(e)(l)-(2). The court’s jurisdiction extends to requests for review of a special master’s decision awarding a petitioner interim attorneys’ fees. See Avera, 515 F.3d at 1352; RCFC Vaccine Rule 13 (stating that a special master’s decision regarding attorneys’ fees is treated as “separate” for the purposes of obtaining review in the Court of Federal Claims). Therefore, this Court has jurisdiction oyer the government’s motion for review of Special Master Gowen’s April 29, 2016 decision on interim attorneys’ fees and costs. The Court’s scope of review of Special Master Gowen’s decision is prescribed by statute. Pursuant to 42 U.S.C. § 300aa-12(e)(2), upon review of the record, the Court of Federal Claims may: (A) uphold the findings of fact and conclusions of law of the special master and sustain the special master’s decision, (B) set aside any findings of fact or conclusion of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law, or (C) remand the petition to the special master for further. action in accordance with the court’s direction. As the court of appeals has observed, the standards set forth in 42 U.S.C. § 300aa-12(e)(2)(B) “vary in application as well as degree of deference.” Munn v. Sec’y of Dep’t of Health & Human Servs., 970 F.2d 863, 870 n. 10 (Fed.Cir.1992). “Fact findings are reviewed ... under the arbitrary and capricious standard; legal questions under the ‘not in accordance with law standard; and discretionary rulings under the abuse of discretion standard.” Id. Pursuant to the Vaccine Act, a special master or the court may award reasonable attorneys’ fees and costs incurred in the proceedings “if the special master or court 105determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the -petition was brought.” 42 U.S.C. § 800aa-16(e)(1). An attorney fee award by either a special master or by the court is reviewed under the abuse of discretion standard. Hall v. Sec’y of Health & Human Servs., 640 F.3d 1361, 1366-67 (Fed.Cir.2011). “An abuse of discretion exists “when the trial court’s decision is clearly unreasonable, arbitrary or fanciful, or is based on clearly erroneous findings of fact or erroneous conclusions of law.’” Lazare Kaplan Int’l, Inc. v. Photoscribe Techs., Inc., 714 F.3d 1289, 1293 (Fed.Cir.2013) (quoting Fiskars, Inc. v. Hunt Mfg. Co., 279 F.3d 1378, 1382 (Fed.Cir.2002)). II. Merits A. Determination of Attorneys’ Fees in Vaccine Act Cases The Federal Circuit has “endorsed the use of the lodestar approach to determine what constitutes ‘reasonable attorneys’ fees’ under the Vaccine Act.” Avera, 515 F.3d at 1347 (quoting Saxton ex rel. Saxton v. Sec’y of Health and Human Servs., 3 F.3d 1517, 1521 (Fed.Cir.1993)). Under that approach, the special master or the court “first determines an initial estimate of a reasonable attorneys’ fees by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’ ” Id. at 1348 (quoting Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)); see also Hall, 640 F.3d at 1353. “[A] reasonable hourly rate” is “ ‘the prevailing market’ rate defined as the rate ‘prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.’ ” Avera, 515 F.3d at 1348 (quoting Blum, 465 U.S. at 896 n. 11, 104 S.Ct. 1541). The general rule under fee shifting statutes is that a reasonable hourly rate will be based on the “forum rate”—that is, the market rate of the locale in which the deciding tribunal sits. Avera, 515 F.3d at 1348. The forum rule is generally used because it is “neutral” and “will not work to any clear advantage for either those seeking attorneys’ fees or those paying them.” Donnell v. United States, 682 F.2d 240, 251 (D.C.Cir.1982); see also Davis County, 169 F.3d at 759. Moreover, without the forum rule, “plaintiffs would be free not only to retain counsel from literally anywhere in the United States, but arguably the entire world .... The forum rate rule is the most sensible method of avoiding such excesses, while allowing parties to select competent counsel of their choice.” Pub. Interest Research Grp. of N.J., Inc. v. Windall, 51 F.3d 1179, 1187 (3d Cir.1995) (quoting Student Pub. Interest Research Grp. of N.J. v. Monsanto Co., 721 F.Supp. 604 (D.N.J.1989)). The court of appeals has held that in Vaccine Act cases, “a court in general should use the forum rate in .the lodestar calculation,” as “there is no reason to depart from the general rule that a court should apply a forum rate” when calculating attorneys’ fees. Avera, 515 F.3d at 1349. The court of appeals, however, has also noted the existence of a “limited exception” to the forum rule in cases where the bulk of an attorney’s work is performed outside of the forum and where there is a “very significant” difference between the forum rate and the local rate. Id. at 1349 (citing Davis County, 169 F.3d at 759). This limitation on the general rule—known as the “Davis County exception” in recognition of the case from which it originates—is designed to prevent windfalls and avoid the “ ‘occasional erratic result where the successful petitioner is vastly overcompensated.’” Id. at 1349 (quoting Davis County, 169 F.3d at 758-59). As the court of appeals has observed, “[a]pplying this exception ensures that attorneys are awarded reasonable compensation for their work and more appropriately reflects the purpose of a fee-shifting statute, especially in cases arising under the no-fault Vaccine Act.” Hall, 640 F.3d at 1353. There is no objective standard or bright line rule for determining when the difference between a local and forum rate should be considered “very significant” for purposes of invoking the Davis County exception. Indeed, the court of appeals has observed that setting such a rule “would be stifling and impractical.” Hall, 640 F.3d at 1357. It has also noted that “making this determination is multifaceted and the experience of the spe106cial master is invaluable to it.” Id Thus, it has instructed that “[sjpecial masters should ... continue to rely on the evidence before them and their own trial experience in similar litigations in making such a determination.” Id. B. Special Master’s Determination of Mr. Webb’s Local Rate The court of appeals has recognized that special masters have “discretion in determining the amount of a fee award” in light of their “superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.” Saxton, 3 F.3d at 1521 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Further, because “[s]uch fee determinations are within the discretipn of a trial forum,” they “are entitled to deference.” Id. Thus, “[i]f the special master has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision, reversible error will be extremely difficult to demonstrate.” Hines ex rel. Sevier v. Sec’y of Dep’t of Health & Human Servs., 940 F.2d 1518, 1528 (Fed.Cir.1991). In this case, the Special Master engaged in a multi-factor analysis to determine a reasonable local rate for Mr. Webb’s services, and the basis for his decision is fully explained in his opinion. As described above, he considered the rates at which attorneys’ fees had been awarded to Mr. Webb in several previous vaccine cases, took into account Mr. Webb’s significant experience in vaccine litigation and the high quality of his work, and noted that there were only a limited number of attorneys in Idaho who take vaccine cases. Dec. on Fees at 3^4. In addition, the Special Master examined four Idaho district court decisions involving other fee shifting statutes, and used them as reference points to determine a reasonable local rate in this case. Id. at 4-5. Finally, he made downward adjustments to the rates awarded in the district court cases to address the “risk premium” that would play a part in determining the rates charged in eases—like those decided by the Idaho district court—where attorneys’ fees are awarded only to prevailing parties. Id. at 5-8. Based upon his consideration of all of these factors, he determined that $327 per hour was a reasonable local rate for services by an attorney with Mr. Webb’s level of expertise and high quality of representation. Id. at 8. Notwithstanding this detailed analysis, the government contends that the Special Master abused his discretion in setting Mr. Webb’s local rate at $327 per hour because the $327 per hour rate was higher than the rate Mr. Webb identified in his affidavit as a reasonable local rate for his services. Def.’s Mot. at 7. Moreover, the government argues that the Special Master did not provide an adequate explanation of why he rejected the rate specified in Mr. Webb’s affidavit. Id. In addition, the government asserts, the district court eases upon which the Special Master relied were of greater complexity and impact than a vaccine case, and so do not support a rate of $327 per hour for a vaccine practitioner. Id. at 8. These arguments lack merit. The government identifies no basis for precluding the Special Master from awarding fees at a rate higher than that initially sought by counsel, if other evidence of record supports such a rate. And there is no merit to the government’s argument that the Special Master “utterly fail[ed] to explain” why he selected a local hourly rate ($327) that was higher than the one set forth in counsel’s affidavit ($285). Id. at 8. To the contrary, the Special Master explained his reasoning in detail, observing that it was appropriate to use the cited district court cases as points of reference because although the cases “vary in complexity of subject matter and procedure” they were “generally of the same complexity as a vaccine case.” Dec. on Fees at 6. Citing his earlier decision in McCulloch, he reasoned that many of the civil rights, employment discrimination, and Freedom of Information Act cases in which courts have awarded Laf-fey Matrix rates (with the concurrence of the U.S. Attorney for the District of Columbia) “are not as complex as, or no more complex than, vaccine cases in terms of their subject matter and evidence.” Id. (quoting McCulloch, 2015 WL 5634323, at 18). 107There is nothing “clearly unreasonable, arbitrary or fanciful” about the Special Master’s conclusion that the district court cases upon which he relied involved a level of complexity analogous to vaccine cases. In fact, as the Special Master observed, two of the cases upon which he relied— J.R. Simplot and La-Peter —“did not involve particularly complex subject matter” at all. Id. at 7. Thus, “[i]n J.R. Simplot, the court noted that although the ‘document production and organization may have been intensive, the legal issues presented—breach of contract, fraud, and the like—were not particularly novel or complex.’” Id. at 7 (quoting 2009 U.S. Dist. LEXIS 62439, at 34). “Similarly,” the Special Master noted, the court in LaPeter stated that “[t]he nature of this case, essentially a breach of contract ease, was not exceptional,” and that the case was “more akin to the ordinary personal injury case.” Id. (quoting 2007 WL 4287489, at 3). The Court acknowledges that cases like Latta, which involved a controversial and cutting-edge constitutional issue (marriage equality), or Community House, which concerned the rights of homeless persons to be free from discrimination under the Fair Housing Act, are unique in terms of their profile and potentially broad reaching impact. But the Special Master’s decision was based on his own litigation experience as well as his understanding of vaccine cases generally and this case in particular. His observation that while petitioners in vaccine cases need not demonstrate a .constitutional violation, such cases do involve “difficult issues of causation,” is entitled to deference. Id. at 7. Further, as a case cited by the government suggests, it is not unreasonable to compare vaccine cases to Latta and Community House in the sense that both “allow a lawyer to bring superior skill or experience to bear to justify a higher hourly rate, either through more efficient use of time or by more sophisticated understanding or development of issues.” Newman v. City of Payette, No. 1:15-CV-00145-CWD, 2016 WL 1611430, at 4 (D.Idaho, Apr. 21, 2016); Def.’s Mot. at 8. In short, the Special Master acted well within his discretion when he identified $327 per hour as the relevant local rate on the basis of a multi-factor analysis. The government’s arguments to the contrary are without merit. C. The Special Master’s Determination of the Forum Rate The Special Master’s determination of the forum rate applicable to Mr. Webb’s services was also within the bounds of reasonableness. In determining the forum rate, the Special Master relied upon his decision in McCulloch, where he found a forum rate range of $350 to $425 per hour to be a “reasonable rate range for attorneys with more than 20 years of experience, depending on the special master’s judgment of the attorneys’ years of experience in practice and in the Vaccine Program in particular, quality of advocacy in vaccine cases, and reputation in the legal community and community at large.” Dec. on Fees at 10 (citing McCulloch, 2015 WL 5634323, at 17-19.) The Special Master noted that the range was “designed to allow considerable discretion” based on a “multi-factorial” analysis. Id. He determined that the forum rate for 2014-15 for someone with Mr. Webb’s skills and experience was $387.50 per hour, the median of the forum rate range established in McCulloch. Id. at 11. He based this determination on the quality of Mr. Webb’s work, his experience litigating in the vaccine program, and the rates awarded to Mr. Webb in the past. For purposes of this ease, the government does not take issue with the forum rate range established in McCulloch. It argues, however, that the Special Master failed to articulate why Mr. Webb’s hourly rate would lie in the median portion of that range rather than at $415 per hour. In support of its claim, the government notes that in McCulloch, Special Master Gowen set a rate of $415 per hour for attorney Kevin Conway, who had forty-five years of total experience, twenty-six years in the vaccine program and had served on various vaccine-related committees. Def.’s Mot. at 10-11. The Court finds this argument unpersuasive. The Special Master did not do a head-to-head comparison of the skills and experience of Mr. Webb and Mr. Conway; nor was he required to do so in order to set a reasonable rate for Mr. Webb. 108It was sufficient that he clearly identified those aspects of a multi-factorial analysis that supported his decision to place Mr. Webb in the median range. Moreover, the Court notes that Mr. Conway has 45 years of overall experience as an attorney, compared to Mr. Webb’s 31 years, and that—-as Special Master Goweris decision in McCulloch reveals—Mr. Conway is also an adjunct professor of law at Boston College. McCulloch, 2015 WL 5634323, at 19. Therefore, the Special Master’s decision to assign an hourly forum rate to Mr. Webb that was some nine percent lower than the hourly forum rate he assigned to Mr. Conway was an appropriate exercise of discretion by the Special Master that the Court is in no position to second guess. D. Special Master’s Comparison of the Local Rate and the Forum Rate After determining that the appropriate local rate for Mr. Webb’s services was $327 per hour, the Special Master compared that rate with the forum rate range of $350 to $425 per hour. He concluded that “the difference between the local rates in Twin Falls, Idaho, and forum rates in Washington, D.C. is not Very significant’ and therefore Mr, Webb’s hourly rate should be determined by reference to forum rates.” Dec. on Fees at 9. The Court concludes that the Special Master acted within his discretion in making this determination. First, the Special Master’s decision is consistent with prior decisions addressing, the applicability of the Davis County exception. As the Special Master observed, courts that have found the difference between local and forum rates to be “very significant” involved much greater disparities than exists in this case. Thus, “in Davis County, the D.C. rate sought was approximately 70% higher than local rates.” Id. 10 (citing Davis, 169 F.3d at 757). “In Avera, the requested D.C. rate of $598 per hour was ‘nearly three times’ the local rate of $200—199% greater.” Id. (citing Avera, 515 F.3d at 1350). And in Masias v. Sec’y of Health & Human Servs., 634 F.3d 1283, 1286 (Fed.Cir.2011), the Federal Circuit affirmed an award based on local rates for Cheyenne, Wyoming, of $220 per hour in 2008, where the forum rate would have been $350 per hour, a 59% difference.4 The Special Master noted that in this case—by contrast—there was only an 18.5% difference between the local rate of $327 per hour and the $387.50 per hour forum rate applicable to Mr. Webb’s services. Dec. on Fees at 9. He further noted that the $415 per hour forum rate requested by petitioner was 26.9% higher than the $327 local rate and that even if he applied the high end- of the McCulloch forum rate range, $425 per hour, the difference would be 30%. Id. Comparing these differences to those at issue in Davis County, Avera, and Masias, he concluded that whether the forum rate is $387.50, $415, or $425 per hour, the local rate “is different, but not very significantly so, from the forum rate range in McCulloch.” Id. at 10 (emphasis in original). ■The Special Master’s conclusion that the 18.5% difference between the local and forum rates that applied to Mr. Webb’s services was not ‘Very significant” for purposes of invoking the Davis County exception was not an abuse of his discretion. .The Davis County exception was intended to be “limited” and apply only to the “occasional erratic result where the successful petitioner would be vastly overcompensated.” 169 F.3d at 758-59. Such ‘Vast overcompensation” would have resulted if the forum rate had been used in Davis County because it was 70% higher than the local rate, and also in Avera where the forum rate was nearly three times as high as the local rate ($598 per hour as compared to $200 per hour). While the difference here, whether viewed as a percentage (18.5%) or in absolute dollars ($60.50 per hour), is not insignificant, it was not unreasonable for the Special Master to conclude— on balance—that the use of the forum rate would not result in the ‘Vast overcompensation” of counsel. Finally, the Court is not persuaded by the government’s argument that the result of the 109Special Master’s decision “is to essentially eliminate the Davis County exception entirely.” Def.’s Mot. at 14. In considering the government’s challenges, the Court has been mindful of the court of appeals’ observations in Hall: 1), that “[t]he special master is .,. intimately familiar with the facts necessary to make the very significant difference determination;” 2) that “[t]he special master is better equipped, to decide whether or not there is a difference between the two rates and the degree of that difference, as his or her ‘superior understanding of the litigation’—something an appellate court lacks—is essential to this determination;” and 3) that “making this determination is multifaceted and the experience of the special master is invaluable to it.” 640 F.3d at 1357. It is also mindful of the fact that the court of appeals has eschewed the use of bright line rules in making the very significant difference determination. Id. (finding that a bright line rule would be “stifling and impractical”). In short, a special master’s decision in any one case cannot “eliminate” the Davis County exception because each request for fees turns on its own specific facts and circumstances. And, given the narrow scope of its review, the court of appeals’ admonitions, and the care with which Special Master Gowen analyzed the issue in this case, the Court defers to the Special Master’s determination that the rates in this case are not “very significantly different” and that use of the forum rate will not “vastly overcompensate” counsel for his work. CONCLUSION On the basis of the foregoing, the government’s motion to review pursuant to RCFC Vaccine Rule 23 is DENIED, and the Special Master’s award of attorneys’ fees is AFFIRMED. IT IS SO ORDERED. . The Laffey Matrix is a "schedule of rates maintained by the Department of Justice to compensate attorneys prevailing in complex federal litigation" subject to fee shifting statutes. Rodriguez v. Sec'y of Health & Human Servs., 632 F.3d 1381, 1383 (Fed.Cir.2011) (citations and quotations omitted). . Special Master Gowen's risk premium analysis was first set forth in his decision in McCulloch. See 2015 WL 5634323, at 18- 19. As he explained in this case, to establish a "risk premium” of 18.3%, he compared the Laffey Matrix rates for Washington, DC to the forum rate for Vaccine Act cases in Washington, DC. Dec. on Fees at 6. He explained his calculation as follows: For attorneys with more than 20 years of experience, the Laffey rate is $520 per hour. Using the same framework as the Laffey Matrix, I determined that an appropriate rate range for practitioners in the Vaccine Program with more than 20 years' experience was $350 to $425. Thus, comparing the Laffey rate of $520 per hour for attorneys with 20 years' experience to the high end of the McCulloch range, $425 per hour, I effectively eliminated the risk premium by reducing the Laffey rate by approximately 18.3% for vaccine cases. Id. (citations omitted). . The Special Master observed that "[a]mong vaccine practitioners, Mr. Webb has significant experience in the Program. He has 27 years of experience representing more than 275 petitioners in the National Vaccine Injury Compensation Program. In addition, he served on the Advisory Committee on Childhood Vaccines (ACCV) from 1992 to 1995, and is currently a member of the Vaccine Committee'of the Advisory Council to the United States Court of Federal Claims. Special Masters have noted that his work is of high quality.” Dec. on Fees at 8 (citations omitted). . In Masias, the petitioner did not challenge the special master’s determination that a 59% difference was "very significant.”	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218567/	Vaccine Act Case; Review of Claim for Attorneys’ Fees and Costs; Withdrawn Petition; Reasonable Basis for Filing; Standard of Review. OPINION AND ORDER WHEELER, Judge. This vaccine case involves a challenge by the Secretary of Health and Human Services (“Respondent”) to the award of attorneys’ fees and costs to Petitioner by the Special Master after Petitioner voluntarily dismissed the case for lack of sufficient evidentiary support. Respondent is not disputing the amount awarded to Petitioner, but rather objects to payment of any fees and costs at all. For the reasons explained below, the Court affirms the decision of the Special Master. 726Background In January 2015, Petitioner Rosa Allicock contacted counsel in this case regarding a possible claim based on the compensation program established by the National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-1 et seq. (“Vaccine Act”), which carries a three-year statute of limitations. In May 2015, one day before expiration of the statute of limitations, Petitioner filed an action seeking compensation on behalf of her minor child, M.A., for injuries allegedly received from vaccinations administered in May and July of 2012. Petitioner alleged that the 2012 vaccinations had significantly aggravated her son’s preexisting developmental delay, and filed partial medical records to support her claim one week after commencing the case. Petitioner submitted additional records in June and August of 2015. In October 2015, Respondent filed its “Rule 4(e) Report” required by the Vaccine Rules, and argued that Petitioner’s submitted proof did not support her claims of vaccine injury. Dkt. No. 15. In a subsequent status conference with the parties, the Special Master indicated that Petitioner’s “reasonable basis seems presumably in doubt” and ordered Petitioner to file a status report indicating whether she intended to proceed with this matter. Dkt. No. 16. Shortly afterward Petitioner filed a motion to dismiss her petition, and the Special Master issued a “Decision Dismissing Case for Insufficient Proof.” Allicock v. Sec’y Health & Human Servs., No. 15-485V, 2015 WL 10434888 (Fed. Cl. Spec. Mstr. Nov. 23, 2015) (the “Dismissal Decision”). Petitioner subsequently filed with the Court a motion for attorneys’ fees and costs, seeking payment of approximately $18,000 in attorneys’ fees and $1,700 in costs. Dkt. No. 24. Respondent countered with an Opposition objecting to any payment, arguing that the petition lacked a reasonable basis for filing as required by the Vaccine Act. Dkt. No. 25. Both parties submitted briefs on the issue, and Petitioner then asked for about $4,000 in additional fees and costs incurred in responding to Respondent’s objections. Dkt. No. 27. In May 2016, the Special Master issued the decision under review here, granting a substantial portion of Petitioner’s request for fees and costs, resulting in an award totaling approximately $20,000. Allicock v. Sec’y Health & Human Servs., No. 15-485V, 2016 WL 3571906 (Fed. Cl. Spec. Mstr. May 26, 2016) (the “Fee Decision”). Standard of Review This Court has jurisdiction to review decisions of the Special Masters in accordance with 42 U.S.C. § 300aa-12(e)(l)-(2). The Court may set aside a Special Master’s decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” § 300aa-12(e)(2)(B). A Special Master’s decision on the award of attorneys’ fees to unsuccessful petitioners is discretionary, and thus is reviewed under an abuse of discretion standard. Saxton v. Sec’y Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993). Law Governing Recovery of Fees The Vaccine Act permits the award of attorneys’ fees and costs even for unsuccessful petitioners, if the Special Master or Court determines that the petition was brought in good faith and also that there was a “reasonable basis” for the claim. § 300aa-15(e)(l). The question of having a reasonable basis to file is the focus of this review, since Petitioner’s good faith in filing has not been challenged. The statute sheds no further light on the meaning of “reasonable basis” in this context, and to date, the U.S. Court of Appeals for the Federal Circuit has not interpreted the meaning of that term for purposes of fee awards to unsuccessful vaccine petitioners. See Graham v. Sec’y Health & Human Servs., 124 Fed.Cl. 574, 578-79 (2015); Chuisano v. United States, 116 Fed.Cl. 276, 285 (2014). Some guidance is provided by the fact that “[njumerous special masters, as well as this court, have held that reasonable basis is an objective standard determined by the ‘totality of the circumstances.’” Id. at 286 (citations omitted). An unsuccessful petitioner seeking fees has the burden to affirmatively demonstrate that the petition has a reasonable basis. McKellar v. Sec’y Health & Human Servs., 101 Fed.Cl. 297, 304 (2011), citing Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994). 727Special Master’s Decision The Special Master granted a substantial portion of the requested fees and costs, even though he observed that, “this matter had barely enough reasonable basis to be viable.” Fee Opinion, at 7. He noted that the sufficiency of counsel’s investigation into the basis for a petitioner’s claim as well as statute of limitations considerations are “highly relevant” to determining reasonable basis to file. Id. at 6-7. He reasoned that here, Petitioner reported to her counsel that she observed a worsening of M.A.’s condition after the vaccinations at issue. Petitioner also claimed that a physician treating her son a few weeks post-vaccination told her that the child had an encephalopathy possibly caused by vaccination, and in fact a diagnosis of “encephalopathy” appears in the treating physician’s record. This medical record constituted “some grounds for proceeding.” Thus Petitioner’s counsel could reasonably conclude that the claim had some basis, and deserved further gathering and review of the medical records, which were slow in coming. The Special Master also credited Petitioner’s counsel’s “willingness to confront the realities of the ease with his client, and to end the matter” instead of continuing the case in hope that further proof would appear. Id. at 7-8. Arguments In its Motion for Review, Respondent argues that Petitioner failed to meet her burden to prove reasonable basis to file the suit,' citing the lack of any evidence in the medical records showing a connection between M.A’s condition and the vaccinations. Although Petitioner stated in her Petition that her son had “concerning symptoms” shortly after vaccination and also alleged aggravation of his developmental delay, there was no evidence in the record supporting these claims. In all vaccine cases, Respondent maintains, Petitioners and their counsel should be held to a stricter standard requiring due diligence to determine reasonable basis before filing the petition, thus helping to keep frivolous petitions- from adding to the growing vaccine caseload in our Court. In Respondent’s view, Petitioner did not meet that standard here. For that reason, according to Respondent, the Special Master’s decision was unreasonable and an abuse of his discretion. Counsel for Petitioner counters that Petitioner originally described her son’s aggravated developmental delays after the vaccinations and claimed that the treating physician told her that vaccination could have caused them. Since both facts if proven would support a claim for vaccine compensation, counsel argues, filing to avoid operation of the statute of limitations was justified. Although medical records were promptly requested soon after initial consultation, important records were not made available prior to the claim, forcing a filing to preserve the cause of action. Counsel also noted that once all the records were received and evaluated, Petitioner acted responsibly to dismiss her claim. Discussion In order to find an abuse of discretion in the Special Master’s award of fees in this case, a court would have to rule that a special master’s decision was “clearly unreasonable,” that it was based on an erroneous conclusion of law, “clearly erroneous,” or that it contained no evidence on which the Special Master could have based his decision. Chuisano, 116 Fed.Cl. at 284, citing Murphy v. Sec’y Health & Human Servs., 30 Fed.Cl. 60, 61 (1993). In this case, the Special Master noted that the facts made it a close decision, but on balance the need to file to avoid the statute of limitations bar, together with the key claims made by Petitioner and the delayed receipt of medical evidence to prove them, justified filing. While the Court certainly supports the development of meaningful standards to determine whether a petitioner had a reasonable basis for filing, that goal must be balanced against the public policy of encouraging access by vaccine petitioners to competent counsel. See Chuisano, 116 Fed.Cl. at 286 (“Congress recognized that having to shoulder attorneys’ fees could deter victims of vaccine-related injuries from seeking redress,” quoting Cloer v. Sec’y Health & Human Servs., 676 F.3d 1358, 1362 (Fed. Cir. 2012)). In this case, the Court cannot find that the Special Master’s decision was clearly erroneous. For these reasons, the Court finds that the Special Master acted within his discretion in *728awarding attorneys’ fees and costs, and his decision is hereby AFFIRMED. IT IS SO ORDERED.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218568/	Vaccine case; Motion for Review; Hepatitis-B vaccination; Standard of review; Al-then\ Failure to establish causation; Motion for Review denied. OPINION SMITH, Senior Judge: Petitioners, Dillon Copenhaver and Amanda Copenhaver, on behalf of their deceased minor child, Nicholas Copenhaver, seek review of a decision issued by Special Master Christian J. Moran denying their petition for vaccine injury compensation. Petitioners brought this action pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 et seq. (2012), alleging that Nicholas died from Sudden Infant Death Syndrome (“SIDS”) that was caused by the hepatitis-B (“Hep B”), diphtheria-tetanus-acellular-pertussis (“DTaP”), inactive polio vaccine (“IPV”), and haemophilus influenza type b (“Hib”) vaccines that he received at his four month well-child visit. The Special Master denied compensation, finding that Nicholas’ SIDS was not caused by the vaccinations. Copenhaver v. Sec’y of Health & Human Servs., 2016 WL 3456436 (Fed. Cl. Spec. Mstr. May 31, 2016) (Copenhaver). Petitioners now move for review of this decision. For the reasons that follow, the Court DENIES their motion. 1. BACKGROUND A brief recitation of the facts provides necessary context.2 Nicholas was born on March 7, 2013. His two week and two month checkups were routine, and he received a set of vaccinations at his two-month well-child visit. After his two-month vaccines, Ms. Copenhaver stated that he had a fever that Tylenol controlled. On July 12, 2013, Nicholas attended his four month well-child visit to the pediatrician. At that appointment, he received his Hep B, DTaP, IPV, and Hib vaccines. After receiving the July 12, 2013 vaccines, Nicholas was reportedly unsettled, restless, fussy, and lethargic, and he ran a low-grade fever. On the evening of Sunday, July 14, 2013, the Copenhavers dropped Nicholas off with his babysitter, Ms. Schoneboom. At approximately 1:00 a.m., Nicholas awoke and became fussy, so Ms. Schoneboom swaddled him in a blanket and held him up on her shoulder while she watched television. At approximately 4:00 a.m. on July 16, 2013, Ms. Schoneboom awoke to discover that Nicholas was not breathing. She attempted to resuscitate him and called 911, but efforts to revive Nicholas were unsuccessful. A general autopsy was performed on August 13, 2013, by Karl Christopher Stacy. He referred the neuropathology to Dr. Douglas C. Miller, who performed an investigation, which revealed two problems in Nicholas’ brain. The first issue was “a small malformation of one hippocampus, representing a potential cause for seizures.” Petitioners’ Exhibit (hereinafter “Pet. Ex.”) 2 at 11. The second issue was swelling in the cerebellum. Id. at 10; Transcript of Proceedings, July 30-31, 2015, at 87-88, 113-17, 241 (hereinafter “Tr. -”). Dr. Miller also noted that Nicholas did not have a defect in the arcuate nuclei,3 a brain abnormality commonly found in SIDS4 cases. Pet. Ex. 2 at 11; Tr. 179-81. Dr. Miller concluded that the vaccinations contributed to Nicholas’ death. Alternatively, Dr. Stacy concluded that “the cause of death of this sudden unexpected death of Nicholas Copenhaver is most likely rebreathing due to 180sleeping situation.” Pet. Ex. 2 at 2, Tr. 181— 82. Petitioners filed their vaccine petition on December 19, 2013, pursuant to the Vaccine Act, and alleging that “Nicholas’ death was caused by an adverse reaction to his July 12, 1013 vaccinations.” See Petition at 5. Petitioners filed the expert report and curriculum vitae of Dr. Douglas C. Miller,5 a neuropa-thologist, on July 7, 2014. Petitioner’s filed an expert report from Dr. David Axelrod,6 an immunologist, on August 12, 2014. Respondent filed an expert report from Dr. Brent T Hams,7 a neuropathologist, on December 16, 2014. Respondent filed a second expert report from Dr. Christine McCusker,8 an immunologist, on December 22, 2014. An entitlement hearing was held in Washington, DC on July 30 and 31, 2016. On May 31,2016, Special Master Moran issued a decision denying petitioners’ claim and finding that petitioners were not entitled to compensation because they failed to provide preponderate evidence that the vaccinations Nicholas received on July 12, 2013, caused his death. On June 30, 2016, petitioners filed a Motion for Review (“MFR”) of the Special Master’s decision. Respondent filed a response to petitioners’ Motion for Review (“Resp. to MFR”) on August 1, 2016. Petitioners submitted their reply in support of their Motion for Review on August 10, 2016. Argument on this motion is deemed unnecessary, and the Motion for Review is now ripe for decision. II. DISCUSSION Under the Vaccine Act, this Court may review a special master’s decision upon the timely request of either party. See 42 U.S.C. § 300aa-12(e)(1)-(2). In that instance, the Court may: “(A) uphold the findings of fact and conclusions of law..., (B) set aside any findings of fact or conclusion of law.. .found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law..., or, (C) remand the petition to the special master for further action in accordance with the court’s direction.” Id. at § 300aa-12(e)(2)(A)-(C). Findings of fact and discretionary rulings are reviewed under an “arbitrary and capricious” standard, while legal conclusions are reviewed de novo. 181Munn v. Sec’y of Health & Human Servs., 970 F.2d 863, 870 n. 10 (Fed. Cir. 1992); see also Doyle ex rel. Doyle v. Sec’y of Health & Human Servs., 92 Fed.Cl. 1, 5 (2010). Althen provides the evidentiary burden for petitioners attempting to succeed in a vaccine petition based on causation. See generally Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274 (Fed. Cir. 2005). In order to prove causation-in-fact, a petitioner must show by preponderant evidence that the vaccination brought about [petitioner’s] injury by providing: (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury. Id. at 1278. In order to succeed, petitioners must provide a “reputable medical or scientific explanation” for- their claim. Id. Within this framework, petitioners make five numbered objections to the May 31, 2016 decision. See MFR at 2. First, they assert that the Special Master improperly concluded that petitioners failed to demonstrate that the Triple Risk Model should be extended to vaccination. Id. Second, they argue that the Special Master improperly concluded that petitioners failed to show that váccinations caused Nicholas to die from SIDS. Id, Third, they assert that the Special Master improperly discredited Dr. Axelrod’s expert immunology testimony and accorded much greater weight to Dr. McCusker’s expert immunology testimony. Id. Fourth, they posit that the Special Master improperly allowed Dr. McCusker to testify outside of her area of expertise. Id. Finally, petitioners argue that the Special Master failed to apply the proper standard in determining whether petitioners met their burden of proof. Id. A. Triple Risk Model Petitioners allege that Special Master Moran improperly concluded that extending the Triple Risk Model to vaccines as an extrinsic risk factor for SIDS was unwarranted. See Petitioners Memorandum of Objections (hereinafter “Pet. Mem.”) at 4. The Triple Risk Model is an explanation for SIDS deaths first introduced in 1994 by James J. Filiano and Hannah C Kinney. Decision (hereinafter “Dec.”) at 3. The 'Triple Risk Model9 posits that three separate factors typically coincide in cases of SIDS. Id. Those factors are as follows: (1) a vulnerable time period, such as when a baby develops homeostatic control, (2) a vulnerable infant, such as one with an intrinsic defect in the brain, and (3) an external stressor.10 Dec. at 4. The vulnerable development period is typically from two months to six months of age. Id. The intrinsic stressor most focused on in SIDS deaths is a defect in the medulla oblongata,11 which is responsible for sensing the amount of carbon dioxide in the blood. Id. The external stressor could be any number of things, including but not limited to sleep position, minor respiratory or gastrointestinal illnesses, fever, and over-blanketing. Id. None of Dr. Kinney’s articles have included vaccines as an external stressor. Tr. 16061 (Dr. Miller), 427-28 (Dr. McCusker). Medical literature does not support the idea that vaccines have an effect on SIDS related deaths. Medical literature does, however, support the idea that SIDS deaths are often related to respiratory obstruction. The “Back-to-Sleep” campaign reduced the rate of SIDS by approximately 50 percent by encouraging parents to place their sleeping babies in the supine position. Tr. 127-28, 383. 182Dr. Kinney opined in an article12 from 2009 that the supine position eliminated a number of the hazardous effects of prone sleeping, including airway compression and rebreath-ing of exhaled gas. Resp. Ex. J at 3. This article further expounded on SIDS risk factors, including “bed clothes that covered the head, sleeping on sofas or other soft furniture in which the infant could become wedged, a high ambient temperature in sleeping environment, soft bedding, and bed sharing. Id. Special Master Moran highlighted that Dr. McCusker “interprets Dr. Kinney’s work as focusing on impediments in the mechanical aspects of breathing.” Dec. at 5; Tr. 380-81. In Vaccine Act cases, as long as the finding of fact is “based on evidence in the record that [is] not wholly implausible, [this Court is] compelled to uphold the finding as not being arbitrary or capricious.” Porter v. Sec’y of Health & Human Servs., 663F.3d 1242, 1249 (Fed. Cir. 2012) (quoting Cedillo v. Sec’y of Health & Human Servs., 617 F.3d 1328, 1338 (Fed. Cir. 2010)). Special Master Moran made a determination that respiratory obstruction was a more persuasive extrinsic factor than was vaccination. This was a plausible conclusion based on the testimony of the experts and available medical litera-tare. As it seems to the Court that Special Master Moran’s conclusion was wholly plausible, we are compelled to uphold it as neither arbitrary nor capricious. B. Causation Petitioners allege that Special Master Moran improperly concluded that petitioners failed to show that vaccinations caused Nicholas to die from SIDS. MFR at 2. In making this assertion, petitioners attempt to argue that “[v]accination acts as the exact same mechanism of injury as infection does in serving as an extrinsic risk factor through cytokine13 expression.” Pet. Mem. at 6. They cite repeatedly to a finding from an article14 by Yasuyo Kashiwagi, which found that “no significant difference was observed in the IL-6 and TNF-a levels between the influen-zas outpatients and immunization groups with febrile or non-febrile illness after vaccination.” Pet. Ex. 17 at 4. Special Master Moran considered this, but ultimately determined that this “specific provision.. .cannot be generalized to establish that the vaccines in this case resulted in production of a comparable amount of a different cytokine (IL-1 (3) as would have resulted from an infection.” Dec. at 24. Petitioners’ argument does comport with the Althen test. “Althen requires that petitioners must provide a ‘reputable medical or scientific explanation” for their claim.’” Cozart v. Sec’y of Health and Human Servs., 126 Fed.Cl. 488, 498 (2016)’ (quoting Althen, 418 F.3d at 1278). Once a plausible theory, backed by medical or scientific support, is set forth, petitioners then must show that there is “a logical sequence of cause and effect showing that vaccination was the reason for the injury.” Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1324 (Fed. Cir. 2006) (quoting Althen, 418 F.3d at 1278). Petitioners in this case have done neither. Simply citing to medical literature in which vaccinations may have been a factor in cyto-kine production does not, standing alone, lead to a conclusion that the vaccines given to Nicholas on July 12, 2013 caused an increase in cytokine production, which in turn lead to his death. There is no evidence that cyto-kines were even present at the time of Nicholas’ death. Petitioners’ expert, Dr. Miller, indicated that routine autopsies do not include testing for cytokine presence. Tr. 90. Petitioners’ theory relies on the presence of cytokines. It would be completely unjustified 183to leap to the conclusion that cytokines caused Nicholas’ death when there is a complete lack of evidence that cytokines were even present at the time of his death. As such, Special Master Moran was neither irrational nor arbitrary in his conclusion that “the evidence, taken as a whole does not support the theory that vaccinations can serve as an extrinsic risk factor by stimulating the production of cytokines that impair the brain’s functioning.” Dec. at 33. C. Weight of Expert Opinions Petitioners argue that Special Master Moran’s finding that Dr. MeCusker’s testimony should have greater weight than that of Dr. Axelrod is arbitrary and capricious. Pet. Mem. at 14. Special Master Moran stated in his decision that “[t]he greatest weakness in the Copenhavers’ case was the disparity in credentials among the expert witnesses.. .in immunology.” Dec. at 13. Special Masters may use them discretion in weighing expert testimony, and case law supports that discretion. Special Master Moran correctly stated the following: In considering the value of opinion testimony, special masters may consider the offeror’s expertise. See Snyder v. Sec’y of Health & Human Servs., 553 Fed.Appx. 994, 1000-02 (Fed. Cir. 2014) (special master’s finding that respondent’s experts were more persuasive due in part to their current practice in neurology compared to petitioner’s expert who had no recent practice was not arbitrary or capricious); see also, Tompkins v. Sec’y of Health & Human Servs., 117 Fed.Cl. 713, 719 (2014) (noting special master reasonably articulated one expert’s relative lack of training and experience as a basis for not crediting the witness); Holmes v. Sec’y of Health & Human Servs., 115 Fed.Cl. 469, 490 (2014) (stating the special master was reasonable in considering a testifying expert’s “research credentials in the field”); Locane v. Sec’y of Health & Human Servs., 99 Fed.Cl. 715, 727 (2011) (finding special master rationally credited an expert with specialization in the disease in determining when the petitioner’s disease began), aff'd, 685 F.3d 1375, 1380 (Fed. Cir. 2012). Dec. at 13. Petitioners attempt to argue that, because Dr. Axelrod is “a qualified, actively-practicing immunologist,” he and Dr. McCusker should have been afforded similar weight. Pet. Mem. at 17. This Court does not agree. This case clearly centered on vaccine triggered cytokine expression. Dec. at 14. Dr. Axelrod is a practicing immunologist, but “his knowledge about cytokines appears to stem largely, if not entirely, from reading journal articles. He has not published any articles on cytokines or conducted research on them.” Dec. at 17. Dr. MeCusker, on the other hand, “practices pediatric immunology every day. She has conducted research on cytokines, and written several papers on cy-tokines.” Dec. at 20. Based on the credentials of both experts, Special Master Moran was well within the bounds of his discretion in arriving at the conclusion that Dr. MeCusker’s knowledge of cytokines was superior to that of Dr. Axelrod and in affording Dr. MeCusker’s testimony greater weight. As such, this Court must uphold those findings as not being arbitrary or capricious. D. Dr. MeCusker’s Expert Testimony Petitioners further allege that the Special Master erred in allowing Dr. MeCusker to testify outside of her field of expertise. Pet. Mem. at 18. The basis of this argument lies in the fact that Dr. MeCusker “commented on the work of Dr. Hannah Kinney, who is a neuropathologist, and also commented on other articles pertaining to the neuropathy of SIDS far outside of her field of immunology.. .Dr. MeCusker also offered testimony on how infants breathe, which is far outside of the field of immunology.” Pet. Mem. at 18. While Dr. MeCusker may not be an expert in the field of neuropa-thology, she is a board certified pediatrician. Resp. Ex. D at 3. Special Master Moran determined that “[a]s a board certified pediatrician, Dr. MeCusker was much more qualified to explain how infants breathe and what can interfere with respiration than the Co-penhavers’ experts, who lacked similar expertise in pediatrics.” Dee. at 22. 184Even if petitioners are correct in asserting that Dr. McCusker testified outside of the field her expertise, her testimony is not outcome determinative. The Copenhavers’ theory centers on the idea that vaccination can trigger cytokine expression, which in turn leads to SIDS deaths. Id. at 14. Even if Special Master Moran had excluded Dr. McCusker’s testimony involving pediatric respiration, it would not follow that vaccine triggered cytokine expression must be the cause of Nicholas’ death. Dr. McCuskei-’s testimony may have lent support to the theory that Nicholas’ case involved a respiratory related SIDS death, but, standing alone, her testimony did not, disprove petitioners’ cyto-kine theory. If Dr. McCusker had not testified about pediatric respiration, petitioners would still have failed to provide, by a preponderance of the evidence, proof that their theory of vaccine triggered cytokine expression was cause of Nicholas’s death. Regardless, Dr. McCusker testified within the bounds of her pediatric expertise, and Special Master Moran’s decision to afford her testimony great weight was neither arbitrary nor capricious. E. The Standard for Burden of Proof Finally, petitioners allege that the Special Master applied the incorrect standard when determining whether petitioners met their burden of proof. MFR at 2. They argue that Special Master Moran “erroneously required a detailed medical and scientific exposition on the biological mechanisms of Nicholas’ death.” Dec. at 19. Petitioners are correct in their assertion that “[a] finding of causation in fact in vaccine cases can be ‘based on epidemiological evidence and the clinical picture.. .without detailed medical and scientific exposition on the biological mechanisms.” Knudson v. Sec’y of Health & Human Servs., 35 F.3d 543, 549 (Fed. Cir. 1994). In order to succeed in a Vaccine claim, petitioners are not required to prove their theory of the ease with scientific certainty. However, petitioners must provide a “reputable medical or scientific explanation.” Althen, 418 F.3d at 1278. This Court is constrained by the Federal Circuit’s decision in Moberly v. Sec’y of Health & Human Servs, which held that “[although a Vaccine Act claimant is not required to present proof of causation to the level of scientific certainty, the special master is entitled to require some indicia of reliability to support the assertion of the expert witness.” 592 F.3d 1315, 1324 (Fed. Cir. 2010). As previously stated, Althen requires that petitioners must provide a “reputable medical or scientific explanation” for their claim.” Althen, 418 F.3d at 1278. “The determination of whether a proffered theory of causation is ‘reputable’ may ‘involve an assessment of the relevant scientific data.’ ” Hazlehurst ex rel. Hazlehurst v. Sec’y of Health & Human Servs., 88 Fed.Cl. 473, 479 (2009) (quoting Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009)). Furthermore, “ ‘reversible error will be extremely difficult to demonstrate’ where the special master ‘has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision.’” Porter, 663 F.3d at 1263-54 (quoting Hines v. Sec’y of Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991)); see also Lombardi v. Sec’y of Health & Human Servs., 656 F.3d at 1343, 1353 (Fed. Cir. 2010). Such is the case here. Petitioner’s theory that Nicholas’ July 12, 2013 vaccines may have triggered a cytokine expression that in turn caused his death is not wholly implausible, but “[plausibility alone, without medical or scientific support, is not enough to prove a theory of causation.” Cozart, 126 Fed.Cl. at 499. Special Master Moran has applied the proper standard in determining whether petitioners met their burden of proof. As a result, we must uphold the Special Master’s decision. III. CONCLUSION This Court understands and appreciates the pain inherent in losing a child. Unfortunately, petitioners were unable to meet their burden of proving that Nicholas’ July 12, 2013 vaccinations lead to his untimely SIDS death. For the foregoing reasons, the Court 185DENIES petitioners’ motion for review.15 IT IS SO ORDERED. . As the basic facts here have not changed significantly, the Court's recitation of the background facts here draws from the Special Master's earlier opinion in Copenhaver. . The arcuate nucleus is defined as "one of the small group of small, irregular -areas of gray substance found on the ventromedial aspect of the pyramid of the medulla oblongata." Dorland's Illustrated Medical Dictionary 1295 (32nd ed. 2012) (“Dorland’s"). .Sudden Infant Death Syndrome is defined as "the sudden and unexpected death of an apparently healthy infant, typically occurring between the ages of three weeks and five months, and not explained by careful postmortem studies.” Dorlands’s 1850 . Dr. Miller received his medical degree from the University of Miami, School of Medicine in 1978. Curriculum Vitae of Dr. Douglas C. Miller, Pet. Ex. 14 at 1. He has a Ph.D. in physiology and biophysics from the University of Miami. Id, He was a resident at Massachusetts General Hospital from 1980-84, focusing in anatomic pathology and neuropathology, Id, Most recently he serves as a clinical professor of pathology and anatomical science at the University of Missouri, School of Medicine, and he is the program director of pathology residency. Id. at 3. He is an associate medical examiner for Boone, Callaway, and Greene Counties in Missouri, Id, . Dr. Axelrod received his medical degree from the University of Michigan Medical School in 1974. Pet. Ex. 16 at 1. He is board certified in internal medicine, rheumatology, medical laboratory immunology, and allergy and immunology. Id, at 3. He was an associate professor of rheumatology at the Medical College of Ohio from 1989-91, Id. at 2. He was an associate professor from 2007-10 at the New Jersey Medical School, and during the latter two years of that period he was the interim director of the division of allergy, immunology, and rheumatology. Id. From 2010-12 he was an associate professor at Oakland University. Id. . Dr. Harris received both his medical degree from Georgetown University School of Medicine and his Ph.D. in pharmacology from Georgetown University Graduate School in 1995. Respondent's Exhibit (hereinafter "Resp. Ex.”) B at 2. From 2002-10, he was an assistant professor of pathology at Dartmouth Medical School. Id. at 3. He served as an adjunct professor of neurology at Dartmouth Medical School from 2010-13. Id. Since 2011 he has concurrently served as an adjunct associate professor of pathology at Howard University Medical School and as an associate professor of neurology an'd pathology at Georgetown University School of Medicine, and he is a member of the teaching faculty for the Pediatric Neurology Program at Children's National Medical Center in Washington, D.C. Id. at 2-3. .Dr. McCusker earned a Master's of Science at McMaster University in 1988 and a medical degree at McMaster University in Hamilton, Ontario (Canada) in 1993. Resp. Ex. D at 2. Her residency training in pediatrics was at Montreal Children's Hospital, McGill University. Id. at’ 3. She was a clinical fellow in allergy and immunology at McGill University from 1996-99. Id. She served as an assistant professor of pediatric allergy and immunology from 2000-08 and has been an associate professor of the same since 2009 at Montreal Children’s Hospital and McGill University. Id. at 4. She is board certified in pediatrics. Id. at 3. . James J. Filiano and Hannah C. Kinney, A Perspective on Neuropathology Findings in Victims of Sudden Infant Death Syndrome: The Triple-Risk Model, 65 Biology of the Neonate 194 (1994). . Id. at 195. . The medulla oblongata is defined as "the truncated cone of nerve tissue continuous above with the pons and below with the spinal cord. It lies anterior to the cerebellum, and the upper part of its posterior surface forms the floor of the lower part of the fourth ventricle; it contains ascending and descending tracts, and important collections of nerve cells that deal with vital functions, such as respiration, circulation, and special senses” Dorland’s 1121. . Hannah C. Kinney and Bradley T. Thach, The Sudden Infant Death Syndrome, 361(8) New. Eng. J. Med. 795 (2009). . Cytokine is defined as "a generic term for nonantibody proteins released by one cell population (e.g. primed T lymphocytes) on contact with specific antigen, which act as intercellular mediators, as in the generation of an immune response.” Dorland’s 466. . Yasuyo Kashiwagi et al., "Production of Inflammatory Cytokines in Response to Diphtheria-Pertussis-Tetanus (DPT), Haemophilus Influenzae Type B (Hib), and 7-Valent Pneumococcal (PCV7) Vaccines,” 10(3) Human Vaccines & Immunotherapeutics 677 (2014). . This opinion shall be unsealed, as issued, after October 19, 2016, unless the parties, pursuant to Vaccine Rule 18(b), identify protected and/or privileged materials subject to redaction prior to that date. Said materials shall be identified with specificity, both in terms of the language to be redacted and the reasons therefor.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218569/	OPINION AND ORDER Loren A. Smith, Senior Judge This bid protest comes before the Court on the parties’ cross-motions for judgment on the Administrative Record. Plaintiff, Veterans Electric, LLC (“VE” or “Veterans Electric”), challenges the Department of Veterans Affairs (“VA” or “Agency”) Solicitation No. No: VA786-16-Q-0129 (“Solicitation,” “Request for Proposals,” or “RFP”). Plaintiff argues that the procurement decision lacked a rational basis and/or violated regulations because Architectural Consulting Group, Inc. (“ACG”) is unqualified to perform the work required under the solicitation and the award was made in violation of VA Acquisition Regulation § 852.219-10 (“VAAR”). This Court’s bid protest jurisdiction covers an enormous diversity of procurement disputes and a large dollar range. For example, a $6 billion dispute was just settled before this Court relatively quickly. The ease at bar has been disputed before both the Agency and the Government Accountability Office (“GAO”). The dollars involved in the procurement are certainly disproportionate to the legal costs involved in this dispute. Of course this Court is as willing to decide a $100 dispute as it is a $ 10 billion dollar dispute. But the cost to the parties is a legitimate concern of this Court since it has a duty to further the efficient administration of justice. In this case the parties did litigate the matter efficiently and well, so no criticism is intended. The plaintiff is litigating for a principle. The government is defending for a different principle. The plaintiffs principle is that the government must treat all bidders fairly. The government’s principle is that the dispute must be governed by the rules and by the solicitation. Both principles are correct. Unfortunately the Court cannot award relief on the basis of a principle without a legal right. Plaintiff must show that he was treated unfairly by being required to meet a different standard in the solicitation and its review by the government than was the awardee. Plaintiff submitted an A+ + proposal for $19,250.00, while ACG submitted a somewhat ambiguous proposal for $ 18,400. Plaintiffs Motion for Judgment on the Administrative Record (hereinafter “MJAR”) at 4. For a contract of this size, this difference in dollar amount is significant. As ACG has completed similar jobs for the Agency, the government was understandably comfortable with ACG. ACG’s ambiguous proposal was understood in the light of this significant past 187performance, as well as in the light of the fact the government would save almost 44% of the contract total by awarding the contract to ACG. The plaintiffs complaint raises the following question: did the VA’s award to ACG despite the ambiguous nature of its proposal violate any procurement rules? After a thorough review of the Administrative Record, this Court cannot find any violation of law occurred in this award. ACG’s proposal met all of the Solicitation’s requirements. While a third party reading ACG’s proposal might have a number of questions, the Agency, familiar with ACG and the solicitation as a whole, did not. The Court can certainly understand plaintiffs concerns in light of the record as a whole. While government procurement law does not allow credit for the goodwill created by past performance and prior positive relationships with contractors, it is impossible to eliminate the knowledge and memories of procurement officers gained from past dealings when they are reviewing the factual descriptions in the proposal. Thus, as no violation of procurement rules or regulation occurred, and as no unfair actions were taken by the procurement officials in favoring ACG, the Court must deny this protest. I. Findings of Fact On March 1, 2016, the VA issued a solicitation for electrical services in order to upgrade the Monument Circle lighting circuit at Wood National Cemetery in Milwaukee, Wisconsin. Complaint (hereinafter “Compl.”) at 6. The Solicitation is a 100 percent Service Disabled Veteran Owned Small Business (“SDVOSB”) set-aside contract. Id. at 2. Offers were to be evaluated on the best value Lowest Price Technically Accepted (“LPTA”) basis. Id. The following three factors would be used to evaluate offerors: (1) price, (2) Technical Qualifications, and (3) Past Performance. Administrative Record, page 14 (hereinafter “AR-”). The contract would be awarded “on the basis of the lowest evaluated price of proposals meeting or exceeding the technical acceptability standards for non-cost factors.” Id. Two proposals, one from Veterans Electric and one from ACG, were submitted in response to the RFP. Defendant’s Motion for Judgment on the Administrative Record (hereinafter “CMJAR”) at 4. ACG submitted a proposal with a bid of $ 13,400.00, and VE submitted a proposal with a bid of $ 19,-250.00. MJAR at 4. The proposals were both evaluated, and each proposal received a “Technically Acceptable” rating.' Id. at 5; AR 150-57. ACG received the contract award on April 6, 2016. AR 161, On April 12, 2016, the VA issued a debriefing memo at the request of Veterans Electric. AR 162. That same day, Veterans Electric filed an Agency level protest with the VA, arguing that ACG’s proposal was per se unacceptable because it listed an inapplicable North American Industry Classification System (“NAICS”) code. CMJAR at 6. As a result of that protest, a Stop Work Notice was issued to ACG on April 14,2016. AR 159. The award was then affirmed on April 18, 2016, when the Contracting Officer issued a response to VE’s arguments. AR 246-48. Veterans Electric then filed a protest with the GAO on May 26, 2016, again arguing that ACG used the wrong NAICS code, that ACG was not a qualified electrical contractor and would have to subcontract out most of the work, and that ACG’s lower price point was dubious and subjected the government to liability and increased costs. MJAR at 5; AR 268-71. The GAO denied VE’s protest on August 25, 2016. AR 260-63. On September 7, 2016, this complaint followed. See generally, Compl. Plaintiff argues that the procurement decision lacked a rational basis and/or violated regulations because ACG is unqualified to perform the work required under, the solicitation and the award was made in violation of VAAR § 852.219-10. Oral Argument was held on October 5, 2016, and the Cross-Motions for Judgment on the Administrative record are now ripe for decision. II. Discussion A. Standard of Review This Court’s jurisdictional grant is found primarily in the Tucker Act, which provides the Court of Federal Claims the power “to render any judgment upon any claim against the United States founded either upon the Constitution, or any Act of 188Congress or any regulation of an executive department, or upon any express or implied contract with the United States.. .in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). This Court has jurisdiction over bid protest actions pursuant to 28 U.S.C. § 1491(b). The Court evaluates bid protests under the Administrative Procedure Act’s standard of review for an agency action. Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005) (citing Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)). Under Rule 52.1 of the Rules of the Court of Federal Claims, the parties are limited to the Administrative Record, and the Court makes findings of fact as if it were conducting a trial on a paper record. See id. at 1364. Looking to the Administrative Record, the Court must determine whether a party has met its burden of proof based on the evidence in the record. Id. at 1355. Standing in bid protests is framed by 28 U.S.C. § 1491(b)(1) which requires the bid protest to be brought by an “interested party.” A protestor is an “interested party” if it is an “(1) actual or prospective bidder and (2) possesses] the requisite direct economic interest.” Weeks Marine, Inc., v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009) (citing Rex Serv. Corp. v. United States, 448 F.3d 1305, 1308 (Fed. Cir. 2006)). “To prove a direct economic interest as a putative prospective bidder, [the bidder] is required to establish that it had a ‘substantial chance’ of receiving the contract.” Id; see also Info. Tech. & Appl. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003) (“To establish, prejudice, [the protestor] must show that there was a ‘substantial chance’ it would have received the contract award but for the alleged error in the procurement process.”); see also Statistica, Inc. v. Christopher, 102 F.3d 1577, 1580 (Fed. Cir. 1996). The nature of the protest will dictate the necessary factors for a “direct economic interest.” Sys. Appl. & Techs. v. United States, 691 F.3d 1374, 1382 (Fed. Cir. 2012). B. Technical Requirements Plaintiff argues that the Contracting Officer’s decision to award the contract to ACG lacked a rational basis or involved a violation of regulation or procedure because ACG failed to comply with the technical requirements of the RFP. MJAR at 10. In making this argument, plaintiff alleges that ACG did not provide a work plan, and, as such, its proposal was technically deficient. Id. Plaintiff points to the following description from the Solicitation: Technical capability will be evaluated to determine the extent to which it demonstrates a clear understanding of all features involved in performance of the requirements identified in the SOW. The proposal should not simply restate the Government’s requirements, but it should describe, in detail, how the Offeror intends to meet the requirements. Id; AR 14. Plaintiff attempts to argue that this description creates the requirement that all offerors submit a work plan along with their proposal. This Court does not agree with that assertion. The Solicitation provides five ways in which an offeror can demonstrate its technical qualifications: summarizing past experience, indicating the qualifications of key personnel, providing a list of personnel and equipment, submitting a “performance plan,” and demonstrating “Overall Technical Acceptability.” AR 14. Defendant argues that the Solicitation merely requires that “offer-ors must demonstrate their technical qualifications.” CMJAR at 10. This Court finds that interpretation to be more persuasive. The simple fact that an offeror may submit a “performance plan” in order to demonstrate its technical qualification, does not, in and of itself, create a requirement that all offerors use that same method of demonstration. Plaintiff further argues that the award was defective because ACG failed to provide information related to employees’ electrician licenses, which runs afoul of Wisconsin law. MJAR at 10. This Court rejects that argument for two reasons. First, nothing in the Solicitation required that licenses be provided along with proposals. Plaintiff points to AR 51 in citing to the alleged requirement that offerors provide licenses. Id. Defendant correctly asserts that “the only plausible source for this ‘requirement’ on that page is 189VAAR 852.236-91” which states that the signing of a bid by an offeror indicates that “if newly entering into a construction activity, bidder has made all necessary arrangements for personnel, construction equipment, and required licenses to perform construction work.” CMJAR at 12, citing VAAR 852.236-91(a)(2). Defendant also argues that, even if this language was construed as a requirement that offerors provide licensing information, ACG would not be subject to that clause as ACG has extensive construction history and is not “newly entering into a construction activity.” Id. This Court finds defendant’s argument persuasive. Additionally, this Court acknowledges that Wisconsin law requires a license to “install, repair, or maintain electrical wiring,” Id.) Wisconsin Administrative Code § SPS 305.40. However, this provision affects the contract’s administration, as opposed to ACG’s technical qualification for the award. In bid protest cases, this Court does not exercise jurisdiction over whether a contractor will comply with the requirements of its contract. See Precision Standard, Inc. v. United States, 69 Fed.Cl. 738, 755 (2006) (finding an awardee’s ultimate compliance with a subcontractor limitation clause was a matter of contract administration which the Court does not review in a bid protest context). As such, this court must reject plaintiffs argument that the Contracting Officer was arbitrary and'capricious or in violation of regulation or procedure in awarding the procurement to ACG. C. ACG’s Qualification Plaintiff argues that the Contracting Officer’s decision to award the contract to ACG lacked a rational basis or involved a violation of regulation or procedure because ACG was not qualified to perform the work required under the Solicitation. MJAR at 11. In making this argument, plaintiff asserts that ACG should not have been deemed qualified because the proper NAICS code was not included in its System for Award Management (“SAM”) registry or anywhere within its proposal. Id. The Solicitation includes NAICS code 238210 and specifies that offerors should have a size standard of $ 15 million. AR 4. NAICS code 238210 is not included in ACG’s SAM registry. AR 273. However, lacking a specific NAICS code will not preclude a potential offeror from receiving a procurement award. The Small Business Administration’s (“SBA”) website says the following: Your business may have a myriad of capabilities, and the NAICS code for a given procurement opportunity may not be the same as your primary NAICS code. That will not keep you from bidding or making an offer, so long as you meet the size standard for the procurement and have the capacity to provide the goods or services. AR 246; see also http://www.sba.gov/ contracting/getting-started-contractor/ determine-your-naics-code (accessed October 14, 2016). The NAICS code provided by ACG is 541310, which has a $ 7.5 million size standard. AR 136; see also 13 C.F.R. § 121.201. As such, this Court must agree with defendant’s assertion that “the agency had a reasonable basis to conclude that the awardee met the size standards required by the Solicitation.” CMJAR at 15. Furthermore, the GAO has routinely ruled that there is “no statutory or regulatory requirement for the NAICS code in a solicitation to be listed in an offeror’s [SAM predecessor database].” High Plains Computing, Inc. d/b/a HPC Solutions, B-409736.2, Dec. 22, 2014, 2014 CPD ¶ 379 at 6-7 (citing S4, Inc., B-299817, Aug. 23, 2007, CPD ¶ 164 at 8). While this Court is not bound by the decision of the GAO, that logic is persuasive. The decision to award the procurement to an offeror without the exact NAICS code listed in the Solicitation was neither arbitrary nor capricious and was not a violation of law or procedure. Finally, .plaintiff argues that ACG should not have been awarded the contract because it was not a registered service disabled, veteran-owned small business (“SDVOSB”). MJAR at 12. Plaintiff points out that the C.F.R. requires that “at least 25 percent of the cost of the contract performance incurred for personnel will be spent on the concern’s employees or the employees of other eligible service-disabled veteran-owned small business concerns.” 48 C.F.R. § 852.219-10(c)(4). However, nothing in that clause requires 190self-performance by the awardee of the contract. If ACG were to sub-contract out not less than 25% of the work to an SDVOSB, it would not be in violation of that provision. Plaintiff counters this argument by pointing out that “[t]o the extent ACG intended to sub out the contract to another SDVOSB-eligible concern, its proposal is silent.” While that may be true, it is again important to note that the Court of Federal Claims historically does not extend its jurisdiction to contract administration in bid protest cases. At present this Court is loath to sway from that tradition and must deny the protest. III. Conclusion This Court does not come to this decision lightly. It is clear that the Agency was comfortable with ACG. The VA has previously contracted with ACG, and it seems obvious that the Agency understood ACG’s proposal with the knowledge gained from its past performance. That said, ACG did submit the lowest priced technically acceptable proposal. VE’s proposal was 44% higher than the one submitted by ACG. As ACG’s proposal did not violate any of the requirements of the Solicitation, the VA rationally could award the contract to ACG. The Court must thus uphold the award and deny the protest. For the reasons set forth above, plaintiffs MOTION for Judgment on the Administrative Record is DENIED. Additionally, defendant’s CROSS-MOTION for Judgment on the Administrative Record is GRANTED. The Clerk is directed to enter judgment on the Administrative Record in favor of defendant, consistent with this Opinion.2 IT IS SO ORDERED. . This opinion shall be unsealed, as issued, after November 3, 2016, unless the parties identify protected and/or privileged materials subject to redaction prior to that date. Said materials shall be identified with specificity, both in terms of the language to be redacted and the reasons therefor.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218570/	Vaccine Act Case; Review of Claim for Attorneys’ Fees and Costs; Reasonable Basis for Filing; Recovery of Fees by Unsuccessful Petitioner, Standard of Review. OPINION AND ORDER THOMAS C. WHEELER Judge WHEELER, Judge. This vaccine ease involves a challenge by the Petitioner Julie Mounts, on behalf of her daughter, M.M., to the Special Master’s decision to deny an award of attorneys’ fees and costs. Petitioner requested the award after voluntarily dismissing the underlying entitlement claim for lack of sufficient evidentiary support. For the reasons explained below, the Court affirms the decision of the Special Master. Background In December 2014, Petitioner filed an action seeking compensation on behalf of her minor child, M.M., for injuries allegedly received from varicella, diphtheria-tetanus-acel-lular pertussis (“DTaP”), and meningococcal vaccines administered in May 2012. No medical records accompanied the petition. Petitioner requested and received multiple time extensions after missed deadlines, before submitting a complete set of M.M.’s medical records in September 2015 (although additional records were submitted through January 2016). In November 2015, Respondent filed its “Rule 4(c) Report” pursuant to the Vaccine Rules, and argued that Petitioner’s submitted proof did not support her claims of vaccine injury. Dkt. No. 34. During the parties’ February 2016 status conference, Respondent challenged the viability of Petitioner’s claim, and the Special Master presented to Petitioner options for exiting the vaccine injury program. Dkt. No. 40. In March 2016, Petitioner moved to dismiss her petition citing an inability to prove that she was entitled to compensation, and the Special Master dismissed the case on the basis of insufficient proof. Mounts v. Sec’y of Health & Human Servs., No. 14-1219V, 2016 WL 1558692 (Fed. Cl. Spec. Mstr. Mar. 25, 2016) (“Dismissal Decision”). Petitioner subsequently filed a motion for attorneys’ fees and costs, seeking to recover approximately $8,700. Dkt. No. 48. Respondent opposed the Petitioner’s motion, arguing that she lacked a reasonable basis for filing the petition, as required by the Vaccine Act. Dkt. No. 50. In May 2016, the Special Master issued the Decision under review here denying Petitioner’s request for fees in its entirety. Mounts v. Sec’y of Health & Human Servs., No. 14-1219V, 2016 WL 4540344 (Fed. Cl. Spec. Mstr. July 27, 2016) (“Fee Decision”). Standard of Review This Court has jurisdiction to review decisions of the Special Masters in accordance with 42 U.S.C. §' 300aa-12(e)(l)-(2). The Court may set aside a Special Master’s decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” § 300aa-12(e)(2)(B). A Special Master’s decision on the award of attorneys’ fees to unsuccessful petitioners is discretionary, and thus is reviewed under an abuse of discretion standard. Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993). If the Special Master “considered the relevant evidence, drew plausible inferences, and articulated a rational basis” for its decision on the award of attorneys’ fees and costs, the Court will not find an abuse of discretion. Graham v. Sec’y of Health & Human Servs., 124 Fed.Cl. 574, 578 (2015) (quoting Masias v. Sec’y of Health & Human Servs., 634 F.3d 1283, 1290 (Fed. Cir.2011)). Law Governing Recovery of Fees The Vaccine Act permits the award of attorneys’ fees and costs even for unsuccessful petitioners, if the Special Master or Court determines that the petition was brought in good faith and also that there was a “reasonable basis” for the claim. § 300aa-15(e)(l). The question of having a reasonable basis to file is the focus of this review, since Petition572er’s good faith in filing has not been challenged. The statute sheds no further light on the meaning of “reasonable basis” in this context, and to date, the U.S. Court of Appeals for the Federal Circuit has not interpreted the meaning of that term for purposes of fee awards to unsuccessful vaccine petitioners. See Graham, 124 Fed.Cl. at 578-79; Chuisano v. United States, 116 Fed.Cl. 276, 285 (2014). Some guidance is provided by the fact that “[n]umerous special masters, as well as this court, have held that reasonable basis is an objective standard determined by the ‘totality of the circumstances.’” Id. at 286 (citations omitted). An unsuccessful petitioner seeking fees has the burden to affirmatively demonstrate that the petition has a reasonable basis. McKellar v. Sec’y of Health & Human Servs., 101 Fed.Cl. 297, 304 (2011), citing Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375, 1377 (Fed. Cir. 1994). Special Master’s Decision The Special Master denied the requested fees and costs, finding that “Petitioner lacked a reasonable basis for pursuing her claim under the Vaccine Act.” Fee Opinion, at 6. Had counsel for the Petitioner sought more complete medical records before filing the petition, the Special Master noted, this outcome would have been clear. The Special Master also found counsel’s claim that he consulted M,M.’s medical records before filing questionable in light of the fact that medical records were not filed until four months after the petition. Id. Counsel’s claim that the statute of limitations was soon to expire was also unavailing: because the statute of limitations would not expire for at least five months after the filing date, the Special Master concluded that counsel had sufficient time to further investigate M.M.’s medical history before filing. As to Petitioner’s reliance on an allergist’s opinion that M.M.’s symptoms of urticaria (also known as hives) were “idiopathic,” the Special Master noted that “idiopathic” merely means that the injury is of unknown origin. She discredited the notion that a petitioner has a reasonable basis to pursue a claim for every medical condition of unknown origin so long as it follows a vaccination. The Special Master concluded that the petition “was supported by not more than Petitioner’s representations, which ran directly contrary to her medical records.” Id. at 7. Arguments In the Motion for Review, Petitioner argues that there was a reasonable basis for filing the vaccine injury claim, and that contrary to the Special Master’s observations, counsel had reviewed some of the records at the time of filing as shown by the billing invoices. Petitioner further argues that her sworn affidavit supported her claims of injury following the vaccinations, although no medical records were filed with the petition. Petitioner asserts that the timing of onset is not determined solely by medical records and requires a consideration of circumstantial and direct evidence of causation. Respondent counters that there was no reasonable basis for filing the petition. The medical records do not show that the timing of the claimed injuries was reasonably related to the date of vaccination; for example, medical records indicated that M.M. developed urticaria at least fourteen months after vaccination. Thus Petitioner’s counsel should have been on notice that further investigation was needed to validate the vaccine injury claims before filing. Respondent also cites the Vaccine Act’s pleading requirements under section 300aa-ll, which requires specific supporting documentation at the outset of a ease, and urges that this points to counsel’s need to “produce supporting evidence upon which to ground his own knowledge ... as a condition precedent to an award of attorneys’ fees.” Resp’t. Mem., Dkt. No. 56, at 12. Discussion In order to find an abuse of discretion in the Special Master’s denial of fees in this case, a court would have to rule that a special master’s decision was “clearly unreasonable,” that it was based on an erroneous conclusion of law, “clearly erroneous,” or that it contained no evidence on which the Special Master could have based her decision. Chuisano, 116 Fed.Cl. at 284, citing Murphy v. Sec’y of Health & Human Servs., 30 Fed.Cl. 60, 61 (1993). In this ease, the Special Master clearly explained her view that Petitioner’s counsel did not sufficiently investigate the 573records before filing, resulting in a vaccine claim without a reasonable basis. For these reasons, the Court finds that the Special Master acted within her discretion in denying fees and costs, and her decision is hereby AFFIRMED. Pursuant to Vaccine Rule 18(b), each party is afforded 14 days from the date of this decision to object to the public disclosure of any information submitted by that party. After that period, this opinion will be released to the public. ' IT IS SO ORDERED.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218571/	Contract Disputes Act; Partial Motion to Dismiss; Failure to State a Claim; Statute of Limitations; Equitable Tolling; Lack of Subject Matter Jurisdiction. OPINION HORN, J. FINDINGS OF FACT Plaintiff, Al-Juthoor Contracting Company, (Al-Juthoor), filed its original complaint in this court, alleging that defendant, the United States, had breached a contract between the parties by failing to pay plaintiff for work performed by plaintiff in furtherance of the contract. Alleging jurisdiction in this court is proper pursuant to the Tucker Act, 28 U.S.C. § 1491 (2012), and the Contract Disputes Act of 1978 (CDA), 41 U.S.C. § 7103 (2012), plaintiff requested damages on seven, separate claims in its original complaint, totaling $7,127,393.00 for the “changes, delays, interruptions, and extra repairs required to complete the contract.” In plaintiffs amended complaint, the damages sought were increased to a total amount of $8,061,647.00, in addition to an unspecified amount for a claim of the breach of the covenant of good faith and fair dealing. Plaintiff also seeks attorney’s fees and court costs. According to plaintiff, this action was filed after the contracting officer failed to respond to plaintiff’s certified claims within 60 days of the submission of a demand letter pursuant to 41 U.S.C. § 7104(b)(1) (2012) and 48 C.F.R. § 52.233-1(c). Plaintiff asserts that the United States Army Corps of Engineers (Army Corps) awarded plaintiff task order 004 of Contract W916-QW-04-D-0014 (the contract) on September 18, 2004. Pursuant to the contract, plaintiff was to “construct and secure [a court] facility necessary to establish the rule of law in Iraq within the budgeted design/build amounts,” in the Al-Karkh neighborhood of Baghdad. Included within the contract was a Statement of Work which provided, “[t]he exact spot where the judicial facility will be built will be determined by PCO [the Procuring Contracting Officer].” Furthermore, the Statement of Work laid out the project requirements, including civil site 604work, exterior/interior security needs, design criteria for the electrical power distribution system, how debris was to be removed, heating and air conditioning ventilation systems, plumbing, and other special requirements. Although the courthouse was scheduled to be completed by June 30, 2006, plaintiff alleges that a number of “difficulties arose during the course of the construction that delayed completion,”1 In its amended complaint,2 plaintiff indicates that construction was not completed, the courthouse was not handed over to the Iraqi government, and total contract performance was not completed until December 17, 2007. Plaintiffs first alleged “difficulty” involved defendant’s delay in obtaining the required clearances for plaintiff to proceed with construction. Plaintiff maintains that defendant sent a Notice to Proceed on April 14, 2005, after which, time plaintiff began mobilizing its workers and equipment. Plaintiff asserts, however, that it could not begin construction on April 14, 2005, because the Iraqi Council of Judges had not yet authorized construction to begin. Plaintiff alleges that it did not request permission to begin construction from the Council of Judges because defendant instructed plaintiff that only the defendant could coordinate with the Council of Judges. On April 26, 2005, while awaiting approval, plaintiff claims it received a modification to the contract to build a “safe house” in the vicinity of the courthouse. Also on April 26, 2005, plaintiff claims it received a second3 Notice to Proceed. According to plaintiffs amended complaint, on May 21, 2005, “the Iraqi COJ [Council of Judges] approved the commencement of work on the courthouse” and the “Army Corps’ sent the third Notice to Proceed to Al-Juthoor in a letter from Daniel Hanas, Contracting Officer.” During the 37-day period between when the first and third notices to proceed were issued, plaintiff maintains it was forced to keep its equipment and personnel at the construction site, and was unable to undertake any replacement or additional work, because “at all times during this delay period, [plaintiff] was fully mobilized to begin work.” The amended complaint claims that the overhead costs caused by the delay totaled $682,860.00. Plaintiffs second alleged “difficulty” involved defendant’s decision to relocate the site of the courthouse from the originally designated site. Although defendant appears to have retained the site responsibly under Statement of Work § 1.1, which states “[t]he exact spot where the judicial factory will be built will be determined by PCO [the Procuring Contracting Officer],” when the relocation order was issued, plaintiff claims it had already performed a site survey for the originally designated location, which cost $85,000.00. Plaintiff claims it then had to conduct a new site survey, at an additional expense of $85,000.00. Plaintiff maintains that “it is entitled to recover the costs it incurred in response to these directives from the PCO,” Furthermore, plaintiff claims that at the new location, the courthouse increased in size, which required “significantly more fill and grading to prepare for construction.” Plaintiff estimates the costs associated with the additional fill and brick work at $1,490,766.00.4 Plaintiff also claims a new mobilization area had to be created. Although Statement of Work § 5.7 states that “[a] mobilization area will be provided” for plain605tiffs use, defendant allegedly directed plaintiff to obtain a new mobilization area, which plaintiff did, at a cost of $5,000.00/month. Plaintiff maintains it also incurred additional expenses to build the necessary office facilities in that space. Plaintiff claims defendant was made aware of these additional expenses via email on November 27, 2005. Plaintiffs complaint alleges that, as a result of defendant’s decision to change the construction site’s location, plaintiff incurred $1,869,038.00 in total, additional expenses.5 Plaintiffs third alleged “difficulty” involved defendant’s delay in approving security upgrades to the courthouse mandated by the United States Marshals. In December 2005, seven months after initial construction began, plaintiff claims that defendant issued a notice of new requirements to upgrade the courthouse’s security measures. Plaintiff claims it informed defendant that these upgrades would “have an adverse impact on the Courthouse’s overall construction because certain portions of the .Courthouse could not progress until the proposed security modifications were installed.” Nevertheless, defendant allegedly waited until .February 23, 2006 to send plaintiff a “tentative” Statement of Work for the upgrade, and waited until April 1, 2006 to send out the initial Request for Proposal.6 Plaintiff states that this Request for Proposal for the upgrades specified that it was not a Notice- to Proceed.7 Plaintiff allegedly sent an email to defendant on April 25, 2006, reminding defendant that “[t]his delay cost [sic] our company additional costs every day, so we will send you these costs and details of it later on.” Plaintiffs amended complaint indicates that on May 13, 2006, plaintiff notified defendant of various construction delays due to defendant’s alleged delays in issuing the security modification. Security Request for Proposal was issued on May 23, 2006. Plaintiff indicates it submitted an updated cost estimate of $1,612,360.14 on June 3, 2006. After-plaintiffs initial proposal was deemed “unacceptable,” plaintiff alleges it submitted a revised proposal totaling $2,752,142.05, and was awarded the security upgrade modification on July 1, 2006. According to plaintiff, the total cost'of the contract increased by $1,826,212.24 following award of the security upgrade modification. During defendant’s alleged delay in developing'the Security Request for Proposal, plaintiff claims it was unable to continue working on the courthouse and was unable to take on other work, alleging that it had to maintain all of its crew and equipment because the security modifications could have been approved at any time. Plaintiffs complaint alleges that the costs associated with the alleged delayed security upgrade modification totaled $2,068,780.Q0.8 • Plaintiffs fourth alleged “difficulty” involved defendant’s delay in authorizing repairs to the courthouse after, according to plaintiff, a November 2, 2006 friendly-fire incident by a United States'Army Stryker, an American patrol operating • nearby the work site, caused significant damage to the “substantially completed” courthouse. On November 13, 2006, plaintiff alleges it submitted to defendant its preliminary cost estimate of $175,601.00 to repair this damage. Plaintiff further alleges that defendant’s Request for Proposal for the damages as a result of the friendly fire incident was sent out on December 20, 2006, to which, plaintiff submitted, on December 30, 2006, its proposal with the same estimate of $175,601.00. On January 14, 2007, plaintiff claims defendant unilaterally reduced the estimate by $58,000.00 to $117,508.00, which plaintiff re606fused, via email. After negotiations, plaintiff claims it submitted a revised cost estimate of $331,200.72 on April 17, 2007, which defendant claimed was too high. Ultimately, plaintiff accepted defendant’s offer to perform the damage repair work for $250,000.00. Plaintiff maintains that the actual contract modification was not awarded until May 9, 2007,9 176 days10 after the Stryker unit damage occurred. Plaintiff further maintains that it could have completed the repairs at a lower cost if defendant had authorized the repairs in January 2007, instead of delaying the approval until May 9, 2007.11 Because of this delay, plaintiff maintains that it incurred costs associated with its remobilization .efforts in order to perform the repairs called for in the modification. The amended complaint alleges that the costs for the fourth alleged “difficulty” totaled $409,488.00. Plaintiffs fifth alleged “difficulty” involved defendant’s delay in connecting the courthouse’s electricity to the city’s main electrical grid. Plaintiff maintains that it designed and installed the building’s electrical system, but that it had no authority to connect the electrical system to the electrical grid. Rather, plaintiff maintains that only the defendant had the authority to coordinate with the Ministry of Electricity, because of the parties’ agreement that plaintiff would not interact directly with the Iraqi agencies. Plaintiff claims it notified defendant of this problem on May 13, 2006. Defendant responded that the contract required plaintiff to perform all of the electrical connection work, including connecting the system to the area power grid. Plaintiff claims defendant wrote an email to plaintiff that it was plaintiff who was to “ ‘[d]esign and install a complete electrical distribution system for the area, including all transformers and substations.’ ” Plaintiff maintains, however, that Statement of Work § 2.1.8, did not require plaintiff to install either transformers or substations, nor did it instruct plaintiff to connect the power system to the city electrical grid. Statement of Work § 2.1.8 states: The CONTRACTOR shall conduct a complete site investigation and field verify in order to fully research and document the electrical power distribution system. The CONTRACTOR shall map out all existing conditions to include the location and capacity of the existing in service Iraqi local sub-station. With this information, the CONTRACTOR shall provide a complete design illustrating all existing and proposed new work for the complete restoration of the facility’s primary electrical power distribution system. The CONTRACTOR shall provide the primary electrical power distribution system in accordance with the International Electromechanical Commission. Construction shall not begin until approval by SPCO [Sector Project Contracting Office] PROGRAM MANAGER. Upon approval of the design, the CONTRACTOR shall complete all work associated with the design in order to provide a comprehensive primary electrical power distribution system for all the Court Facility for them respective sites. The CONTRACTOR is responsible for all design and construction for aspects of a total and complete primary electrical power distribution system and the design process shall conform to the requirements outlined in SECTION 1, PARA 3.0: SUBMITTALS of this document. (emphasis and capitalization in original).12 Plaintiff states that, in September 2006, the parties met again and that defendant cited Statement of Work § 2.1.8.1 as the relevant 607clause of the contract placing all responsibility on plaintiff to connect the courthouse to the power grid. Statement of Work § 2.1.8.1 states: The CONTRACTOR shall provide for the connection into the existing Iraqi local substation. The power connection shall be installed in combination with and through an automatic transfer switch to the EMERGENCY ELECTRICAL POWER GENERATOR as described in SECTION 1.2.3.3 of this document. The CONTRACTOR will coordinate directly with the Local Electrical Distribution and Generation Company as required for a complete installation electrical power distribution system that will support the Court Facility requirements. The intent is to utilize the national power grid as the main power supply and the EMERGENCY ELECTRICAL POWER GENERATOR as an electrical back up as described in SECTION 1, PARA 2.3. (emphasis and capitalization in original). Plaintiff maintains that Statement of Work § 2.1.8.1 says nothing about coordinating with the Ministry of Electricity, and does not supersede defendant’s directive not to directly contact Iraqi government offices. Plaintiff claims that it emailed defendant in April 2007, noting that it could not force the Iraqi government to “ ‘do what they don’t want to do.’” Plaintiff contends that “the electrical connection to the courthouse had still not occurred” as of October 30, 2007. Plaintiff original complaint alleged the defendant’s failure to act delayed plaintiffs construction efforts for 365 days, costing plaintiff $985,500.00,13 which plaintiff altered in the amended complaint, claiming the delay in construction lasted 487 days at cost of $1,919,754.00 in damages. Plaintiffs sixth alleged “difficulty” involved the results of defendant’s improper modification of the contract, placing security responsibility on the Iraqi Ministry of Justice’s Force Protection Security. On October 7, 2006, according to plaintiff, Procuring Contracting Office Program Manager, Sundus Ali, directed the Iraqi Ministry of Justice’s Force Protection Security to take up residence at the construction site and provide security to the courthouse. Plaintiff maintains that the Force Protection Security guards prevented plaintiffs personnel from “freely accessing the site and performing work.” As a result, plaintiff claims it was forced to obtain a separate location for its project office. Furthermore, plaintiff alleges that the guards “significantly damaged the site,” forcing plaintiff to expend additional labor and materials to repair the damage. Plaintiff maintains that the defendant improperly modified the contract “when it directed the FPS [Force Protective Security] to take up residence at the construction site and provide security” because the Statement of Work directed that “[t]he CONTRACTOR is responsible for on-site security as necessary to ensure no un-authorized access to the site.” (capitalization in original). Therefore, plaintiff alleges defendant is responsible for the costs that arose from the FPS guards’ “misuse and neglect” of the construction site. The amended complaint alleges that these expenses totaled $699,567.00.14 Plaintiffs seventh alleged “difficulty” involved defendant’s delay in turnover and acceptance of the courthouse and closeout of the contract. Plaintiff alleges that at a March 2007 meeting, defendant “did not know who the Courthouse’s end use [sic] would be and who could ‘sign-off on the building.” Plaintiff alleges that the Council of Judges finally accepted the completed courthouse on December 17, 2007. During the time between October 2006, when the Force Protective Security guards, allegedly, first occupied the courthouse, and December 2007, when the Council of Judges accepted the building, plaintiff claims that defendant repeatedly required it to return to the site to make repairs, clean the facility, and conduct site visits. In order to be able to respond to these requests, plaintiff alleges it had to maintain its staff and retain equipment on the site. 608The amended complaint asserts that these costs totaled $412,160.00.15 Plaintiff raises, for the first time in the amended complaint, an allegation that defendant breached the covenant of good faith and fair dealing, which the court construes as plaintiffs eighth claim, by defendant’s “numerous failures in executing its duties and responsibilities,” which “unfairly frustrated the contract’s purpose and disappointed Al-Juthoor’s expectations,” resulting in plaintiff not obtaining the contract’s benefits. Specifically, plaintiff asserts that defendant “deliberately and consciously failed to discharge its duties to timely review Al-Juthoor’s submissions and make decisions about needed modifications to the contract,” “deliberately evaded its duty to coordinate with various Iraqi ministries and municipal entities,” and “failed to properly educate and orient its constantly changing personnel to the details of the courthouse project,” resulting in delays because these new people “did not know or understand the terms of the contract.” Plaintiff asserts it is entitled to money damages for said breach, but leaves the specific amount to cover this eighth claim to be established at trial. Notwithstanding the amount to be determined at trial, in the amended complaint plaintiff “requests the Court award damages in the amount of at least $8,061,647.00, appropriate interest, attorney’s fees, and the costs of this action.” (emphasis in original). Plaintiff argues that its claims are timely because the claims did not accrue until plaintiff knew that defendant would not pay for the delays. Plaintiff argues that its claims could not have accrued until, at the earliest, December 13, 2007, “because of the Government’s non-performance.” In the alternative, plaintiff argues that even if the claims accrued before July 26, 2007, the statute of limitations in 41 U.S.C. § 7103 was equitably tolled due to statements by Frank Kelly, the contracting officer who managed the negotiation of the security modification, and Wade Ricard, the Army Corps Resident Engineer at the Baghdad Station, in December 2007, which thereby “induced Al-Juthoor to forego other remedies with a promise of payment.” After “principal construction had ended,” plaintiff alleges that plaintiffs representative, Charley Patrick Dublin, emailed Frank Kelly and Wade Ricard at the contracting office, on December 13, 2007 to express his frustration and concern that plaintiff was being held “held hostage” regarding outstanding payments. According to plaintiff, Mr. Kelly responded by requesting a meeting with plaintiff, which occurred, but did not result in plaintiff receiving payment. On October 13, 2008, plaintiff alleges it followed up with Ronald Light, via email, the on outstanding payments. On December 24, 2008, the parties agreed to meet again and did so on January 21, 2009, but still no payment resulted. Plaintiff argues that it postponed pursuing claims because of representations made by Frank Kelly, Wade Ricard, and Contracting Officer Raymond Greenheck, that “the Government would timely compensate Al-Juthoor” and that plaintiffs “claims would be addressed before the close out of the contract.” Plaintiff does not refer to any documents to support its assertions that these representations were made, other than a December 24, 2008 email from the contracting office stating “that the only items to be included in the final invoice would be the warranty work claims.” Plaintiff further maintains that until defendant requested the final invoice,16 plaintiff was unaware that defendant would not pay for the delays, which according to plaintiff, defendant had caused. Plaintiff reiterated that “Al-Juthoor was willing to forego legal and financial remedies for delays because of Frank Kelly and Wade Rieard’s promises that the Government would timely compensate Al-Juthoor. Kelly and Ricard had stated that the Government would possibly make an immediate payment to Al-Juthoor if Al-Juthoor gave up its request for compensation arising from the Government’s delay.” On July 26, 2013, plaintiff filed its certified claim with the contracting officer. The 609certified claim identified the five difficulties identified above, (1) $682,860.00 for damages allegedly caused by Army Corps’ delay in obtaining necessary clearances from the Council of Judges; (2) $1,869,038.00 for damages allegedly caused by Army Corps’ changing the site of the; courthouse; (3) $2,068,780.00 for damages allegedly caused by Army Corps’ delay in approving the new security system requirements; (4) $409,488.00 for damages allegedly caused by the delay in approving work to repair damage caused by the United States military; and (5) $985,500.00 for damages allegedly caused by the delay in coordinating the connecting of the building’s electrical system with the main electrical grid with Iraqi Ministry of Electricity. No decision was issued by the contracting officer, and, therefore, the certified claim was deemed denied. In response to plaintiffs claims in its amended complaint, defendant moved to dismiss the first five claims, which also are all included in plaintiffs amended complaint, pursuant to Rule 12(b)(6) (2015) of the Rules of the United States Court of Federal Claims (RCFC), for failure to state a claim, alleging that plaintiffs claims are barred by the statute of limitations in the CDA. Defendant asserts that the first five claims accrued more than six years prior to plaintiff filing its certified claim with the contracting officer on July 26, 2013, in violation of 41 U.S.C. § 7103(a)(4)(A) of the CDA17 Defendant argues that the following five claims for damages, corresponding to the first five “difficulties,” are barred by the statute of limitations: (1) damages allegedly caused by defendant’s delay in obtaining necessary clearances from the Council of Judges; (2) damages allegedly caused by defendant’s changing the site, of the courthouse; (3) damages allegedly caused by defendant’s delay in approving the new security system requirements; (4) damages allegedly caused by the delay in approving work to repair damage caused by the friendly fire incident; and (5) damages allegedly caused by the delay in coordinating with Iraqi authorities for the connection of the building’s electrical system to the main electrical grid. Defendant argues that these claims accrued “at the time the underlying events giving rise "to the claim for damages occurred,” because that is when the contractor “knew or should have known of all the events that fixed liability for the government,” which according to defendant was before July 26,2007.18 Defendant also challenges plaintiffs new claims alleged in the amended complaint, asserting that the cause of action for breach of the covenant of good faith and fair dealing, as well as the increased amount of damages for plaintiffs fifth claim for breach of contract should be dismissed for lack of subject matter jurisdiction, as these were not presented to the contracting officer in a certified claim requesting a final decision. Defendant rejects plaintiffs increased “fifth breach of contract claim” regarding the delay in connecting the courthouse’s electrical ¡system to the city’s electrical grid. In both plaintiffs certified claim to the contracting officer and in the original complaint, plaintiff asserts it is entitled to $985,500.00 in damages for a 365-day delay in the electrical hookup, and now •asserts this claim entitles plaintiff' to $1,919,754.00 in damages. Defendant rejects 610this claim, not only because plaintiff does not offer an explanation for the increase, but also because the new claim amount is based on the same operative facts as the original claim and plaintiff was aware of all pertinent factors that would affect the claim amount at the time it accrued. Defendant, therefore, argues that since no new information has surfaced to justify an increased amount, the new claim should be disallowed. Defendant also maintains that plaintiffs claim for breach of the covenant of good faith and fair dealing, plaintiffs possible eighth claim, should not be permitted because it was never submitted to the contracting officer, nor did plaintiff make any allegation in its certified claim that defendant acted in “bad faith” or mention the word “fair” whatsoever. Defendant, therefore, also contends that this claim fails based on RCFC 12(b)(1) grounds for lack of subject matter jurisdiction. The parties have fully briefed the partial motion to dismiss and oral argument was held. DISCUSSION I. Statute of Limitations Defendant argues that plaintiffs first five claims must be dismissed for failure to state a claim because the claims all accrued more than six years before plaintiff filed its certified claim with the contracting officer. A motion to dismiss under RCFC 12(b)(6) for failure to state a claim upon which relief can be granted “‘is appropriate when the facts asserted by the claimant do not under the law entitle him [or her] to a remedy.’ ” Murdock v. United States, 103 Fed.Cl. 389, 394 (2012) (alterations in original) (quoting Perez v. United States, 156 F.3d 1366, 1370 (Fed. Cir. 1998)). In examining what must be pled in order to state a claim, under both RCFC 8(a)(2) and Rule (8)(a)(2) of the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the claim showing that the pleader is entitled to relief.” RCFC 8(a)(2) (2015); Fed. R. Civ. P. 8(a)(2) (2016); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); TrinCo Inv. Co. v. United States, 722 F.3d 1375, 1380 (Fed. Cir. 2013) (“To avoid dismissal under RFCF [RCFC] 12(b)(6), a party need only plead ‘facts to state a claim to relief that is plausible on its face,’ with facts sufficient to nudge ‘claims across the line from conceivable to plausible.’”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955)). The United States Supreme Court in Twombly stated: While a complaint attacked by a Rule 12(b)(6) motion to dismiss [for failure to state a claim] does not need detailed factual allegations, a plaintiffs obligation to provide the “grounds” of Ms “entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 La.Ed.2d 209 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004) (hereinafter Wright & Miller) (“[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”), on the assumption that all the allegations in the complaint are trae (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (“Rule 12(b)(6) does not countenance ... dismissals based on a judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint may proceed even if it appears “that a recovery is very remote and unlikely”) .... [W]e do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. at 555-56, 570, 127 S.Ct. 1955 (footnote and other citations omitted; brackets and omissions in original); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555-57, 570, 127 S.Ct. 1955); Totes-Isotoner Corp. v. United States, 594 F.3d 6111346, 1354-55 (Fed. Cir.), cert. denied, 562 U.S. 830, 131 S.Ct. 92, 178 L.Ed.2d 28 (2010); Bank of Guam v. United States, 578 F.3d 1318, 1326 (Fed. Cir.) (“In order to avoid dismissal for failure to state a claim, the complaint must allege facts ‘plausibly suggesting (not merely consistent with)’ a showing of entitlement to relief.” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 557, 127 S.Ct. 1955)), reh’g and reh’g en banc denied (Fed. Cir. 2009), cert. denied, 561 U.S. 1006, 130 S.Ct. 3468, 177 L.Ed.2d 1056 (2010); Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009) (“[A] plaintiff must plead factual allegations that support a facially ‘plausible’ claim to relief in order to avoid dismissal for failure to state a claim.” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955)); Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir.) (“The factual allegations must be enough to raise a right to relief above the speculative level. This does not require the plaintiff to set out in detail the facts upon which the claim is based, but enough facts to state a claim to relief that is plausible on its face.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 570, 127 S.Ct. 1955)), reh’g denied (Fed. Cir.), cert. denied, 557 U.S. 937, 129 S.Ct. 2878, 174 L.Ed.2d 580 (2009); Peninsula Grp. Capital Corp. v. United States, 93 Fed.Cl. 720, 726-27 (2010), appeal dismissed, 454 Fed.Appx. 900 (2011); Legal Aid Soc’y of New York v. United States, 92 Fed.Cl. 285, 292, 298, 298 n.14 (2010); Hall v. Bed Bath & Beyond, Inc., 705 F.3d 1357, 1362 (Fed. Cir. 2013) (“the factual allegations must ‘raise a right to relief above the speculative level’ and must cross ‘the line from conceivable to plausible.’ ” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955)). When deciding whether a plaintiff has failed to state a claim upon which relief can be granted, the court assumes that the undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the non-movant’s favor. See Cambridge v. United States, 558 F.3d at 1335 (citing Papasan v. Allain, 478 U.S. 265, 283, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)); Cary v. United States, 552 F.3d at 1376 (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991)); Anaheim Gardens v. United States, 444 F.3d 1309, 1315 (Fed. Cir.), reh’g denied (Fed. Cir. 2006); Boyle v. United States, 200 F.3d 1369, 1372 (Fed. Cir. 2000); Perez v. United States, 156 F.3d at 1370; Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). If a defendant or the court challenges jurisdiction or a plaintiffs claim for relief, however, the plaintiff cannot rely merely on allegations in the complaint, but must instead bring forth relevant, competent proof to establish jurisdiction. See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); see also Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). Therefore, although the court must assume that the undisputed facts alleged in the complaint are true for the purposes of the motion to dismiss and draws all reasonable inferences in the plaintiffs’ favor, the facts alleged in the complaint must be plausible and not merely naked assertions devoid of a factual basis. See Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; see also McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice and Procedure § 1286 (3d ed. 2004)) (mere allegations of law and conclusions of fact are insufficient to support a claim). Pursuant to the CDA, “[ejach claim by a contractor against the Federal Government relating to a contract and each claim by the Federal Government against a contractor relating to a contract shall be submitted within 6 years after the accrual of the claim.” 41 U.S.C. § 7103(a)(4)(A); see Sikorsky Aircraft Corp. v. United States, 773 F.3d at 1320; see also Ford Motor Co. v. United States, 811 F.3d 1371, 1377 (Fed. Cir. 2016). As indicated by a Judge of this court, “[t]he six-year requirement set forth in the CDA is not a limit on the time in which a suit must be filed in this court; rather, the ‘presentment period,’ as it is also known, requires a contractor to file a written claim with the contracting officer within six years after the accrual of that claim.” Uniglobe General Trading & Contracting Co., W.L.L. v. United 612States, 107 Fed.Cl. 423, 430 (2012)19 The Federal Circuit in Sikorsky explained that: A claim accrues as of “the date when all events, that fix the alleged liability of either the Government or the contractor and permit assertion of the claim, were known or should have been known. For liability to be fixed, some injury must have occurred. However, monetary damages need not have been incurred.” Sikorsky Aircraft Corp. v. United States, 773 F.3d at 1320 (quoting 48 C.F.R. § 33.201). On July 26, 2013, plaintiff submitted its certified claims to the contracting officer alleging that defendant owed plaintiff a total of $7,127,393.00 in damages,- not including interest. It is not in dispute when the events surrounding the alleged “difficulties” took place. At the time plaintiff originally filed suit in this court on January 2, 2014, the contracting officer still had not issued a decision on plaintiffs claims. On September 15, 2015, plaintiff filed an amended complaint with this court that alleged seven breach of contract claims against Army Corps, as well as a general claim for breach of the covenant of good faith' and fair dealing. As noted above, plaintiffs claims for breach of contract include: (1) failure to compensate plaintiff for the costs and delays incurred for the Army Corps’ issuing of three Notices to Proceed; (2) a two-part claim for failure to compensate plaintiff for Army Corps’ unilateral decision to change the location of the courthouse after preparations were made by plaintiff at the original site location and for failing to compensate plaintiff for the additional fill and foundation work needed at the second construction site; (3) failure to compensate for the delays (more than 120 days) incurred when Army Corps did not approve necessary security upgrade modifications; (4) failure to compensate plaintiff for delays incurred when Army Corps failed to approve of the military damage modification for 167 days; (5) failure to coordinate with the Iraqi Ministry of Electricity to connect the courthouse to the city’s electrical grid and alleging that the government was the only party with authority to communicate with the Ministry, thereby, delaying work for more than a year; (6) permitting the Iraqi Ministry of Justice to install a security service in the courthouse, resulting in damage to the courthouse and displacement of plaintiff from on-site offices, mandating that plaintiff move to an alternate office, and delaying plaintiffs ability to turn over the courthouse; and (7) failure to coordinate the final inspection and turnover of the courthouse to the Iraqi Council of Judges. The Amended Complaint added an allegation of breach of the covenant of good faith and fair dealing; and added damages in the amount of $1,919,754.00 for the fifth claim for a 487-day delay in coordinating the hookup of the facility’s electricity to the city’s electrical grid, increased from a 365-day delay alleged in the original complaint and in the certified claim submitted to the contracting officer. Therefore, the plaintiff now seeks an additional $934,254,00 in damages, bringing the amount of damages claimed in the amended complaint to $8,061,647.00. As noted above, defendant contends that this suit must be partially dismissed regarding claims one through five, for failure to satisfy the six-year statute of limitations, in 41 U.S.C. § 7103(a)(4) because when plaintiff filed its claims with the contracting officer on July 26, 2013, it was more than six years after the first five claims alleged in plaintiffs complaint accrued. Defendant argues that plaintiff knew or should have known about the costs incurred for each of the first five claims, and part of the sixth claim, on or before July 26, 2007. In response, plaintiff asserts that its claims could not have accrued until at least December 11, 2007, when one of plaintiffs representatives emailed representatives for defendant accusing “the Government of holding Al-Juthoor hostage because the Government would neither remit payments for changes nor work completed,” which, according to plaintiff, would be within 613the six years prior to plaintiffs submission of its claim to the contracting officer. Plaintiff argues that this is the earliest that it knew or should have known that defendant was not going to pay for delays it allegedly caused, because of the possibility that the government could change its mind and pay for the delays is a reasonable basis for deciding a claim had not accrued. According to plaintiff, prior to this date, plaintiff relied on defendant’s representations that “the Government would timely' compensate Al-Juthoor” and that plaintiffs “claims' would be addressed before the close out of the contract,” which caused plaintiff to refrain from taking earlier action on its claims. Relying on Arakaki v. United States, 62 Fed.Cl. 244 (2004), plaintiff argues that sufficient notice of a government act, which allegedly creates liability, may be defined differently according to the context in which the claim arises, and that “[i]n payment cases, the claim does not accrue until the government communicates its intent not [to] pay.” Plaintiff also argues that “Al-Juthoor’s claims could not have immediately accrued on the last day of any particular delay period because of the multitude of administrative steps required by the Government for Al-Juthoor to substantiate a claim for payment.” These steps included contract modifications and requests for equitable adjustments. Plaintiff relies on Franconia Associates v. United States. 536 U.S. 129, 122 S.Ct. 1993, 153 L.Ed.2d 132 (2002), which held: “The time of accrual ... depends on whether the injured party chooses to treat the ... repudiation as a present breach.” ... If that party “[e]lects to place the repudiator in breach before the performance date, the accrual date of the cause of action is accelerated from [the] time of performance to. the date of such election.” ... But if the injured party instead opts to await performance, “the cause of action accrues, and the statute of limitations commences to run, from the time fixed for performance rather than from the earlier date of repudiation.” Id. at 144, 122 S.Ct. 1993 (quoting 1 C. Corman, Limitation of Actions § 7.2.1, p. 488-89 (1991)). Plaintiff claims that it “opted to await the Government’s performance because of the multiple representations by the contracting office that Al-Juthoor’s claims would be addressed.” In response, defendant asserts that a contractors claim has “accrued” for the CDA statute of limitations purposes at the time the underlying events gave rise to the claim for damages, because that is when “all events that fix the alleged liability” of either the Government or the contractor that permit assertion of the claim, “[were known] or should have [been] known,” regardless of continued communications or negotiations between the parties, (citing 48 C.F.R. § 33.201). Defendant contends that plaintiff -failed to comply with statutory requisites for filing suit under the CDA because plaintiff fundamentally- misunderstands the “nature of ‘accrual’ in the context of 41 U.S.C. § 7103(a)(4).” For claim one, the court concludes that plaintiff should have been aware that damages would be incurred from the final Notice to Proceed on May 21, 2005 at the latest, when it was apparent that defendant was ordering plaintiff to begin work on the site without clearance from the Iraqi government. At minimum, plaintiff should have known in the 37-day period between the first and final Notices to Proceed, the time during which plaintiff waited for permission to begin work after fully mobilizing its workers and equipment, that some injury had occurred for which plaintiff would seek to recover damages. Therefore, this claim is barred by the statute of .limitations, For claim two, plaintiff knew or should have known of the facts underlying this claim by November 27, 2005, the date when plaintiff claims it made defendant aware of the additional expenses that it had incurred due to defendant’s changing the site of the courthouse.. Thus, this claim accrued before July 26, 2007, and is barred by the statute of limitations. For claim three, plaintiff seeks compensation for delays that occurred as a result of security upgrades between December 2005, when “USACE [United States Army Corps of Engineers] notified Al-Juthoor of a 614new requirement to upgrade the Courthouse’s security measures,” and July 1, 2006, when the defendant awarded the security upgrade modification to plaintiff. Plaintiff knew or should have known that it would incur significant costs when it notified defendant of the adverse impact on the construction schedule and how construction on certain portions of the courthouse could not continue until the security modifications were installed. Plaintiff, certainly, should have known by July 1, 2006, the date when the security upgrade was awarded, that it incurred costs due to defendant’s alleged delay in approving the new security upgrades to the courthouse, thus, this claim is barred by the statute of limitations. For claim four, plaintiff knew or should have known by May 9, 2007, that it had incurred costs due to defendant’s alleged delay in authorizing repairs due to the November 2, 2006 friendly-fire incident when the repair modification was finally issued after months of discussions and reductions to plaintiffs initial $176,601.00 cost estimate. This claim also accrued more than six years prior to when the certified claim was submitted to the contracting officer. Accordingly, the plaintiffs fourth claim is barred by the statute of limitations. Finally, for claim five, plaintiff knew or should have known by May 13, 2006 when it sent defendant a letter titled “Problems Causing Delay,” explaining the delay in connecting the courthouse to the city electrical grid and explaining that plaintiff had incurred costs due to defendant’s alleged delay in connecting the courthouse’s electricity to the city’s main electrical grid. Certainly by May 18, 2007, when plaintiff asserts defendant began coordinating with the Ministry of Electricity. Therefore, plaintiffs first five claims each accrued before July 26, 2007, six years before the certified claim was submitted to the contracting officer on July 26, 2013, because it was before that date that plaintiff knew or should have known of the events that gave rise to the costs incurred for those claims. Therefore, plaintiffs first five claims are barred by the statute of limitations included in 41 U.S.C. § 7103(a)(4)(A), and are, hereby, dismissed for failure to state a claim. Although not challenged by defendant in its partial motion to dismiss, the court examines the timeliness of plaintiffs sixth and seventh claims. Plaintiffs sixth claim is that it is entitled to damages allegedly caused by defendant’s improper modification of the contract. Plaintiff alleges that on October 7, 2006, defendant directed the Iraqi Ministry of Justice’s Force Protection Security to take up residence at the construction site and begin providing security to the courthouse. Plaintiff maintains that it incurred costs due to the guards preventing plaintiffs personnel from “freely accessing the site and performing work,” and in repairing the damage allegedly caused by the guards during the guards’ occupation of the courthouse site. Plaintiff claims that according to the Statement of Work only its personnel would occupy the site and be responsible for the site’s security, and, therefore, this was an improper modification of the contract.20 Plaintiff alleges that “[t]he COJ [Council of Judges] finally accepted the completed Courthouse on December 17, 2007.” Finally, plaintiffs seventh claim is that it is entitled to damages allegedly caused by defendant’s delay in closing out the contract. Plaintiff alleges that during the time between October 2006, when the Force Protective Security guards first occupied the courthouse, and December 17, 2007, when the Council of Judges accepted the completed building, defendant repeatedly required it to return to the site to make repairs, clean the facility, and conduct site visits. Therefore, events surrounding plaintiffs sixth and seventh claims affixing liability to the government occurred, at the earliest, on December 17, 2007. It was on this date that plaintiff knew or should have known of the events that gave rise to the claim for damages affixing liability for the government. See 48 C.F.R. § 33.201 (2016). Since the sixth and seventh claims accrued after July 26, 2007, less than six years prior to plaintiff filing its 615certified claims with the contracting officer, the sixth and seventh claims comply with the statutory requirements of 41 U.S.C. § 7103(a)(4)(A). II. Equitable Tolling Although the court has determined that the first five claim accrued more than six years before the plaintiff filed the certified claims with the contracting officer, according to applicable precedent, the CDA statute of limitations can be subject to equitable tolling. See Arctic Slope Native Ass’n, Ltd. v. Sebelius, 583 F.3d 785, 798 (Fed. Cir.) (“Congress intended equitable tolling to be available unless there is good reason to believe otherwise. Unlike in the ease of section 2501, there is-no long history of case law holding that the time limitation of section 605(a) [now section 7103] is absolute .... ”), reh’g and reh’g en banc denied (Fed. Cir. 2009), cert. denied, 561 U.S. 1026, 130 S.Ct. 3505, 177 L.Ed.2d 1091 (2010); see also Menominee Indian Tribe of Wis. v. United States, 614 F.3d 519, 523, 529-31 (D.C. Cir. 2010) (following Arctic Slope Native Ass’n, Ltd. v. Sebelius in concluding that section 7103 is subject to tolling). Nonetheless, “equitable tolling against the federal government is a narrow doctrine.” Martinez v. United States, 333 F.3d 1295, 1318 (Fed. Cir. 2003); see also Kosmo v. United States, 72 Fed.Cl. 46, 55 (2006) (“It is well established that equitable tolling must be strictly construed.” (citations omitted)). The Supreme Court has held that “mere excusable neglect is not enough to establish a basis for equitable tolling; there must be a compelling justification for delay, such as “where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.’” Martinez v. United States, 333 F.3d at 1318 (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)). Furthermore, “ ‘[t]he mere continuance of negotiations ... constitutes no reason to extend the limitations period.’” Brighton Vill. Assocs. v. United States, 52 F.3d 1056, 1061 (Fed. Cir. 1995) (citations omitted). Plaintiff argues that even if the first five claims accrued before July 26, 2007, its claims should be considered timely because the statute of limitations should be equitably tolled. Plaintiff contends that “equitable tolling is permitted when a claimant has actively pursued judicial remedies by filing a defective pleading during the statutory period or where the claimant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Plaintiff asserts that it postponed pursuing claims because of representations made in December 2007 by Frank Kelly, Wade Ricard, and Raymond Greenheck, individuals in the defendant’s contracting office, that plaintiffs claims would be addressed before the close of the contract. Plaintiff claims that statements made by these individuals amounted to “induce[ment of plaintiff] to forego other remedies with a promise of payment,” and plaintiff should not be penalized for the time it waited to see if the Government would pay the delay claims. Additionally, plaintiff asserts its claims were timely because the “CDA requires the contracting officer to respond and the contractor to receive the response in order for the limitation clock to start,” and that plaintiff never got a response from the contracting officer regarding any costs or modifications until December 2007. Plaintiff further maintains that until defendant requested a final invoice on March 27, 2009, plaintiff was unaware that defendant would not pay for the delays it allegedly had caused. Defendant argues that plaintiff is not entitled to equitable tolling of its claims in this case. Defendant, quoting Raytheon v. United States, 104 Fed.Cl. 327, 331-32 (2012), contends that “ ‘[e]quitable tolling is an exception similar to accrual suspension in that it addresses instances of unfairness where misconduct by a party is evident; it requires a showing of compelling justification amounting to misconduct,’ ” such as trickery or inducement, which plaintiff fails to do. Defendant asserts that the only written communication from either Frank Kelly or Wade Ricard in December 2007 produced by plaintiff to this court is a single email form Mr. Kelly responding to an email from Mr. Dublin, plaintiffs General Manager of Iraq Operations, which scheduled a meeting without mentioning any outstanding pay616ment obligations. Defendant also relies on United States Supreme Court precedent, citing Irwin v. Department of Veterans Affairs, 498 U.S. at 96, 111 S.Ct. 453, which indicates that equitable tolling does not apply when “the claimant failed to exercise due diligence in preserving [its] legal rights,” which defendant argues is what occurred here. Id. at 96, 111 S.Ct. 453. After reviewing the record before the court, there no evidence of any government misconduct that would warrant equitable tolling. Although plaintiff claims that it relied on statements made by defendant’s representatives in the contracting office, specifically that “[t]he statements of Frank Kelly and Wade Ricard in December 2007 induced Al-Juthoor to forego other remedies with a promise of payment,” the statements that plaintiff attempts to rely on do not suggest the government induced plaintiff to forego legal action. From December 2007 to March 2009, defendant requested meetings to discuss the continued negotiations of the claims. On December 13, 2007, Frank Kelly “scheduled a meeting between you [Al-Juth-oor] and our Commander,” but made no promises of payment. On October 14, 2008, Colonel Ronald Light wrote to plaintiff, regarding payment, informing plaintiff that “I have asked my team to research the details in this matter,” but again made no promises of payment. On October 20, 2008, Cheri Jordan, “the contracting officer responsible for” processing the requests for payment, emailed plaintiff informing it that “we will be arranging a meeting in the near future to discuss your concerns,” but, again, made no promises of payment. On January 19, 2009, Raymond Greenheck wrote to plaintiff, “Please submit your invoice ... at this time.” On March 27, 2009, Contracting Officer Greenheck again wrote to plaintiff to “[p]lease send in your invoice.” In none of the emails contained in the record before the court did any of defendant’s representatives promise to pay for the incurred costs. Because there is no evidence of government misconduct, there is no compelling reason to justify granting equitable tolling of the CDA’s six-year statute of limitations in 41 U.S.C. § 7103(a)(4)(A) in the above captioned ease. III. Jurisdiction over the Claims Added Amended Complaint A. Presentation Defendant also argues that the court should dismiss plaintiffs claims added to the amended complaint “for lack of subject matter jurisdiction, as these claims were not presented as part of Al-Juthoor’s certified claim to the contracting officer.” It is well established that “‘subject-matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or waived.’ ” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). “[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011); see also Gonzalez v. Thaler, 565 U.S. 134, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (“When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented.”); Hertz Corp. v. Friend, 559 U.S. 77, 94, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010) (“Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it,” (citing Arbaugh v. Y & H Corp., 546 U.S. at 514, 126 S.Ct. 1235)); Special Devices. Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed. Cir. 2001) (“[A] court has a duty to inquire into its jurisdiction to hear and decide a case.”) (citing Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed. Cir. 1990)); View Eng’g, Inc. v. Robotic Vision Svb.. Inc., 115 F.3d 962, 963 (Fed. Cir. 1997) (“[C]ourts must always look to their jurisdiction, whether the parties raise the issue or not.”). “Objections to a tribunal’s jurisdiction can be raised at any time, even by a party that once conceded the tribunal’s subject-matter jurisdiction over the controversy.” Sebelius v. Auburn Reg'l Med. Ctr., — U.S. 617-, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013); see also Arbaugh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235 (“The objection that a federal court lacks subject-matter jurisdiction ... may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.”); Cent. Pines Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed. Cir. 2012) (“An- objection to a court’s subject matter jurisdiction can be raised by any party or the court at any stage of litigation, including after trial and the entry of judgment.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506-07, 126 S.Ct. 1235)); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346 (Fed. Cir. 2008) (“[A]ny party may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235; Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127, 125 S.Ct. 2935, 162 L.Ed.2d 865 (2005); and Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v. United States, 97 Fed.Cl. 71, 76, appeal dismissed, 425 Fed.Appx. 902 (Fed. Cir. 2011). In fact, “[sjubjeet matter jurisdiction is an inquiry that this court must raise sua sponte, even where ... neither party has raised this issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods., Inc. v. Mead Corp., 134 F.3d 1481, 1485 (Fed. Cir.), reh’g denied and en banc suggestion declined (Fed. Cir.), cert. denied, 525 U.S. 826, 119 S.Ct. 73, 142 L.Ed.2d 58 (1998)), reh’g en banc denied (Fed. Cir. 2004), cert. granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 546 U.S. 975, 126 S.Ct. 543, 163 L.Ed.2d 458 (2005), cert. dismissed as improvidently granted, 548 U.S. 124, 126 S.Ct. 2921, 165 L.Ed.2d 399 (2006); see also Avid Identification Sys., Inc. v. Crystal Import Corp., 603 F.3d 967, 971 (Fed. Cir.) (“This court must always determine for itself whether it has jurisdiction to hear the case before it, even when the parties do not raise or contest the issue.”), reh’g and reh’g en banc denied, 614 F.3d 1330 (Fed. Cir. 2010), cert. denied, 562 U.S. 1169, 131 S.Ct. 909, 178 L.Ed.2d 804 (2011). Pursuant to the RCFC and the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing that the pleader is entitled to relief.” RCFC 8(a)(1), (2); Fed. R. Civ. P. 8(a)(1), (2); see also Ashcroft v. Iqbal 556 U.S. at 677-78, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555-57, 570, 127 S.Ct. 1955). “Determination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the .plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)), reh’g denied .(Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed.Cl. 710, 713 (2010). “Condusory allegations of law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel Corp., 501 F.3d at 1363 n.9. “A plaintiffs factual allegations must ‘raise a right to relief above the speculative level’ and cross ‘the line from conceivable to plausible.’” Three S Consulting v. United States, 104 Fed.Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955), aff'd, 562 Fed.Appx. 964 (Fed. Cir.), reh’g denied (Fed. Cir. 2014). As stated in Ashcroft v. Iqbal, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ 550 U.S. at 555, 127 S.Ct. 1955. Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955). The Tucker Act grants jurisdiction to this court as follows: The United States Court of Federal Claims shall have jurisdiction to render 618judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, the Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United States (1) founded on an express or implied contract with the United States, (2) seeking a refund from a prior payment made to the government, or (3) based on federal constitutional, statutory, or regulatory law mandating compensation by the federal government for damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009); United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); see also Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied, 552 U.S. 1142, 128 S.Ct. 1082, 169 L.Ed.2d 810 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir, 1999). “Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act. The claim must be one for money damages against the United States ..” United States v. Mitchell, 463 U.S. at 216, 103 S.Ct. 2961; see also United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003); Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir.), cert. denied, — U.S. -, 134 S.Ct. 259, 187 L.Ed.2d 262 (2013); RadioShack Corp. v. United States, 566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d at 1343 (“[PJIaintiff must ... identify a substantive source of law that creates the right to recovery of money damages against the United States.”); Golden v. United States, 118 Fed.Cl. 764, 768 (2014). In Ontario Power Generation. Inc, v. United States, the United States Court of Appeals for the Federal Circuit identified three types of monetary claims for which jurisdiction is lodged in the United States Court of Federal Claims. The court wrote: The underlying monetary claims are of three types .... First, claims alleging the existence of a contract between the plaintiff and the government fall within the Tucker Act’s waiver .... Second, the Tucker Act’s waiver encompasses claims where “the plaintiff has paid money over to the Government, directly or in effect, and seeks return of all or part of that sum.” Eastport S.S. [Corp. v. United States, 178 Ct.Cl. 599, 605-06,] 372 F.2d [1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims “in which ‘the Government has the citizen’s money in its pocket’” (quoting Clapp v. United States. 127 Ct.Cl. 505, 117 F.Supp. 576, 580 (1954)).... Third, the Court of Federal Claims has jurisdiction over those claims where “money has not been paid but the plaintiff asserts that he is nevertheless entitled to a payment from (he treasury.” Eastport S.S., 372 F.2d at 1007. Claims in this third category, where no payment has been made to the government, either directly or in effect, require that the “particular provision of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain.sum.” Id.; see also [United States v.] Testan, 424 U.S. [392,] 401-02, 96 S.Ct. 948 [47 L.Ed.2d 114] [1976] (“Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim—whether it be the Constitution, a statute, or a regulation-does not create a cause of action for money damages unless, as the Court of Claims has stated, that basis ‘in itself .., can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ” (quoting Eastport S.S., 372 F.2d at 1009)). This category is commonly referred to as claims brought under a “money-mandating” statute. Ontario Power Generation. Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see also Twp. of Saddle Brook v. United States, 104 Fed.Cl. 101, 106 (2012). To prove that a statute or regulation is money-mandating, a plaintiff must 619demonstrate that an independent source of substantive law relied upon “ ‘can fairly be interpreted as mandating compensation by the Federal Government.’ ” United States v. Navajo Nation, 556 U.S. at 290, 129 S.Ct. 1547 (quoting United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at 472, 123 S.Ct. 1126; United States v. Mitchell, 463 U.S. at 217, 103 S.Ct. 2961; Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153, 129 S.Ct. 1038, 173 L.Ed.2d 468 (2009). The source of law granting monetary relief must be distinct from the Tucker Act itself. See United States v. Navajo Nation, 556 U.S. at 290, 129 S.Ct. 1547 (The Tucker Act does not create “substantive rights; [it is simply a] jurisdictional provision[] that operate [s] to waive sovereign immunity for claims premised on other sources of law (e.g., statutes or contracts).”). “ ‘If the statute is not money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject matter jurisdiction.’” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v. United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (The absence of a money-mandating source is “fatal to the court’s jurisdiction under the Tucker Act.”); Peoples v. United States, 87 Fed.Cl. 553, 565-66 (2009). “Under the Contract Disputes Act (CDA), the [Court of Federal Claims] does not have jurisdiction over claims which a contractor has failed to present to the agency’s contracting officer. AAI Corp. v. United States, 22 Cl.Ct. 541, 544 (1991). Claims of more than $ 50,000.00 must be certified by the contractor. See W.M. Schlosser Co. v. United States, 705 F.2d 1336, 1338 (Fed. Cir. 1983); 41 U.S.C. § 605(c). “In enacting the CDA, ‘Congress required contractors to file all claims with the contracting officer to provide the Government with an opportunity to settle the case or otherwise avoid unnecessary litigation.’ ” AAI Corp. v. United States, 22 Cl.Ct. 541 (1991) citing SMS Data Products Grp., Inc. v. United States, 19 Cl.Ct. 612, 614 (1990). Under certain circumstances however, “on appeal .... in a direct access action in the Claims Court, a contractor may increase the amount of his claim — ” Santa Fe Eng’rs, Inc. v. United States, 818 F.2d 856, 858 (Fed. Cir. 1987). “The excess quantum must, however, spring from the same certified claim. Plaintiff may not seek damages for a new claim—a claim not yet submitted to and decided by the contracting officer.” Tecom, Inc. v. United States, 732 F.2d 935, 937-38 (Fed. Cir. 1984). This court has jurisdiction over an increased claim if “the increase in the amount of the claim is based on the same set of operative facts previously presented to the contracting officer” and “the contractor neither knew nor reasonably should have known, at the time when the claim was presented to the contracting officer, of the factors justifying an increase in the amount of the claim.” Kunz Constr. Co. v. United States, 12 Cl.Ct. 74, 79 (1987); see also Cerberonics, Inc. v. United States, 13 Cl.Ct. 415, 417 (1987) (; J.F. Shea Co., Inc. v. United States, 4 Cl.Ct. 46, 54-55 (1983). In Modeer v. United States, the court explained that “if the dollar value of a claim increases based on new information available only after the claim was submitted to the contracting officer,” the plaintiff was entitled to increased damages that “[arose] from the same operative facts as the original claim and claims the same categories of relief.” 68 Fed.Cl. 131, 137 (2005) (emphasis added), aff'd, 183 Fed.Appx. 975 (Fed. Cir. 2006) (citing Cerberonics, Inc. v. United States, 13 Cl.Ct. 415, 418 (1987); see Baha v. United States, 123 Fed.Cl. 1, 6 (2015) (finding damages for unpaid rent accruing for consecutive three months after claim was submitted to contracting officer arose, from “same operative facts” and were permissible). Plaintiff originally claimed defendant’s failure to act to assist in connecting the courthouse to the local electrical grid delayed plaintiffs construction efforts for 365 days, costing $985,500.00,21 which dollar figure 620plaintiff altered in the amended complaint, claiming the delay in construction lasted 487 days at cost of $1,919,754.00 in damages. Plaintiff contends that when “the Court compares the allegations of the Amended Complaint to the facts presented in the demand letter, the Court will see that the claims arise from the same set of operative facts,” as it “placed all of the elements of this claim before the contracting officer on several different occasions.” Specifically, plaintiff notes that the defendant “has always known of the problems associated with getting the courthouse connected to the municipal electrical grid.” Plaintiff claims to have amended its original complaint because after “diligently reviewing] documents and government correspondence” with the. court’s permission, it should not be penalized for finding documents that “support and clarify its claims” in doing so, Plaintiff asserts that this increased dollar claim should survive because the claim is based upon the same “theory of recovery,” and only alters the alleged length of delay and the amount of damages requested. Defendant, citing D.L. Braughler Co., Inc. v. West, 127 F.3d 1476, 1480 (Fed. Cir. 1997), argues that the court lacks jurisdiction over the new claims because plaintiff failed to include the claims in its July 26, 2013 certified claim or otherwise present the claims to the contracting officer for a final decision, violating the exhaustion requirements under the CDA. Specifically, defendant argues that plaintiffs amended breach of contract claim stemming from the delayed security modification relies on different factual allegations and an “entirely separate theory of recovery” than what plaintiff raised to the contracting officer and alleged in the original complaint. Defendant also argues that plaintiffs increased claim for breach surrounding the connection of the courthouse to the city’s electrical grid, which increased the claim from $985,500.00 in the original complaint, to $1,919,764,00, is unwarranted, as it stems from different operative facts than the original claim, and that plaintiff offers no new information or explanation for the increased claim amount. The court agrees that plaintiffs claim in its amended complaint, asking for an increased amount for the security modification claim may stem from the “same operative facts” as those submitted in the original claim to the contracting officer. Moreover, plaintiff fails to address how the elongated duration and increased claim amount for security modification delay set forth in the amended complaint were based on facts that were not known, nor reasonably should have been known to plaintiff. Nor can plaintiff demonstrate that new facts arose subsequent to filing its claim with the contracting officer in order to prove that defendant’s alleged 365-day delay in coordinating the hook-up of the courthouse to the city’s electrical grid should be increased by 122 days and $934,754.00. Plaintiff asserts that it should not be penalized for diligently reviewing documents pursuant to this court’s Order and finding additional supporting materials for this claim, which suggests that the information may have been available to plaintiff if plaintiff had diligently searched the documents prior to the time plaintiff filed its claim with the contracting officer. More importantly, plaintiff has offered the court nothing to support its increased claimed dollar amounts, or that these increased claimed dollar values are founded on the same operative facts as the certified claim submitted to the contracting officer. Thus, the court lacks jurisdiction over plaintiffs increased claimed amounts because the facts that would form the basis for the newly claimed dollar amounts were known or should have been known to plaintiff at the time of filing its claims with the contracting officer and when plaintiff filed its original complaint. B. Good Faith and Fair Dealing Claim While the claim for breach of the covenant of good faith and fair dealing is not challenged by defendant on the grounds of failure to state a claim upon which relief can be granted under RCFC 12(b)(6), this court is required to do such an analysis when a claim is so vaguely pleaded that the court is unable to decide the issues raised based on the facts asserted in the complaint. As noted above, a motion to dismiss under RCFC 12(b)(6) for failure to state a claim upon which relief can be granted “ ‘is appropriate when the facts asserted by the claimant do not under the 621law entitle him [or her] to a remedy.’ ” Murdock v. United States, 103 Fed.Cl. at 394 (alterations in original) (quoting Perez v. United States, 156 F.3d at 1370). Plaintiff need only state in the complaint “a short and plain statement of the claim showing that the pleader is entitled to relief.” RCFC 8(a)(2); Fed. R. Civ. P. 8(a)(2); see also Bell Atl. Corp. v. Twombly. 550 U.S. at 555, 127 S.Ct. 1955; TrinCo Inv. Co. v. United States, 722 F.3d at 1380. The United States Supreme Court in Twombly stated that: “ ‘[W]e do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; see also Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly. 550 U.S. at 555-57, 570, 127 S.Ct. 1955); Totes-Isotoner Corp. v. United States, 594 F.3d at 1354-55; Bank of Guam v. United States, 578 F.3d at 1326. Although the court must assume that the undisputed facts alleged in the complaint are true for the purposes of the motion to dismiss and draws all reasonable inferences in the plaintiffs’ favor, the facts alleged in the complaint must be plausible and not merely naked assertions devoid of a factual basis. See Ashcroft v. Iqbal 556 U.S. at 678, 129 S.Ct. 1937; see also McZeal v. Sprint Nextel Corp., 501 F.3d at 1363 n.9 (mere allegations of law and conclusions of fact are insufficient to support a claim). Plaintiffs allegation of defendant’s breach of the covenant of good faith and fair dealing, added in plaintiffs amended complaint, and construed by the court as plaintiffs eighth possible claim, is so vaguely pleaded in the amended complaint and specifies little to no facts to support the claim. While the pleading standards are flexible, plaintiff fails to point to any particular events or facts that would allow this claim to succeed. Rather, th'e amended complaint uses only broad statements to assert that the defendant’s numerous failures “in executing its duties and responsibilities unfairly frustrated the contract’s purpose and disappointed [plaintiffs] expectations,” simply reciting the elements necessary to prove the breach. While plaintiff is not required to lay out every inkling of factual evidence to prove this claim, plaintiff must set forth facts specific enough that would indicate the claim is plausible on its face, which plaintiff fails to do here. Because plaintiff makes only “naked assertions devoid of a factual basis,” see Ashcroft v. Iqbal. 556 U.S. at 678, 129 S.Ct. 1937, plaintiff has failed to state a claim upon which this court can grant relief, thus, this eighth claim, set forth in plaintiffs amended complaint, must be dismissed. CONCLUSION Although the court is not without sympathy to the position in which plaintiff finds itself, plaintiff has been given many opportunities by this court to document and perfect its claims, and, therefore, for the reasons discussed above, the court GRANT defendant’s partial motion to dismiss. The Clerk of the Court shall DISMISS the first five claims filed by plaintiff, and DISMISS the eighth claim for breach of the covenant of good faith and fair dealing added in the amended complaint. Claim 6, regarding the of defendant’s improper modification of the contract, and claim 7, regarding defendant’s delay in turnover and acceptance of the courthouse and .closeout of the contract, survive. IT IS SO ORDERED. . Plaintiff sometimes uses the term "difficulties” in lieu of the word "claims." . Plaintiff filed its amended complaint with this court on September 15, 2015, after defendant raised jurisdictional defenses to plaintiff's original complaint and the parties were permitted by the court to search for additional, relevant documents to the above captioned case. After discovery of some additional documents, plaintiff sought additional time to search for potentially relevant documents which were located in Cyprus. After plaintiff was unable to locate any more documents, plaintiff filed its amended complaint. . In its filings with the court, plaintiff refers to the April 26, 2005 Notice to Proceed as the "third” Notice to Proceed. Chronologically, it appears to have been the second, and the May 21, 2005 Notice to Proceed was the third. As indicated above, the First Notice to Proceed was issued on April 14, 2005. . According to plaintiff’s December 28, 2011 Request for Equitable Adjustment, the costs for additional fill and grading totaled $582,286.00. Elsewhere, however, the costs for additional fill and grading are listed as $1,376,880.00. . According to plaintiff's December 28, 2011 Request for Equitable Adjustment, the costs for "difficulty” two totaled $1,581,880.00. . Plaintiff alleges that the Request for Proposal for the security upgrades required plaintiff to submit its proposal no later than March 20, 2006, even though the Request was issued after March 20, 2006. Plaintiff argues that this made it impossible for plaintiff to comply with the Request for Proposal. . The April 1, 2006 Request for Proposal for the security modifications, submitted by defendant in its reply brief to plaintiffs opposition to defendant’s motion to partially dismiss, states: "This is not a Notice to Proceed with this work and you are not to begin working on the above-described change until such time you receive a signed modification.” , According to plaintiff's December 28, 2011 Request for Equitable Adjustment, the costs for "difficulty” three totaled $2,426,284.00. . Although plaintiff alleges in its amended complaint that the modification was not issued until May 9, 2007, the date on the modification, attached to the original complaint is April 27, 2007, signed by Mr. Dublin for plaintiff and Susan Newby for the United States, as contracting officer, on May 9, 2007. . Plaintiff claims that there were 167 days between November 2, 2006 and April 27, 2007. In fact, there were 176 days. Plaintiff also maintains that there are 167 days between November 2, 2006 and May 9, 2007 when there were 188 days. . According to exhibit 2 attached to the amended complaint, the modification of the contract was approved on April 27, 2007. . Although plaintiff alleges it was prohibited from interacting directly with the Iraqi agencies, there is no basis for this allegation according to Statement of Work § 2.1.8.1. . According to plaintiff's December 28, 2011 Request for Equitable Adjustment, the costs for "difficulty” five totaled $848,676.12. . According to plaintiffs December 28, 2011 Request for Equitable Adjustment, the costs for "difficulty” six totaled $2,591,044.92. . According to plaintiffs December 28, 2011 Request for Equitable Adjustment, the costs for "difficulty” seven totaled $180,000.00. . According to plaintiff, Raymond Greenheck allegedly requested a "final” invoice on March 27, 2009. . In its partial motion to dismiss the original complaint, defendant argued that the first five claims should be dismissed pursuant to RCFC 12(b)(1) (2015), for lack of subject matter jurisdiction based on the failure to comply with the statute of limitations. Subsequently, the United States Court of Appeals for &e Federal Circuit issued Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315 (Fed. Cir. 2014). In response to the court’s Order to address the Sikorsky case, defendant conceded that "41 U.S.C. § 7103(a)(4)(A) was not a jurisdictional statute [sic] rendered this Court unable to dismiss Al-Juthoor’s claims for lack of subject matter jurisdiction." Defendant, therefore, filed a notice to convert the partial motion to dismiss for lack of subject matter jurisdiction to a partial motion to dismiss for failure to state a claim upon which relief may be granted pursuant to RCFC 12(b)(6). Subsequently, plaintiff filed an amended complaint, ánd defendant has moved to partially dismiss- the amended complaint for both lack of subject matter jurisdiction and failure to state a claim. -Therefore, the earlier partial motion to dismiss for lack of subject matter jurisdiction under RCFC 12(b)(1) is moot. . Defendant does not raise a motion to dismiss for failure to state a claim regarding the statute of limitations regarding plaintiff's sixth and seventh claims. . The Judge in Uniglobe cited to 41 U.S.C. § 605, the predecessor to 41 U.S.C. § 7103. See Uniglobe General Trading & Contracting Co., W.L.L. v. United States, 107 Fed.Cl. at 430. Public Law No. 111-350 was signed into law on January 4, 2011, reorganizing Title 41 of the United States Code. See Act of Jan. 4, 2011, Pub. L. No. 111-350, 124 Stat. 3677 (2011). As a result, 41 U.S.C. §§ 601-13 of the Contract Disputes Act of 1978 has been reorganized into 41 U.S.C. §§ 7101-09. . Statement of Work § 5.3 states: “The CONTRACTOR is responsible for on-site security as necessary to ensure no un-authorized access to the site.” (capitalization in original). . As noted above, according to plaintiffs December 28, 2011 Request for Equitable Adjustment, the costs for "difficulty” five totaled $848,676.12.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218572/	Keywords: Bid Protest; Solicitation Requirements; Redaction; Negotiated Procurement; Non-Conforming Proposal; Minor Informality or Irregularity. OPINION AND ORDER KAPLAN, Judge. In this post-proposal, pre-evaluation bid protest, Plaintiff Strategic Business Solutions, Inc. (SBSI) challenges the Defense Intelligence Agency’s (DIA) decision to exclude its proposal from consideration for a contact award. DIA’s decision was based on SBSI’s failure to comply with the solicitation’s requirement that it provide redacted copies of its proposal that would conceal its identity and the identity of any of its proposed subcontractors. Each party has moved for judgment on the administrative record. As discussed below, the Court concludes that SBSI’s proposal did not conform to the solicitation and that the agency did not abuse its discretion when it excluded SBSI’s proposal from consideration. Accordingly, the government’s motion for judgment on the administrative record is GRANTED, and SBSI’s cross-motion is DENIED. BACKGROUND I. The Solicitation On August 22, 2014, DIA issued solicitation number HHM402-14-R-0005. Administrative Record (AR) Tab 4a at 410. The solicitation was a request for proposals (RFP) seeking contactors to provide “financial management and related services” to “assist the Agency[’s] efforts to establish internal controls and demonstrate and sustain audit readiness by the end of FY 2016.” Id. at 410-12, 433. The contract vehicle was titled “Solutions for Intelligence Financial Management,” or “SIFM II.”1 Id. at 412. The contract would be a “Multiple Award—Indefinite Delivery Indefinite Quantity (IDIQ) Contract” with minimum orders of $2,500 and a five-year contract ceiling of approximately $75,000,000. Id. The RFP directed prospective offerors to submit their proposals in three volumes: (1) Security Plan and Technical/Management; (2) Past Performance; and (3) Price. Id. at 518. It also included a table with instructions regarding how many copies of each volume the offeror should submit and what form those copies should take. Id. at 619. In particular, those instructions provided that offer-ors were to provide for each of the first two volumes one written, non-redaeted copy; one electronic, non-redacted copy; and seven written, redacted copies. Id. In a provision derived from the FAR, the RFP informed offerors that the government “intend[ed] to make a single or multiple award(s) ... to the responsible offeror(s) whose offer(s), conforming to the solicitation, will be the best value to the Government.” Id. at 532 (quotation omitted); see also FAR 52.212-2(a) (“The Government will award a contract resulting from this solicitation to the responsible offeror whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors considered.”). Further, the government “reserve!® the right to award this effort based on the initial proposal, as received, without discussion.” AR Tab 4a at 522; see also id. at 514 (“The Government intends to evaluate offers and award a contract without discussions with offerors.” (quoting FAR 52.212-1(g))); FAR 15.306(a)(3) (“Award may be made without discussions if the solicitation states that the Government intends to evaluate proposals and make award without discussions.”). Finally, the RFP included a provision derived from FAR 52.212-l(g) stating that the government “may reject any or all offers if such action is in the public interest; accept other than the lowest offer; and waive informalities and minor irregularities in offers received.” AR Tab 4a at 513-14. On September 18, 2014, DIA issued Amendment 04 to the RFP. Id, Tab 4i at 601. The amendment included a list of questions 625from prospective offerors and the government’s answers to those questions. Id. at 691-732. Question 22 noted that the solicitation “d[id] not provide any guidance on what is meant by ‘Redacted’ ” and asked the government to: [P]lease address whether or not the following information is required to be redacted: • Prime Offeror company name • Subcontractors company name(s) • Prime Offeror individual personnel name(s) • Subcontractor individual personnel name(s) • Prime Offeror’s proposed Key Personnel name(s) • Information identifying the Prime Of-feror or any proposed subcontractors’ [sic] status as a current incumbent on the SIFM I contract vehicle. Id. at 695'. The government responded that “[a]ll bulleted info shall be redacted and no additional information needs to be redacted.” Id. II.SBSI’s Proposal. and DIA’s Decision to Exclude the Proposal from Consideration SBSI submitted its proposal on October 6, 2014. Id. Tab 5a at 733. In a cover letter, SBSI expressly took “no exceptions” to the solicitation and acknowledged all of the RFP’s amendments, including Amendment 04. Id. SBSI’s proposal, however, did not fully comply with the RFP’s redaction requirements. Specifically, in more than 100 places throughout the proposal, SBSI failed to redact its name, the names of its subcontractors, and the names of several of its proposed personnel (including the names of some of its proposed key personnel). See id. Tab 6b at 1011 (contracting officer’s summary of failures to redact). The agency received seventeen proposals. Id. Tab 2 at 17. The contracting officer (CO) then convened a source selection evaluation board (SSEB) and provided its members with the redacted volumes received from each offeror. See id. On November 18, 2015, the SSEB’s chair emailed the CO to explain that “there might be an issue with [SBSI’s] [proposal in that it is not fully redacted.” Id. Tab 6a at 1007. The chair observed that “[t]his would directly impact my level of confidence in [SBSI] if they can’t get the redaction right.” Id. On November 25, 2014, the CO notified SBSI by letter that he had excluded SBSI’s proposal from further consideration. Id. Tab 6b at 1010. In the letter, the CO excerpted the portion of Amendment 04 that explained the redaction requirements. Id. He then informed SBSI that “[b]ased on SBSI’s failure to submit redacted copies of its proposal in accordance with the terms of the solicitation,” he found its proposal unacceptable. Id. at 1011. He also listed several representative places in the proposal where SBSI had failed to comply with the redaction requirement, and noted that the list was “not necessarily exhaustive.” Id. Because its proposal was unacceptable, the CO informed SBSI that it “w[ould] not be considered for award.” Id. at 1010. III. GAO Protest On December 10, 2014, SBSI filed a protest with the Government Accountability Office (GAO). Id. Tab 3a at 24. It contended that the CO improperly rejected its proposal on the ground that the non-redactions constituted “a minor informality that should have been waived by the Contracting Officer (as it had been in previous DIA competitions under a predecessor contract).” Id. Alternatively, it argued that “if this was a technical evaluation resulting in an ‘unacceptable’ rating, it was an improper evaluation based on undisclosed criteria.” Id. GAO denied the protest. Id. Tab 8 at 1019. Addressing only SBSI’s first argument, GAO “disagree[d] with SBSI’s characterization of its failure to redact information as ... a ‘minor informality.’ ” Id. at 1021. Rather, the redaction requirement was “an explicit, mandatory requirement.” Id. at 1022. Accordingly, GAO found that the agency did not “act[ ] unlawfully when it refused to further consider [SBSI’s] offer[ ] for award.” id. IV. SBSI’s Attempt to Appeal GAO’s Decision and This Action On March 25, 2015, SBSI noted an appeal of GAO’s decision to the Court of Appeals for 626the Federal Circuit. See Pet. for Review, Strategic Bus. Sols., Inc. v. Def. Intelligence Agency, No. 2015-6001 (Fed. Cir. Apr. 1, 2015), ECF No. 1. On November 20, 2015, after resolving various preliminary procedural matters, the Federal Circuit dismissed the appeal for lack of subject matter jurisdiction, observing that GAO’s nonbinding bid protest decisions “serve as recommendations and are not subject to review in any court.” See Order at 2-3, Strategic Bus. Sols., Inc., No 15-6001 (Fed. Cir. Nov. 20, 2015), ECF No. 26. The Court of Appeals then ordered the appeal transferred to the Court of Federal Claims, reasoning that the Court of Federal Claims “m[ight] have jurisdiction to review the DIA’s rejection of SBSI’s proposal, although not the GAO’s review of that decision.” Id. at 3. This Court received the transferred record from the Court of Appeals on January 14, 2016. See ECF No. 1 (minute entry). SBSI took no immediate action in the wake of the transfer. Accordingly, on March 1, 2016, the Court ordered SBSI to show cause why the Court should not dismiss the case under RCFC 41(b). ECF No. 4. After responding to the Court’s order, ECF No. 7, SBSI filed a transfer complaint, on March 21, 2016. ECF No. 10. In the transfer complaint, SBSI alleged that beginning in 2008, it had successfully performed several task orders under SIFM I. Transfer Compl. ¶¶ 12-13. It then acknowledged that it “did not redact references to SIFM I in [their] entirety” in the proposal at issue. Id. ¶ 15. According to SBSI, its failure to redact these references was deliberate. Particularly, it alleges, performance under SIFM I “was SBSI’s only directly relevant IDIQ contract in Financial Management.” Id. Further, that performance “reveal[ed] that SBSI successfully competed for SIFM against [several] very large companies.” Id. SBSI then asserted several claims in connection with DIA’s decision to exclude its proposal from consideration for award. First, it contended that its failure to redact did not amount to a “material failure” to comply with the RFP’s terms. Id. ¶ 30(a). It also alleged that DIA’s decision violated FAR 14.405 and FAR 15.304. Id. ¶(b)-(c). Finally, it claimed that the redaction requirement violated the Competition in Contracting Act (CICA), 10 U.S.C. § 2304 & 41 U.S.C. § 3301, because the requirement “adversely impacted SBSI as it was the only small business/prime that had SIFM I IDIQ experience.” Id. ¶ 30(d). As relief, it requested that the Court “[f]md in favor of SBSI’s claims as stated” and “[rjequire DIA to reinstate SBSI into the procurement process for SIFM II and proceed to the technical, cost, and past performance evaluation.” Id. at 9. After filing the administrative record, the government filed a motion for judgment on that record on May 24, 2016. ECF No. 17. SBSI filed an opposition to the government’s motion on June 24, 2016, attaching a brief it filed before GAO that it believed should have been included in the administrative record. ECF No. 19. The Court stated that, assuming SBSI did not object, it would treat SBSI’s opposition as a cross-motion for judgment on the administrative record. ECF No. 20. It also granted SBSI’s request to have its GAO brief included in the administrative record. Id. SBSI did not note any objection to having its opposition treated as a cross-motion. See Docket. The government then filed a response to SBSI’s cross-motion and a reply in support of its motion on August 5, 2016. ECF No. 23. SBSI filed a reply in support of its cross-motion on August 19, 2016. ECF No. 24. Oral argument was held on the cross motions on November 22, 2016. DISCUSSION I. Jurisdiction The Court of Federal Claims’ bid protest jurisdiction is defined by 28 U.S.C. § 1491(b)(1). That statute grants the Court jurisdiction to “render judgment on an action by an interested party objecting to ... a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” Id. As the Federal Circuit has observed, “[o]n its face, the statute grants jurisdiction over objections to a solicitation, objections to a proposed award, objections to an award, and objections related to a statutory or regulatory violation so long as these objections are in connection with a 627procurement or proposed procurement.” Sys. Application & Techs., Inc. v. United States, 691 F.3d 1374, 1380-81 (2012). As indicated by the statute, a plaintiff must be an “interested party” to have standing to invoke the Court’s bid protest jurisdiction. CGI Fed. Inc. v. United States, 779 F.3d 1346, 1348 (Fed. Cir. 2016); Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369-70 (Fed. Cir. 2002). According to the Federal Circuit, an “interested party” under 28 U.S.C. § 1491(b)(1) is “an actual or prospective bidder ... whose direct economic interest would be affected by the award of the contract.” CGI Fed., 779 F.3d at 1348 (quoting Am. Fed’n of Gov’t Emps, AFL-CIO v. United States, 258 F.3d 1294, 1299 (Fed. Cir. 2001); see also Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003). An offeror has a direct economic interest if the alleged errors in the procurement caused it to suffer a competitive injury or prejudice. See Myers Investigative & Sec. Servs., Inc., 275 F.3d at 1370 (holding that “prejudice (or injury) is a necessary element of standing”). In a post-proposal, pre-evaluation protest (like this one), an offeror meets this standard if it can show that it had a “substantial chance” of receiving the award but for the alleged errors in the procurement. Orion Tech., Inc. v. United States, 704 F.3d 1344, 1348-49 (Fed. Cir. 2013). Thus, the protester must establish that absent the alleged errors, it “could have likely competed for the contract.” Id. at 1349. Here, SBSI alleges that its proposal conformed to all of the RFP’s requirements except the redaction requirement, and the government does not appear to contest that SBSI could have likely competed for the contract if its proposal had not been excluded for violating the redaction requirement. Thus, SBSI has standing to bring this protest, and the Court therefore has jurisdiction. II. The Parties’ Cross-Motions for Judgment on the Administrative Record A. Standard for Granting Judgment on the Administrative Record Pursuant to Rules of the Court of Federal Claims (RCFC) 52.1, the court reviews an agency’s procurement decision based on the administrative record. See Bannum, Inc. v. United States, 404 F.3d 1346, 1354 (Fed. Cir. 2005). The court makes “factual findings under RCFC [52.1] from the record evidence as if it were conducting a trial on the record.” Id. at 1357. Thus, “resolution of a motion respecting the administrative record is akin to an expedited trial on the paper record, and the [c]ourt must make fact findings where necessary.” Baird v. United States, 77 Fed.Cl. 114, 116 (2007). The court’s inquiry is “whether, given all the disputed and undisputed facts, a party has met its burden of proof based on the evidence in the record.” A & D Fire Prot., Inc. v. United States, 72 Fed.Cl. 126, 131 (2006). Unlike a summary judgment proceeding, genuine issues of material fact will not foreclose judgment on the administrative record. Bannum, Inc., 404 F.3d at 1356. B. Standard of Review in Bid Protest Cases The court reviews challenges to a procurement decision under the same standards used to evaluate an agency action under the Administrative Procedure Act, 5 U.S.C. § 706. See 28 U.S.C. § 1491(b)(4) (stating that “[i]n any action under this subsection, the courts shall review the agency’s decision pursuant to the standards set forth in section 706 of title 5”). Thus, to successfully challenge an agency’s procurement decision, a plaintiff must show that the decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Bannum, Inc., 404 F.3d at 1351. This “highly deferential” standard “requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors.” Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000) (citing Bowman Transp., Inc. v. Ark-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974)). In a bid protest action, the protester “bears a heavy burden” in attempting 628to show that the agency’s decision lacked a rational basis, and the court’s function is limited to “determining] whether ‘the ... agency provided a coherent and reasonable explanation of its exercise of discretion.’” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332-33, 1338 (Fed. Cir. 2001) (quoting Latecoere Int’l, Inc. v. U.S. Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)). Thus, to prevail, the agency need only articulate a “rational connection between the facts found and the choice made,” and the court will “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quotations omitted). C. DIA’s Decision to Reject SBSI’s Proposal It is well established that, in negotiated procurements like this one, an agency’s decision to exclude an incomplete or nonconforming proposal from consideration is “entitled to a high degree of deference.” See Orion Tech., 704 F.3d at 1361 (holding that the Army reasonably excluded proposal from competition where it failed to include required pricing information); see also Equa Sols., Inc. v. United States, 120 Fed.Cl. 371, 381 (2015) (decision to exclude proposal upheld because it had a rational basis); G4S Tech. CW LLC v. United States, 109 Fed.Cl. 708, 724 (2013) (same); USfalcon, Inc. v. United States, 92 Fed.Cl. 436, 464-65 (2010) (same). Further, in accordance with FAR 52.212-2(a), the RFP in this case specifically informed offerors that only those proposals that conformed to the solicitation would be eligible for an award. See AR Tab 4a at 532 (informing offerors that the government “intend[ed] to make a single or multiple award(s) ... to the responsible offeror(s) whose offer(s), conforming to the solicitation, will be the best value to the Government” (emphasis added) (quotation omitted)); see also FAR 52.212-2(a) (indicating government will award contract to offeror whose proposal conforms to the solicitation and is the most advantageous to the government). And, finally, the solicitation- also incorporated FAR 52.212-1(b)(11) stating that “[o]ffers that fail to furnish required representations or information, or [that] reject the terms and conditions of the solicitation may be excluded from consideration.” See AR Tab 4a at 513-14. Here, the record confirms and it is not disputed that SBSI’s proposal did not conform to the instructions in the RFP. Thus, the RFP included an instruction that required offerors to submit copies of their technical and past performance volumes in redacted form. Notwithstanding that requirement, SBSI acknowledges that it deliberately failed to redact references to the fact that it had been a contractor on SIFM I, and the agency correctly found multiple other failures to redact the proposal, totaling over 100 instances of non-compliance. The Court thus has no basis for upsetting the agency’s determination that SBSI’s proposal should be excluded from consideration because it failed to comply with the redaction requirement. See LS3 Inc., B-401948.11, 2010 WL 2862041 (Comp. Gen. July 21, 2010) (finding that agency properly rejected proposal that contained identifying information where solicitation explicitly required such information to be redacted); SNAP, Inc., B-402746, 2010 WL 2804498 (Comp. Gen. July 16, 2010) (same).2 Athough not entirely clear, the primary bases for SBSI’s bid protest in this case (at least as expressed in its briefs) appear to be that its failure to redact its proposal was not a “material” failure, that the agency should have treated the defect as a “minor informality or irregularity” within the meaning of FAR 14.405, and that, as such, the agency was required either to waive the defect or to 629permit SBSI to cure it.3 See Pl.’s Opp’n to Mot. for J. on the Admin. R. (Pl’s Opp’n) at 7-8, 18-20, ECF No. 19. These arguments lack merit. First, even assuming that SBSI’s failure to comply with the redaction requirement could be considered a minor informality or irregularity, the agency was not required to give SBSI an opportunity to cure its error; nor was it required to waive the error. The mandatory opportunity to cure/waiver requirements of FAR 14.405 apply where a procurement is accomplished by means of sealed bidding. See FAR 14.101. This procurement, however, was governed by FAR Part 12 (Acquisition of Commercial Items) and FAR Part 15 (Contracting by Negotiation). Both Parts provide that a waiver of minor errors is discretionary, not mandatory. Thus, FAR 12.301(b)(1) requires that contracts for the acquisition of commercial items include the clause set forth at FAR 52,212-1(g), which states that the agency “may .., waive informalities and minor irregularities in offers received.” (emphasis added); see AR Tab 4a at 513-14 (incorporating FAR 52.212-l(g)). Similarly, FAR 15.306(a)(2) states that “[i]f award will be made without conducting discussions, offerors may be given the opportunity ... to resolve minor or clerical errors” (emphasis added)). In short, Part 15 does not “requir[e] contracting officers to clarify minor or clerical errors in negotiated procurements”; permitting such clarifications is discretionary, “unlike the mandatory nature of the comparable [rules] in Part 14 for sealed bidding.” BCPeabody Constr. Servs., Inc. v. United States, 112 Fed.Cl. 502, 510 (2013); see also Bus. Integra, Inc. v. United States, 116 Fed.Cl. 328, 334 (2014) (observing that the “regulatory regime” applicable to sealed bidding “differs significantly” from the regime applicable to procurement by negotiation); ST Net, Inc. v. United States, 112 Fed.Cl. 99, 111 (2013) (observing that “[t]his court has repeatedly recognized the permissive nature of [Section 15.306] in the context of negotiated procurements”). In any event, SBSI’s failure to redact its proposal in over 100 places does not involve a “minor informality or irregularity,” i.e., “one that is merely a matter of form and not of substance,” and that “pertains to some immaterial defect in a bid or variation of a bid from the exact requirements of the invitation that can be corrected or waived without being prejudicial to other bidders.” FAR 14.405. For purposes of Part 14, such errors might include, for example, providing the wrong number of copies of the bid, listing the wrong number of employees, or failing to sign the bid itself where the submission includes other material indicating the bidder’s intent to be bound. See id. The redaction requirement, however, is not a formalistic one comparable to the types of requirements violated in the examples set forth at FAR 14.405, It served a substantive purpose—promoting the unbiased evaluation of all offerors’ proposals. Moreover, the information revealed in an unredacted proposal could affect an offeror’s chances of receiving a contract award. In fact, to at least some extent, SBSI’s failure to redact was deliberate and designed to give it an advantage (or at least to remove some perceived disadvantage).4 It would be inappropriate to apply an 630exception designed to relieve an offeror of the consequences of an inadvertent minor mistake where, as here, it has acted in deliberate defiance of the solicitation’s requirements and for purposes of securing an advantage. Similarly, SBSI’s failure toi redact could not have been corrected or waived without prejudicing other offerors. For if the violation were waived, the agency’s technical evaluators would have had access to critical information about SBSI’s experience and proposed staff that the other offerors who complied with the instructions were not able to present. If, on the other hand, SBSI were allowed to cure the defect (by submitting a compliant proposal), the agency would have been required to convene an entirely new SSEB or take some other extraordinary action to ensure that those reviewing and evaluating SBSI’s proposal were not tainted by SBSI’s submission of the unredacted proposal. In short, the failure to redact did not involve a minor informality or irregularity. And the agency clearly acted within its discretion when it rejected SBSI’s offer based on its non-compliance with the redaction requirement. SBSI’s remaining claims of error also lack merit. Thus, SBSI contends that because the technical evaluation panel discovered the redaction errors while evaluating SBSI’s proposal, the exclusion must have been based on an unstated evaluation criterion, which is unlawful under FAR 15.304. See Pl.’s Opp’n at 9-10. But while SBSI’s failure to redact was not discovered until the evaluation of the proposals began, the exclusion of the proposal was not a result of the application of some unstated evaluation criterion—it was a result of SBSI’s failure to follow the instructions in the solicitation regarding redaction. And SBSI offers no support whatsoever for its further argument that—once the evaluation process began—the agency was required to conduct an evaluation of its proposal pursuant to the factors set forth in section M of the RFP, notwithstanding that SBSI’s proposal was not redacted as the RFP required. Finally, SBSI claims that the redaction requirement itself was unfair and improper at least insofar as it required SBSI to redact reference to its status as a contractor for SIFM I. See Transfer Compl. ¶ 30(d); see also Pl.’s Opp’n at 28-29. Specifically, in its complaint, SBSI alleged that “the last instruction in the redacting requirements violated CICA in that it required proposals [to] redact any and all references to SIFM I,” which had the effect of “adversely impact[ing] SBSI as it was the only small business/prime that had SIFM I IDIQ experience.” Transfer Compl. ¶ 30(d). Because SBSI did not raise its objection to the solicitation’s terms until after the award was made, however, the objection is waived. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007); see also COMINT Sys. Corp. v. United States, 700 F.3d 1377, 1381-82 (Fed. Cir. 2012). CONCLUSION For the reasons discussed above, the government’s motion for judgment on the administrative record is GRANTED, and SBSI’s cross-motion for judgment on the administrative record is DENIED. The Clerk is directed to enter judgment accordingly. Each side shall bear its own costs. IT IS SO ORDERED. . A predecessor contract vehicle, titled “SIFM I,” ran from 2008 to 2014. See Transfer Compl. ¶¶ 12-13, ECFNo. 10. . GAO decisions'are "not binding authority,” but may be "instructive in the area of bid protests." Centech Grp., Inc. v. United States, 554 F.3d 1029, 1038 n.4 (Fed. Cir. 2009); see also Thompson v. Cherokee Nation of Okla., 334 F.3d 1075, 1084 (Fed. Cir. 2003) (decisions of the GAO are treated as expert opinions, which the court should "prudently consider” (quoting Delta Data Sys. Corp. v. Webster, 744 F.2d 197, 201 (D.C. Cir. 1984))), aff'd in part, rev'd in part sub nom. Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631, 125 S.Ct. 1172, 161 L.Ed.2d 66 (2005). . FAR 14.405 states, in pertinent part, as follows: A minor informality or irregularity is one that is merely a matter of form and not of substance. It also pertains to some immaterial defect in a bid or variation of a bid from the exact requirements of the invitation that can be corrected or waived without being prejudicial to other bidders. The defect or variation is immaterial when the effect on price, quantity, quality, or delivery is negligible when contrasted with the total cost or scope of the supplies or services bejng acquired. The contracting officer either shall give the bidder an opportunity to cure any deficiency resulting from a minor informality or irregularity in a bid or waive the deficiency, whichever is to the advantage of the Government. . Although SBSI claims that many of its over 100 redaction failures were "accidental," it acknowledges that the references to its experience under the predecessor contract were intentionally left unredacted. See Pl.’s Opp’n at 4 (stating that "prior experience on SIFM I aside, the omissions were accidental"); see also AR Tab 3a at 160-61 (declaration of SBSI’s president and CEO stating that "SBSI left some of th[e] information unredacted” noting as an example that "SBSI’s work under the predecessor SIFM contract is a major part of SBSI’s experience, and SBSI could not redact this in a manner that would both maintain its anonymity and demonstrate its technical competence”).	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218573/	ORDER PATRICIA E. CAMPBELL-SMITH, Chief Judge On August 8, 2016, defendant filed a motion for clarification, explaining that contrary to plaintiffs representation, no notice of deficiency issued. Throughout proceedings before the United States Tax Court and the Supreme Court of the United States, Ms. Langley repeatedly asserted that the IRS erred in failing to timely provide her with a 2011 notice of determination, which was ostensibly provided to her during her case before the United States Tax Court in 2014, and that various letters between herself and the IRS essentially should constitute constructive notice of a deficiency or a notice of determination. See Order of Dismissal 3 (T.C. Nov. 12, 2014); Compl. App. A, 6-7, EOF. No. 1. The full agency record of Ms. Langley’s correspondence between herself and the IRS was not filed as evidence in this case.1 On review of what was before it, the court found that it lacked jurisdiction over Ms. Langley’s claims and dismissed her complaint on August 1,2016. In the motion for clarification, defendant’s counsel states that “[t]here is no indication in the IRS’s files forwarded to [him] that any notice of deficiency was issued to plaintiff for any year noted in the Court’s decision.” Def.’s Mot. for Clarification 3 n.2. Although individuals often receive a notice of deficiency prior to receiving a notice of a proposed levy, see Oropeza v. Commissioner. T.C. Memo. 2008-94, 2008 WL 1722003 at 1 (2008), Ms. Langley apparently did not re- ceive such notice prior to receiving notice concerning the proposed levy to collect from her unpaid federal income taxes for the years 2006, 2008, 2009, and 2010. See Langley v. Commisioner of Internal Revenue, 2015 WL 392980, at 2 (Jan. 13, 2015). Thus, defendant asks the court to dismiss plaintiffs complaint on bases other than that involving a notice of deficiency, specifically on the grounds that: (1) plaintiffs 2004 tax year claim is time-barred; and (2) plaintiff failed to state a claim for tax years 2009, 2011, 2012, 2013. Def.’s Mot for Clarification 3-4. Defendant’s motion shall be FILED BY LEAVE OF COURT and GRANTED. To address matters raised in defendant’s motion for clarification, the court directs the clerk of court to VACATE its Judgment, issued on August 1, 2016, ECF No. 21, and to WITHDRAW the court’s Opinion and Order issued on August 1,2016, EOF. No. 20. On or before Friday, September 9, 2016, plaintiff may file a response. IT IS SO ORDERED. . Ms. Langley provided hundreds of pages in her attempt to provide a clear picture of how her various claims led to her case before the court. However, the order, numbering, comments, and redactions of the attachments frustrated the court’s full review of her case.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218575/	Pre-Award Bid Protest; Judgment upon the Administrative Record, RCFC 52.1; Organizational Conflict of Interest; Supplementing the Administrative Record. MEMORANDUM OPINION AND ORDER GRIGGSBY, Judge I. INTRODUCTION Plaintiff, Parcel 49C Limited Partnership (“Parcel 49C”), brought this pre-award bid 113protest matter challenging several actions taken by the United States General Services Administration (“GSA”) in connection with the GSA’s evaluation of proposals in response to a request for lease proposals to procure office space for the headquarters of the Federal Communications Commission (“FCC”). The government has moved to partially dismiss this matter for lack of subject-matter jurisdiction, pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”). The government, Parcel 49C, and the defendant-intervenor in this matter, Trammell Crow Company (“Tram-mell Crow”), have also filed cross-motions for judgment upon the administrative record, pursuant to RCFC 52.1. In addition, Parcel 49C has filed a motion to supplement the administrative record, a motion for leave to file a sur-reply and a motion to file certain documents under seal, pursuant to RCFC 7(b). For the reasons set forth below, the Court: (1) GRANTS the government’s motion for judgment upon the administrative record and Trammell Crow’s motion for judgment upon the administrative record; (2) DENIES Parcel 49C’s motion for judgment upon the administrative record; (3) DENIES Parcel 49C’s motion to supplement the administrative record; (4) GRANTS Parcel 49C’s motion to file certain documents under seal and motion for leave to file a sur-reply; and (5) DENIES, as moot, the government’s partial motion to dismiss. II. FACTUAL AND PROCEDURAL BACKGROUND1 A. Factual Background In this pre-award bid protest matter, Parcel 49C alleges that the GSA committed several errors in connection with the agency’s evaluation of proposals submitted in response to a request for lease proposals (the “RLP”) to procure office space for the headquarters of the FCC (“the FCC Lease”). PL 2d. Am. Compl. ¶¶ 1-9. Specifically, Parcel 49C alleges that the GSA’s evaluation of responsive proposals was unreasonable and not in accordance with the terms of the RLP or applicable law. In this regard, Parcel 49C challenges the GSA’s evaluation upon five grounds. First, Parcel 49C alleges that the GSA should have determined that Trammell Crow is ineligible for award of the FCC Lease due to an organizational conflict of interest (“OCI”) that cannot be mitigated and because Trammell Crow was not a single owner of the property that it proposes for the FCC Lease at the time that Trammell Crow submitted its proposal. Id. at ¶¶ 160-79. Second, Parcel 49C alleges that certain requirements in the RLP unduly restrict competition and prejudice Parcel 49C. Id. at ¶¶ 96-108. Third, Parcel 49C alleges that the GSA improperly required Parcel 49C to provide certain National Environmental Policy Act (“NEPA”) documentation in connection with Parcel 49C’s offer, in violation of the RLP’s terms and applicable law. Id. at ¶¶ 143-51. Fourth, Parcel 49C alleges that the GSA’s evaluation of responsive proposals was improper, because the agency did not consider certain relocation and move-related costs in connection with its evaluation of the price for the FCC Lease and because the GSA’s Independent Government Estimate (“IGE”) has not been properly documented by the agency. Id. at 109-42; PI. 2d. Mem. at ¶¶ 24-46. Lastly, Parcel 49C alleges that the GSA failed to conduct meaningful discussions with Parcel 49C regarding its proposed price. PI. 2d. Am. Compl. at ¶¶ 152-159. As relief, Parcel 49C requests that the Court order the GSA to reject Trammell Crow’s proposal or, alternatively, enjoin the GSA from awarding the FCC Lease. Id. at ¶¶ 43-44. 1. The Request For Lease Proposals Parcel 49C is the current lessor of a building located at The Portals II, 445 12th Street, SW, Washington, DC, which currently houses the headquarters of the FCC under a previous lease. AR at 1450. This lease will expire on October 16, 2017. Id. at 26. 114On September 21, 2015, the GSA issued the RLP to procure office space to house the headquarters of the FCC in Washington, DC after the current lease expires. Id. at 1427-1697. The RLP provides that the subject lease is expected to be for a 15-year tern and that the occupancy date under the lease is expected to be between October 18, 2017 and December 31, 2019. Id. at 1431. In addition, the RLP also provides that “[t]he Lease will be awarded to the responsible Offeror whose offer ... is the lowest priced technically acceptable offer submitted.” Id. at 1446. Prior to issuing the RLP, the GSA retained the services of CBRE, Inc. (“CBRE”) to provide broker services related to the RLP, pursuant to a professional services contract for real estate consulting and other services. Id. at 2918. Consistent with its standard practice, the GSA required CBRE to conduct a preliminary survey of building locations that were eligible to submit bids in connection with the RLP. Id. This survey revealed that CBRE had three potential conflicts of interest, including a potential conflict with respect to the FCC’s incumbent lessor, Parcel 49C. Id. at 2923. There are several provisions in the RLP that are relevant to Parcel 49C’s claims in this matter. First, the RLP contains certain requirements regarding the minimum ceiling height for the space offered for the FCC Lease, as well as a requirement for power redundancy through dual power feeds. Id. at 1497. Specifically, the RLP provides that “[t]he first (1st) floor of the offered building must have a minimum finished ceiling height of 11’6.” Id. The RLP also contains a requirement regarding dual power feeds, which provides that: The Government requires power and communication circuits that have more than one point of entry coming into the Building (multiple independent conduits coming from the street to the facility, with at least 25 feet of physical separation). The Government requires redundancy for communications and power. Communications requires dual redundant 10-gigabit circuit, with more than one cable infrastructure... Id. (Exhibit B, paragraph 11). Second, the RLP contains a requirement that the space to be leased must be owned by a single owner. Id. at 1687. In this regard, paragraph 1.02, subparagraph C of the RLP provides that: Offered space must be contiguous (with the exception of the ground level/first floor space referenced in paragraph 1.02.A. above) and accommodated in no more than one (1) building, as determined by the LCO [Lease Contracting Officer]. To qualify as one (1) building, offered space must be owned by a single Offeror and the structures, if more than one, must be connected internally on at least 60% of the offered floors as determined by and at the discretion of the LCO. Id. at 1687. Third, the RLP contains several provisions to address potential conflicts of interest involving the broker for the RLP, CBRE. Specifically, paragraph 1.13, subparagraph A of the RLP provides that: For the purposes of this RLP, CBRE, INC. (the Broker) is the authorized contractor real estate broker representing GSA. Offerors are advised that there is a potential for a dual agency situation to arise under this procurement, whereby the Broker may represent both GSA and another Offeror under this lease action. By submitting an offer, the Offeror acknowledges the potential for a dual agency situation. Should there be an actual dual agency, the Broker will notify all Offerors of the actual dual agency and request written acknowledgement statements from all Of-ferors. Id. at 1433-34. In addition, paragraph 3.06, subparagraph H of the RLP also provides that: If there is a potential for conflict of interest because of a single agent representing multiple owners, present evidence that the agent disclosed the multiple representation to each entity and has authorization from each ownership entity offering in response to this RLP package. Owners and agents 115in conflicting interest situations are advised to exercise due diligence with regard to ethics, independent pricing, and Government procurement integrity requirements. In such cases, the Government reserves the right to negotiate with the owner directly. Id. at 1442. In addition, the RLP includes a requirement that offerors provide documentation related to compliance with NEPA. In this regard, paragraph 2.11, subparagraph B of the RLP provides, in relevant part, that: The Government reserves the right to reject any offer where (i) the NEPA-related documentation provided by the Offeror for the offered Property is inadequate, (ii) the offer entails unacceptably adverse impacts on the human environment, (iii) the identified adverse impacts cannot be readily mitigated, or (iv) the level of NEPA analysis is more extensive than is acceptable to the Government (e.g., offers must be of a nature that would allow NEPA to be satisfied by preparation of a Categorical Exclusion (CATEX) NEPA study or an Environmental Assessment (EA) with or without mandatory mitigation). Id. at 1438. Section 5.03 of the RLP also provides, in relevant part, that: Any offer must provide a basis for GSA to determine that award of a lease involving the offered building(s) will, under the National Environmental Policy Act (NEPA-42 U.S.C. Sec. 4321 et seq.), as implemented in the GSA NEPA Desk Guide (October 1999), either result in: 1) a Categorical Exclusion (CATEX) from the requirement to prepare an Environmental Assessment (EA) or an Environmental Impact Statement (EIS), or 2) Finding of No Significant Impact (FONSI) as the result of performing an EA. Any offer that, in GSA’s opinion, would require preparation of an EIS shall be considered technically unacceptable and ineligible for award. Id. at 1450. The RLP also contains a provision to address the fact that the current location of the FCC’s headquarters could be renovated to meet the agency’s future needs. In this regard, the RLP provides in paragraph 5.04, subparagraph A that: A renovation of The Portals II may be a potential solution for this procurement. A renovation of The Portals II will be required to: I) meet all the requirements of the current GSA Request for Lease Proposals (RLP) and Lease Form L201C; II) bring the existing structure and tenant areas up to a LEED-CI, Silver, rating in accordance with the U.S. Green Building Council requirements; and III) reconstruct the majority of the tenant’s space to meet the occupancy density required in the approved Prospectus. Id. at 1450, Lastly, the RLP contains several significant provisions regarding the evaluation of the price proposed by each offeror for the FCC Lease. Specifically, the RLP describes the factors that the GSA will consider in its evaluation of each offerors’ price, including move-related and relocation costs, and provides, in relevant part, that: Evaluation of offered prices will be based on the annual price per [American National Standards Institute/Building Owners and Managers Office Area Square Feet (“ABOA SF”)], including all required option periods. The Government will perform present value price evaluation by reducing the price per ABOA SF to a composite annual ABOA SF price, as follows ... 7. To the gross PVC [present value cost] will be added: ... d. The cost of relocation of furniture, telecommunications, replications costs, and other move-related costs, if applicable. Id. at 1447. To develop an IGE for the FCC Lease, the GSA engaged an architectural firm, OLBN, to study the FCC’s space needs. Id. at 336-442; SAR at 2, To that end, on April 21, 2015, OLBN provided the agency with a program of requirements (“POR”) to help the GSA estimate the costs associated with the FCC Lease. SAR at 6-355. On July 26, 2016, the government submitted the Declaration of the GSA’s Project Manager for the RLP, Cirilo Paulo, which explains the development of the IGE for the 116FCC Lease based on the POR. Id. at 1-5. In the declaration, Mr. Paulo states that OLBN “prepared an extensive POR based upon an in-depth examination of FCC needs, including extensive employee interviews to gain first-hand input from FCC staff.” Id. at 2. Mr. Paulo also states that, “[a]fter compiling a summary of improvements required by the FCC, OLBN priced its estimate of the costs to accomplish the work, based upon its professional knowledge of the costs prevailing in the Washington DC market for the work described.” Id. Mr. Paulo further states in the declaration that, after OLBN arrived at its “estimate of the costs to accomplish the work,” he reviewed OLBN’s estimated costs and “used these estimates as the starting point in formulating the final IGE for the FCC project.” Id. With respect to the development of the IGE, Mr. Paulo also states in his declaration that he relied upon his “knowledge of current construction costs,”’ due to his experience managing the new build-out of incumbent leased space for the NASA headquarters. Id. at 2. In this regard, Mr. Paulo states that he compared the costs in OLBN’s estimates with his own experience with the NASA project and that he found the prices in OLBN’s POR to be “realistic, and broadly consistent with [his] own experience.” Id. at 3. Mr. Paulo also states that he made certain adjustments to the cost estimates contained in the POR based upon his experience. Id. In this regard, Paulo describes several adjustments that he made to OLBN’s cost estimates: In response to these concerns, and in recognition that an IGE is intended to provide a basis for the tenant agency to budget adequate funds for the anticipated build-out, I made adjustments to certain cost estimates in the POR. These changes included both increasing assumed unit costs, as well decreasing assumed administrative charges. I also corrected certain assumptions as to what Tenant Improvement Allowance (TIA) and Building Specific Amortized Capital (BSAC) funds would be available to defray out-of-pocket build-out costs. a. I increased the per square foot construction cost estimates for the general office space and both the Low Cost Special Space and High Cost Special Space build-outs. b. I increased the TIA from $35.00 to $46.74 to reflect the correct allowance available for this lease procurement. c. I deleted the costs of a swing move from the “stay in place” scenario to reflect that the Government would only pay for one move. Move costs were thus $5.00 per usable square foot for both scenarios. d. I subtracted the BSAC, which is an allowance available to FCC to fund security costs, from both scenarios. The BSAC is an additional allowance available for the new lease, which would decrease the FCC’s out-of-pocket build-out costs. e. I decreased both scenario’s [sic] design cost percentage from [*] percent to [] percent. This was done to reflect the fact that architectural firms are willing to take on large dollar projects such as this one for a lesser overall percentage charge than is the case for smaller dollar projects. f. I decreased both scenario’s [sic] lessor’s fee from [] percent to [] percent. Once again, this is to reflect the market’s acceptance of a lower percentage commission on large dollar projects. Id. at 3-4 (internal citations omitted). 2. Evaluation Of Proposals Submitted By Parcel 49C And Trammell Crow Parcel 49G and Trammell Crow both timely submitted proposals in response to the RLP on October 20, 2015. AR at 1715-2426. After receiving these proposals, the GSA held discussions with the offerors and subsequently requested that Parcel 49C and Tram-mell Crow provide them Final Proposal Revisions (“FPR”) by December 15, 2015. Id. at 785-87,1703-04. The GSA’s correspondence with both offer-ors during the evaluation of them initial proposals shows that the GSA identified some deficiencies in both proposals. Id. at 1702-14. Specifically, with respect to Parcel 49C’s proposal, the GSA requested that Parcel 49C provide the [*] required by the RLP. Id. at 1171703-04. The GSA also expressed a concern about how Parcel 49C’s final proposal addressed the RLP’s [**] requirement. Id. at 1707,1712. With respect to Trammell Crow’s proposal, the GSA expressed concern that the initial proposal did not include certain registration information that would “be needed for [a] final single ownership entity” and the agency requested that Trammell Crow “describe [the] process that will need to be completed to create [a] single ownership entity. Id. at 1706; see also id. at 1713-14. Parcel 49C and Trammell Crow both timely submitted their FPRs to the GSA on December 16, 2016, and both offerors further revised their respective proposal at the GSA’s request on April 11, 2016. Id. at 1707-09, 2427-879. Specifically relevant to this dispute, Trammell Crow described how it could create a single ownership entity to satisfy the RLP’s single owner requirement in its FPR. Id. at 2782, 2807-08. In this regard, Tram-mell Crow provided the GSA with an opinion letter from its special counsel describing the process through which Trammell Crow could form a new entity to qualify as a single owner under the RLP upon condition of a lease award. Id. at 2807-08. Following the evaluation of the proposals submitted by Parcel 49C, Trammell Crow, and three other offerors, the GSA determined that Trammell Crow offered the lowest-priced, technieally-acceptable offer. Id. at 30, PI. 2d. Mem. at 23-26. And so, the GSA intends to award the FCC Lease to Tram-mell Crow. Id. 3. Alleged Organizational Conflicts Of Interest The GSA also conducted two investigations into alleged organizational conflicts of interest arising from CBRE’s business relationship with Trammell Crow. In April 2016, CBRE and Trammell Crow executed a “Dual Agency Disclosure” form, which identified a dual agency relationship between the two companies. Id. at 2928-31. On April 18, 2016, CBRE notified the GSA’s Contracting Officer’s Technical Representative (“COTR”), Kevin Terry, and other GSA contracting personnel, that a dual agency situation existed with respect to the RLP, because the GSA received “an offer from Sentinel Square III,” which is “represented by Trammelfl] Crow, Inc., a wholly owned subsidiary of CBRE.” Id. at 2924. Thereafter, the GSA investigated potential organizational conflicts of interest involving CBRE and Trammell Crow in light of this dual agency disclosure.2 AR at 2924-26. On April 26, 2016, the GSA National Capital Region Regional Contracting Officer, Aliza Brown, issued a “National Broker Contract Contracting Officer Finding and Determination” with regard to the disclosed dual agency relationship between CBRE and Trammell Crow. Id. at 2924-31. In her findings, Ms. Brown determined that, although an organizational conflict of interest exists, it was “in the Government’s best interest to retain CBRE’s project team under [the FCC] procurement,” because of the size and complexity of that procurement. Id. at 2925. With regard to mitigating this OCI, Mr. Brown also found that CBRE had “established a conflict wall in accordance with the contract requirements to appropriately safeguard procurement sensitive data, thereby preserving procurement integrity.” Id. In addition, she also determined that CBRE “provided the required dual agency notifications to all interested parties in the lease procurement” and, as a result, “the identified organizational conflict of interest had been satisfactorily mitigated per requirements of the” Federal Acquisition Regulation (“FAR”). Id. The GSA conducted a second OCI investigation related to CBRE’s business relationship with Trammell Crow after Parcel 49C commenced this litigation. In this regard, on July 22, 2016, the GSA’s COTR, Kevin Terry, issued “Findings and Determinations in Regard to Adequacy of Safeguards Against Organizational Conflicts of Interest.” Id. at 2918-21. In his findings, Mr. Terry detailed 118the actions that he undertook to investigate and directly address Parcel 49C’s allegation that Trammell Crow had a potential undisclosed conflict of interest with respect to CBRE and “to ensure the integrity of the procurement and the protection of the government’s interests.” Id. at 2919. First, Mr. Terry states that he “approached CBRE for information about the alleged conflict.” Id. Mr. Terry also states that he found that “[t]he fact that CBRE and Trammell Crow Company have [a common ownership] relationship does not necessarily create a conflict of interest as described in FAR 9.500, because the entities function as independent businesses and the connection between the entities is remote.” Id. at 2920, In this regard, Mr. Terry determined that “Trammel[l] Crow Company ... represents itself as a[n] independently operated business entity, not as an alter ego of CBRE.” Id. And so, Mr. Terry concluded that: A connection at this remote level is a lesser cause for concern than arises when the same brokerage firm represents both sides in a transaction, since the opportunity for improper sharing of information between rival separate brokerage firms with a common corporate ownership is less than the opportunities that might arise when two separate broker teams within the same brokerage firm are on opposite sides in a competitive procurement action. Id. In his findings and determinations, Mr. Terry also states that “the [*] and safeguards [that CBRE has] in place that are adequate to mitigate the possibility of an internal organizational conflict of interest within CBRE itself, are certainly adequate to mitigate the possibile [sic] organizational conflict of interest that might exist between rival firms in common ownership.” Id, Mr. Terry also “made further inquiries of CBRE pursuant to FAR 9.504(e).” Id. at 2921. From those inquiries Mr, Terry states that he learned “that Trammel[l] Crow Company []. Id. at 2921, Mr. Terry also found that “CBRE and Trammel[1] Crow Company [did] not [], and the economic interests of the two firms, and the brokers employed by each, are not aligned even to the same extent as is the case for CBRE, which has brokers representing both Parcel 49C and GSA within the same brokerage firm.” Id. And so, Mr. Terry found a “lack of any substantive issue concerning [a] potential organizational conflict of interest” pursuant to the FAR. Id. After completing his investigation, Mr. Terry states that he determined that “the common ownership interest between CBRE and Trammel[l] Crow Company likely does not create a conflict of interest as such is defined in the FAR, and that even if such a potential conflict arises from the fact of common ownership, it is properly mitigated by the [] protections in place at CBRE as described in” CBRE’s organizational conflict of interest submissions. Id. at 2921. And so, Mr. Terry concluded that there was “no unmitigated conflict of interest arising from the business relationship between CBRE and Ti’ammell Crow Company” and that, in any event, it was “in the interest of the United States” to award the FCC Lease to Tram-mell Crow, notwithstanding Parcel 49C’s allegation of an unmitigated conflict of interest. Id. at 2921. 4. Parcel 49C’s GSA And GAO Protests Prior to commencing this litigation, Parcel 49C filed several protests before the GSA and the Government Accountability Office (“GAO”) related to the RLP. Id. at 61-221, 248-266, 287-93, 1103-1250. On October 20, 2015, Parcel 49C filed an agency-level protest with the GSA challenging the RLP’s ceiling height and dual power feed requirements. Id. at 287-93. The GSA denied Parcel 49C’s protest on December 2, 2015. Id. at 224-32. On November 16, 2015, Parcel 49C filed a second agency-level protest challenging, among other things, the RLP’s requirement that offer-ors comply with the RLP’s NEPA-related requirements. Id. at 248-66. The GSA dismissed Parcel 49C’s second agency-level protest on December 15, 2015. Id. at 222-23. In December 2015, Parcel 49C filed a protest with the GAO, challenging, among other things, the RLP’s first floor ceiling height and dual power feed requirements, the GSA’s interpretation of the RLP’s NEPA-related requirements, and the GSA’s consideration of relocation and move-related costs. Id. at 51-221, 1103-1250. The GAO dismissed-in-part 119and denied-in-part this protest on March 23, 2016. Id. at 1414-26. B. Relevant Procedural History On April 4, 2016, Parcel 49C filed the complaint in this bid protest matter. See generally Compl. Parcel 49C subsequently amended the complaint on May 19, 2016 and on June 9, 2016. See generally PL 1st Am. Compl.; PI. 2d. Am. Compl. On April 14, 2016, the government filed the administrative record in this matter. See generally 1st AR. The government subsequently amended the administrative record on May 20, 2016, and later supplemented the administrative record on July 26, 2016, -with the Declaration of Cirilo Paulo. See generally AR; SAR. On May 5, 2016, plaintiff filed a motion to supplement the administrative record with certain expert reports that were commissioned by Parcel 49C pertaining to the RLP’s ceiling height and dual power feed requirements. See generally PI. Mot. to Supp. The government filed a response and opposition to Parcel 49C’s motion to supplement on June 24, 2016. See generally Def. Opp. to Mot. to Supp. On May 6, 2016, Parcel 49C also filed its first motion for judgment upon the administrative record. See generally PI. 1st Mot. Subsequently, on June 10, 2016, Parcel 49C filed a second motion for judgment upon the amended administrative record.3 See generally PL 2d. Mot. On June 3, 2016, Trammell Crow filed a motion to intervene in this matter, which the Court granted on June 9, 2016. See generally Int. Mot. to Intervene. Thereafter, on June 24, 2016, the government filed a partial motion to dismiss this matter and motion for judgment upon the administrative record, and Trammell Crow filed a motion for judgment upon the administrative record. See generally Def. Mot.; Int. Mot. On August 12, 2016, Parcel 49C filed a reply in support of its motion for judgment upon the administrative record and a response to the government’s partial motion to dismiss and motion for judgment upon the administrative record and to Trammell Crow’s motion for judgment upon the administrative record. See generally PL Reply. On September 2, 2016, the government and Trammell Crow filed their respective replies in support of their motions for judgment upon the administrative record. See generally Def. Reply; Int. Reply. Lastly, on October 18, 2016, Parcel 49C filed a motion for leave to file a sur-reply in response to the government’s reply. See generally PL Mot. for Sur-Reply. On October 20, 2016, and October 21, 2016, respectively, the government and Trammell Crow filed their responses and opposition to Parcel 49C’s motion for leave to file a sur-reply. See generally Def. Opp. to Sur-Reply; Int. Opp. to Sur-Reply. These matters having been fully briefed, the Court addresses the pending motions. III. LEGAL STANDARDS A. Jurisdiction And Bid Protests The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid protests brought by “an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). In bid protest cases, this Court reviews agency actions under the “arbitrary and capricious” standard. See 28 U.S.C. § 1491(b)(4) (adopting the standard of review set forth in the Administrative Procedure Act). And so, under the Administrative Procedure Act standard, an award may be set aside if “(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir.. 2004) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)). 120The United States Court of Appeals for the Federal Circuit has explained that: When a challenge is brought on the first ground, the test is whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a “heavy burden” of showing that the award decision had no rational basis. When a challenge is brought on the second ground, the disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations. Id. at 1351 (citations omitted). In reviewing an agency’s procurement decision, the Court should recognize that the agency’s decision is entitled to a “presumption of regularity.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) (citations omitted). And so, the Court should not substitute its judgment for that of the agency. Cincom Sys., Inc. v. United States, 37 Fed.Cl. 663, 672 (1997). “The protestor must show, by a preponderance of the evidence, that the agency’s actions were either without a reasonable basis or in violation of applicable procurement law” or procedure. Info. Tech. & Applications Corp. v. United States, 51 Fed.Cl. 340, 346 (2001), aff'd, 316 F.3d 1312 (Fed. Cir. 2003) (“ITAC’); see also Bannum, Inc. v. United States, 60 Fed.Cl. 718, 723 (2004); Gentex Corp. v. United States, 58 Fed.Cl. 634, 648 (2003). This standard “is highly deferential” and “requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors.” Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000) (citing Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438,42 L.Ed.2d 447 (1974)). In addition, as long as there is “a reasonable basis for the agency’s action, the Court should stay its hand even though it might, as an original proposition, have reached a different conclusion ....” Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (citations omitted). But, if “the agency ‘entirely fail[s] to consider an important aspect of the problem [or] offer[s] an explanation for its decision that runs counter to the evidence before the agency,’ ” then the resulting action lacks a rational basis and, therefore, is defined as arbitrary and capricious. Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L,Ed.2d 443 (1983)). B. Judgment Upon The Administrative Record And Injunctive Relief Generally, Rule 52.1 limits this Court’s review of an agency’s procurement decision to the administrative record. RCFC 52.1; see Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379 (Fed. Cir. 2009) (“[T]he focal point for judicial review should be the administrative record already in existence.”). And so, unlike a summary judgment motion brought pursuant to Rule 56, the existence of genuine issues of material fact does not preclude judgment upon the administrative record under Rule 52.1. Tech. Sys., Inc. v. United States, 98 Fed.Cl. 228, 242 (2011); RCFC 56. Rather, the Court’s inquiry is whether, “given all the disputed and undisputed facts, a party has met its burden of proof based on the evidence in the record.” A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131 (2006). In addition, under its bid protest jurisdiction, the Court “may award any relief [it] considers proper, including declaratory and injunctive relief ..." 28 U.S.C. § 1491(b)(2); see also Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009). In deciding whether to issue a permanent injunction, the Court considers: (1) whether the plaintiff has succeeded upon the merits of the case; (2) whether the plaintiff will suffer irreparable harm if the court withholds in-junctive relief; (3) whether the balance of hardships to the respective parties favors the grant of injunctive relief; and (4) whether it is in the public interest to grant injunctive relief. PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004); see also Amoco Prod. Co. v. Vill. of Gambell, Alaska, 121480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (“The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success.”); Centech Grp., Inc., 654 F.3d at 1037. These four factors are to be considered collectively, rather than individually,, such that “[n]o one factor, taken individually, is necessarily dispositive.... [T]he weakness of the showing regarding one factor may be overborne by the strength of the others.” FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993). Conversely, “the absence of an adequate showing with regard to any one factor may be sufficient” to deny injunctive relief. Id. A plaintiff who cannot demonstrate actual success upon the merits cannot prevail upon its motion for permanent injunctive relief. Nat’l Steel Car, Ltd. v. Canadian Pacific Ry., Ltd., 357 F.3d 1319, 1325 (Fed. Cir. 2004) (finding that a party that cannot demonstrate likely success upon the merits cannot prevail upon its motion for preliminary injunctive relief), reh’g and reh’g en banc denied. This Court has also found success upon the merits to be “the most important factor for a court to consider when deciding whether to issue injunctive relief.” Dellew Corp. v. United States, 108 Fed.Cl. 357, 369 (2012) (citing Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 312 (Fed. Cir. 2007)). However, while success upon the merits is necessary, it is not sufficient alone for a plaintiff to establish that it is entitled to injunctive relief. See Contracting, Consulting, Eng’g LLC v. United States, 104 Fed.Cl. 334, 353 (2012) (“Although plaintiffs entitlement to injunctive relief depends on its succeeding on the merits, it is not determinative because the three equitable factors must be considered, as well.”) (citing PGBA, LLC, 389 F.3d at 1228-29). C. Supplementing The Administrative Record The United States Court of Appeals for the Federal Circuit has held that the “focal point” of the Court’s review of an agency’s procurement decision ‘“should be the administrative record already in existence, not some new record made initially in the reviewing court.’” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379 (Fed. Cir. 2009) (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973)). By limiting its review to the “record actually before the agency” the Court guards against “using new evidence to ‘convert the ‘arbitrary and capricious’ standard’ ” applicable to bid protest actions “ ‘into effectively de novo review.’ ” Id. at 1380 (quoting Murakami v. United States, 46 Fed.Cl. 731, 735 (2000)). And so, the “parties’ ability to supplement the administrative record is limited” and the administrative record should only be supplemented “if the existing record is insufficient to permit meaningful review consistent with the APA.” Id. at 1379-81; see also Caddell Constr. Co., Inc. v. United States, 111 Fed.Cl. 49, 93 (2013); DataMill, Inc. v. United States, 91 Fed.Cl. 722, 732 (2010) (Plaintiff “bears the burden of explaining why the agency-assembled administrative record is insufficient.”). This Court has interpreted the Federal Circuit’s directive in Axiom to mean that supplementation of the administrative record is permitted to correct mistakes and fill gaps. L-3 Commc’ns EOTech, Inc. v. United States, 87 Fed.Cl. 656, 672 (2009). But, supplementation of the administrative record is not permitted when the documents proffered are unnecessary for an effective review of the government’s procurement decision. Id. And so, supplementation of the administrative record is appropriate when necessary to provide the Court with a record containing the information upon which the agency relied 'when it made its decision, as well as any documentation revealing the agency’s decision-making process. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); see also Beta Analytics Int’l, Inc. v. United States, 61 Fed.Cl. 223, 225 (2004) (“ ‘[Supplementation might be necessary to help explain an agency’s decision and thereby facilitate meaningful judicial review of the agency decision, particularly when a subjective value judgment has been made but not explained.’”) (quoting Orion Int’l Techs. v. 122United States, 60 Fed.Cl. 338, 343-44 (2004) (finding that supplementation is warranted when it is missing “relevant information that by its very nature would not be found in an agency record — such as evidence of bad faith, information relied upon but omitted from the paper record, or the content of conversations”)). IV. ANALYSIS In its motion for judgment upon the administrative record, Parcel 49C challenges the GSA’s evaluation process for the RLP upon five grounds. First, Parcel 49C alleges that the GSA should have determined that Trammell Crow is ineligible for award of the FCC Lease due to an organizational conflict of interest that cannot be mitigated and because Trammell Crow was not the single owner of the property that it proposes for the FCC Lease at the time its proposal was submitted to the GSA Second, Parcel 49C alleges that certain requirements in the RLP unduly restrict competition and prejudice Parcel 49C. Third, Parcel 49C alleges that the GSA improperly required Parcel 49C to provide certain NEPA-related documentation in connection with Parcel 49C’s offer, in violation of the RLP’s terms and applicable law. Fourth, Parcel 49C alleges that the GSA’s evaluation of responsive proposals was improper because the agency did not consider certain move-related and relocation costs in connection with its evaluation of offerors’ prices and because the GSA’s IGE had not been properly documented by the agency. Lastly, Parcel 49C alleges that the GSA failed to conduct meaningful discussions with Parcel 49C regarding its proposed price. The government and Trammell Crow both counter that the administrative record in this matter shows that the GSA conducted a reasonable evaluation process for the RLP, in accordance with the requirements of the RLP and applicable law. For the reasons discussed below, the Court agrees. And so, the Court DENIES Parcel 49C’s motion for judgment upon the administrative record and GRANTS the government’s cross-motion for judgment upon the administrative and Tram-mell Crow’s cross-motion for judgment upon the administrative record. A. Supplementation Of The Administrative Record Is Not Warranted As a preliminary matter, the Court must deny Parcel 49C’s request to supplement the administrative record in this case with certain expert reports commissioned by Parcel 49C, because these reports do not fill any gaps in the administrative record and directly address the legal issues that the Court must resolve in this matter. See generally PI. Mot. to Supp. In its motion to supplement, Parcel 49C seeks to supplement the administrative record with an expert engineering systems design and services report prepared by [] and an expert engineering report prepared by []. Id. Parcel 49C commissioned these expert reports to support its challenge to the RLP’s ceiling height and dual power feed requirements. Id. Parcel 49C argues that these expert reports should be added to the administrative record because they will ensure effective judicial review of this matter. Id. A review of the administrative record and the subject reports reveals, however, that Parcel 49C’s request to supplement the extensive administrative record in this case is without merit. First, it is well established that the Court may permit a party to supplement the administrative record if such supplementation is meaningful to judicial review. L-3 Commc’ns EOTech, 87 Fed.Cl. at 672. But, it is also well established that supplementation of the administrative record with' matters that address the legal issues before the Court is not appropriate. Id. (denying supplementation of the administrative record because plaintiffs proffered declaration “directly addresses the dispute before the court-whether the government’s decision to eliminate [the protester] from this competition ,.. was arbitrary or capricious”). In this case, Parcel 49C seeks to supplement the administrative record with expert reports that directly address one of the legal disputes in its bid protest — whether the RLP’s ceiling height and dual power feed requirements are rationale. See generally PI. Mot. to Supp.; AR at 188-89, 204-07. It is not appropriate for the Court to supplement the administrative record with this kind of informa123tion. L-3 Commc’ns EOTech, 87 Fed.Cl. at 672. And so, Parcel 49C’s request that the Court do so in this case is 'without merit. Supplementation of the administrative record with the subject expert reports is also not appropriate because these reports do not fill a gap in the administrative record. The government has filed an extensive administrative record in this matter, which it has subsequently amended and supplemented, to ensure that the administrative record contains the information that the GSA considered in evaluating proposals responsive to the RLP. See generally 1st AR; AR; SAR. While the expert reports that Parcel 49C seeks to add to the administrative record do provide an alternative point of view about the merits of the RLP’s ceiling height and dual power feed requirements, these reports simply do not fill any gaps in the administrative record about the GSA’s evaluation process for this procurement. RhinoCorps Ltd. Co. v. United States, 87 Fed.Cl. 261, 282 (2009) (denying supplementation of the administrative record with facts that substitute plaintiffs opinion for the agency’s determinations). Given this, supplementing the administrative record with these expert reports would run afoul of the Federal Circuit’s clear directive in Axiom that the “focal point” of the Court’s review in a bid protest matter should be the administrative record already in existence and not a record made in the reviewing court. Axiom Res. Mgmt., 564 F.3d at 1379. B. The Administrative Record Shows That The GSA Conducted A Reasonable Evaluation Process In Accordance With The RLP And Applicable Law The administrative record in this matter also shows that the GSA’s evaluation process for the RLP was both reasonable and in accordance with the requirements of the RLP and applicable law. The Court reviews the GSA’s actions with respect to the evaluation process for the RLP under the arbitrary and capricious standard and the Court will not substitute its judgment for that of the agency. See 28 U.S.C. § 1491(b)(4); Citizens to Pres. Overton Park, 401 U.S. at 415, 91 S.Ct. 814; Cincom Sys., Inc., 37 Fed.Cl. at 672. Applying this framework, the Court addresses each of Parcel 49C’s five challenges to the GSA’s evaluation process in connection with the RLP below. 1. Parcel 49C’s Claim That Trammell Crow Is Ineligible For Award Is Unsubstantiated By The Record Evidence As an initial matter, the administrative record does not substantiate Parcel 49C’s claim that Trammell Crow is ineligible for award of the FCC Lease. Parcel 49C challenges Trammell Crow’s eligibility for an award upon two grounds. First, Parcel 49C contends that Trammell Crow is ineligible for award due to an organizational conflict of interest that cannot be mitigated. PL 2d. Mem. at 20-21, 28-31. Second, Parcel 49C also contends that Trammell Crow is ineligible for award because Trammell Crow has not complied with the RLP’s single owner requirement. PL 2d. Mot. at 2; PL 2d. Mem. at 2, 17-20, 31-33. For the reasons discussed below, neither of Parcel 49C’s arguments are supported by the administrative record, a. Parcel 49C Has Not Demonstrated The Existence Of An Unmitigated Organizational Conflict Of Interest First, the administrative record shows that the GSA extensively investigated a potential organizational conflict of interest arising from the business relationship between Trammell Crow and the broker for the FCC Lease, CBRE. The administrative record also shows that the GSA appropriately determined that such an OCI could be, and had been, mitigated in this case. The United States Court of Appeals for the Federal' Circuit has held that the FAR obligates an agency to conduct an organizational conflict of interest analysis for significant conflicts and that contracting officers are given broad discretion in determining whether a potential conflict of interest is significant. PAI Corp. v. United States, 614 F.3d 1347, 1352 (Fed. Cir. 2010) (holding that agencies are only required to document “significant potential conflicts”); 48 C.F.R. § 9.504(a)(2). “‘A significant potential conflict [of interest] is one which provides the bidding party a substantial and unfair com124petitive advantage during the procurement process on information or data not necessarily available to other bidders.’ ” Turner Constr. Co. v. United States, 645 F.3d 1377, 1386 (Fed. Cir. 2011) (quoting PAI Corp., 614 F.3d at 1362). In addition, an organizational conflict of interest exists when, “because of other activities or relationships with other persons, a person is unable or potentially unable to render impartial assistance or advice to the Government, or the person’s objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.” 48 C.F.R. § 2.101. And so, the FAR obligates a contracting officer to “analyze planned acquisitions in order to ... [ajvoid, neutralize, or mitigate significant potential conflicts before contract award.” 48 C.F.R. § 9.504(a)(2). In this case, the administrative record demonstrates that the GSA identified and properly investigated an OCI arising from the business relationship between CBRE and Trammell Crow on two separate occasions, to ensure the integrity of the procurement process for the FCC Lease. In this regard, the record evidence shows that CBRE first disclosed its dual agency relationship with Trammell Crow to the GSA in April 2016. AR at 2928-31. The record evidence also shows that, thereafter, the GSA’s National Capital Region Regional Contracting Officer, Aiza Brown investigated the OCI and issued a “National Broker Contract Contracting Officer Finding and Determination” finding an organizational conflict of interest with respect to the relationship between CBRE and Trammell Crow that could be, and had been, mitigated. Id at 2924-26. After Parcel 49C commenced this matter, the GSA conducted a second investigation to determine whether Trammell Crow had an OCI due to its relationship with CBRE. Id. at 2918-21. Specifically, the administrative record demonstrates with respect to this OCI investigation that the GSA’s COTR, Kevin Terry, “approached CBRE for information about the alleged conflict” and found that [].” Id. at 2919. In particular, the administrative record shows that Mr. Terry learned “that Trammel[I] Crow Company had its []. Id. at 2921. And so, on July 22, 2016, Mr. Terry issued findings concluding that that there is no unmitigated conflict of interest arising from the business relationship between CBRE and Trammell Crow.4 Id. The record evidence also shows that the GSA reasonably determined that the OCI involving CBRE and Trammell Crow could be, and had been, mitigated in this ease. In this, regard, Mr. Terry determined in his findings that “the [] and safeguards [that CBRE has] in place that are adequate to mitigate the possibility of an internal organizational conflict of interest within CBRE itself, are certainly adequate to mitigate the possibile [sic] organizational conflict of interest that might exist between rival firms in common ownership.” Id. at 2920. There is no dispute in this case that the CBRE’s [] and other safeguards were in place when Trammell Crow submitted its offer for the FCC Lease. Id. at 2922. And so, the administrative record demonstrates that the GSA reasonably and appropriately determined that the OCI involving Trammell Crow and CBRE could be, and had been, mitigated. Parcel 49C’s argument that this OCI cannot be mitigated, because the CBRE personnel who evaluated Trammell Crow’s proposal have a financial interest in selecting Tram-mell Crow for award, is also unsubstantiated by the administrative record. PI. 2d. Mem. at 30-31. The record evidence makes clear that Trammell Crow [*] and the company operates independently from CBRE. AR at 2920-21. And so, these CBRE employees do not have a financial interest in the award of the FCC Lease to Trammell Crow. Parcel 49C’s contention that CBRE’s “dual role as evaluator and simultaneous offeror creates the appearance of impropriety, which by itself warrants Trammelfl] Crow’s disqualification,” is similarly without support in the record evidence. PL 2d. Mem. at 30. Rather, the administrative record demon125strates that CBRE appropriately disclosed its dual agency relationship with Trammell Crow to the GSA and to all interested parties in this lease procurement to avoid any appearance concerns. Id. at 2925. And so, again, the record simply does not support Parcel 49C’s argument that the OCI resulting from Trammell Crow’s relationship with CBRE cannot be mitigated.5 b. Parcel 49C Has Not Demonstrated That Trammell Crow Violated The RLP’s Single Owner Requirement The record evidence also does not substantiate Parcel 49C’s argument that Trammell Crow is ineligible for award of the FCC Lease because Trammell Crow has not satisfied the RLP’s single owner requirement. PI. 2d. Mem. at 18-20, 31-33, 69. In this regard, Parcel 49C argues in essence that Trammell Crow is ineligible for award of the FCC Lease because the company was not the single owner of the parcel that it proposes for the FCC Lease at the time that Tram-mell Crow submitted its final proposal, PI. 2d. Mem. at 31-33. A plain reading of the RLP makes clear, however, that the RLP does not require that an offeror be a single owner when the company submitted its proposal. Specifically, the RLP requires that, “to qualify as one (1) building, the offered space must be owned by a single Offeror and the structures if more than one, must be connected internally on at least 60% of the offered floors, as determined by and at the discretion of the LCO.” AR at 1497, 1687-88. The administrative record also shows that in its final proposal Trammell Crow represented to the GSA in the company’s final proposal that Trammell Crow would comply with this requirement if awarded the FCC Lease. Id. at 2782, 2807-08. The administrative record also shows that Trammell Crow reaffirmed its intention to satisfy the RLP’s single owner requirement in an opinion letter from the company’s special counsel, which described in detail the process through which Trammell Crow could form a new entity to qualify as a single owner under the terms of the RLP upon award of the FCC Lease. Id. at 2782, 2807-08. Given this factual evidence, the administrative record plainly demonstrates that Tram-mell Crow has stated its intention to satisfy the RFP’s single owner requirement if awarded the FCC Lease. The RLP requires nothing more of Trammell Crow in this regard. Id. at 1497, 1687-88. And so, the GSA reasonably determined that Trammell Crow is eligible for award of the FCC Lease and that the company will comply with the RLP’s single owner requirement if awarded the FCC Lease. 2. The RLP’s Requirements Do Not Unduly Restrict Competition Parcel 49C’s argument that the RLP’s ceiling height and dual power feed requirements unduly restrict competition are similarly without support in the administrative record. PI. 2d. Mem. at 45-53. This Court has recently held that, when examining whether a particular procurement requirement unduly restricts competition, the Court inquires whether the restrictive requirements are required to meet the government’s minimum needs. Id.; Am. Safety Council, Inc., 122 Fed.Cl. 426, 435 (2015); see also 41 U.S.C. § 253a(a).6 If a solicitation requirement violates the prohibition against restrictive terms that are not required to meet the government’s minimum needs, the requirement is deemed to be unduly restrictive and an agency’s decision to include the requirement in the solicitation will be found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Id. at 436 (citing Redland Genstar, Inc. v. United States, 39 Fed.Cl. 220, 231 (1997); 126see also Wit Assocs., Inc. v. United States, 62 Fed.Cl. 657, 662 (2004) (“A solicitation must seek proposals that meet an agency’s minimum needs, or else the solicitation represents an undue, improper restriction on competition. . The Federal Circuit has also held that a plaintiff bears the burden of showing that a restrictive solicitation term “is so plainly unjustified as to lack a rational basis.” Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282, 1286-87 (Fed. Cir. 2010). And so, to determine whether a requirement is unduly restrictive here, the Court asks both whether the requirement “is so plainly unjustified as to lack a rational basis,” and whether the allegedly restrictive term is required to meet the government’s minimum needs. Id.; Am. Safety Council, Inc., 122 Fed.Cl. at 435. The Federal Circuit has also held that an agency’s preferences with respect to a procurement are entitled to great weight. Savantage Fin. Servs., Inc., 595 F.3d at 1286. And so, determining the agency’s minimum needs is a matter that falls within the broad discretion of the ageney-and not a matter for the Court to second guess. Savantage at 1286; Wit Assocs., Inc., 62 Fed.Cl. at 662. Here, the administrative record clearly shows that the RLP’s ceiling height requirement is rational and designed to meet the government’s legitimate needs, because this requirement will ensure that the FCC has adequate space to conduct the agency’s press and public relations events on the first floor of the FCC’s new headquarters. AR at 668-69. In particular, the RLP requires that “[t]he first (1st) floor of the offered building must have a minimum finished ceiling height of 11’6.’” Id. at 1497. The administrative record makes clear that the RLP’s ceiling height requirement will permit the FCC “to provide unobstructed views of the entire space anywhere within the room .... [and l]arge monitors ... mounted to walls throughout the room to provide visibility for the audience of any presentations.” Id. at 668-69. The need to have suitable space for press and public relations events is a legitimate need of the FCC, and the RLP’s ceiling height requirement reasonably addresses this need. And so, the administrative record demonstrates that the RLP’s ceiling height requirement is a rational requirement designed to meet the FCC’s legitimate needs in this case. Savantage Fin. Servs., 595 F.3d at 1286-87. The administrative record also demonstrates that the RLP’s dual power feed requirement — which requires that the power and communication circuits in the FCC’s new headquarters have more than one point of entry — is also rationale and designed to meet the FCC’s minimum needs. See AR at 1497 (RLP at Exhibit B ¶ 11), In this regard, the RLP provides, in relevant part, that: The Government requires power and communication circuits that have more than one point of entry coming into the Building (multiple independent conduits coming from the street to the facility, with at least 25 feet of physical separation).... The Government requires redundancy for communications and power. Communications requires dual redundant 10-gigabit circuit, with more than one cable infrastructure. Id. at 526, 1497 (Exhibit B, paragraph 11). The government also represents that the FCC’s Public Safety & Homeland Bureau Command Center (“PSHSB”) — which coordinates the FCC’s activities with respect to, among other things, public safety, homeland security and national security — is housed within the FCC’s headquarters. Id. at 687, 1498, 1588-89; see also 47 C.F.R. § 0.191(b). And so, to ensure that the PSHSB can perform its mission, the RLP requires power redundancy through dual power feeds at the FCC’s new headquarters. AR at 1498, 1588-89. Again, the RLP’s dual power requirement is both rational and intended to meet a demonstrated need upon the part of the FCC to fulfill its public safety mission. Given this, the dual power feed requirement does not unduly restrict the competition for the FCC Lease. Savantage Fin. Servs., 595 F.3d at 1287; Am. Safety Council, Inc., 122 Fed.Cl. at 435. And so, the Court will not set aside this reasonable solicitation requirement. Lastly, it is also important to note that, while there may be other options for meeting the FCC’s needs with respect to public rela127tions and public safety, re-examining those options is not the role of this Court when determining whether the RLP’s requirements unduly restrict competition. Savantage Fin. Servs., 595 F.8d at 1286 (“And deter-' mining an agency’s minimum needs ‘is a matter within the broad discretion of agency officials ... and is not for [the] court to second guess.’ ”) (citations omitted) (brackets existing). The government has demonstrated that both the ceiling height and dual power feed requirement in the RLP are rational. As a result, Parcel 49C has not met its burden to show that these RLP’s requirements unduly restrict competition. 3. The RLP’s NEPA-Related Requirements Are Also Reasonable To the extent that Parcel 49C can challenge the RLP’s requirements with respect to NEPA compliance in this litigation, the record evidence also shows that these requirements are reasonable.7 In its motion, Parcel 49C argues that the RLP’s NEPA-related requirements are unreasonable, and that Parcel 49C should be exempt from these requirements, because Parcel 49C will not construct a new building if awarded the FCC Lease. AR at 54-58; PI. 2d Mem. at ¶¶ 47-56. For the reasons discussed below, Parcel 49C’s claim is without merit. With respect to the NEPA compliance, the RLP provides, in relevant part, that: The Government reserves the right to reject any offer where (i) the NEPA-related documentation provided by the Offeror for the offered Property is inadequate, (ii) the offer entails unacceptably adverse impacts on the human environment, (iii) the identified adverse impacts cannot be readily mitigated, or (iv) the level of NEPA analysis is more extensive than is acceptable to the Government (e.g., offers must be of a nature that would allow NEPA to be satisfied by preparation of a Categorical Exclusion (CATEX) NEPA study or an Environmental Assessment (EA) with or without mandatory mitigation). Id. at 1438-39. The record evidence also shows that the GSA determined that it was necessary for all offerors to comply with these requirements so that the agency could determine the environmental impact of the award of the FCC Lease. Id. at 1444, 1449-60. Parcel 49C’s numerous challenges to the RLP’s NEPA-related requirements lack support in the administrative record for several reasons. First, contrary to Parcel 49C’s contentions in this case, the RLP clearly requires that all offerors, including Parcel 49C, provide NEPA documentation to be eligible for award of the FCC Lease. Id. at 1438-39, 1444, 1449-50. Second, the administrative record similarly does not support Parcel 49C’s contention that Parcel 49C should be exempt from the RLP’s NEPA-related requirements, because the company will not [*] if awarded the FCC Lease. Id. at 26, 38; PI. 2d Mem. at ¶¶ 47-56. Rather, the administrative record shows that the GSA determined that Parcel 49C would have to [] if awarded the FCC Lease and that [] impacts. Id. at 26 (“[T]he government anticipated [] should the incumbent Lessor prevail in the procurement.”). In addition, Parcel 49C’s argument that it is entitled to a Categorical Exclusion (“CA-TEX”) from certain NEPA requirements also lacks evidentiary support. The administrative record makes clear that the RLP requires that Parcel 49C, and all other offer-ors, provide all relevant NEPA-related documentation to the GSA before the agency would take any action with respect to a CA-TEX. Id. at 1438-39, 1444, 1449-50. Given this, there is ample evidence in the record to demonstrate that the GSA properly determined that Parcel 49C and all other offerors must fully comply with the RLP’s NEPA-related requirements. 1284. The GSA Appropriately Evaluated The Costs Associated With The FCC Lease Consistent With The RLP Parcel 49C’s attempt to set aside the GSA’s evaluation process for the RLP due to alleged errors in the evaluation of the price factor for the solicitation are similarly without merit. PI. 2d. Mem. at 34-44. In this regard, Parcel 49C puts forward two arguments. First, Parcel 49C contends that the GSA failed to properly consider certain move-related and relocation costs, and the impact of such costs on the price for the FCC Lease. Id. at 34-37. Second, Parcel 49C contends that the GSA’s IGE for the RLP was unreasonable and not developed in accordance with the terms of the RLP. Id. at 37-43; PI. Reply at 27-36. For the reasons discussed below, Parcel 49C’s arguments are belied by the record evidence. With respect to move-related and relocation costs, a plain reading of the RLP makes clear that the RLP did not require the GSA to consider such costs when evaluating responsive proposals. The RLP provides, in relevant part, that the GSA will consider and add “[t]he cost of relocation of furniture, telecommunications, replications costs, and other move-related costs [to the gross present value cost], if applicable.” AR at 1447 (emphasis supplied). This language does not require that the GSA consider move-related or relocation-related costs in its evaluation of an offeror’s price. Id. Rather, this provision makes clear that the GSA has the discretion to consider such costs, if the contracting officers deems the costs applicable. Id. In this ease, the administrative record demonstrates that the GSA’s contracting officer for the RLP reasonably determined that it was not necessary for the GSA to consider certain move-related and relocation costs during the evaluation of responsive proposals, because the cost of staying in the incumbent building and moving to another building were similar. Id. at 37. The RLP does not prohibit the GSA from exercising its discretion regarding these costs in this manner. AR at 1447. And so, Parcel 49C’s claim to the contrary is simply without merit. The administrative record in this case also shows that the GSA appropriately developed the IGE for this procurement. This Court has long recognized that, “[gjenerally, independent government estimates represent the agency’s best estimate of the most reasonable current price of the products or services being procured.” Process Control Techs. v. United States, 53 Fed.Cl. 71, 77 (2002) (quotation omitted). While an agency is not required to support its IGE with “exhaustive detail,” it must “be able to demonstrate the basis for the estimate” when the IGE “is questioned.” Nutech Laundry & Textile, Inc. v. United States, 56 Fed.Cl. 588, 594 (2003). And so, this Court has also held that an agency may utilize prior experience — historical information — to create the IGE and that “agencies are ‘given broad latitude in establishing [a] method to evaluate price proposals.’” MED Trends, Inc. v. United States, 102 Fed.Cl. 1, 7 (2011) (citations omitted). The administrative record here contains ample support for the GSA’s IGE. In particular, the administrative record demonstrates that the GSA engaged in a lengthy and thoughtful process to develop the IGE, by first commissioning the development of a program of requirements for the FCC’s new headquarters and then developing the IGE. AR at 310-18, 1577-1683. In this regard, the record evidence shows that the GSA engaged the architectural firm OLBN to study the FCC’s space needs. Id. at 336-442; SAR at 2. The record evidence also shows that, after studying the FCC’s space needs and “compiling a summary of improvements required by FCC, OBLN priced its estimate of the costs to accomplish the work, based upon its professional knowledge of the costs prevailing in the Washington DC market for the work described.” SAR at 2. The Declaration the GSA’s Project Manager for the RLP, Cirilo Paulo, also demonstrates that the GSA further modified the cost estimates provided by OBLN to develop the GSA’s IGE for this procurement. Specifically, Mr. Paulo states in his declaration that he compared the costs in OLBN’s estimates with his own experience on a similar NASA project to formulate the IGE. Id. at 2-3. Mr. Paulo’s declaration also makes clear that he made several adjustments to the costs in OLBN’s estimate based upon his experience 129and expertise. Id. at 3. For example, Mr. Paulo states in Ms declaration that he increased certain costs contained in OLBN’s estimate because of his awareness that construction costs have been increasing due to greater construction activity in the WasMng-ton, DC market. Id. at 3-4. In addition, Mi. Paulo also describes several specific adjustments that he made to OLBN’s cost estimates: In response to these concerns, and in ree-ogmtion that an IGE is intended to provide a basis for the tenant agency to budget adequate funds for the anticipated build-out, I made adjustments to certain cost estimates in the POR. These changes included both increasing assumed unit costs, as well decreasing assumed administrative charges. I also corrected certain assumptions as to what Tenant Improvement Allowance (TIA) and Building Specific Amortized Capital (BSAC) funds would be available to defray out-of-pocket build-out costs. a. I increased the per square foot construction cost estimates for the general office space and both the Low Cost Special Space and High Cost Special Space build-outs. b. I increased the TIA from $35.00 to $46.74 to reflect the correct allowance available for tMs lease procurement. e. I deleted the costs of a swing move from the “stay in place” scenario to reflect that the Government would only pay for one move. Move costs were thus $5.00 per usable square foot for both scenarios. d. I subtracted the BSAC, wMch is an allowance available to FCC to fund security costs, from both scenarios. The BSAC is an additional allowance available for the new lease, wMch would decrease the FCC’s out-of-pocket build-out costs. e. I decreased both scenario’s [sic] design cost percentage from [*] percent to [] percent. TMs was done to reflect the fact that arcMtectural firms are willing to take on large dollar projects such as this one for a lesser overall percentage charge than is the case for smaller dollar projects. f. I decreased both scenario’s [sic] lessor’s fee from [] percent to [] percent. Once again, tMs is to reflect the market’s acceptance of a lower percentage commission on large dollar projects. Id. at 3-4 (internal citations omitted). And so, the admimstrative record demonstrates that the GSA appropriately and independently developed the IGE in accordance with the terms of the RLP. Id. at 1-4; AR at 310-18, 336-442,1577-1683. Lastly, Parcel 49C’s argument that the GSA erred in tMs procurement by failing to revise the IGE after receiving responsive proposals is without any legal or factual support. In fact, Parcel 49C cites to no statute or case to support tMs novel proposition. See generally PL 2d. Mem. Given tMs, Parcel 49C has simply not met its burden to show that the GSA’s evaluation process was unreasonable, or that it has been prejudiced by the agency’s actions in any way. 5. Parcel 49C’s Claim That The GSA Failed To Conduct Meaningful Discussions Is Unsubstantiated By The Record Evidence Parcel 49C’s final challenge to the GSA’s evaluation process — that the GSA failed to conduct meaningful discussions regarding Parcel 49C’s proposed price — is equally flawed. PL 2d. Mem. at 58-59. TMs Court has long recognized that discussions regarding a proposal submitted in response to a government solicitation are deemed to be “meaningful if they ‘generally lead offer-ors into areas of their proposals requiring amplification or correction, which means that discussions should be as specific as practical considerations permit.’ ” Advanced Data Concepts, Inc., 43 Fed.Cl. 410, 422 (1999) (internal quotations and citations omitted), aff'd, 216 F.3d 1054 (Fed. Cir. 2000); Process Control Techs., 53 Fed.Cl. at 81 (2002); World Travel Serv. v. United States, 49 Fed. Cl. 431, 439 (2001). The Court has also recognized that agencies have no obligation to discuss in detail all inadequate aspects of a proposal. Process Control Techs., 53 Fed.Cl. at 81; see also Labat-Anderson v. United States, 42 Fed.Cl. 806, 835 (1999). Rather, an agency should tailor the discussions to the offeror and an agency’s advice that an offer- or’s proposed price is Mgher than the government’s estimate satisfies the requirement 130to conduct meaningful discussions. World Travel Serv., 49 Fed.Cl. at 439; Process Control Technologies, 53 Fed.Cl. at 81. And so, the decision to conduct discussions — and the scope of any such discussions — is left to the judgment of the contracting officer. World Travel Serv., 49 Fed.Cl. at 439; Process Control Technologies, 53 Fed.Cl. at 81. Here, there is ample evidencé in the administrative record to show that the GSA held meaningful discussions with Parcel 49C. Indeed, the record evidence shows that the GSA communicated with Parcel 49C during the evaluation of Parcel 49C’s proposal and that the GSA identified some deficiencies with respect to Parcel 49C’s proposal. AR at 1702-04. Specifically, the GSA noted that Parcel 49C’s proposal did not contain certain [*] required by the RLP. Id. The GSA also expressed a concern about how Parcel 49C’s proposal addressed the RLP’s [] requirement, Id. at 1707, 1712. More importantly, the record evidence also shows that the GSA did not identify Parcel 49C’s proposed price as an area that required amplification or correction. AR at 1702-04, 1707-08, 1710-12, 2880-81, 2884. Given this, the GSA had no obligation to discuss Parcel 49C’s proposed price, nor did the agency have any obligation to discuss every other area where the Parcel 49C’s proposal could be improved. 48 C.F.R. § 15.306(d)(3). And so, again, the administrative record demonstrates that the GSA conducted meaningful discussions with Parcel 49C and, thus, does not support Parcel 49C’s claim to the contrary. C, Parcel 49C Has Not Shown That It Is Entitled To Injunctive Relief Given the many weaknesses in Parcel 49C’s challenges to the GSA’s evaluation process, Parcel 49C has also not demonstrated that it is entitled to the injunctive relief that it seeks in this case. When determining whether to grant injunctive relief, the Court considers: (1) whether plaintiff has succeeded upon the merits of the case; (2) whether plaintiff will suffer irreparable harm if the Court withholds injunctive relief; (3) whether the balance of hardships to the respective parties favors the grant of injunctive relief; and (4) whether it is in the public interest to grant injunctive relief. PGBA, LLC, 389 F.3d at 1228-29; see also Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983). In addition, where, as here, the evidence demonstrates that a plaintiff will not succeed upon the merits of its claims, a plaintiff cannot prevail upon a claim for injunctive relief. Cf. Altana Pharma AG v. Teva Pharm. USA Inc., 566 F.3d 999, 1005 (Fed. Cir. 2009) (citing Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed. Cir. 2001)) (“Although the factors are not applied mechanically, a movant must establish the existence of both of the first two factors to be entitled to a preliminary injunction” or a temporary restraining order); Nat’l Steel Car, Ltd. v. Canadian Pacific Ry., Ltd., 357 F.3d 1319, 1325 (Fed. Cir. 2004) (finding that a party that cannot demonstrate likely success upon the merits cannot prevail upon its motion for preliminary injunctive relief), reh’g and reh’g en banc denied. As discussed above, Parcel 49C has not demonstrated that any of its five challenges to the GSA’s evaluation process for the FCC Lease are supported by the administrative record, or the relevant law. Rather, the facts of this case make clear that the GSA’s evaluation process was reasonable and complied with the requirements of the RLP. Because Parcel 49C cannot demonstrate actual success upon the merits of its claims here, Parcel 49C cannot prevail upon its motion for permanent injunctive relief. Nat’l Steel Car, Ltd., 357 F.3d at 1325. D. The Parties’ Other Pending Motions As a final matter, the parties have filed several other motions that the Court must also resolve. Parcel 49C has filed a motion for leave to file a sur-reply to the government’s motion for judgment upon the administrative record and a motion to file its notice withdrawing Counts IV and Count XII of the first amended complaint under seal. See generally PI. Mot. for Sur-Reply, PI. Mot. to Seal. The government has also filed a partial motion to dismiss Parcel 49C’s OCI claim, upon the ground that this claim is unripe. See generally Def. Mot. 131To aid the Court in the resolution of this matter, the Court GRANTS Parcel 49C’s motions for leave to file a sur-reply to the government’s motion for judgment upon the administrative record and to file its notice under seal. Because the GSA has now completed the investigation into the alleged organizational conflict of interest involving Trammell Crow, the Court DENIES, as moot, the government’s partial motion to dismiss. V. CONCLUSION In sum, the administrative record in this case demonstrates that the GSA conducted a reasonable evaluation process for the RLP at issue in this litigation and that the agency’s evaluation process complied with the terms of the RLP and applicable law. Given this evidence, Parcel 49C has simply not shown that the GSA’s actions here were arbitrary, capricious, an abuse of discretion, or not in accordance with the RLP or applicable law. And so, for the foregoing reasons, the Court: (1) GRANTS the government’s motion for judgment upon the administrative record and Trammell Crow’s motion for judgment upon the administrative record; (2) DENIES Parcel 49C’s motion for judgment upon the administrative record; (3) DENIES Parcel 49C’s motion to supplement the administrative record; (4) GRANTS Parcel 49C’s motion to file certain documents under seal and motion for leave to file a sur-reply; and (5) DENIES, as moot, the government’s partial motion to dismiss, Judgment shall be entered accordingly. Each party shall bear their own costs. Some of the information contained in this Memorandum Opinion and Order may be considered protected information subject to the protective order entered in this matter on April 6, 2016. This Memorandum Opinion and Order shall therefore be filed under seal. The parties shall review the Memorandum Opinion and Order to determine whether, in them view, any information should be redacted in accordance with the terms of the Protective Order prior to publication. The Court hereby ORDERS the parties to FILE, by December 22, 2016, a joint status report identifying the information, if any, that they contend should be redacted, together with an explanation of the basis for each proposed redaction. IT IS SO ORDERED. . The facts recited in this Memorandum Opinion and Order are taken from the administrative record ("AR”); the supplemental administrative record ("SAR”); plaintiffs second amended complaint ("PL 2d. Am. Compl.”); and plaintiff's memorandum in support of its motion for judgment upon the amended administrative record ("PL 2d. Mem.”). . On September 29, 2014, CBRE also disclosed a potential organizational conflict of interest related to the fact that CBRE represented Parcel 49C, which is the lessor for the incumbent location of the FCC headquarters. AR. at 2918, 2922-23. CBRE also disclosed at that time that it might represent other potential offerors for new construction projects in the future. Id. at 2918. . On May 24, 2016, Parcel 49C filed a notice withdrawing Counts I-V and Count XII of its first amended complaint. See generally PI. Notice. On May 25, 2016, plaintiff also filed a motion to seal this notice. See generally Pl. Mot. to Seal. . Mr. Terry also found that, "to the extent that títere is an ongoing allegation of the existence of an unmitigated conflict of interest arising from the business ■ relationship between CBRE and Trammel[l] Crow Company, it is in the interest of the United States to award the lease contract [to Trammell Crow]." AR at 2921. . Parcel 49C’s reliance upon FAR § 9.505-3 to argue that the GSA’s OCI determination with respect to Trammell Crow and the FCC Lease is improper and similarly misguided. As the government notes in its motion, Section 9.505-3 has no application to the FCC Lease at issue here. 48 C.F.R. § 9.505-3 (requiring that contracts for the evaluation of offers for products or services shall not be awarded to a contractor that will evaluate its own offers or those of a competitor without proper safeguards to ensure objectivity); Def. Reply at 18-20. . The Competition in Contracting Act ("CICA") requires full and open competition through the use of competitive procedures. 41 U.S.C. § 3301(a)(1). . It is undisputed in this case that Parcel 49C did not raise its challenge to the RLP’s NEPA-related requirements before it submitted its offer for the FCC Lease. See AR at 287-293. This Court has long recognized that an offeror wishing to challenge the terms of a solicitation must do so before the close of the proposal process. Blue & Gold Fleet, L.P., 492 F.3d at 1313 (holding that a protester who knew the agency’s interpretation of a solicitation but failed to challenge it before bids were due, waived its ability to object after-wards). And so, Parcel 49C has waived this claim under Blue & Gold Fleet.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218576/	174Pro Se Plaintiff; Subject Matter Jurisdiction; Tort Claims; Criminal Claims. ORDER HORN, J. On November 3, 2016 joro se plaintiff Ni-coll Stewart filed a complaint in the United States Court of Federal Claims against various state agencies and personnel including the “Department of Descrimination.”1 Ms. Stewart alleges that: I am a previous victim of civil rights violation and invasion of privacy. I have reasons to believe I am owed a large sum of benefits for the crimes and actions taken by congressman and state workers in association for accepting certain conditions in my life, My human have been violated in the worst way, along with my parent rights. Crimes include but not limited to: endangering a child * sexual exploitation/child exploitation * Harrassment ⅜ intimidation * corporation violation ^Humiliation Human trafficking I believe this was scheduled a charity purpose, however my human rights was not included. Since my human/parenting rights was dismissed on numerous mistakes and options, I have been taking more legal action in regards to my situation. These type of actions are very dangerous for any tenant, or citizen. But I’ve accepted things for how they are, and now I’m claiming my parts of the funds. Ms. Stewart also states that “[t]hese are huge challenges people face on a daily basis, unfortunately I’ve mastered every area of these type of problems.” In response to plaintiffs complaint, on December 19, 2016, the defendant filed a motion to dismiss the complaint for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) (2016) of the Rules of the United State Court of Federal Claims. DISCUSSION The court recognizes that plaintiff is proceeding pro se, without the assistance of counsel. When determining whether a complaint filed by a pro se plaintiff is sufficient to invoke review by a court, pro se plaintiffs are entitled to liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 662 (requiring that allegations contained in a pro se complaint be held to “less stringent standards than formal pleadings drafted by lawyers”), reh’g denied, 405 U.S, 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), reh’g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977); Matthews v. United States, 750 F.3d 1320, 1322 (Fed. Cir. 2014): Diamond v. United States, 115 Fed.Cl. 516, 524 (2014). aff'd. 603 Fed.Appx. 947 (Fed. Cir.), cert. denied — U.S. -, 135 S.Ct. 1909, 191 L.Ed.2d 766 (2015). “However, “‘[t]here is no duty on the part of the trial court to create a claim which [the plaintiff] has not spelled out in his [or her] pleading.” ’ ” Lengen v. United States, 100 Fed.Cl. 317, 328 (2011) (alterations in original) (quoting Scogin v. United States. 33 Fed.Cl. 285, 293 (1995) (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see also Bussie v. United States, 96 Fed.Cl. 89, 94, aff'd, 443 Fed.Appx. 542 (Fed. Cir. 2011); Minehan v. United States, 75 Fed.Cl. 249, 253 (2007). “While a pro se plaintiff is held to a less stringent standard than that of a plaintiff represented by an attorney, the pro se plaintiff, nevertheless, bears the burden of establishing the Court’s jurisdiction by a preponderance of the evidence.” Riles v. United States, 93 Fed.Cl. 163, 165 (2010) (citing Hughes v. Rowe, 449 U.S. at 9, 101 S.Ct. 173 and Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir.) 175(“Plaintiff bears the burden of showing jurisdiction by a preponderance of the evidence.”), reh’g and reh’g en banc denied (Fed. Cir. 2002)); see also Shelkofsky v. United States, 119 Fed.Cl. 133, 139 (2014) (“[Wlhile the court may excuse ambiguities in a pro se plaintiffs complaint, the court ‘does not excuse [a complaint’s] failures.’” (quoting Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995)); Harris v. United States, 113 Fed.Cl. 290, 292 (2013) (“Although plaintiffs pleadings are held to a less stringent standard, such leniency ‘with respect to mere formalities does not relieve the burden to meet jurisdictional requirements.’ ” (quoting Minehan v. United States, 75 Fed.Cl. at 253)). The Tucker Act, 28 U.S.C. § 1491, grants jurisdiction to this court as follows: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1) (2012). As interpreted by the United States Supreme Court, the Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United States (1) founded on an express or implied contract with the United States, (2) seeking a refund from a prior payment made to the government, or (3) based on federal constitutional, statutory, or regulatory law mandating compensation by the federal government for damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009); United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); see also Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007). cert. denied, 552 U.S. 1142, 128 S.Ct. 1082, 169 L.Ed.2d 810 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999). “Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act. The claim must be one for money damages against the United States ....” United States v. Mitchell, 463 U.S. at 216, 103 S.Ct. 2961; see also United States v. White Mountain Apache Tribe. 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003); Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir.), cert. denied. — U.S. —, 134 S.Ct. 259, 187 L.Ed.2d 262 (2013); RadioShack Corp. v. United States, 566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s Mushroom Serv., Inc. v. United States. 521 F.3d 1338, 1343 (Fed. Cir. 2008) (“[P]laintiff must ... identify a substantive source of law that creates the right to recovery of money damages against the United States.”); Golden v. United States, 118 Fed. Cl. 764, 768 (2014). In Ontario Power Generation, Inc. v. United States, the United States Court of Appeals for the Federal Circuit identified three types of monetary claims for which jurisdiction is lodged in the United States Court of Federal Claims. The court wrote: The underlying monetary claims are of three types.... First, claims alleging the existence of a contract between the plaintiff and the government fall within the Tucker Act’s waiver. ... Second, the Tucker Act’s waiver encompasses claims where “the plaintiff has paid money over to the Government, directly or in effect, and seeks return of all or part of that sum.” Eastport S.S. [Corp. v. United States, 178 Ct.Cl. 599, 605-06,] 372 F.2d [1002,] 1007-08 [ (1967) ] (describing illegal exaction claims as claims “in which ‘the Government has the citizen’s money in its pocket’” (quoting Clapp v. United States, 127 Ct.Cl. 505, 117 F.Supp. 576, 580 (1954)).... Third, the Court of Federal Claims has jurisdiction over those claims where “money has not been paid but , the plaintiff asserts that he is nevertheless entitled to a payment from the treasury.” Eastport S.S., 372 F.2d at 1007. Claims in this third category, where no payment has been made to the government, either directly or in effect, require that the “particular provision of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain sum.” Id.; see also [United 176States v. ]Testan, 424 U.S. [392,] 401-02, 96 S.Ct. 948 [47 L.Ed.2d 114 (1976)] (“Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim-whether it be the Constitution, a statute, or a regulation-does not create a cause of action for money damages unless, as the Court of Claims has stated, that basis ‘in itself ... can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’” (quoting Eastport S.S., 372 F.2d at 1009)). This category is commonly referred to as claims brought under a “money-mandating” statute. Ontario Power Generation, Inc. v. United States. 369 F.3d 1298, 1301 (Fed. Cir. 2004); see also Twp. of Saddle Brook v. United States, 104 Fed.Cl. 101, 106 (2012). To prove that a statute or regulation is money-mandating, a plaintiff must demonstrate that an independent source of substantive law relied upon “ ‘can fairly be interpreted as mandating compensation by the Federal Government.’ ” United States v. Navajo Nation. 556 U.S. at 290, 129 S.Ct. 1547 (quoting United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at 472, 123 S.Ct. 1126; United States v. Mitchell, 463 U.S. at 217, 103 S.Ct. 2961; Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153, 129 S.Ct. 1038, 173 L.Ed.2d 468 (2009). The source of law granting monetary relief must be distinct from the Tucker Act itself. See United States v. Navajo Nation, 556 U.S. at 290, 129 S.Ct. 1547 (The Tucker Act does not create “substantive rights; [it is simply a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims premised on other sources of law (e.g., statutes or contracts).”). “ ‘If the statute is not money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject matter jurisdiction.’” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v. United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (The absence of a money-mandating source is “fatal to the court’s jurisdiction under the Tucker Act.”); Peoples v. United States, 87 Fed.Cl. 553, 565-66 (2009). When deciding a case based on a lack of subject matter jurisdiction or for failure to state a claim, this court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the non-movant’s favor. See Erickson v. Pardus, 551 U.S. at 94, 127 S.Ct. 2197 (“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)))); Fid. & Guar. Ins. Underwriters, Inc. v. United States. 805 F.3d 1082, 1084 (Fed. Cir. 2015); Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). “Determination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)), reh’g denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed.Cl. 710, 713 (2010). A plaintiff need only state in the complaint “a short and plain statement of the grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2016); Fed. R. Civ. P. 8(a)(1), (2) (2016); see also Ashcroft v. Iqbal. 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). To properly state a claim for relief, “[c]onclusory allegations of law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v. Chiron Corp., 136 F.3d 1771317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part,-dissenting in part) (quoting C. Wright and A. Miller, Federal Practice and Procedure § 1286 (3d ed. 2004)); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) (“[C]onclusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.”), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). “A plaintiffs factual allegations must ‘raise a right to relief above the speculative level’ and cross ‘the line from conceivable to plausible.’” Three S Consulting v. United States, 104 Fed.Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955), aff'd, 562 Fed.Appx. 964 (Fed. Cir.), reh’g denied (Fed. Cir. 2014). As stated in Ashcroft v. Iqbal, “[a] pleading that offers labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ 550 U.S. at 555, 127 S.Ct. 1955. Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Defendant moves to dismiss the claims asserted in plaintiffs complaint as outside of the court’s subject matter jurisdiction under the Tucker Act, 28 U.S.C. § 1491(a)(1). Defendant argues that this court lacks subject matter jurisdiction to consider plaintiffs allegations that sound in tort or criminal law. Plaintiff makes multiple general allegations in her complaint, and to the extent that plaintiffs complaint asserts a list of tortious claims including “invasion of privacy,” “endangering, a child,” “sexual exploitation/child exploitation,” “Harrassment,” “intimidation,” “corporation violation,”2 “Humiliation,” and “Human trafficking.” Those claims sound in tort or allege criminal acts. The Tucker Act expressly excludes tort claims from the jurisdiction of the United States Court of Federal Claims. See 28 U.S.C. § 1491(a) (“The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliq-uidated damages in cases not sounding in tort.”) (emphasis added); see also Keene Corp. v. United States, 508 U.S. 200, 214, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1998); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d at 1343; Alves v. United States, 133 F.3d 1454, 1459 (Fed. Cir. 1998); Brown v. United States, 105 F.3d 621, 623 (Fed. Cir.) (“Because Brown and Darnells complaints for ‘fraudulent assessment^]’ are grounded upon fraud, which is a tort, the court lacks jurisdiction over those claims.”), reh’g denied (Fed. Cir. 1997); Golden Pac. Bancorp v. United States, 15 F.3d 1066, 1070 n,8 (Fed. Cir.), reh’g denied, en banc suggestion declined (Fed. Cir.), cert. denied, 513 U.S. 961, 115 S.Ct. 420, 130 L.Ed.2d 335 (1994); Hampel v. United States, 97 Fed.Cl. 235, 238, aff'd, 429 Fed.Appx. 995 (Fed. Cir. 2011). cert. denied, 565 U.S. 1153, 132 S.Ct. 1105, 181 L.Ed.2d 973 (2012); Jumah v. United States, 90 Fed.Cl. 603, 607 (2009) (“[I]t is well-established that the Court of Federal Claims does not have jurisdiction over tort claims. Here, Mr. Jumah seeks damages for ‘[n]eglect, Misrepresentation, [f]alse [i]mprisonment, [c]onspiracy, [intentional [infliction of emotional [distress, [invasion of [p]rivacy, [n]egligence and [trespass and [p]unitive [d]amages.’ These are all claims sounding in tort.” (internal citation omitted; all brackets in original)), aff'd, 385 Fed.Appx. 987 (Fed. Cir. 2010); Woodson v. United States, 89 Fed.Cl. 640, 650 (2009); Fullard v. United States, 77 Fed. Cl. 226, 230 (2007) (“This court lacks jurisdiction over plaintiffs conspiracy claim because the Tucker Act specifically states that the Court of Federal Claims does not have jurisdiction over claims ‘sounding in tort.’”); Edelmann v. United States, 76 Fed.Cl. 376, 379-80 (2007) (“This Court ’does not have jurisdiction over claims that defendant engaged in negligent, fraudulent, or other wrongful conduct when discharging its official duties’... 178[and] Plaintiffs’ claims of fraud, misrepresentation, slander, perjury, harassment, intimidation, coercion, theft, and defamation, and their claims that the Government deprived Ms. Edelmann of her right to a fair trial, are tort claims.” (quoting Cottrell v. United States, 42 Fed.Cl. 144, 149 (1998)); McCullough v. United States, 76 Fed.Cl. 1, 3 (2006). appeal dismissed, 236 Fed.Appx. 616 (Fed. Cir.), reh’g denied (Fed. Cir.), cert. denied, 552 U.S. 1050, 128 S.Ct. 675, 169 L.Ed.2d 629 (2007); Agee v. United States, 72 Fed. Cl. 284, 290 (2006); Zhengxing v. United States, 71 Fed.Cl. 732, 739, aff'd, 204 Fed. Appx. 886 (Fed. Cir,), reh’g denied (Fed. Cir. 2006). Plaintiffs claims sounding in tort, such as “invasion of privacy,” “Harrassment,” “intimidation,” or “Humiliation,” must, therefore, be dismissed for lack of subject matter jurisdiction. To the extent that plaintiff allegations are characterized as acts of criminal conduct, such as “endangering a child,” “sexual exploitation/child exploitation,” and “Human trafficking,” this court also lacks jurisdiction to adjudicate those claims. See Joshua v. United States, 17 F.3d 378, 379 (Fed. Cir. 1994); see also Cooper v. United States, 104 Fed.Cl. 306, 312 (2012) (holding that “this court does not have jurisdiction over [plaintiffs] claims because the court may review neither criminal matters, nor the decisions of district courts.”) (internal citations omitted); Mendes v. United States. 88 Fed.Cl. 759, 762, appeal dismissed, 376 Fed.Appx. 4 (Fed. Cir. 2009); Hufford v. United States, 87 Fed.Cl. 696, 702 (2009) (holding that the United States Court of Federal Claims lacked jurisdiction over claims arising from the violation of a criminal statute); Matthews v. United States. 72 Fed.Cl. 274, 282 (finding that the court lacked jurisdiction to consider plaintiffs criminal claims), recons. denied, 73 Fed. Cl. 524 (2006); McCullough v. United States, 76 Fed.Cl. at 4 (finding that the court lacked jurisdiction to consider plaintiffs criminal claims). Accordingly, to the extent plaintiff raises allegations asserting criminal acts, those allegations must be dismissed for lack of subject matter jurisdiction. Furthermore, Ms. Stewart does not appear to assert any specific wrongful act by a Federal agency, official, or employee. Instead, the complaint attempts to allege wrongful acts by an unidentified congressman and unnamed Indiana state workers. The United States Supreme Court has indicated, for suits filed in the United States Court of Federal Claims and its predecessors, “if the relief sought is against others than the United States the suit as to them must be ignored as beyond the jurisdiction of the court.” United States v. Sherwood, 312 U.S. 584, 588, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) (citation omitted); see also Kurt v. United States, 103 Fed.Cl. 384, 386 (2012). Stated differently, “the only proper defendant for any matter before this court is the United States, not its officers, nor any other individual.” Stephenson v. United States, 58 Fed.Cl. 186, 190 (2003); see also United States v. Sherwood, 312 U.S. at 588, 61 S.Ct. 767; May v. United States, 80 Fed.Cl. 442, 444 (“Jurisdiction, then, is limited to suits against the United States.”), aff'd, 293 Fed. Appx. 775 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2008). It is, therefore, well-established that this court does not have jurisdiction to hear any claims against defendants other than the United States. Moreover, with respect to Ms. Stewart’s references to an unidentified congressman and Federal agencies, including the “Department of housing and urban Development,” “Department of Justice,” “Department of education,” “Civil rights commission,” “human relations,” “Department of Descrimination,” and “US Capitol,” even granting the more liberal construction afforded to pro se plaintiffs, Ms. Stewart’s allegations are so vague so as to be unclear regarding what would be the basis for this court’s jurisdiction. Finally, the court notes that plaintiff has failed to pay the filing fee or file a motion to proceed in forma pauperis in the above captioned case. Therefore, before the Clerk’s Office files another complaint from the plaintiff, plaintiff must either pay the filing fee or file a motion to proceed in forma pauperis. CONCLUSION Defendant’s motion to dismiss is GRANTED, and plaintiffs complaint is DIS179MISSED. The Clerk’s Office shall enter JUDGMENT consistent with this Order. IT IS SO ORDERED. . Capitalization, grammar, punctuation and other errors quoted in this Order are as they appear in plaintiffs complaint. . Plaintiff's allegation of a “corporation violation” is so broad, non-specific and unintelligible it is not clear what would be the basis for this court’s jurisdiction.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218578/	Post-award bid protest; Price analysis; Price realism; waiver. OPINION BRUGGINK, Judge. This is a post-award bid protest of the Army’s decision not to award one of several contracts for nursing, medical, and ancillary services in Hawaii and Guam to the plaintiff, Global Dynamics, LLC (“Global”). Oral argument on the parties’ cross-motions for judgment on the administrative record was held on December 9, 2016. As stated at the conclusion of the argument, because plaintiff waived its right to protest the substance of the Army’s discussions with it and because plaintiff has not otherwise established irrationality on the part of the agency, we deny plaintiffs motion and grant defendant’s and intervenor’s cross-motions. BACKGROUND The Army issued request for proposals No. W81K04-14-R-001 (“the RFP”) on April 22, 2014, It solicited offers for medical and ancillary services staffing at military medical facilities in Hawaii and Guam. The solicitation was set aside entirely for small businesses. It anticipated award to a minimum of five offer-ors per labor specialty for an indefinite delivery and indefinite quantity of service provided under each contract. Offerors could bid on only one labor specialty or any combination of them: physician, traveling physician, nursing, traveling nursing, ancillary medical, and traveling ancillary medical services. Each specialty was further subdivided into multiple labor categories. Services were to be ordered by the issuance of task orders for which the contract holders would further compete. The task orders thereafter were to be on a fixed-price basis. The solicitation called for a best value procurement based on three factors. They were technical quality, performance risk (past and present performance), and price. The first two were of equal importance and, when combined, of significantly more importance than price. Offerors were required to submit one volume for each factor. The RFP stated that the agency would make a trade off determination between price and the technical factors to determine the best value and most advantageous contract for the government. See Administrative Record (“AR”) 272. The first two factors, technical quality and performance risk, were rated adjeetively, and price was ranked based on a total evaluated price calculated for the entire proposal based on a matrix of labor rates for each labor category multiplied by the government’s estimate of hours needed for each category. The contract has an anticipated four-year life. The offerors’ proposed rates were in effect ceiling prices because each task order issued under the contract would be further competed among the contract holders. In order to be considered for an award, offerors had to be rated at least “acceptable” for technical quality and “satisfactory” for performance risk. Id. The solicitation stated that price would be evaluated for reasonableness “based on adequate competition.” AR 276. This was not further defined in the RFP nor did it list any other evaluative criteria for price. The Army received 45 offers, and the Source Selection Evaluation Board (“SSEB”) met and reviewed the technical volumes of the proposals, and the Performance Risk Assessment Group met and reviewed the performance risk submissions. They assigned adjectival ratings for reach offeror. The Contracting Officer (“CO”) adjusted six of the SSEB’s technical ratings after reviewing all of the results. AR 1286. The CO also performed the price calculation to come up with each offeror’s total evaluated price. The Source Selection Authority (“SSA”) reviewed all of these ratings and selected 18 offerors to comprise the competitive range.2 Not all of the offerors in the competitive range met the criteria for award eligibility initially, but this was allowed because of the SSA’s determination to hold discussions as part of a negotiated procurement under Federal Acquisition Regulation (“FAR”) part 15. The SSA determined that the problems presented by each 213of the proposals in the competitive range could potentially be improved through discussions and could thus result in an award. See AR 1290. Of the 18 offerors in the competitive range, Global Dynamics had the lowest evaluated price at [redacted text]. The highest offeror’s price was over [redacted text] dollars. The Army’s internal estimate for the four-year life of the contract was $51,895,298.88. Plaintiff was presented with eight written discussion items in the first round of negotiations, two of which are relevant to its protest. They concerned Global’s proposed prices. The agency informed plaintiff that its “total proposed price ... appeared] low when compared to all other offerors in the competitive range.” AR 1386. That was followed directly by a request to “review your total proposed price.” Id. The next discussion item listed 29 labor category prices that the agency determined to “appear low when compared to all other offerors in the competitive range.” Id. That was followed by a similar request for Global to “review your proposed hourly rates for the specialities listed.” Id. A review of the discussion items sent to the other 17 offerors in the competitive range reveals that all of them received discussion items regarding their proposed prices. Pour offerors were informed that their total evaluated price appeared high in comparison to the other offerors, and three offerors, including Global, were told that their total prices appeared low as compared to the other offer-ors. The agency “requested]” all seven of them to “review [their] total proposed price[s].” E.g., AR 1448. All 18 of the competitive range offerors were informed that some number of their proposed prices for one or more labor specialties were high, low, or both as compared to all other admitted offerors. The agency asked all of them to review these proposed prices. Eight offerors were told that their price proposals contained rounding errors. The Army asked these offerors to “correct [their] proposed rates to comply with solicitation requirements.” E.g., AR 1443. One offeror was informed that it had not listed a price for one labor specialty, and the agency requested that the offeror supply that price. Al 18 offerors were invited to make proposal revisions and submit revised proposals to the agency by June 2, 2015. The Administrative Record reveals that the agency’s price analysis was comprised of calculating the mean of every offeror’s price for each labor specialty and the mean of all of the offeror’s total evaluated prices and then comparing that mean against each individual offeror’s prices (both for each specialty and the overall price). Any price found to be at least one standard deviation above or below the mean was flagged as a discussion item. See AR 1292-93. The memorandum for the record concerning the. price analysis states that the Army was concerned with the reasonableness of offered prices and cited FAR 15.401 — 1(b)(1): Price Analysis for commercial and non-commercial items. Id. at 1292. In response to the Army’s initial discussion items, plaintiff reviewed its pricing data by updating its market research to use 2015 estimates instead of the 2014 numbers on which its initial proposal had been based. As a result, Global raised its price for 36 specialties, and its overall price thus increased to [redacted text]. AR at 1496.7. The Army responded to the revised proposals with one more letter, several more discussion items, and a request for final proposal revisions. In the letter to plaintiff, the agency informed Global that its price for one labor specialty, Dosimetrist, remained low in comparison to all other offerors. In its final revised proposal, however, Global raised its proposed prices for 36 specialties, which brought its final proposed total price to [redacted text]. AR at 1953.11-1953.13 (specialties); AR at 1968 (total price). After receiving all of the final revisions, the Army convened the Source Selection Advisory Council (“SSAC”) in May 2016, which reviewed all of the final offers and recommended award to five offerors. The SSAC noted that all of the final offers had a technical rating of “acceptable” and that 14 of them had performance rating of “substantial confidence.” AR at 2068 (technical), 2077-78 (performance risk). Of the other three, two had “satisfactory” ratings and one was “limited.” AR at 2078. The SSAC also noted that Global had received a strength as part of its techni214cal proposal for its [redacted text] feature that would give the agency the ability to call upon a roster of “qualified back-fill candidates when an open shift is identified.” AR at 2080. The Army did not find, however, that this strength was worth paying any price premium. The end result of the SSAC’s review was a recommendation to award to the 5 lowest priced offerors because they all had “acceptable” Technical Quality ratings and “substantial” Performance Risk ratings. No distinction between the offerors was therefore justified based on anything other than price. See AR at 2082. Global had the seventh lowest price and was thus not recommended for award. The SSA agreed and followed these recommendations. The Source Selection Determination document largely parroted the SSAC’s report, finding that none of the 17 proposals warranted paying any premium. AR 2554-55. On May 12, 2016, the CO sent a letter to all 17 of the final offerors identifying the five awardees.3 Plaintiff requested a debriefing on May 16, 2016. On June 16, 2016, the CO sent all of the debriefed unsuccessful offerors a written explanation, which included the prices of 4 of the successful awardees (Inter-venor’s price was not included in the list) and attached redacted copies of the SSAC’s recommendations and the Source Selection Determination. On June 24, 2016, Global filed a protest at the Government Accountability Office (“GAO”), arguing that it was misled regarding its pricing and arbitrarily induced to raise its prices. It also alleged error in the Army’s tradeoff decision in not regarding Global’s [redacted text] feature as something for which more should be paid by the agency. GAO denied the protest on September 20, 2016, finding that the Army had not instructed Global to raise its prices and that it had properly considered the relative merit of plaintiffs [redacted text] feature, See AR at 2836-37; Global Dynamics, LLC, B-413313, 2016 CPD ¶ 307 (Comp. Gen. Sept. 20, 2016). Plaintiff filed its suit here on October 11, 2016. Loyal Source Government Services, the fifth lowest priced awardee, intervened on October 14, 2016. DISCUSSION We have jurisdiction over challenges to agency actions with regard to procurements and proposed procurements pursuant to 28 U.S.C. § 1491(b)(1) (2012). We review agency procurement decisions for arbitrary and capricious conduct or conduct that is otherwise illegal. Id § 1491(b)(4) (mandating that the court reviews agency decisions pursuant to the standards set forth in the Administrative Procedures Act). This is a highly deferential review; the standard is one of rationality, The court will not substitute its own judgment for that of the agency, even if a reasonable person might have come to a different conclusion. Redland Genstar, Inc. v. United States, 39 Fed.Cl. 220, 213 (1997). Plaintiff challenges the Army’s decision not to award it a contract on the basis that it was induced to raise its price arbitrarily. It argues that the agency’s discussion items regarding price lead plaintiff to believe that its pxices were too low, effectively a weakness, and that it had no choice but to raise them. When confronted with a second round of discussion items that again raised price as an issue, plaintiff believed it was required by the Army to raise its prices a second time. This was all misleading to plaintiff because, in fact, the Army made its award determination on the opposite criteria, low price. Plaintiff was prejudiced, it argues, because it would not have raised its prices absent the government’s inclusion of low prices as a discussion item during negotiations. Without a price raise, plaintiff would have remained the lowest priced offeror and would have received an award, according to plaintiff. Plaintiff also argues that the agency should not have been concerned with the issue of low of prices because a price realism analysis is improper in a fixed price contract unless specifically called out in the solicitation as a possibility. The risk is on the offeror, not the agency, in a fixed price scenario, and thus price realism is normally inapplicable in that context, goes plaintiffs argument. Global further points to the FAR’s instruction regard-215mg discussion items in a negotiated procurement, which is that the primary objective of any discussions is to “maximize the Government’s ability to obtain best value.” See 48 C.F.R. § 15.306(d)(2) (2016). Here, Global contends that the agency’s raising the issue of low prices, when it was not and could not have been concerned with low price as a performance risk was arbitrary and capricious because it did not further the goal of maximizing the best value to the government and only served to mislead plaintiff. In its response and cross motion, defendant takes the position that the agency did not perform a price realism analysis, that is, an analysis of whether Global’s price posed a risk of non-performance. In defendant’s view, the price analysis and corresponding discussion items were merely an accurate observation and could not mislead plaintiff. Plaintiff was in fact low as compared to other offer-ors. The agency did not instruct plaintiff to raise its prices nor did it state that the prices were too low. It was Global’s own business judgment that resulted in plaintiffs pricing itself out of the competition, argues defendant. It was not improper, in the government’s view, to include information regarding low prices as part of the agency’s price reasonableness determination, although neither in briefing nor at oral argument could counsel suggest a reason for the agency to have made the comment. Intervenor takes a different tack in its briefing. It argues that the agency was concerned with performance risk posed by low prices and had preserved for itself the question of whether an offeror’s prices were too low by indicating in the solicitation that offer-ors were to demonstrate their understanding of performance requirements. See AR at 255, 273, 277. Intervenor believes that the agency was therefore within its rights in conducting a price realism analysis. Intervenor cites to a number of decisions from GAO that a solicitation need not invoke price realism by name so long as it otherwise indicates that the agency is concerned with the risk of nonperformance and asks for detailed price information. Intervenor argues that plaintiffs initial price was too low and reflected Global’s lack of understanding of the solicitation’s requirements. Thus, the Army’s inclusion of low price in its discussion items was reasonable and not misleading. We begin with the obvious. There was an ambiguity regarding whether the agency was conducting a price realism analysis when it announced to Global and others that it had compared the average of all of the offered prices with each particular offer and concluded that some were low. Plaintiff is correct that agencies are required to inform offerors during negotiations of weaknesses and deficiencies in their proposals. 48 C.F.R. § 15.306(d)(3) (2016). The cover letter included with the discussion items sent to plaintiff during the first round of negotiations contained the following proviso: Your proposal has areas of concern as detailed in the enclosed discussion Items (DIs). While the enclosed DIs are provided to facilitate discussions and provides you an opportunity to make changes to your proposal, they are not meant to point out each and every instance of error or omission in your proposal. AR 1382. The discussion items attached to the letter contain items for each of the main evaluation factors: Technical Quality, Performance Risk, and Price. Other than being in its own section, the items regarding price were not separately called out as somehow not of concern to the agency. A reasonable reading of the Army’s negotiation correspondence is that plaintiffs low prices were of concern to the agency. The solicitation, however, did not invoke price realism by name or use any specific language regarding risk of nonperformance as a result of low prices. The general citation to the language ih the technical provisions regarding the offerors’ understanding of performance requirements is certainly not an explicit indication that the agency would review prices for realism. Whether, as inter-venor argues, the Army could have done so does not affect the result, however. Plaintiff waived any objection to the agency’s ruminations on low prices by not objecting prior to adjusting its prices.4 The agency did not 216indicate why it was passing this pricing information on to Global. Either the agency had the right to make the comments, and they were accurate, or, as Global asserts here, it had no business doing so, in which case, to avoid overreacting, Global should have inquired why the agency made the comments.5 In any event, Global’s decision to bump its prices up by approximately 16 percent was its own business judgment. Having waived the issue of the propriety of the price analysis leaves plaintiff without a factual predicate to support an argument of irrationality. Plaintiff has not alleged that the mathematics performed by the Army in its price analysis was incorrect nor that the analysis itself was otherwise irrational, i.e., that taking the mean of all offers and performing a standard deviation calculation against it was unreasonable.6 The argument is only that plaintiff was misled in raising its prices too high. Presumably, had plaintiff raised its prices somewhat less and remained one of the five lowest-priced offerors, it would not be suggesting irrationality on the part of the agency. Compared to the 17 other offerors in the competitive range, plaintiffs prices initially were lower. It was informed of this fact during discussions. Plaintiff was not instructed to raise its prices, however. There was an ambiguity regarding how the agency was using that information, but plaintiff did not pursue it then. That ambiguity cannot form the basis for a successful protest now because it was patent at the time. That being the case, Global’s own judgment about how and whether to update and increase its prices are not proof of agency irrationality. Plaintiff has not established that the Army acted arbitrarily, capriciously, or otherwise not in accordance with law. CONCLUSION Not being able to show success on the merits, plaintiff cannot establish an entitlement to injunctive relief. We need not further consider the other injunction factors. Accordingly, we deny plaintiffs motion for judgment on the administrative record and grant defendant’s and intervenor’s cross-motions for judgment. The clerk’s office is directed to enter judgment for defendant. No costs. . For this procurement, the SSA and CO were not the same individual. . One offeror withdrew its proposal before the final revised proposals. . The same is true with regard to the second round of negotiations and the agency’s cover *216letter, which informed Global that its labor rate for the Dosimetrist specialty remained low compared to all other offerors. AR 1818. If there was an ambiguity or question of the propriety of the agency's price analysis raised by the second letter, the time to challenge it was before submitting a final revised proposal, not after. We note that the agency only identified one labor speciality as being low compared to other offerors. Plaintiff, however, responded by raising the prices of 36 specialties, which suggests at least that plaintiff was motived by more than just the Army's questioning of one of its specialty's prices when it made its final revisions to its prices. . When asked by the court during argument why Global did not question the agency’s price analysis at the time, plaintiff argued that it had no choice. Having been told its low price was a weakness, in order to remain competitive, it had to raise them. That is no answer, however. Procurement statutes provide several levels of administrative review of procurement actions before award (agency and GAO protests) and a legal challenge before award at the court is always an option as well. Recourse was plainly available at the time, but plaintiff chose not to avail itself of the opportunity. It is too late after bidding to challenge the agency's price analysis after responding to it with several proposal revisions. . In fact, the FAR lists a comparison of offerors' prices as one approved method of determining that offered prices are fair and reasonable. 48 C.F.R. § 15.404(b)(2)(i) (2016).	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218579/	ORDER LYNN J. BUSH, Senior Judge The court has before it plaintiffs Motion for Clarification of Order, filed September 15, 2016. The parties disagree as to the scope of the court’s holding in its opinion issued February 4, 2016 (Opinion). Defendant’s position on the court’s rulings is correct, for the reasons set below. This order clarifies the Opinion and énables the parties to finalize their joint stipulation for entry of judgment as required by that Opinion. See Opin. at 24. Two principal issues are raised by plaintiffs motion. First, does this suit properly contain claims for the return to plaintiff of refunds withheld by the Internal Revenue Service (IRS or Treasury) for tax quarters not specifically addressed by the court? Second, does a failure to pay tax penalty for each tax quarter at issue in this suit fail as a matter of law because the parties did not address this issue with any specificity in their summary judgment briefing? Both questions must be answered in the negative. I. Withheld Refunds As plaintiff succinctly summarizes the Opinion, “[t]he Opinion essentially held that the Plaintiff was entitled to the refund claims it submitted for gasoline for the quarters at issue and was not entitled to the refund claims it submitted for diesel fuel for the quarters at issue and the Government was not allowed the [excessive refund claim] penalty it sought to impose under IRC section 6675.” Pl.’s Mot. at 1. Although the Opinion also mentioned that plaintiff alleged that the IRS, in addition, withheld refunds for tax quarters not at issue in this suit, Opin. at 23 n.17, the court issued no holding as to withheld refunds for the simple reason that plaintiffs suit did not raise that issue for the court’s review. Plaintiff specifically withdrew any such claims from its proposed amended and supplemented complaint. See Pl.’s Br. of Aug. 28, 2015, at 1; Order of Sept. 9, 2015, at *4111; Def.’s Opp. at 2-4 & n.l (giving a detailed procedural history of plaintiffs assertions regarding -withheld refunds). Thus, this suit and the court’s rulings do not address withheld refunds for tax quarters not at issue in this suit (or any interest due on such withheld refunds) and the parties’ joint stipulation for entry of judgment must not incorporate that issue. II. Failure to Pay Tax Penalty The government asserted in the counterclaim filed in this case that “failure to pay tax” penalties, exceeding $7,000 before the calculation of interest, are owed by plaintiff to Treasury. See Amended Answer and Counterclaim ¶¶ 35-37. Neither party specifically addressed the legal context of this particular penalty, instead focusing on any underlying tax liabilities for plaintiff, as well as a more substantial penalty assessed by the IRS for “excessive” refund claims, Opin. at 19-23. The court must agree with defendant, however, that its summary judgment briefing put plaintiff on notice that failure to pay tax penalties on disputed underlying tax liabilities were at issue in its cross-motion for summary judgment.1 See Def.’s Cross-Mot. of June 10, 2015, at 4, 22; Def.’s Reply Br. of Nov. 19,2015, at 19. It is also clear that plaintiff bore the burden to invalidate the failure to pay tax penalties assessed by the IRS and set forth in the government’s counterclaim. See, e.g., Dallin ex rel. Estate of Young v. United States, 62 Fed.Cl. 589, 600 (2004) (citing cases). Because plaintiff never addressed the failure to pay tax penalties in its summary judgment briefing, plaintiff failed to satisfy its burden and the government is entitled to judgment on the failure to pay tax penalties as a matter of law. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (noting that “where the nonmoving party will bear the burden of proof at trial on a dispositive issue,” a summary judgment motion need only rely on the pleadings and other documents before the court). Here, the court granted the portion of defendant’s cross-motion for summary judgment as to plaintiffs liability for diesel fuel excise taxes. Inseparable from the issue of plaintiffs liability for diesel fuel excise taxes, the government simultaneously moved for summary judgment on the directly-related and subordinate issue of failure to pay tax penalties for diesel fuel excise taxes, as well as any applicable interest on those penalties. The portion of the court’s ruling on summary judgment that granted defendant’s motion, in part, logically and necessarily included a ruling favorable to the government regarding the failure to pay tax penalties for diesel fuel excise taxes, and applicable interest on those penalties. Accordingly, it is hereby ORDERED that (1) Plaintiffs Motion for Clarification of Order, filed September 15, 2016, is GRANTED in part, as to issuance of clarification of the Opinion of February 4, 2016, and DENIED in part, as to plaintiffs suggested interpretation of that Opinion; and, (2) On or before December 13, 2016, the parties shall FILE their Joint Stipulation for Entry of Judgment, to which they shall ATTACH a Proposed Draft Order for the Entry of Judgment. . Both parties' motions for summary judgment addressed the entire complaint and the entirety of the government’s counterclaim nothing in the title or text of these motions indicated that these were motions for partial summary judgment. Plaintiffs opportunity to challenge die legal underpinnings of failure to pay tax penalties as--sessed by the IRS and presented in the government’s counterclaim was in its initial motion for summary judgment, not belatedly in its motion for clarification of the court's Opinion.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218580/	DISMISSAL ORDER THOMAS C. WHEELER, Judge On February 23, 2016, pro se Plaintiff Xiu Jian Sun, who refers to himself as “the spiritual Adam,” filed in this Court a document purporting to constitute a complaint against the United States. The case caption lists “President of U.S.A. Mr, Obama Barack-King Herod” as the defendant. Compl. at 2. The complaint generally seems to allege that President Obama “does not keep his words,” quoting several passages from The Church of Latter-Day Saints’ “The Doctrine and Covenants” as support but including no other legal authority or actual facts upon which to base the complaint. Compl. at 2-4. Attached to the complaint are three email messages from a White House public information service: two messages summarizing President Obama’s remarks on terrorist attacks, and a video message from the President and First Lady wishing the nation a Merry Christmas. Compl. at 2, 7-14. Because Mr. Sun is proceeding pro se, the Court must liberally construe his pleading to “see if he has a cause of action somewhere displayed.” Stroughter v. United States, 89 Fed.Cl. 755, 760 (2009) (internal citation omitted). The Court takes this duty seriously and has reviewed Mr. Sun’s complaint carefully; however, it cannot discern any factual or legal assertions, allegations of damages, or request for relief therein, At most, the complaint is an assessment of some of President Obama’s actions during his presidency as judged against teachings of The Church of Latter-Day Saints. However, though the Court has “strained [its] proper role in adversary proceedings to the limit” in searching the complaint, it could identify no plausible cause of action. Ruderer v. United States, 412 F.2d 1285, 1292 (Ct. Cl. 1969). The Court finds that any expenditure of governmental resources in preparing a defense to this complaint would be a waste of public funds. Therefore, pursuant to its inherent authority, the Court sua sponte dismisses Mr. Sun’s complaint for failure to state a claim. See, e.g., Rockefeller v. Chu, 471 Fed.Appx. 829, 830 (10th Cir. 2012) (“[A] court may sua sponte dismiss a complaint under [Federal] Rule [of Civil Procedure] 12(b)(6) for failure to state a claim if it is patently obvious that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.”) (internal quotation omitted); Shoop v. Deutsche Bank Nat. Trust Co., 465 Fed.Appx. 646, 647 (9th Cir. 2012) (similar); Chyba v. BAC Home Loans Servicing, L.P., 460 Fed.Appx. 373, 374 (5th Cir. 2012) (similar); Arbelaez v. United States, 94 Fed.Cl. 753, 763 (2010) *570(similar) (citing Constant v. United States, 929 F.2d 654, 657 (Fed. Cir. 1991)); see also Stroughter, 89 Fed.Cl. at 760 (“Although pro se plaintiffs are given some leniency in presenting their case, their pro se status does not immunize them from pleading facts upon which a valid claim can rest[.]”) (internal citation omitted). Accordingly, for the foregoing reasons, the Court DISMISSES Plaintiffs complaint for failure to state a claim upon which relief may be granted. The Clerk is directed to dismiss Plaintiffs complaint without prejudice. IT IS SO ORDERED,	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218581/	571ORDER OF DISMISSAL MARY ELLEN COSTER WILLIAMS, Judge Plaintiff pro se Eric Emanuel Taylor is a resident of Virginia. On May 9, 2006, Plaintiff was-given a five year suspended sentence for unlawful wounding in the Circuit Court of the City of Portsmouth, Virginia. Compl. Att. 1. Plaintiff alleges claims under the Fifth and Fourteenth Amendments to the Constitution and 42 U.S.C. § 1983,1 as well as a claim for unjust conviction and imprisonment. Plaintiff seeks a “zillion dollars” for pain and suffering. Compl. 1-3, 6.2 For the reasons stated below, Plaintiffs complaint is dismissed for lack of jurisdiction. Discussion Plaintiff must first establish subject-matter jurisdiction before the Court may proceed to the merits of the action. Hardie v. United States, 367 F.3d 1288, 1290 (Fed. Cir. 2004). The Court must dismiss the action if subject-matter jurisdiction is found to be 572lacking. Adair v. United States, 497 F.3d 1244, 1251 (Fed. Cir. 2007). The Court assumes all factual allegations as true, and will construe the complaint in a manner most favorable to the Plaintiff when ruling on a motion to dismiss pursuant to Rule 12(b)(1). Pennington Seed, Inc. v. Produce Exch. No. 299, 457 F.3d 1334, 1338 (Fed. Cir. 2006). The filings of pro se litigants are held to “ ‘less stringent standards than formal pleadings drafted by lawyers.’” Naskar v. United States. 82 Fed.Cl. 319, 320 (2008) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). However, pro se plaintiffs still bear the burden of establishing the Court’s jurisdiction, and must do so by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv.. 846 F.2d 746, 748 (Fed. Cir. 1988); Tindle v. United States, 56 Fed.Cl. 337, 341 (2003). The Tucker Act, 28 U.S.C. § 1491(a)(1) (2012), provides that this Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. The Tucker Act does not create a substantive right for money damages against the United States, but rather is a jurisdictional statute. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). A plaintiff must show that he or she is entitled to money damages from an additional source of substantive law. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008). The substantive right to money damages must extend from the Constitutional provision, statute, or regulation giving rise to the claim. See United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (“[T]he claimant must demonstrate that the source of substantive law he relies upon ‘can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.’ ” (quoting Testan, 424 U.S. at 400, 96 S.Ct. 948)). Plaintiffs complaint, even when viewed in the manner most favorable to Plaintiff, fails to articulate a claim that is within this Court’s jurisdiction. Plaintiff challenges a conviction imposed by a state court, however this Court does not have jurisdiction to review decisions rendered by state courts. Landers v. United States, 39 Fed.Cl. 297, 301 (1997). Further, this Court lacks jurisdiction to hear claims that are criminal in nature. See Joshua v. United States, 17 F.3d 378, 379 (Fed. Cir. 1994) (holding that the Court “has no jurisdiction to adjudicate any claims whatsoever under the federal criminal code”). This Court also lacks jurisdiction over claims alleging a violation of the double jeopardy clause of the Fifth Amendment, as that clause is not money-mandating. Bernaugh v. United States, 38 Fed.Cl. 538, 541 (1997). Although this Court does possess jurisdiction to hear claims of unjust conviction, that jurisdiction is limited and must involve a request for damages. See 28 U.S.C. § 1495. In order to succeed on a claim for damages based on unjust conviction, a plaintiff must prove that his conviction has been reversed or set aside upon grounds of actual innocence, that he has been found not guilty during a new trial, or that he has been pardoned on the grounds of actual innocence, and that he did not commit the acts for which he has been charged. 28 U.S.C. § 2513(a); see also Brown v. United States, 42 Fed.Cl. 139, 141-42 (1998); Vincin v. United States, 199 Ct.Cl. 762, 766, 468 F.2d 930 (1972) (per curiam). This proof must come in the form of either a court-issued certificate or a pardon. Id. at § 2513(b). Plaintiff has not made any such showing here, Plaintiff also seeks to invoke this Court’s jurisdiction under 42 U.S.C. § 1983. Compl. 3. However, this Court lacks jurisdiction over claims brought under § 1983, as jurisdiction over these claims is vested exclusively in the district courts. 28 U.S.C. § 1343 (2012); see also Clemmons v. United States, 283 Fed.Appx, 786, 787 (Fed. Cir. 2008); Buck v. United States, No. 11-209C, 2011 WL 2633624, at 3 (Fed. Cl. July 6, 2011). 573Plaintiff also alleges a violation of section 4 of the Fourteenth • Amendment, which addresses the validity of the public debt. Compl. 6. This Court does not have jurisdiction to hear claims under the Fourteenth Amendment, as it is not money-mandating. LeBlanc v. United States, 50 F.8d 1025, 1028 (Fed. Cir. 1995) (holding that violations of the Fourteenth Amendment are insufficient bases for jurisdiction in this Court, as it is not money-mandating); see also Schirripa v. United States, No. 14-1081C, 2015 WL 4628231, at *4 (Fed. Cl. Feb. 26, 2015) (finding that section 4 of the Fourteenth Amendment does not give rise to a substantive right to damages, and therefore does not fall within this Court’s jurisdiction). Finally, Plaintiff requests damages for pain and suffering, however this claim sounds in tort, and therefore lies outside of the jurisdiction of this Court. Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008); LeBlanc, 50 F.3d at 1030. Plaintiff has also filed a motion for mandamus pursuant to Rule 23.1 of the Rules of the Court of Federal Claims, but has not stated any legal basis for such extraordinary relief.3 Conclusion Plaintiff fails to allege any basis for this ' Court’s jurisdiction. The Clerk is directed to dismiss this action. Plaintiffs motion for a writ of mandamus is DENIED, and Plaintiffs request to alter the case caption to read “with but not verse” is DENIED. . While Plaintiff alleges a violation of 28 U.S.C. § 1983, no such provision exists. The Court construes this as a claim for a violation of 42 U.S.C. § 1983. . Because Plaintiff did not number the pages of his complaint, the Court refers to the page numbers electronically generated by CM/ECF. . Rule 23.1 governs derivative actions brought by shareholders or members of either a corporation or an unincorporated association.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218582/	627ORDER GRANTING DEPENDANT’S MOTION TO DISMISS John P. Wiese, Senior Judge Plaintiff is a pro se litigant proceeding here in forma pauperis. Plaintiff seeks to recover seaman’s double wages, authorized under the provisions of 46 U.S.C. § 10504(b), (c)(1) (2012), that he claims he is entitled to due to a delay in payment for unused leave that was owed to him upon the termination of his employment as a merchant seaman with the National Oceanic and Atmospheric Administration (“NOAA”). This ease is now before the court on defendant’s motion to dismiss the complaint for lack of jurisdiction. The court grants defendant’s motion. FACTS Plaintiff was employed as the third assistant engineer assigned to the NOAA ship Rainier from March 17, 2013, until his termination on June 6, 2013. After his termination, plaintiff received two payments from the government, $821.96 on November 12, 2013, and $3,120.63 on November 25, 2013, for his annual leave and compensatory leave, respectively. Athough plaintiff acknowledges that these amounts correctly reflect his pay entitlement based on his employment record, he maintains that these funds should have been paid at the latest within two days after his separation, not the 171 days that actually transpired. According to documents attached to the complaint, the delay in payment was attributable to NOAA’s Marine Operations Center hiring coordinator being out of the office on medical leave in the summer of 2013 and then furloughed for a period thereafter. As alleged, plaintiffs separation package was forwarded to the NOAA Workforce Management Office for processing on October 30, 2013, and all remaining compensation due him was paid approximately three weeks later. Plaintiff initially filed an administrative claim seeking penalties for the delay in payment under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (2012). That claim, however, was dismissed for lack of jurisdiction. Thereafter, plaintiff filed the present suit seeking penalties against the United States under § 10504(b), (c)(1), specifically, two days’ wages for each day payment was delayed, resulting in a claim of $52,322.55 for the 171-day delay that transpired between his termination and his receipt of compensation. DISCUSSION In litigating this claim, plaintiff relies on 46 U.S.C. § 10504(b), (e)(1), which reads in relevant part, as follows1: (b) The master shall pay a seaman the balance of wages due the seaman within 2 days after the termination of the agreement required by section 10502 of this title [46 U.S.C. § 10502] or when the seaman is discharged, whichever is earlier. (c)(1) Subject to subsection (d), and except as provided in paragraph (2), when payment is not made as provided under subsection (b) of this section without sufficient cause, the master or owner shall pay to the seaman 2 628days’ wages for each day payment is delayed. Plaintiff, as we have noted, asserts a 171-delay in the payment of wages resulting in a total claim (after doubling of his daily wage rate) of $52,332.55.2 Defendant has moved for dismissal of the claim on the ground that it seeks payment of a penalty rather than compensation and, as such, is not recoverable against the United States on grounds of sovereign immunity, i.e., that Congress has not given its consent to the allowance of such claims against the government. In support of this contention, defendant relies on a number of cases, chief among them Missouri Pacific R.R. v. Ault, 256 U.S. 554, 41 S.Ct. 693, 65 L.Ed. 1087 (1921). In Ault, the government, proceeding under emergency legislation enacted in furtherance of the war effort, had taken over operation and control of a railroad pursuant to statutory provisions which (1) maintained the railroad’s amenability to suit during the period of government control, but shielded it from any resulting liability; (2) waived the government’s traditional defense of sovereign immunity; and (3) preserved the enforceability of state regulatory authority.3 Against this statutory background wherein, as the Court described it, “the usual immunity of the sovereign from legal liability was not to prevent the enforcement of liabilities ordinarily incident to the operation of carriers,” id. at 559, 41 S.Ct. 593, the question arose whether the government, as the operator of the railroad, could be held liable for a default judgment, entered in favor of the railroad’s discharged employee, that added a state-law penalty to the employee’s claim for late payment of wages.4 The government did not contest liability for the wages owed, but resisted payment of the penalty amount. On appeal, the judgment was affirmed. The Supreme Court reversed. The Court held that the plaintiff could recover the wages due him, but not the penalty amount. Speaking through Justice Brandéis, the Court explained that pursuant to the statute under which the government was operating, the government “submitted itself to the various laws, state and federal, which prescribed how the duty of a common carrier by railroad should be performed and what should be the remedy for failure to perform.... But there is nothing either in the purpose or the letter of [the statute] to indicate that Congress intended to authorize suit against the government for a penalty, if it should fail to perform the legal obligations imposed.” Id. at 563, 41 S.Ct. 593. The Court went on to say that “[t]he purpose for which the government permitted itself to be sued was compensation, not punishment,” id. at 564, 41 S.Ct. 593, and that “the element of punishment clearly predominates [here] and Congress has not given its consent that suits of this character be brought against the United States,” id. at 565, 41 S.Ct. 593. Defendant contends that the decision in Ault is directly applicable to the present case for there, as here, the claim asserted against the government included a demand for payment of a wage-related sum — an amount added on account of the late payment of an employee’s wage — that was punitive, rather than compensatory, in character. According to defendant, Ault holds that absent specific consent, a waiver of sovereign immunity does not extend to the recovery of punitive damages from the government. *629In further support of its argument, defendant refers to McCrea v. United States (The American Shipper), 70 F.2d 632 (2d Cir. 1934), where the court — relying on Ault— rejected a seaman’s claim against the United States for double pay under the Seaman’s Act of 1915, 46 U.S.C. § 10313(f) and (g)(i), holding that the “dominant purpose” of that statute was to punish an employer for failure to make a timely payment and, hence, was a claim with respect to which the United States had not waived its sovereign immunity. Id. at 635. The same view was expressed in Abogdo v. Int’l Marine Carriers, 890 F.Supp. 626, 631-32 (S.D. Tex. 1995) (“Because it is clear the [Suits in Admiralty Act] nowhere contains authorization for such [punitive damages] by a seaman, punitive damages cannot be sought from the government under the [Suits in Admiralty Act] or the [Public Vessels Act].” Finally, in Griffin v. Oceanic Contractors. Inc., 458 U.S. 564, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982), the Supreme Court noted prior case law describing the purpose of § 10504 as “not exclusively compensatory,” and then stated in dicta that “although the sure purpose of the statute is remedial, Congress has chosen to secure that purpose through the use of potentially punitive sanctions designed to deter negligent or arbitrary delays in payment.” Id at 572, 102 S.Ct. 3245. Plaintiff endeavors to overcome the force of these authorities by contending that § 10504(b), (c)(1) grants him a property right in the wages being claimed and, as such, constitutes an enforceable right to the payment of money pursuant to the Takings Clause of the Fifth Amendment of the United States Constitution. This argument, however, begs the question. The issue here is not whether the failure to pay plaintiff constitutes a taking of his property. Rather, the issue is whether plaintiff has such a property right in the first instance. And the answer is no. This same issue was addressed in Adams v. United States. 391 F.3d 1212 (Fed. Cir. 2004). There the question was whether federal law enforcement employees could invoke the Takings Clause of the Fifth Amendment as a basis for their claim of entitlement to unpaid overtime compensation. The court rejected this contention, saying that “a statutory right to be paid money, at least in the context of federal employee compensation and benefit entitlement statutes, is not a property interest for purposes of the Takings Clause.... [W]e view it as nothing more than an allegation that money is owed.” Id. at 1225. Plaintiffs case can fare no better; it, too, is nothing more than a claim that money is owed. Accordingly, based on the several authorities cited above, plaintiffs claim must be rejected. CONCLUSION Plaintiff, having been earlier paid the wage amounts to which he was statutorily entitled, is entitled to no more. The amount he has sought in this litigation — twice his daily wage rate for each day payment of wages was delayed — is recognized in the case law as a punitive sanction and, as such, is not recoverable against the United States because Congress has not consented to suit on such demands. Accordingly, the court is without power to grant relief and plaintiffs claim must be dismissed for lack of jurisdiction. The Clerk shall enter judgment accordingly. IT IS SO ORDERED. . Although plaintiff characterizes his claim as an admiralty claim arising under the Suits in Admiralty Act, 46 U.S.C. §§ 30901-30918, this characterization is not correct. In United States v. United Continental Tuna Corp., 425 U.S. 164, 96 S.Ct. 1319, 47 L.Ed.2d 653 (1976), the Supreme Court referred to its earlier decision in Amell v. United States, 384 U.S. 158, 86 S.Ct. 1384, 16 L.Ed.2d 445 (1966), saying that "we held [in Amelll that wage claims exceeding $10,000 by Government employees working aboard Government vessels are ... cognizable exclusively in the Court of Claims [this court’s statutory predecessor] where wage claims by Government employees have traditionally been cognizable.” See United Cont'l Tuna Corp., 425 U.S. at 179 n.18, 96 S.Ct. 1319. Properly understood, then, plaintiff's suit against the government is litigable here under the Tucker Act, 28 U.S.C. § 1491 (2012), (the court’s basic jurisdictional statute) and not the Suits in Admiralty Act. . According to plaintiff, his daily rate of pay (based on an annual salary of $55,852) was $153 — an amount which, when doubled in accordance with the statute, results in a daily rate of $306 and a total claim of $52,332.55 for the 171-day delay in the payment of wages. . Specifically, these provisions read as follows: (i) "carriers while under federal control shall be subject to all laws and liabilities as common carrier ... and in any action at law or suit in equity against the carrier no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the federal government,” and (ii) "[t]hat nothing in this Act shall be construed to amend, repeal, impair, or affect the existing laws or powers or States in relation to ... the lawful police regulations of the several States.” Fed, Control Act, Pub. L. No. 65-107, 40 Stat. 451, 456, 458 (1918). .The default judgment provided that the employee (Ault) was to recover the sum of $50 in wages owed and $390 as penalty.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218583/	631ORDER OF DISMISSAL WILLIAMS, Judge. This military pay ease comes before the Court on Defendant’s motion to dismiss the complaint. For the reasons stated below, Defendant’s motion to dismiss is granted. Background Plaintiff pro se Gene Rana enlisted in the Army on November 4, 1990, and was discharged as a sergeant in order to accept a commission on September 27,1993. A60.1 He was promoted to first lieutenant on September 27, 1995, but was released from active duty and transferred to the Army Reserve on February 10, 1998, for “non-selection for permanent promotion.” A17, 60. On March 18, 2001, Plaintiff was ordered to active duty as part of the Active Guard Reserve (“AGR”) with the 323rd Military Intelligence Battalion, 99th Reserve Support Command for a three-year term, and promoted to captain on March 20, 2001. A17, 60. Plaintiff received two adverse Officer Evaluation Reports (“OERs”) during the first year and a half of his three-year term in the AGR — one for the period of March 3, 2001 through October 28, 2001, and one for the period of May 10, 2002 through October 29, 2002. A60-61. In both reports, Plaintiff was given an unsatisfactory performance rating and a recommendation that he not be promoted or retained. Id. On September 6, 2002, Plaintiff filed a complaint with the Department of the Army Inspector General “alleging reprisal against him for submitting a request for a commander’s inquiry on 22 February 2002 ....” A39. On October 17, 2002, Plaintiffs battalion commander suspended Plaintiffs security clearance due to 632“[u]nsatisfacory performance,” and ordered an emergency mental health evaluation and a “full fit-for-duty physical examination.” A18, 39, 51. Further, possible revocation of Plaintiffs clearance was to be deferred “until the mental and physical examinations established whether there was cause beyond [Plaintiffs] control that was responsible for his unstable behavior.” A18. Plaintiffs security clearance was downgraded on November 12, 2002, from TS-SCI to classified data only. A19. Plaintiff did not appeal the downgrade, and his clearance was not reinstated. Id. Plaintiff subsequently alleged that the mental health evaluation was ordered in retaliation for his communications with the Inspector General. A18. A later investigation determined that there were no acts of reprisal against Plaintiff, but that Plaintiffs commander had not followed proper procedures in ordering the emergency mental health evaluation. A42, 51. On October 29, 2002, Plaintiff was detailed to the 5115th Garrison Support Unit for “rehabilitative purposes.” A39. This detail lasted 179 days, from October 30, 2002, until April 27, 2003. Id. On December 12, 2002, Plaintiffs former commander initiated a flag — a nonwaivable disqualification, which precludes an officer’s subsequent duty in the AGR program — against Plaintiff for “multiple periods of being [absent without leave] and his illegal extension of a ‘sick in quarters’ period.” A19, 74, 76. On February 8, 2003, Plaintiff received a second flag due to a “pending elimination action.” A19. Plaintiff appealed the 'two negative OERs to the U.S. Army Reserve Personnel Command on March 17, 2003, but his appeals were denied. A40. Plaintiff also filed an application with the Army Board for Correction of Military Records (“ABCMR”), contesting the two negative OERs, but the ABCMR found that there was no error, as Plaintiff did not show that “the contested reports contained] any serious administrative deficiencies or [were] not prepared in compliance with applicable regulations and policies.” A60, 62. The ABCMR denied Plaintiffs application for correction of records on July 1, 2004. Plaintiffs request for reconsideration was denied on July 14, 2004. A57. On May 13, 2003, Plaintiff was detailed a second time to the 5115th Garrison Support Unit, again for “rehabilitative purposes.” A40. During this detail, which lasted until November 7, 2003, a Board of Inquiry (“BOI”) was held from September 20-21, 2003. A19-20. The findings of this BOI were later vacated. A36.2 On March 1, 2004, Plaintiff was notified that he would be released from active duty “due to having a nonwaivable disqualification during his initial AGR tour.” A41. Army regulations prohibit placing a flagged member on indefinite status in the Active Guard Reserve program. A20. At the time, Plaintiff was flagged for failing the Army Physical Fitness Test and for failing to maintain weight standards. A19. On that same day, Plaintiff received a general officer memorandum of reprimand, which “noted that [Plaintiff] was flagged because of the involuntary separation proceedings” and that his security clearance remained suspended. A41. Plaintiff was released from active duty on March 17, 2004, and was transferred to the Army Reserve Control Group (Reinforcement). Id. The reason for separation was “non-retention on active duty” pursuant to Army Regulation 600-8-24 (Officer Transfers and Discharges). A20. A second BOI, mandated by the U.S. Army Human Resources Command — St. Louis, subsequently recommended that Plaintiff be involuntarily separated. A42. Plaintiff was given an Honorable Discharge from the Army Reserve on March 25, 2005. Id. Procedural History After his discharge, Plaintiff filed another application with the ABCMR again contesting the two negative OERs, as well as seeking erasure of the two BOIs from his records and review of what Plaintiff characterized as his whistleblower allegations. On March 20, 2007, the ABCMR upheld the two OERs, finding “no evidence to show the rating officials’ evaluation of [Plaintiffs] performance .,. was not the considered opinion and objective judgment of those rating officials at the time of preparation.” A46. The Board agreed with the conclusions of the earlier 633investigations by the Inspectors General of Plaintiffs unit, the Department of the Army, and the Department of Defense that Plaintiffs allegation of reprisal “in violation of the Whistleblower Act was not substantiated ....” A47. The ABCMR granted Plaintiff partial relief, in the form of adding four memoranda from his time with the Garrison Support Unit to the performance section of his personnel file, but did not award Plaintiff any further relief. A49. On January 8, 2009, Plaintiff requested reconsideration of the ABCMR’s decision, but his request was denied for being outside of the one-year time limit for review, and for failing to present any new evidence for the Board’s review. A29. Plaintiff filed a new application with the ABCMR, again seeking correction of his military records regarding the flags initiated against him as well as the general officer memorandum of reprimand. Although Plaintiff was outside of the three-year time limit for filing his application, the ABCMR elected to review the merits of his case. On July 28, 2009, the ABCMR denied Plaintiffs application, finding no error in the issuance of either the flags or the general officer memorandum of reprimand. A26-28. Plaintiff filed two requests for reconsideration of this decision, but both were denied. A10-11. Plaintiff attempted to pursue other relief to no avail, and filed a fourth application with the ABCMR, which was ultimately denied. Al-9. Plaintiff filed his complaint in this Court on September 22,' 2015, alleging wrongful discharge as a result of reprisal for his action as a military whistleblower. Compl. ¶¶ 2, 6. Plaintiff requests restoration to active duty, back pay, retirement after being promoted to Colonel, correction of his military records, including removal of “false official statements and other harmful submissions,” and $10,000,000 in compensation for loss of livelihood, harm to his character, cruel and unusual punishment, pain and suffering, and obstruction of justice. Id. at 1-2,12-13. Discussion Plaintiff must first establish subject-matter jurisdiction before the Court may proceed to the merits of the action. Hardie v. United States, 367 F.3d 1288, 1290 (Fed. Cir. 2004). The Court must dismiss the action if subject-matter jurisdiction is found to be lacking. Adair v. United States, 497 F.3d 1244, 1251 (Fed. Cir. 2007). The Court assumes all factual allegations as true, and will construe the complaint in a manner most favorable to.the Plaintiff when ruling on a motion to dismiss pursuant to Rule 12(b)(1). Pennington Seed, Inc. v. Produce Exch. No. 299, 457 F.3d 1334, 1338 (Fed. Cir. 2006). The filings of pro se litigants are held to “‘less stringent standards than formal pleadings drafted by lawyers.’ ” Naskar v. United States, 82 Fed.Cl. 319, 320 (2008) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). However, pro se plaintiffs still bear the burden of establishing the Court’s jurisdiction, and must do so by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988); Tindle v. United States, 56 Fed.Cl. 337, 341 (2003). The Tucker Act, 28 U.S.C. § 1491(a)(1) (2012), provides that this Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. The Tucker Act does not create a substantive right for money damages against the United States, but rather is a jurisdictional statute. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). A plaintiff must show that he or she is entitled to money damages from an additional source of substantive law. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008). The substantive right to money damages must extend from the Constitutional provision, statute, or regulation giving rise to the claim. See United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (“[T]he claimant must demonstrate that the source of substantive law he- relies upon ‘can fairly be interpreted as mandating compensation by the 634Federal Government for the damages sustained.’ ” (quoting Testan, 424 U.S. at 400, 96 S.Ct. 948)). The Court construes Plaintiffs request for back pay as a claim under the Military Pay Act, 37 U.S.C. § 204. Under the Military Pay Act, members of the military on either active duly or participating in a full-time training exercise are entitled to the basic pay associated with their assigned pay grade. 37 U.S.C. § 204(a)(1)-(2) (2013). This statute provides jurisdiction for this Court to hear claims brought by “military personnel claiming damages and ancillary relief for wrongful discharge.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997). Jurisdiction in this Court is proper in wrongful discharge suits because “[i]f the discharge was wrongful the statutory right to pay continues.” Id. A claim brought under the Tucker Act must be filed within six years of the claim’s first accrual. 28 U.S.C. § 2501 (2012); see John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 136, 128 S.Ct. 750, 169 L.Ed,2d 591 (2008); Martinez v. United States, 333 F.3d 1295, 1304 (Fed. Cir. 2003) (“If the plaintiff does not file suit within the six-year limitation period of 28 U.S.C. § 2501, the plaintiff loses all rights to sue for the loss of pay stemming from the challenged discharge.”). This is a jurisdictional requirement that cannot be waived, as it is a prerequisite for the waiver of sovereign immunity in suits against the United States for money damages. John R. Sand & Gravel Co., 552 U.S. at 134, 128 S.Ct. 750. Claims for military pay accrue at the time of discharge. Martinez, 333 F.3d at 1303. Because Plaintiffs date of discharge occurred on March 17, 2004, as stated on Plaintiffs signed Form DD-214, Plaintiff was required to file suit in this Court' by March 17, 2010. Plaintiffs'claims for back pay and benefits, filed in this Court in 2015, eleven years after these claims accrued, are therefore time-barred. Plaintiff contends that because his complaint was filed within six years of the final decision of the ABCMR in 2009, he filed within the statute of limitations period. Pl.’s Resp. 6. Plaintiff believes that the Army requires that “all avenues of redress” must be exhausted within the Army before he could approach “another Board, Commission or Court for relief,” Id. However, it is well established that obtaining a final' decision of a correction board is not a mandatory prerequisite for filing a discharge suit. Rather, correction boards are considered to be a “permissive administrative remedy,” they are not a “mandatory prerequisite” to filing suit in this Court. Martinez, 333 F.3d at 1304. As the Federal Circuit has held, “the failure to seek relief from a correction board not only does not prevent the plaintiff from suing immediately, but also does not prevent the cause of action from accruing.” Id. Therefore, Plaintiffs claims for back pay and benefits are time-barred.3 Plaintiff also seeks to invoke this Court’s jurisdiction through the Military Whistleblower Protection Act, which prohibits reprisal against a member of the armed forces for communicating with an Inspector General. 10 U.S.C. § 1034(b)(A) (2013). However, “it is well established that this court lacks jurisdiction over Whistleblower Act claims.” Volk v. United States, 111 Fed.Cl. 313, 326 (2013); see also Chisolm v. United States, 82 Fed.Cl. 185, 199 (2008), aff'd, 298 Fed.Appx. 957 (Fed. Cir. 2008) (“[0]ur court has repeatedly held that we lack jurisdiction over such claims because the statute is not money-mandating.”); Gant v. United States, 63 Fed.Cl. 311, 316 (2004), aff'd, 417 F.3d 1328 (Fed. Cir. 2005). The Military Whistle-blower Protection Act provides an “adminis*635trative process for handling complaints of improper retaliatory personnel actions,” not a jurisdictional basis for filing a claim in this Court. Soeken v. United States, 47 Fed.Cl. 430, 433 (2000), aff'd, 20 Fed.Appx. 900 (Fed. Cir. 2001). Plaintiffs claims for compensation based on his loss of livelihood, defamation of character, and pain and suffering sound in tort, and therefore lie outside of the jurisdiction of this Court. Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008); LeBlanc v. United States, 50 F.3d 1025, 1030 (Fed. Cir. 1995). Conclusion Defendant’s motion to dismiss is GRANTED. The Clerk is directed to dismiss this action. . A_ refers to the Appendix attached to Defendant's Motion to Dismiss. . The record does not indicate why the BOI’s findings were vacated. . Plaintiff also argues that this Court has jurisdiction over his claims because he "signed a contract with the Army on his initial entry [into] active duty” in 1990. Pl.’s Second Resp. 2. Even if Plaintiff’s claim were not time-barred, it would still fail, as military pay claims are grounded in statute and regulation, not contract. See Bell v. United States, 366 U.S. 393, 401, 81 S.Ct. 1230, 6 L.Ed.2d 365 (1961) (”[I]t is to be observed that common-law rules governing private contracts have no place in the area of military pay. A soldier's entitlement to pay is dependent on statutory right.’’); Sonnenfeld v. United States, 62 Fed.Cl. 336, 338 (2004) ("It is settled law ... that Tucker Act jurisdiction for cases involving military pay must be based solely upon statute and regulation, not upon contracts of enlistment or other documents relating to enlistment.”).	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218584/	6RCFC 12(b)(1); RCFC 12(b)(6); Subject Mattel Jurisdiction; Failure to State a Claim Upon Which Relief Can Be Granted; Pigford Litigation; Section 741; Consent Decree; Equal Credit Opportunity Act; Contractual Takings; Une-nacted Legislation; 2008 Farm Bill OPINION AND ORDER SWEENEY, Judge - In this case, plaintiff Carl Parker, individually and as administrator for the estate of Gary L, Parker, seeks damages related to (1) the purported failure of the Farm Service Agency (“FSA”) of the United States Department of Agriculture (“USDA”) to abide by the consent decree in the Pigford class-action discrimination litigation and (2) ongoing discrimination by the USDA. Defendant United States moves to dismiss the complaint for lack of subject matter jurisdiction and, alternatively, for failure to state a claim upon which this court can grant relief. For the reasons set forth below, the court grants .defendant’s motion to dismiss and denies Carl Parker’s motion for summary judgment as moot. I. BACKGROUND A. Pigford I Litigation On August 28, 1997, three African-American farmers filed a putative class action against the USDA to obtain redress for a long pattern of discrimination against African-American farmers in its credit and benefit programs.1 Pigford v. Glickman (“Pigford I”), 185 F.R.D. 82, 86-89 (D.D.C. 1999), aff'd, 206 F.3d 1212 (D.C. Cir. 2000). Athough the USDA had a process in place for resolving discrimination complaints, the system had been effectively nonexistent for over a decade prior to initiation of the lawsuit, leaving many wronged farmers without relief. Id. at 88. This systemic discrimination, which violated the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. §§ 1691 — 1691f (2012), led to a significant decline in the number of African-American farmers throughout the United States. Pigford I, 185 F.R.D. at 87. An initial class was certified on October 9, 1998. Id. at 90. Prior to 2010, the statute of limitations on alleged ECOA violations was two years. 15 U.S.C. § 1691e(f) (2006); see Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, § 1085(7), 124 Stat. 2083, 2085 (2010) (increasing the statute of limitations on ECOA claims from two years to five years). On October 21, 1998, Congress enacted the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act of 1999, Pub. L. No, 105-277, div. A, sec. 101(a), 112 Stat. 2681, 2681 to 2681-50 (1998). Section 741 of that Act (“Section 741”) waived the statute of limitations for actions filed within two years of its passage — i.e., until October 21, 2000 — if a complaint had been filed with the USDA before July 1, 1997, alleging nonemployment discrimination between January 1, 1981, and December 31, 1996. Id. § 741, 112 Stat. at 2681-30 to -31. Section 741 also permitted aggrieved farmers to obtain an administrative hearing on the record in lieu of pursuing a judicial remedy. Id On January 5, 1999, a newly certified class in Pigford I was defined as: All African American farmers who (1) farmed, or attempted to farm, between January 1, 1981 and December 31, 1996; (2) applied to the United States Department of Agriculture (USDA) during that time period for participation in a federal farm credit or benefit program and who believed that they were discriminated against on the basis of race in USDA’s response to that application; and (3) filed a discrimination complaint' on or before July 1, 1997, regarding USDA’s treatment of such farm credit or benefit application. 185 F.R.D. at 92. Following settlement negotiations, id. at 89-92, a consent decree was approved as “fan, adequate, and reasonable” 7on April 14, 1999, id. at 86.2 Its purpose was to ensure that “in their dealings with USDA, all class members receive full and fair treatment that is the same as the treatment accorded to similarly situated white persons.” Def.’s App. A2. The estimated value of the settlement at the time was $2.26 billion, constituting the “largest civil rights settlement in the history of this country,” Pigford 1,186 F.R.D. at 96. Under the terms of the consent decree, class members could opt out of class treatment within 120 days of entry of the consent decree. Def.’s App. A6. Otherwise, class members were generally required to submit a claim package within 180 days of entry of the consent decree — i.e, by October 12, 1999 — demonstrating class membership and electing to proceed under one of two tracks. Id. at A8-10. Class members missing this deadline who could demonstrate that their late filing was due to “extraordinary circumstances beyond [their] control” were allowed to file late petitions. In re Black Farmers Discrimination Litig. (“Pigford II”). 856 F.Supp.2d 1, 11 (D.D.C. 2011) (internal quotation marks omitted), appeal dismissed sub nom. Latham v. Vilsack, Nos. 11-5326, 11-5334, 12-5019, 2012 WL 10236550 (D.C. Cir. July 25, 2012). Such relief was extremely limited and did not extend to those who “had only recently learned” of the consent decree; out of the 61,252 would-be class members who sought to file late claims, only 2,585 were allowed to do so.3 Id. Including both timely submitted claims and late claims, over 22,700 claim packages were submitted by “individuals eligible to pursue relief under the terms of the consent decree.” Id. The choice between the two tracks carried “enormous significance. Under Track A, the class member [had] a fairly low burden of proof but his recovery [was] limited. Under Track B, there [was] a higher burden of proof but the recovery [was] unlimited.’”4 Pig-ford I, 185 F.R.D. at 96. Once made, the choice of which track to pursue was binding; in other words, dissatisfied Track B claimants could not then proceed under Track A. Id. at 107. Farmers proceeding under Track A were required to show racial discrimination under a “substantial evidence” standard. Def.’s App, A13; see also id. at A4 (defining “substantial evidence”). Relief available to farmers choosing to proceed under Track A was limited to (1) a one-time $50,000 cash payment, (2) discharge of all outstanding debts to the USDA that were the “subject of the ECOA claim(s) resolved in the class member’s favor by the adjudicator,” (3) an additional tax offset payment made directly to the Internal Revenue Service of twenty-five percent of the sums expended for the onetime payout and debt relief, (4) termination of foreclosure proceedings against real property “in connection with the ECOA claim(s) resolved in the class member’s favor by the adjudicator,” and (5) injunctive relief including one-time priority loan consideration and technical assistance. Id. at A14, A19-20; accord Pigford I, 185 F.R.D. at 97. An adjudicator’s decision under Track A was not sub-, jeet to “review in any court or before any tribunal . •.. with respect to any claim that [was], or could have been decided by the adjudicator.” Def.’s App. A16; accord Pigford 1,185 F.R.D. at 97. Fanners electing to proceed under Track B were provided a full-day evidentiary hearing before an arbitrator, who would determine whether there had been racial discrimination under a higher “preponderance of the evidence” standard. Def.’s App. A18; accord 8Pigford I, 185 F.R.D. at 97; see also Def.’s App. A4 (defining “preponderance of the evidence”). The same injunctive relief that was available under Track A was also available under Track B, but under Track B, the monetary damages were unlimited, encompassing debt relief, “actual damages” available under the ECOA, and the additional tax offset payment. Pigford I, 185 F.R.D. at 97; Def.’s App. A18. Like an adjudicator’s decision for Track A claimants, an arbitrator’s decision for Track B claimants was not subject to “review in any court or before any tribunal ... with respect to any claim that [was], or could have been decided, by the arbitrator.” Def.’s App. A19; accord Pigford I, 185 F.R.D. at 97. Generally speaking, debts incurred between January 1, 1981, and December 31, 1996, that were “affected” by discrimination could be discharged under the consent decree. Pigford I, 185 F.R.D. at 97; Def.’s App. A14, A18; Compl. Ex, A at 2. The date of discrimination and the type of loan were important findings. Compl. Ex. A at 2. Loans issued under the same program — such as the farm operating loan program or the farm ownership loan program — are considered the same type.5 Id. When a particular loan was found to have been affected by discrimination, additional debt of the same type as the affected loan was also eligible for discharge if (1) it was incurred at the same time as or later than the affected loan and (2) the original application for the additional debt had been filed by December 31, 1996. Id. at 2-3. Later rescheduling of a particular loan would not alter its inception date. Id. at 3; see also Pigford v. Schafer, 536 F.Supp.2d 1, 10-12 (D.D.C. 2008) (interpreting “incur” as the loan origination date irrespective of any later rescheduling). A dissatisfied claimant under either Track A or Track B could ask the court-appointed monitor to direct the adjudicator or arbitrator to “reexamine a claim where the Monitor determines that a clear and manifest error has occurred in the screening, adjudication, or arbitration of the claim ....” Def.’s App. A21; accord Pigford I, 185 F.R.D. at 97,107-08. No other appeals were available to claimants. Pigford I, 185 F.R.D. at 97, 107-08; Def.’s App. A16, A19. Additionally,, the USDA had no right to appeal decisions of either adjudicators or arbitrators. Pigford I, 185 F.R.D. at 108. The court-appointed monitor was also available to provide assistance in the event the consent decree was alleged to have been violated. Id. at 98. The United States District Court for the District of Columbia (“DC district court”) retained jurisdiction to enforce the consent decree.6 Pigford I, 185 F.R.D. at 98; Def.’s App. A22, A27; see also Pigford, 206 F.3d at 1218-19 (discussing the DC district court’s powers to enforce the decree through contempt proceedings or modification of the consent decree); Def.’s App. A13 (outlining steps that must be taken prior to seeking a court order). A July 14, 2000 stipulation and order clarified the review process “by establishing a framework for deadlines by which all Petitions would have to be submitted to the Monitor.” Pigford v. Glickman, Nos. 97-1978, 98-1693, 2000 WL 34292618, at 1 (D.D.C. Nov. 8, 2000). Claimants were given 120 days to seek monitor review of an adverse decision on Track A or Track B claims. Id. at 1 n.l. Although some flexibility regarding the deadline was provided, those who did not meet the deadline were ultimately denied further review by the monitor. Pigford v. Johanns, 416 F.3d 12, 14-15 (D.C. Cir. 2005). On November 2, 2015, the DC district court entered a wind-down stipulation and order terminating the stipulations of the consent decree, with limited exceptions. Def.’s App. A30-37. The exceptions relevant to this ease are those providing that (1) paragraph 9(a)(iii)(A) of the consent decree is still valid, and (2) the DC district court retains jurisdiction to enforce the wind-down stipulation and order and the remaining provisions of the consent decree. Id. at A32, A36. Paragraph 99(a)(iii)(A) of the consent decree provides that: USDA shall discharge all of the-class member’s outstanding debt to USDA that was incurred under, or affected by, the pro-grames) that was/were the subject of the ECOA claim(s) resolved in the class member’s favor by the adjudicator. The discharge of such outstanding debt shall not adversely affect the claimant’s eligibility for future participation in any USDA loan or loan servicing program. Id. at A14. In other words, the USDA was not relieved of its obligation to discharge affected debt or its obligation to ensure that such discharge did not negatively impact farmers applying for loans ini the future. B. Pigford II Litigation In 2008, Congress “resurrected the claims of those who had unsuccessfully petitioned the Arbitrator for permission to submit late claim packages” following “extensive hearings on the Pigford [I] ease and the consent decree.” Pigford II, 856 F.Supp.2d at 11. The Pood, Conservation, and Energy Act of 2008 (“2008 Farm Bill”) recognized that “all pending claims and class actions brought against the Department of Agriculture ... based on racial, ethnic, or gender discrimination in farm program participation should he resolved in an expeditious and just manner,” and provided relief in the DC district court for would-be Pigford claimants who had previously submitted a late-filing request and had “not previously obtained a determination on the merits of a Pigford claim ....” Pub. L. No. 110-246, §§ 14011-14012, 122 Stat. 1651, 2209-12.7 Section 14012 of the 2008 Farm Bill (“Section 14012”) was designed to allow “a full determination on the merits for each Pigford claim previously denied that determination” based on a late-filed request. Id. § 14012(d), 122 Stat. at 2210. Such previously denied Pigford I claimants (“Pigford II claimants”) were given two years from the 2008 Farm Bill’s enactment — i.e., until June 18, 2010 — to file a claim in the DC district court. Id. § 14012(b), (k), 122 Stat. at 2210, 2212. Section 14012 also prohibited foreclosures on property related to a Pigford claim while such claim was pending. Id. § 14012(h), 122 Stat. at 2211-12. Approximately 40,000 people filed complaints in the DC district court pursuant to Section 14012 between May 2008 and June 2010. Pigford II, 856 F.Supp.2d at 13. Congress ultimately capped Pigford II damages at $1.25 billion in the aggregate. Claims Resolution Act of 2010, Pub. L. No. 111-291, § 201(b), 124 Stat. 3064, 3070. On October 27, 2011, the DC district court certified the Pigford II class and approved a proposed settlement agreement as “fair, adequate, and reasonable.”8 Pigford II, 856 F.Supp.2d at 22, 27. An appeal of the class certification was dismissed. Latham, 2012 WL 10236550. The DC district court approved the distribution of settlement funds on August 23, 2013. In re Black Farmers Discrimination Litig., No. 08-mc-0511, 2013 WL 4507951 (D.D.C. Aug. 23, 2013). C. Carl Parker’s Farm Loans Carl Parker, who identifies himself as an African-American farmer, has resided in Ashbum, Georgia his entire life. Compl. ¶ 1; Compl, Ex. B at 33; Compl. Ex. C at.33; Def.’s App. A57, A104, A212. He farmed peanuts, soybeans, com, wheat, and cotton, Def.’s App. A64, A69. On April 24, 1984, Carl Parker received a supervised farm operating loan of $89,000 from the Worth County Farmers Home Administration (“FmHA”) of-10flee of the USDA.9 Def.’s App. A64, A96. Forty percent of the loan proceeds were released upon funding, which represented reimbursement for operating expenses that Carl Parker had charged to his credit card, machinery repair, and family living expenses. ■Id. at A118. As a supervised loan, farm purchases made with the remaining loan proceeds were subject to FmHA approval. Id. at A65, A108-09, A118; accord 7 C.F.R. §§ 761.51, 761.54. Delays in waiting for such approval led to (1) problems with planting and (2) delayed and lower crop yields. Def.’s App. A67-68, A118. Meanwhile, white farmers who were in worse financial situations than Carl Parker received unsupervised loans from the USDA. Def.’s App. A116-17, A141. In addition to his April 24, 1984 loan, Carl Parker also received a farm operating loan on March 29, 1985, two farm operating loans on February 28, 1986, and a farm ownership loan on February 26, 1986.10 ML at A42, A64, A96. The 1985 loan was alleged to be supervised, id. at A68, A108, but USDA records indicate that the loan was unsupervised because all loan proceeds were distributed at closing, id. at A128. Both the 1984 and 1985 loans were eventually paid back in full. Id. at A42, A96-97. The original principal amounts and interest rates of the two 1986 operating loans were (1) $53,136.84 at 7.25 percent and (2) $91,786.87 at 7.259 percent. Id. at A47, A50. The record is unclear regarding the original principal amount of the 1986 ownership loan. Id. at A64. All of the 1986 loans were made at “limited resource” interest rates, id. at A96-97, A123, but Carl Parker claims he was never made aware of this fact until approximately two decades later. Id. at A104; Compl. Ex. B at 33. A limited resource interest rate “is an interest rate normally below the [USDA’s] regular interest rate, which is available to applicants unable to develop a feasible plan at regular rates” while requesting loans or loan servicing. 7 C.F.R. § 761.2. According to Carl Parker, the FmHA also failed to provide appropriate loan services in that he was not given technical assistance in completing the applications, nor was he informed of the “plethora” of alternative loan programs for which he was potentially qualified. Del’s App; A65-66. Carl Parker’s applications for farm operating loans of $93,000 in 1987, 1988, and 1989 were denied on March 6, 1987, May 4, 1988, and April 28, 1989, respectively, due to concerns about repayment ability and cash flow. Id. at A64, A96, A119, A128-29. Carl Parker attributes his cash flow problems during those years to circumstances beyond his cori-ti'ol, such as drought conditions that impacted his crops. Id. at A103; Compl. Ex. B at 32. Athough he attempted to rent more land during that time, he was unsuccessful. Compl. Ex, B at 32; Def.’s App. A103, A130. In addition, he submitted farm and home plans each year to be reworked by the FmHA county supervisor, but to no avail. Compl. Ex. B at 32; Def.’s App. A103, A181. Throughout his interactions with the FmHA staff, Carl Parker was left with the impression that they had already determined that they would deny his loan applications. Compl. Ex. B at 32; Def.’s App. A103, A130. On May 24, 1989, Carl Parker rescheduled his outstanding USDA loans. Defi’s App. A42, A96, Upon rescheduling, the principal amounts of his operating loans were $60,746.69 and $110,693.08, both at 6.5 percent interest over fifteen years. Id. at A42, A46, A49. The principal amount of Carl Parker’s ownership loan upon rescheduling was $168,164.01.11 Id. at A42. However, he was not given any other assistance by the USDA Id. at A103-04, A131; Compl. Ex. B at 32-33. Furthermore, he received no help when his home was damaged by fire in 1989. Compl, Ex. B at 33; Def.’s App. A104. Instead, the UDSA applied the insurance proceeds to his outstanding loan balance. Id. As a result, 11Carl Parker resorted to private funding through Gold Kist Financing to keep his farm operational until 1991.12 Compl. Ex. B at 33; Def.’s App. A104, A131. He experienced further adversity in 1990 when his daughter, then four years old, sustained third-degree burns in another fire and was confined to a hospital in Augusta, Georgia— 204 miles away from home — for six months. Compl. Ex. B at 33; Def.’s App. A104. In 1990, the FmHA offered Carl Parker “an opportunity to buy out his USDA loans at a net recovery value” after he was unable to reschedule his loans “due to [his] inability to project a positive cash flow,” and he lost his appeal of that decision. Def.’s App. A96. A January 1992 bankruptcy filing (which was dismissed in 1994) forced him out of the farming business in 1993. \|d. at A69, A96; see also In re Parker Bros., a P’ship, No. 92-10055 (Bankr. M.D. Ga.) (filed by Gary and Carl Parker). In February 1998, Carl Parker filed a second bankruptcy petition to stop the USDA from foreclosing on his property. Compl. Ex. B at 33; Def.’s App. A104; see also In re Parker Bros., a P’ship, No. 98-10013 (Bankr. M.D. Ga.) (filed by Gary and Carl Parker). Melvin Bishop, president of the Black Farmers and Agriculturalists Association (“BFAA”), made several telephone calls to the USDA offices in Atlanta and Washington, DC on Ms behalf, and was successful in halting the foreclosure. Compl. Ex. B at 33; Def.’s App. A104. D. Gary Parker’s Farm Loans Gary Parker is Carl Parker’s older brother. Compare Def.’s App. A150, with id. at A57. Like Ms brother, Gary Parker also self-identified as an African-American farmer, id. at A150. lived in Ashburn, Georgia his entire life, id. at A161, and farmed com, peanuts, cotton, soybeans, and wheat in that eommumty, id. at A153, A161. He also raised cattle. Id. at A153. Gary Parker’s history with the USDA is very similar to that of his brother. In July 1985, Gary Parker received a farm loan of $155,000 from the Worth County FmHA office.13 Id. In February 1986, Gary Parker received a farm ownership loan and two farm operating loans. Id. at A41, A153. The ownership loan was for $155,000, and the operating loans were for $98,370 and $66,492.16.14 Id. at A41. According to Gary Parker, all of Ms loans were supervised. Id. at A156. When crops were sold, checks were made payable to both himself and the FmHA. Id. After taking these checks to the FmHA office, Gary Parker was given a check for only the amount of capital he could justify needing rather than funds independent of FmHA supervision. Id. MeanwMle, similarly situated white farmers received unsupervised loans. Id. at A159. Gary Parker also applied for farm loans between 1987 and 1992, but those applications were continuously derned due to purported concerns about cash flow and ability to repay. Id. at A153. He lost appeals of those demals. Compl. Ex. C at 22. In 1987, like his brother, he tried to rent more land but was unsuccessful. Id. In later years, he was not given assistance in completing loan applications, Def.’s App. A153, but was simply told to hire someone to help him, id. at A154, and that he was “wasting the government’s time” in applying for loans, id. at A156, because there was “no way [the FmHA was] going to let [Mm] keep borrowing [FmHA’s] money ...,” Compl. Ex. C 22. Like Ms brother, Gary Parker was led to believe that FmHA officials had already made up their minds to deny his loan applications because he was told he did not qualify before he had even applied. Id.; Def.’s App. A156-57. Local USDA officials referred to Gary Parker as a “problem debtor.” Def.’s App. A201. In addition, FmHA officials treated Mm the same way they treated Ms brother by refusing to inform Mm of alternative loan pro12grams for which he may have been eligible. Compl. Ex. C at 22-23; Def.’s App. A156-57. Instead of receiving assistance, he was pressured to sell equipment or rent his peanut quota to the son of an FmHA official. Compl. Ex. C at 22-23. Gary Parker believed these actions were undertaken because FmHA officials wanted them family members to acquire his land and livestock. Id. at 23. Gary Parker’s inability to obtain loans, as well as the delay he experienced in receiving loans that were approved, affected his crop performance and resulted in lower yields. Def.’s App. A159. Like his brother, Gary Parker resorted to private funding through Gold Kist Financing to keep his farm operational. Compl. Ex. C at 23. Unlike his brother, however, he did not receive loan rescheduling. Def.’s App. A41. He applied for Preservation Loan Servicing in 1991, but was denied. Id. at A200. Gary Parker was eventually forced out of the farming business after declaring bankruptcy in January 1992. Def.’s App. A162; Compl. Ex. C at 23; see also In re Parker Bros., No. 92-10055. In February 1998, Gary Parker filed a second bankruptcy to stop the USDA from foreclosing on his property. Compl. Ex. C at 23; see also In re Parker Bros., No. 98-10013. However, it took several phone calls on his behalf by BFAA president Melvin Bishop to stop the foreclosure sale from occurring. Compl. Ex. C at 23. E. Seeking Relief Under the Pigford I Consent Decree Carl Parker and Gary Parker both timely submitted claim packages to the Pigford I claims facilitator on October 12, 1999. Def.’s App. A56, A149. Each had lodged prior discrimination complaints against the USDA— at a USDA listening session in Tallahassee, Florida and a meeting in Albany, Georgia— that went unresolved. Id. at A63, A174. Each elected Track A treatment.15 Id. at A58, A151. Their claim packages were supplemented on December 29, 1999, and January 18, 2000, respectively. Id. at A55, A148. On May 5, 2000, class counsel discovered that the claims facilitator had incorrectly deemed the Parkers’ filings as untimely. Id. at A54, A147. As a result, Carl Parker and Gary Parker each filed late claim affidavits on August 24, 2000, and August 21, 2000, respectively, to demonstrate why their “late” filings were beyond their control. Id. at A52-53, A145^t6. Carl Parker was assigned claim number 22105, id. at A57, and Gaiy Parker was assigned claim number 22079, id. at A150. Carl Parker’s entire claim was denied by the adjudicator on June 16, 2004, for “fail[ure] to provide substantial evidence of discrimination” because a similarly situated white farmer was also denied an operating loan at the same time as Carl Parker. Id at A95-99. Gary Parker’s claim was similarly denied in its entirety by the adjudicator on July 1, 2004, for “fail[ure] to establish by substantial evidence that he was the subject of discrimination” regarding his loans, loan restrictions, loan denials, and lack of assistance. Id. at A199-203. In denying Gary Parker’s claim, the adjudicator noted Gary Parker’s “precarious” financial situation and observed that white farmers were also subject to loan supervision. Id. at A201. Pursuant to the consent decree, Carl Parker timely petitioned for monitor review of the adjudicator’s decision on September 11, 2004. Id. at A102; Compl. Ex. B at 31. See generally Def.’s App. A100-05. He sent a follow-up letter to the monitor on September 26, 2006. Compl. Ex. B at 32-34. The record before the court does not include a similar petition for monitor review filed by Gary Parker. However, like his brother, he too sent a letter to the monitor on September 26, 2006. Compl. Ex. C at 22-24. Gary Parker also sent a separate letter to class counsel that same day referencing prior communications regarding the USDA’s collection efforts. Id. at 20. The record before the court does not include any responses to either of Gary Parker’s September 26, 2006 letters. On August 31, 2007, the monitor directed reexamination of a portion of Carl Parker’s claim. Def.’s App. A106. See generally id. at 13A106-38. The monitor found a “clear and manifest error” regarding Carl Parker’s claim that restrictive conditions were placed on his 1984 farm operating loan because the adjudicator relied on “mistaken assumptions of fact about [Carl Parker’s] financial situation in 1984” and an improper comparison. Id. at A114-18. With respect to the latter finding, the monitor explained that pursuant to the consent decree, the issue was not whether the FmHA’s restrictions were proper under the regulations then in effect, but whether such restrictions were less favorable to Carl Parker than a similarly situated white farmer. Id. At the same time, the monitor found no “clear and manifest error” regarding Carl Parker’s claims regarding late loan funding from 1984 through 1986, restrictive loan conditions in 1986, and denial of operating loans from 1987 through 1989. Id. at A132. Accordingly, the monitor declined to order reexamination of those claims. Id. On June 13, 2008,. the adjudicator found in Carl Parker’s favor regarding supervision of the 1984 operating loan (the only claim before the adjudicator upon reexamination). Id. at A139-42, The adjudicator explained that Carl Parker’s financial situation was not so poor, compared to a similarly situated white fanner who received an unsupervised loan in 1984, that disparate treatment was justified. Id. at A141. Accordingly, Carl Parker was awarded a one-time $60,000 cash payment, debt relief for any farm operating loan debt incurred between January 1, 1984, and December 31,1996, and injunctive and tax relief pursuant to the consent decree. Id. at A141-42. The USDA finance office finished implementing Carl Parker’s debt relief on December 10, 2008. Id. at A38-40; see also id. at A42 (showing Carl Parker’s USDA loan balances as of June 13,2016). F. Subsequent Attempts to Obtain Assistance 1. Loan Servicing Gary Parker died in December 2010, and Carl Parker became the administrator of his estate. Compl. Ex. C at 14. In April 2011, Carl Parker requested primary loan servicing, but was' denied on the grounds that he had already received that service. Compl. Ex. B at 11. On September 13, 2011, Carl Parker received a thirty-day notice concerning the availability of loan servicing. Id. at 11,13-14. He timely submitted an application for loan servicing in person at the FSA office in Sylvester, Georgia on October 12, 2011.16 Id. at 11; Compl. Ex. C at 34. His application packet was transferred to the FSA office in Dawson, Georgia the following day. Compl. Ex. B at 11; Compl. Ex. C at 34. However, on October 31, 2011, the FSA notified Carl Parker, via several notices, that it intended to accelerate the loans held by him both individually and as administrator of his brother’s estate and start foreclosure proceedings. Compl. Ex. B at 11, 16-17, 19-21, 23-25; Compl. Ex. C at 5-7, 25-30. Carl Parker received these notices on November 2, 2011. Compl. Ex. B at 22, 26. Thereafter, Carl Parker filed a request for reconsideration of the acceleration, and requested copies of all the paperwork he had submitted. Id. at 1.2. 2. USDA Office of Civil Rights Carl Parker filed a discrimination complaint with the USDA Office of Civil Rights (“OCR”) on December 28, 2011. Id. at 30; Compl. Ex. C at 19. The discrimination complaint was received by the USDA Office of Adjudication on January 9, 2012, and assigned complaint number 12-6699. Compl. Ex. B at 8. On January 20, 2012, the USDA requested additional information. Id. at 8-10. In response, Carl Parker provided a letter on February 26, 2012, outlining the problems he had encountered in attempting to apply for loan servicing. Id. at 11-12. He explained that he had been told that he did not qualify for loan servicing only to be sent an application package shortly thereafter, that he had submitted an application for loan servicing but the files were nowhere to be found, that the local FSA office seemed intent on foreclosing on his property, and that there were others who had witnessed his long-time mis14treatment but were unwilling to come forward because these would-be witnesses were told by FSA personnel that they would have a “good chance” to buy his property at a foreclosure sale. Id. The case was accepted for processing on March 16, 2012.- Id. at 29. The OCR’s acceptance of the complaint triggered a moratorium on loan acceleration and foreclosure proceedings against the subject properties. Compl. Ex. C at 18; accord 7 U.S.C. § 1981a(b)(l) (2012). An investigator was assigned to the case on or about April 20, 2012. Compl. Ex. B at 7. Carl Parker also filed a discrimination complaint with the OCR in his capacity as administrator of his brother’s estate sometime prior to July 11, 2013, prompting the FSA to temporarily transfer the loan files to its office in Moul-trie, Georgia. Compl. Ex. C at 16-17. He spoke with a representative of the OCR on November 13, 2013, regarding the complaint he filed as administrator of his brother’s estate. Compl. Ex. B at 29. On December 23, 2013, the two complaints filed by Carl Parker — individually and as administrator— were joined under complaint number 12-5699 because they were both based on the same facts and circumstances. Id. The case was closed on June 4, 2014, with a finding of no discrimination. Compl. Ex. C at 11. On September 25, 2014, the moratorium on loan acceleration and foreclosure proceedings ended, and the loan files were transferred back to the FSA office in Dawson, Georgia. Id. at 12. 3. Reconsideration of Adverse Loan Decisions Meanwhile, on September 5, 2014, an adverse decision was rendered regarding the debts owed by the estate of Gary Parker.17 Id. at 8. Carl Parker asked for reconsideration of that decision on October 3, 2014. Id On October 7, 2014, Carl Parker asked for reconsideration of an adverse loan decision reached in his individual case,18 stressing that he was unable to pay the farm loans in prior years due to reasons beyond his control. Compl. Ex. B at 6. The two reconsideration requests were consolidated, and a reconsideration meeting was held on October 20, 2014. Id. at 27; Compl. Ex. C at 10. Reconsideration was denied in both cases. Compl. Ex. B at 27; Compl. Ex. C at 10. During the October 20, 2014 meeting, Carl Parker was given documentation from the Code of Federal Regulations and FSA Handbook 3-FLP used to determine his ineligibility for the assistance sought. Compl. Ex. B at 27; Compl. Ex. C at 10. One of the reasons given for the estate’s ineligibility was that it was not a legal entity. Compl. Ex. C at 14. Carl Parker asked for an application to assume the estate’s loans, but was told the time frame had expired for doing so. Id. He then requested information about assuming loans, but reported never receiving it. Id. On November 12, 2014, Carl Parker reiterated his request for an application to assume his deceased brother’s loans, explaining that preventing him from doing so because of a time limit would be unfair in his situation. Id. Believing that the October 20, 2014 denial of reconsideration was erroneous, id. at 10; Compl. Ex. B at 27, Carl Parker requested mediation on November 18, 2014, Compl. Ex. B at 28; Compl. Ex. C at 13. The record before the court does not reflect the results of the November 18, 2014 mediation request. 4. USDA Office of Administrative Law Judges (February 2016) On February 25, 2016, Carl Parker filed a complaint with the USDA Office of Administrative Law Judges (“OALJ”) alleging ongoing racial discrimination and requesting an expedited hearing before an administrative law judge (“ALJ”), a temporary restraining order, and a preliminary injunction, Def.’s App. A217-20. He cited Section 741 in support of his argument that he was entitled to a “hearing on the record” before an ALJ, and noted that such a hearing never occurred. Id. at A217-18. Carl Parker also claimed that, as a prevailing Track A claimant, the FSA’s failure to forgive his farm ownership loan and subsequent foreclosure efforts violated the Pigford I consent decree. Id. at A219. In addition, Carl Parker argued that termination of the foreclosure moratorium — which was in place while his complaint was pending 15with the OCR — is permissible only after a hearing before an ALJ or judicial review, and that the OCR “failed to answer the complaints” he filed. Id. Carl Parker noted that his brother was also denied relief under the Pigford I consent decree and that although he petitioned the monitor for reexamination, the monitor never considered his request. Id. Carl Parker further noted that in the past, the USDA and the Pigford I monitor had lost pertinent records. Id. Finally, Carl Parker asked that an ALJ order a complete review of the administrative record. Id. at A220. An ALJ considered Carl Parker’s complaint and explained, in a March 21, 2016 order, that there was no jurisdiction to grant Carl Parker’s request for a hearing because (1) Section 741 imposed an October 21, 2000 deadline for requesting that the USDA review previously unresolved discrimination complaints that were originally filed before July 1, 1997, and (2) there was no evidence that Gary Parker had ever filed a complaint with the USDA pursuant to Section 741.19 Id. at A221-23. The ALJ therefore dismissed the petition for a hearing and forwarded the matter to the OCR “for resolution pursuant to prevailing regulations.” Id. at A223. 5. U.S. District Court Proceedings On February 29, 2016, Carl Parker filed suit in the United States District Court for the Middle District of Georgia (“Georgia district court”) alleging (1) breach of the Pig-ford I consent decree based on the USDA’s reinstatement of his farm ownership loan despite his status as a prevailing Track A claimant, failure to provide a hearing for his brother’s estate, and violation of Section 741; (2) numerous civil rights violations, including conspiracy, arising from racial discrimination; and (3) violations of Section 14012 by virtue of the USDA’s having set a March 1, 2016 foreclosure sale date. Id. at A208-16. He sought an injunction against the sale of property and $8 million in damages. Id. at A216. On June 27, 2016, he filed an amended complaint seeking a formal hearing before an ALJ, reinstatement of the foreclosure moratorium, forgiveness of his farm ownership loan, and removal of any liens against his property. Def.’s App. A224-30. In a brief filed on September 30, 2016, Carl Parker argued that he was entitled to a formal hearing before an ALJ on his civil rights complaints under 7 C.F.R. § 15f.9 and Section 14012. Pl.’s Brief 2-5. Parker v. U.S. Dep’t of Agric., No. 1:16-cv-00051 (M.D. Ga,), ECF No. 21. He also asserted that he was improperly denied a hearing under 7 C.F.R. § 766,358, that his not receiving preferential treatment in future loan applications was a further breach of the Pigford I consent decree, and that the adverse denial of a loan was still within the statute of limitations. Id. at 5-7. The Georgia district court divided Carl Parker’s claims into two groups: (1) claims based on alleged violations of the Pig-ford I consent decree and (2) claims based on ongoing racial discrimination, i.e., that “the USDA chose to violate the Pigford [I] consent decree because he is black ....” Order 3-4, Parker v. U.S. Dep’t of Agric., No. 1:16— cv-00051 (M.D. Ga. Oct. 6, 2016), ECF No. 23. The Georgia district court transferred the first set of claims to the DC district court, noting that only the DC district court has jurisdiction to adjudicate alleged violations of the Pigford I consent decree and no court has jurisdiction to “act as an appellate court for administrative rulings related to Pigford [I] claims.” Id. at 5, It also transferred the second set of claims to the DC district court in the interest of judicial economy. Id at 5-7. After the transfer, Carl Parker voluntarily dismissed his suit. Notice, Parker v. U.S, Dep’t of Agric., No. 1:16-ev-01999 (D.D.C. Jan. 3, 2017), ECF No. 34. 6. USDA Office of Administrative Law Judges (August 2016) The record .before the court does-not reflect .any further efforts by Carl Parker to appeal the March 21, 2016 dismissal of his February 25, 2016 OALJ complaint. However, Carl Parker filed another complaint with the OALJ on August 24, 2016, requesting an expedited formal hearing, temporary re16straining order, and preliminary injunction. Defi’s Reply Attach. 1 at 1-5. This new complaint was identical to the February 25, 2016 OALJ complaint, except that it was submitted on Carl Parker’s behalf by a representative, and included a reference to a decision by the United States Court of Appeals for the District of Columbia Circuit that explained the court’s authority to enforce the Pigford I consent decree. Compare id., with .Def.’s App. A217-20. The USDA responded to the complaint on September 15, 2016. Def.’s Reply Attach. 2 at" 1-3. The USDA emphasized that there was no statutory basis for a hearing before the OALJ, noting that the time period for filing a Section 741 hearing request had expired and that the Parkers’ discrimination claims from 1981 to 1997 were adjudicated under the Pigford I class-action settlement. Id. at 1-2. The complaint was dismissed with prejudice six days later because the ALJ had “no authority to grant the relief requested” for the reasons stated in the agency’s response. In re Parker, No. 16-0153, 2016 WL 6235789, at 1 (U.S.D.A. Sept. 21, 2016). 7. Current Action Carl Parker filed the instant action on his own behalf and as administrator of the estate of Gary Parker, proceeding pro se, on February 25, 2016, Compl. 1, the same day he filed his first complaint with the OALJ, Def.’s App. A217. In his complaint, Carl Parker asserts claims for breach of the Pigford I consent decree, Compl. ¶¶ 4-8, takings without just compensation in violation of the Fifth Amendment to the United States Constitution (“Constitution”), id. ¶ 9. violations of Section 14012, id. ¶¶ 9-10, violations of the “Pigford Remedies Act of 2007,” id. ¶ 11, and violations of the Contract Disputes Act of 1978 (“CDA”), 41 U.S.C. §§ 7101-7109 (2012), id ¶¶ 12-13. He seeks $8 million in damages. Id. at 6. Carl Parker submitted a motion for partial summary judgment on March 21, 2016, and it was filed by leave of court the following day. Order, Mar. 22, 2016. Except for the first and last sentence, the motion for partial summary judgment mirrored the complaint.20 Compare PL’s Mot. for Partial Summ. J. 1-6, with Compl. 1-6. The court stayed briefing on that motion, explaining that the motion would not be entertained until after defendant responded to the complaint. Order, Mai. 22, 2016. On July 22, 2016, defendant filed a motion to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”) and, alternatively, for failure to state a claim upon which this court can grant relief pursuant to RCFC 12(b)(6). Def.’s Mot. to Dismiss 2. Defendant argues that this court lacks jurisdiction due to the statute of limitations. Id. Defendant also contends that (1) neither the 2008 Farm Bill nor the “Pigford Remedies Act” confers jurisdiction over Carl Parker’s claims to this court, and (2) neither the Parkers’ loans nor the Pigford I consent decree are within the scope of the CDA. Id. Further, defendant asserts that Carl Parker has failed to state a plausible claim for relief based on either a breach-of-eontract or a takings theory. Id. In response, Carl Parker avers that violations of the Pigford I consent decree are reviewable, raises a fraud claim concerning Gary Parker’s purported blection to pursue Track A treatment instead of Track B treatment, and cites several cases for the proposition that there is a right to a hearing pursuant to Section 14012. PL’s Resp. 7. Carl Parker claims that he is “not asking for a review of the decision of the adjudicator or the arbitrator,” but rather a “review of the monitor’s decision to deny [Gary Parker’s] request for review.” Id. at 9. He also requests that, in the interest of judicial economy, the court order the OALJ to hold a formal hearing and stay proceedings in this ease until such a hearing takqs place.21 Id. at 13. In its reply, defendant emphasizes that none of the arguments Carl Parker raises 17establish this court’s jurisdiction over his claims, and that Carl Parker has not pled any plausible claims for relief. Def.’s Reply 1. Defendant also observes that, instead of appealing the OALJ’s dismissal of his February 25, 2016 complaint, Carl Parker filed another petition with the OALJ for a hearing. Id. at 5 n.2. See generally Def.’s Reply Attach. 1; supra Part I.F.6. Defendant’s motion to dismiss is fully briefed. The court considers oral argument unnecessary. II. DISCUSSION A. Standards of Review 1. RCFC 12(b)(1) In determining whether subject matter jurisdiction exists, the court “must accept as true all undisputed facts asserted in the plaintiffs complaint and draw all reasonable inferences in favor of the plaintiff.” Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). With respect to a motion to dismiss for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of evidence, that the court possesses subject matter jurisdiction. Id. The court is not limited to the pleadings in considering subject matter jurisdiction. Ranks v. United States, 741 F.3d 1268, 1277 (Fed. Cir. 2014); Pucciariello v. United States, 116 Fed.Cl. 390, 400 (2014). While pro se pleadings are “held to less stringent standards than formal pleadings drafted by lawyers” and are “to be liberally construed,” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (internal quotation marks omitted), the “leniency afforded to a pro se litigant with respect to mere formalities does not relieve the burden to meet jurisdictional requirements,” Minehan v. United States, 75 Fed.Cl. 249, 253 (2007). If the court finds that it lacks subject matter jurisdiction over a claim, RCFC 12(h)(3) requires the court to dismiss that claim. 2. RCFC 12(b)(6) A claim that survives a jurisdictional challenge remains subject to dismissal under RCFC 12(b)(6) if it does not provide a basis for the court to grant relief. Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002) (“A motion to dismiss ... for failure to state a claim upon which relief can be granted is appropriate when the facts asserted by the claimant do not entitle him to a legal remedy.”). To survive an RCFC 12(b)(6) motion to dismiss, a plaintiff must include in its complaint “enough facts to state a claim to relief that is plausible on its face” sufficient for the defendant to have “fair notice” of the claim and the “grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks omitted). In other words, a plaintiff must “plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). In ruling on such a motion, the court must “accept as true all of the factual allegations contained in the complaint” and any attachments thereto. Erickson, 551 U.S. at 94, 127 S.Ct. 2197 (citing Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955); accord RCFC 10(c) (“A copy of a written instrument that is an exhibit to a pleading is part of the pleading for all purposes.”); Rocky Mountain Helium, LLC v. United States, 841 F.3d 1320, 1325 (Fed. Cir. 2016) (applying RCFC 10(c) and emphasizing that “a court ‘must consider the complaint in its entirety,... in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice” ’ (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007))). The issue at this stage of litigation is not the sufficiency of the United States’ potential defenses or the likelihood of Carl Parker’s eventual success on the merits of his claim, but simply whether Carl Parker has alleged specific facts describing a plausible claim for relief. See Chapman Law Firm Co. v. Green-leaf Constr. Co., 490 F.3d 934, 938 (Fed. Cir. 2007) (“The court must determine ‘whether the claimant is entitled to offer evidence to support the claims,’ not whether the claimant 18will ultimately prevail.” (quoting Scheuer v. Rhodes. 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974))). As a pro se litigant, Carl Parker is afforded leniency in drafting his complaint. See Matthews v. United States, 760 F.3d 1320, 1322 (Fed. Cir. 2014). B. Subject Matter Jurisdiction Whether the court possesses jurisdiction to decide the merits of a case is a “threshold matter.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Subject matter jurisdiction cannot be waived or forfeited because it “involves a court’s power to hear a case.” United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), quoted in Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. (7 Wall). 506, 514, 19 L.Ed. 264 (1868). Therefore, it is “an inflexible matter that must be considered before proceeding to evaluate the merits of a case.” Matthews v. United States, 72 Fed.Cl. 274, 278 (2006); accord K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1004-05 (Fed. Cir. 2015). Either party, or the court sua sponte, may challenge the court’s subject matter jurisdiction at any time. Arbaugh, 546 U.S. at 506, 126 S.Ct. 1235. The ability of the United States Court of Federal Claims (“Court of Federal Claims”) to entertain suits against the United States is limited. “The United States, as sovereign, is immune from suit save as it consents to be sued.” United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941), The waiver of immunity “may not be inferred, but must be unequivocally expressed.” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003). Further, “[w]hen waiver legislation contains a statute of limitations, the limitations provision constitutes a condition on the waiver of sovereign immunity.” Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983). The Tucker Act, the principal statute governing the jurisdiction of this court, waives sovereign immunity for claims against the United States, not sounding in tort, that are founded upon the Constitution, a federal statute or regulation, or an express or implied contract with the United States. 28 U.S.C. § 1491(a)(1) (2012); White Mountain, 537 U.S. at 472, 123 S.Ct. 1126. However, the Tucker Act is merely a jurisdictional statute and “does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Instead, the substantive right must appear in another source of law, such as a “money-mandating constitutional provision, statute or regulation that has been violated, or an express or implied contract with the United States.” Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1554 (Fed. Cir. 1994) (en banc). In addition, to fall within the court’s ■ jurisdiction, any claim against the United States filed in the Court of Federal Claims must be “filed within six years after such claim first accrues.” 28 U.S.C. § 2501. A cause of action accrues “when all the events which fix the government’s alleged liability have occurred and the plaintiff was or should have been aware of their existence.” Hopland Band of Porno Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988), quoted in San Carlos Apache Tribe v. United States, 639 F.3d 1346, 1360 (Fed. Cir. 2011). The limitations period set forth in 28 U.S.C. § 2501 is an “absolute” limit on the ability of the Court of Federal Claims to exercise jurisdiction and reach the merits of a claim. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-35, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). C. 28 U.S.C. § 1500 The Court of Federal Claims similarly does not possess jurisdiction to hear claims that are pending in another court. 28 U.S.C. § 1500; United States v. Tohono O’Odham Nation, 563 U.S. 307, 311, 131 S.Ct. 1723, 179 L.Ed.2d 723 (2011); Brandt v. 19United States. 710 F.3d 1369, 1374 (Fed. Cir. 2013); Res. Invs., Inc. v. United States, 114 Fed.Cl. 639, 647 (2014). Whether this statutory bar to jurisdiction applies is measured at the time the complaint is filed. Brandt, 710 F.3d at 1379-80; Res. Invs., 114 Fed.Cl. at 647; Vero Tech. Support, Inc. v. United States, 94 Fed.Cl. 784, 790 (2010). To determine whether [28 U.S.C.] § 1500 applies, a court must make two inquiries: (1) whether there is an earlier-filed “suit or process” pending in another court, and, if so, (2) whether the claims asserted in the earlier-filed case are “for or in respect to” the same elaim(s) asserted in the later-filed Court of Federal Claims action. If the answer to either of these questions is negative, then the Court of Federal Claims retains jurisdiction. Brandt, 710 F.3d at 1374. Two actions are “for or in respect to the same claim ... if they are based on substantially the same operative facts, regardless of the relief sought in each suit.” Tohono, 563 U.S. at 317, 131 S.Ct. 1723. Whether 28 U.S.C. § 1500 operates to bar this court from exercising jurisdiction in this ease was not raised by the parties, but the court has the responsibility to examine all pertinent issues relevant to subject matter jurisdiction because “[cjourts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.” Hertz Corp. v. Friend, 559 U.S. 77, 94, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010); accord Gonzalez v. Thaler, 565 U.S. 134, 132 S.Ct. 641, 658, 181 L.Ed.2d 619 (2012) (“When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented.”). In other words, a court may examine the issue of subject-matter jurisdiction “on its own initiative” at any point in a case. Arbaugh, 546 U.S. at 506, 126 S.Ct. 1235; see also Jeun v. United States, 128 Fed.Cl. 203, 209-10 (2016) (collecting cases). Although § 1500 divests this court of jurisdiction when there is another action pending elsewhere based on the same operative facts, it does not prevent the exercise of jurisdiction in this case. Carl Parker was involved in three actions in addition to the instant case: the Pigford I class action, the federal district court suit that was transferred from the Georgia district • court to the DC district court, and the original proceedings before the OALJ. All three actions are based, at least in part, on “substantially the same operative facts,” Tohono, 563 U.S. at 317, 131 S.Ct. 1723, as the instant case. This action was filed on February 25,2016. First, the Pigford I case was dismissed with prejudice when the consent decree was approved, and the subsequent appeal concluded on March 31, 2000. Pigford, 206 F.3d at 1214. Thus, Pigford I was not pending when Carl Parker filed suit in this court. Second, Carl Parker’s federal district court suit was originally filed in the Georgia district court on February 29, 2016. Thus, the federal district court case was filed four days after this suit was filed. Finally, the February 2016 OALJ complaint was filed on the same day as the instant action.22 However, 20the OALJ is not a “court.” See 5 U.S.C. § 551(1) (2012) (distinguishing between a federal agency and federal courts); 28 U.S.C. § 610 (listing courts whose administrative functions are overseen by the Administrative Office of the United States Courts); 28 U.S.C. § 1631 (allowing courts to transfer civil actions to another court to cure jurisdictional defects, defining courts by reference to 28 U.S.C. § 610, and including a “petition for review of administrative action” in the definition of an appeal filed in court); see also Donovan v. Diplomat Envelope Corp„ 587 F.Supp. 1417, 1422 (E.D.N.Y. 1984) (noting that the administrative law judge was not a “court”, for collateral estoppel purposes). Therefore, since none of the relevant cases was “pending” in another court at the time the complaint in the instant case was filed, 28 U.S.C. § 1500 does not prevent this court from exercising subject matter jurisdiction. D. Breach-of-Contract Claim 1. This Court Lacks Jurisdiction to Consider Carl Parker’s Claim for Breach of the Pigford I Consent Decree When Carl Parker partially succeeded on his Track A claim pursuant to the Pigford I consent decree, he was awarded $50,000, tax relief, injunctive relief, and forgiveness of his outstanding farm operating loans. However, his farm ownership loan was not forgiven. Carl. Parker strenuously asserts that the USDA’s failure to forgive his farm ownership loan is a breach of the Pigford I consent decree because he was a prevailing claimant thereunder. He also asserts that the USDA’s failure to provide Gary Parker with an administrative hearing is a breach of the Pig-ford I consent decree. Defendant avers that the Court of Federal Claims lacks jurisdiction to entertain claims concerning breach of the Pigford I consent decree because of the six-year limitations period specified in 28 U.S.C. § 2501. Carl Parker is correct in his assertion that settlement agreements, including those embodied in a consent decree, eonsti-tute contracts “within the meaning of the Tucker Act.” VanDesande v. United States, 673 F.3d 1342, 1351 (Fed. Cir. 2012) (internal quotation marks omitted); accord Holmes v. United States. 657 F.3d 1303, 1312-15 (Fed. Cir. 2011) (holding that a claim for breach of a settlement agreement that contemplates money damages, or can fairly be interpreted as such, is a claim within the Court of Federal . Claims’ jurisdiction); Pucciariello, 116 Fed.Cl. at 402 (emphasizing that “a suit seeking money damages for the alleged breach of a settlement agreement with the government falls within [the Court of Federal Claims’] jurisdiction”); Hall v. United States, 69 Fed. Cl. 51 (2005) (“The United States Court of Federal Claims has jurisdiction over the breach of settlement agreements with the United States.”); see also Pigford v. Vilsack, 961 F.Supp.2d 82, 87 (D.D.C. 2013) (construing consent decrees as contracts for enforcement purposes). However, defendant is also correct regarding the six-year statute of limitations. It is well-established that a cause of action accrues “when all the events which fix the government’s alleged liability have occurred and the plaintiff was or should have been aware of their existence.” Hopland Band, 855 F.2d at 1577. In a breach-of-con-traet case, the “cause of action accrues when the breach occurs.” Holmes, 657 F.3d at 1317 (internal quotation marks omitted). To the extent that the USDA’s failure to forgive Carl Parker’s farm ownership loan was a breach of the Pigford I consent decree, such cause of action arose on August 31, 2007, when the monitor granted reexamination of Carl Parker’s claim regarding the restrictive conditions placed on his 1984 farm operating loan and denied reexamination of his remaining claims. At that point, Carl Parker was (or should have been) fully aware that he would not receive forgiveness of his farm ownership loan, regardless of the disposition of the reexamination decision concerning his farm operating loan. The six-year statute of limitations imposed by 28 U.S.C. § 2501 for Carl Parker’s claims for breach of 21the Pigford I consent decree thus expired on August 81, 2013. Therefore, this court lacks jurisdiction to entertain those claims because the complaint was not filed until February 25,2016. To the extent that either Gary Parker’s assignment to Track A or denial of relief was a breach of the Pigford I consent decree, such cause of action arose on July 1, 2004, when his claim was denied by the adjudicator.23 At that point, Gary Parker was aware that he would receive no relief on his Track A claim. Furthermore, Carl Parker has failed to provide sufficient evidence that Gary Parker timely petitioned the monitor for reexamination. To the extent that Gary Parker’s September 26, 2006 letters to the monitor and to class counsel constitute a petition for reexamination, such petition was untimely.24 The six-year limitations period imposed by 28 U.S.C. § 2501 for Gary Parker’s claims for breach of the Pigford I consent decree thus expired on July 1, 2010. Therefore, this court lacks jurisdiction to entertain those claims because the complaint was not filed until February 25,2016. 2. Assuming Jurisdiction, Carl Parker Fails to State a Plausible Claim for Relief Alternatively, to the extent that jurisdiction to consider Carl Parker’s claims based on breach of the Pigford I consent decree is proper in this court, Carl Parker fails to state a plausible claim upon which this court can grant relief. To prove a breach of contract, a plaintiff must establish “(1) a valid contract between the parties; (2) an obligation or duty arising from that contract; (3) a breach of that duty; and (4) damages caused by the breach.” Century Expl. New Orleans, LLC v. United States, 110 Fed.Cl. 148, 163 (2013) (citing San Carlos Irr. & Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989)). Once a breach of contract is established,.the burden shifts to the defendant to plead and prove affirmative defenses that excuse performance. Shell Oil Co. v. United States, 751 F.3d 1282, 1297 (Fed. Cir. 2014). Carl Parker asserts that both he and his brother participated in the Pigford I claim process. In other words, he alleges that both he and his brother were parties to the consent decree, i.e., that there was a valid contract. Carl Parker also asserts that the USDA was required to forgive all of his farm loans and to provide Gary Parker a hearing. In other words, he alleges that the USDA was subject to a contractual duty. Further, Carl Parker contends that the USDA did not forgive his farm ownership loan and has not provided the estate of Gary Parker a hearing. In other words, he alleges breach of contractual duties. Finally, Carl Parker argues that the USDA has sought to enforce the now-overdue loans through acceleration and foreclosure. In other words, he alleges damages caused by the USDA’s breach of its contractual duties. Although Carl Parker received forgiveness of his farm operating loans, he did not prevail on his claim concerning his farm ownership loan. Under the terms of the consent decree, debt forgiveness was available only for loans “incurred under or affected by the program that formed the basis of the [successful] claim.” Pigford I, 185 F.R.D. at 108; accord Def.’s App. A14 (providing for loan forgiveness for debt that was “subject of the ECOA elaim(s) resolved in the class member’s favor”). Farm operating loans are distinct from farm ownership loans. Compl. Ex. A at 2; 7 C.F.R. § 761.2 (defining terms). Compare 7 C.F.R. pt. 764 subpt. D (describing the farm ownership loan program), with id subpt. G (describing the farm operating loan program). Therefore, under the facts as alleged in the complaint, the USDA met its obligation to forgive Carl Parker’s farm operating loans, and had no duty to forgive Carl Parker’s farm ownership loan. 22Because the USDA had no duty to forgive Carl Parker’s farm ownership loan, its failure to forgive the loan cannot constitute a breach of the Pigford I consent decree. Similarly, the USDA had no duty to forgive Gary Parker’s farm loans because he was not a successful claimant, thus its failure to do so cannot constitute a breach of the Pigford I consent decree. Furthermore, the USDA did not breach the Pigford I consent decree by failing to provide Gary Parker a hearing.. Like his brother, Gary Parker elected Track A treatment and received a denial of his claim.25 While Track B claimants were provided a “one day mini-trial,” Track A claimants were not entitled to any sort of hearing. Pigford I, 185 F.R.D. at 97 (comparing the process, burden of proof, and relief available for Track A and Track B claimants). Therefore, under the facts as alleged, the USDA had no duty to provide Gary Parker a hearing under the consent decree. 3. Summary In sum, the court lacks jurisdiction to entertain Carl Parker’s claims based on breach of the Pigford I consent decree. To the extent that jurisdiction in this court is proper, Carl Parker has failed to state a plausible claim upon which this court can grant relief. E. Taldngs Claim In his complaint, Carl Parker also alleges a contractual takings claim. The Fifth Amendment to the Constitution prohibits the government from taking private .property for public use “without just compensation,” The Court of Federal Claims possesses jurisdiction to entertain Fifth Amendment takings claims. Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1309 (Fed. Cir. 2008) (“It is undisputed that the Takings Clause of the Fifth Amendment is a money-mandating source [of law] for purposes of Tucker Act jurisdiction.”). Furthermore, “contract rights ean be the subject of a takings action.” Palmyra Pac. Seafoods, LLC v. United States, 561 F.3d 1361, 1365 (Fed. Cir. 2009). Therefore, the court has jurisdiction to consider contractual takings claims. To prevail on a takings claim, a plaintiff must “identify [] a valid property interest” under the Fifth Amendment and show a “governmental action [that] amounted to a compensable taking of that property interest.” Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1212-13 (Fed. Cir. 2005); accord Hearts Bluff Game Ranch, Inc. v. United States, 669 F.3d 1326, 1329 (Fed. Cir. 2012). In a contractual takings case, a plaintiff must demonstrate that the government “altered [the plaintiffs] contractual rights in a way that affeet[ed the plaintiffs] underlying property rights” or “stepped into the shoes of a contracting party so as to appropriate that party’s contract rights .... ” Palmyra Pac. Seafoods, 561 F.3d at 1369. Even government action that is “targeted” at a particular plaintiff does not constitute a taking that necessitates compensation if such action does not appropriate a “protectable property interest.” Id. at 1370. In this case, Carl Parker appeal's to allege that both his and Gary Parker’s contractual rights as Pigford I claimants and as mortgagees have been usurped by the USDA due to the USDA’s failure to forgive their farm loans. The court assumes, without deciding, that the Parkers’ contractual rights as claimants and mortgagees have been effectively taken by the USDA. As explained above, see supra Part II.D.1, the decision not to forgive Carl Parker’s farm ownership loan was made on August 31/2007, and the decision not to forgive Gary Parker’s farm loans was made on July 1, 2004. Since “a claim alleging a Fifth Amendment taking accrues when the act that constitutes the taking occurs,” Ingram v. United States, 560 F.3d 1311, 1314 (Fed. Cir. 2009), both claims are 23well beyond the six-year limitations period set forth in 28 U.S.C. § 2501. Moreover, even if the court possessed jurisdiction to consider his takings claims, Carl Parker has failed to establish a plausible claim for relief. To prevail on a takings claim under the Tucker Act, a plaintiff must concede the legitimacy of the government action that effected the taking. Hearts Bluff, 669 F.3d at 1332 (citing Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed. Cir. 1993)); Rith Energy, Inc. v. United States, 270 F.3d 1347, 1352 (Fed. Cir. 2001) (“[I]n a takings case we assume that the underlying governmental action was lawful, and we decide only whether the governmental action in question constituted a taking for which compensation must be paid.”); accord Reg'l Rail Reorg. Act Cases, 419 U.S. 102, 126-27 & n.16, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974) (“[T]he Government action must be authorized. ‘The taking of private property by an officer of the United States for public use, without being authorized, expressly or by necessary implication, to do some act of Congress, is not the act of the government,’ and hence recovery is not available in the [Court of Federal Claims].” (quoting Hooe v. United States, 218 U.S. 322, 336, 31 S.Ct. 85, 54 L.Ed. 1055 (1910))). Carl Parker does not make such a concession, but rather alleges that the USDA violated the Pigford I consent decree by failing to forgive his and Gary Parker’s outstanding farm loans. See, e.g., Davis v. United States, 123 Fed.Cl. 235, 243 (2015) (differentiating between “an uncompensated taking and an unlawful government action,” explaining that each gives rise to a separate cause of action, and finding that the plaintiff failed to state a plausible takings claim because he had alleged improper government conduct (internal quotation marks omitted)), aff'd per curiam, 642 Fed.Appx, 982 (Fed. Cir. 2016) (unpublished decision). In sum, the court lacks jurisdiction to entertain Carl Parker’s claims based on a takings theory. To the extent that jurisdiction in this court is proper, Carl Parker has failed to state a plausible claim upon which this court can grant relief. F. Statutory Claims The court next addresses Carl Parker’s statutory claims. “A statute or regulation is money-mandating for jurisdictional purposes if it can fairly be interpreted as mandating compensation for damages sustained as a result of the breach of the duties it imposes.” Ferreiro v. United States, 501 F.3d 1349, 1352 (Fed. Cir. 2007) (internal quotation marks omitted). Such a determination is made pursuant to a two-part test: First, the court determines whether any substantive law imposes specific obligations on the Government, If that condition is met, then the court proceeds to the second inquiry, “whether the relevant source of substantive law can be fairly interpreted as mandating compensation for damages sustained as a result of the breach of the duties the governing law imposes.” Samish Indian Nation v. United States, 657 F.3d 1330, 1335 (Fed. Cir. 2011) (quoting United States v. Navajo Nation, 556 U.S. 287, 290-91, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009)). In other words, “to satisfy the jurisdictional requirements of the Tucker Act, the plaintiff must point to an independent, substantive source of law that mandates payment from the United States for the injury suffered.” Johnson v. United States, 105 Fed. Cl. 85, 91 (2012); accord Samish Indian Nation, 657 F.3d at 1335-36 (“The Court of Federal Claims has jurisdiction if the substantive law at issue is ‘reasonably amenable to the reading that it mandates a right of recovery in damages.’ ” (quoting White Mountain, 537 U.S. at 466, 123 S.Ct. 1126)). 1. “Pigford Remedies Act of 2007” Claim First, Carl Parker points to the “Pigford Remedies Act of 2007” as an alternative means for recovery based on the same facts and circumstances as his breach-of-contract and takings claims. However, as defendant observes, although many of its provisions were contained in the 2008 Farm Bill, the Pigford Claims Remedy Act of 2007 never became law. See S. 1989, 110th Cong. (2007); H.R. 3073, 110th Cong. (2007); S. 515, 110th Cong. (2007); H.R. 899, 110th 24Cong. (2007). While the legislative history of unenacted bills can be helpful in understanding subsequently enacted statutes with similar language, Bailey v. United States, 52 Fed.Cl. 105, 112 (2002), unenacted legislation cannot serve as a money-mandating “Act of Congress” sufficient to confer Tucker Act jurisdiction to the Court of Federal Claims, see 28 U.S.C. § 1491(a)(1). See also Hughs v. Shinseki, 408 Fed.Appx. 367, 369 (Fed. Cir. 2011) (unpublished per curiam decision) (declining to treat an unenacted bill as a law). Therefore, Carl Parker cannot use the Pig-ford Claims Remedy Act of 2007 as a jurisdictional basis on which to advance claims in this court. 2. Section 14012 Claim Carl Parker also points to .Section 14012 of the 2008 Farm Bill as an alternative means for recovery based on the same facts and circumstances as his breach-of-eontract, takings, and Pigford Claims Remedy Act of 2007 claims. He emphasizes that Congress intended Section 14012 to be “liberally construed,” Pub. L. No. 110-246, § 14012(d), 122 Stat. at 2210, to effect its purpose of providing a “full determination on the merits for each Pigford claim,” id. He also properly observes that Section 14012 precludes acceleration or foreclosure regarding farm loans related to a Pigford claim. Id. § 14012(h), 122 Stat. at 2211-12. Carl Parker avers that the USDA’s efforts to collect on his unforgiven farm ownership loan, collect on his brother’s loans without a full hearing on the merits, and foreclose on property he owns both individually and as administrator of his brother’s estate are in direct violation of Section 14012. It is well established that statutes must be read in their entirety and enforced according to their terms if the statutory language is plain, which may become apparent only in context of the overall statutory scheme. King v. Burwell, — U.S. -, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015). By invoking Section 14012, Carl Parker fails to recognize that subsection (b) clearly specifies that any action filed pursuant to Section 14012 must be brought in the DC district court. Pub. L. No. 110-246, § 14012(b), 122 Stat. at 2210; Pigford II, 856 F.Supp.2d at 11; see also In re Black Farmers Discrimination Litig., 29 F.Supp.3d 1, 5 (D.D.C. 2014) (explaining the DC district court’s authority to oversee the Pigfórd II consent decree). Therefore, under the plain language of the statute, the Court of Federal Claims is without jurisdiction to consider claims arising under Section 14012. Moreover, even if this court possessed jurisdiction to consider Carl Parker’s Section 14012 claims, he has failed to state a plausible claim upon which this court can grant relief. Section 14012 — which paved the way for the Pigford II settlement in the same way that Section 741 paved the way for the Pigford I settlement, Pigford II, 856 F.Supp.2d at 8-9, 11-12 — only applied to those individuals “who ha[d] not previously obtained a determination on the merits of a Pigford claim.” Id. at 11; Pub. L. No. 110— 246, § 14012(b), 122 Stat. at 2210. While they disagreed with the results, Carl Parker and Gary Parker each received a determination on the merits of his Pigford I discrimination claim. Section 14012 is thus qf no use to the Parkers. It applies only to Pigford II claimants; it does not provide a second bite at the apple to Pigford I claimants who were unhappy with the results. In sum, the court lacks jurisdiction to entertain Carl Parker’s claims based on the USDA’s alleged violation of Section 14012. To the extent that jurisdiction in this court is proper, Carl Parker has fajled to state a plausible claim upon which this court can grant relief. 3. CDA Claim In addition to alleging that the USDA breached the Pigford I consent decree, Carl Parker generally alleges a violation of the CDA. The CDA is a “money-mandating source of law sufficient to confer jurisdiction in [the Court of Federal Claims] under the Tucker Act.” Kellogg Brown & Root Servs., Inc. v. United States, 115 Fed. Cl. 168, 171 (2014); accord 28 U.S.C. § 1491(a)(2) (providing jurisdiction in the Court of Federal Claims to hear disputes arising under the CDA). The CDA, however, “applies only to express or jmplied government contracts for procurement of goods or services.” Rick’s Mushroom Serv., Inc. v. 25United States, 521 F.3d 1338, 1343-44 (Fed. Cir. 2008); accord 41 U.S.C. § 7102(a). In other words, nonprocurement contracts fall outside of this court’s CDA jurisdiction. Procurement encompasses “all stages of the process of acquiring property or services.” 41 U.S.C. § 111; see also Res. Conservation Grp., LLC v. United States, 597 F.3d 1238, 1244 (Fed. Cir. 2010) (applying the definition of “procurement” in 41 U.S.C. § 403(2), the predecessor to 41 U.S.C. § 111, to the Tucker Act). It involves the “acquisition by purchase, lease or barter, of property or services for the direct benefit or use of the Federal Government.” Wesleyan Co. v. Harvey, 454 F.3d 1375, 1378 (Fed. Cir. 2006) (internal quotation marks omitted). Besides the consent decree, the only contracts relevant to this ease are the Par-kers’ farm loans and associated mortgages. This court has previously found that, in providing a loan commitment, the government “was neither procuring services nor receiving any direct benefit,” even if the government were to receive reimbursement for “the loan, as well as the associated interest and fees.” Solaria Corp. v. United States, 123 Fed. Cl 105, 121 (2015). Here, the USDA did not procure services, nor did it receive a direct benefit in providing farm loans to Carl and Gary Parker. Even if the USDA were to have foreclosed on the subject properties, it would not have received a benefit or procured property because proceeds from the foreclosure sale to a third-party buyer would simply be applied to the outstanding loan balances. In sum, the Parkers’ farm loans and associated mortgages are not procurement contracts. Therefore, the court lacks jurisdiction to consider Carl Parker’s CDA claim. G. Discrimination and Other Claims Finally, Carl Parker alleges that the USDA failed to respond to his complaints of ongoing discrimination. However, to the extent that the USDA’s treatment of the Par-kers constitutes ongoing discrimination in violation of civil rights statutes, harassment, conspiracy, fraud, or breach of fiduciary duty or negligence (by virtue of the USDA’s constantly losing the Parkers’ files and paperwork), those claims must be pursued in district court because they are outside the reach of this court’s limited Tucker Act jurisdiction. First, only federal district courts possess jurisdiction to entertain claims under the relevant civil rights statutes. Marlin v. United States, 63 Fed.Cl. 475, 476 (2005). The Court of Federal Claims is not a district court. Ledford v. United States, 297 F.3d 1378, 1382 (Fed. Cir. 2002): see also Lightfoot v. Cendant Mortg. Corp., — U.S. -, 137 S.Ct. 553, 563, 196 L.Ed.2d 493 (2017) (distinguishing between the “Court of Federal Claims” and “federal district courts”). Second, claims of harassment, conspiracy, fraud, breach of fiduciary duty, and negligence sound in tort. See Lawrence Battelle, Inc. v. United States, 117 Fed.Cl. 579, 585 (2014) (fraud, discrimination, and negligence); Sellers v. United States, 110 Fed.Cl. 62, 68 (2013) (negligence); Cox v. United States, 105 Fed.Cl. 213, 218 (2012) (harassment, fraud, and breach of fiduciary duty); Phang v. United States, 87 Fed.Cl. 321, 325 (2009) (fraud); Gant v. United States, 63 Fed.Cl. 311, 316 (2004) (conspiracy, fraud, and negligence). This court lacks jurisdiction to entertain claims sounding in tort. 28 U.S.C. § 1491(a)(1); see also U.S. Marine. Inc. v. United States, 722 F.3d 1360, 1365-66 (Fed. Cir. 2013) (noting that under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1), 2671-2680, jurisdiction over tort claims against the United States lies exclusively in federal district courts). The only exception to that rule is for a tort claim that “stems from a breach of contract” claim. Awad v. United States, 301 F.3d 1367, 1372 (Fed. Cir. 2002). In such a case, “the cause of action is ultimately one arising m contract, and thus is properly within the exclusive jurisdiction of the Court of Federal Claims.” Id.; accord Olin Jones Sand Co. v. United States, 225 Ct.Cl. 741, 745 (1980) (“Where ... a claim is based on breach of contract it is properly within the jurisdiction of this court even though it also alleges that defendant engaged in tortious conduct in breaching the contract.”). In Demodulation, Inc, v. United States, 103 Fed.Cl. 794, 813-14 (2012), this court observed that if it dismissed the counts alleging breach of 26contract, it would also “necessarily” dismiss the tortious claims arising out of those purported contracts. In other words, tortious breach-of-contract claims cannot survive if the underlying contractual claims are dismissed. See, e.g., Nesselrode v. United States, 127 Fed.Cl. 421, 430 (2016) (dismissing a fraud claim based on a breach of contract for lack of subject matter jurisdiction when the plaintiff failed to state a plausible breach-of-contract claim). As explained above, there is no breach-of-contract claim properly before this court. Therefore, there is no contractual basis for Carl Parker’s tort claims. In sum, the court lacks jurisdiction to' consider Carl Parker’s civil rights and tort claims. III. CONCLUSION. ■ The court has considered all arguments of the parties. To the extent not discussed herein, the court finds them unpersuasive or without merit. The Court of Federal Claims lacks jurisdiction to consider Carl Parker’s claims for breach of the Pigford I consent decree, takings, violation of the “Pigford Remedies Act of 2007,” violation of Section 14012, ongoing discrimination, harassment, conspiracy, fraud, breach of fiduciary duty, and negligence. To the extent that the courts are unable to provide relief for Carl Parker, he must seek redress from the political branches of government. See Res. Invs., 114 Fed.Cl. at 665. In sum, the court GRANTS defendant’s motion to dismiss the complaint for lack of subject matter jurisdiction. The court also DENIES AS MOOT defendant’s motion to dismiss the complaint for failure to state a claim upon which this court can grant relief. Further, the court DENIES AS MOOT Carl Parker’s motion for partial summary judgment. The court has filed this ruling under seal. The parties shall confer to determine agreed-to proposed redactions. Then, by no later than Tuesday, February 28, 2017, the parties shall file a joint status report indicating their agreement with the proposed redac-tions, attaching a copy of those pages of the court’s ruling containing proposed re-dactions, with all proposed redactions clearly indicated. No costs. The clerk is directed to enter judgment accordingly. IT IS SO ORDERED. . The court derives the facts in this section from Carl Parker's complaint ("Compl."), the exhibits attached to the complaint ("Compl. Ex.”), the appendix to defendant's motion to dismiss ("Def.’s App.”), the attachments to defendant’s reply in support of its motion to dismiss ("Def.'s Reply Attach.”), filings in related litigation, and various judicial and administrative decisions. . The consent decree is reproduced in its entirety in defendant’s appendix at pages Al to A29. It can also be found on the docket of Pigford I at ECF No. 167. . The 61,252 figure does not include those who failed to submit a petition to file a late claim by the deadline for doing so. Pigford II, 856 F.Supp.2d at 11. There were as many as 25,000 of these "late-late" possible class members whose requests to file a late claim were not considered. Id. .The overwhelming majority of claimants chose to proceed under Track A. Pigford v. Veneman, 292 F.3d 918, 921 (D.C. Cir. 2002); Pigford II, 856 F.Supp.2d at 11. Only 170 claimants sought Track B relief. Pigford II, 856 F.Supp.2d at 11. Overall, "approximately 16,000” claimants were successful in obtaining "direct payments, loan forgiveness, and tax relief." Id.; see also id. at 17 (noting that the aggregate payout to successful claimants was over $1 billion). . The farm operating and farm ownership loan programs are two separate programs among the various agricultural credit programs overseen by the FSA. Compl. Ex. A at 2; see also 7 U.S.C. § 6932(b) (2012). . To date, there have been nearly 2,000 docket entries in the case since the consent decree was approved. . Congress initially enacted the 2008 Farm Bill on May 22, 2008. See Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-234, 122 Stat. 923 (repealed 2008). On June 18, 2008, Congress enacted another version of the 2008 Farm Bill, see Pub. L. No. 110-246, 122 Stat. at 1651, in which it repealed the initial statute, see id. § 4, 122 Stat, at 1664. Sections 14011 and 14012 are identical in both versions of the 2008 Farm Bill. Compare Pub. L. No. 110-234, § 14011-14012, 122 Stat. 923, 1447-50, with Pub. L. No. 110-246, §§ 14011-14012, 122 Stat. 1651, 2209-12. Both parties refer and/or cite to the repealed version of the 2008 Farm Bill in their filings. See Compl. ¶ 9; Def.’s Mot. to Dismiss 17. Because the pertinent provisions are identical, the court treats such references/citations as being to the later-enacted version of the statute. . The settlement agreement included provisions for paying awards, due to the limited amount of funds that Congress had appropriated for that purpose. Pigford II, 856 F.Supp.2d at 23. . Farm opening loans may be used to "pay annual farm operating and family living expenses ....” 7 C.F.R. § 764.252(c) (2016); see 7 C.F.R. § 764.251 (listing uses for farm operating loans). . Farm ownership loans may be used to acquire, enlarge, or make a down payment on a farm; make qualified capital .improvements to a farm; to promote soil and water conservation and protection; and for certain financing activities. 7 C.F.R. § 764.151. .The record before the court does not reflect the interest rate or the term of the ownership loan as rescheduled. . USDA regulations make an applicant ineligible for funding if sufficient outside credit is available to meet all of the applicant’s needs. Def.’s App. A131. . The record refers to Gary Parker’s 1985 loan as an "ownership” loan, Def.’s App. A153, but its description of having been made "to assist with Mr. Parker’s operating expenses of his farm operations,” ich, suggests that it was actually an operating loan. Regardless, the distinction is irrelevant to resolving the issues currently before the court. .The record before the court does not reflect the interest rates or terms of these loans. . Gary Parker’s original submission did not indicate a class preference, but his claim form was later updated to select the Track A option. Def.'s App. A143-44, A151, Carl Parker later claimed that Gary Parker had intended to seek Class B treatment. See, e.g., Compl. ¶ 7; Pl.’s Resp. 7. . In 1994, agricultural credit programs of the FmHA were assigned to a new agency, the FSA. Department of Agriculture Reorganization Act of 1994, Pub. L. No. 103-354, § 226(b)(3), 108 Stat. 3178, 3214 (codified as amended at 7 U.S.C. § 6932(b)(3)). Among its many responsibilities, the FSA manages the farm ownership and farm operating loan programs. 7 U.S.C. § 6932(b). . The record before the court does not reflect what relief had been sought. . The record before the court does not reflect what relief had been sought. . As described above, see supra Part I.E, Gary Parker sought judicial relief via the Pigford I litigation instead of filing a complaint with the USDA under Section 741. See generally Def.’s App. A149-62 (containing the claim package Gary Parker submitted to the Pigford I claims facilitator). . In addition, Carl Parker attached a timeline of events leading up to the instant action to his motion for partial summary judgment. See PL's Mot. for Partial Summ. J. Ex. A at 1-4. . One month prior, Carl Parker moved this court to order the OALJ to hold a formal hearing. See generally Pis.’ Mot. to Review Admin. R. The court denied the motion because jurisdiction over the Parkers’ claims is a prerequisite for it to order any sort of relief. Order, Aug. 23, 2016. . Under 28 U.S.C. § 1500, the Court of Federal Claims cannot exercise jurisdiction over claims filed "simultaneously” in district court. Griffin v. United States, 590 F.3d 1291, 1293 (Fed. Cir. 2009); Taylor v. United States, 128 Fed.Cl. 635, 639-41 (2016). However, the "language and structure" of § 1500 suggest that, to the extent possible, courts make "a factual determination of the order in which two claims are filed.” United Keetoowah Band of Cherokee Indians in Okla. v. United States, 86 Fed.Cl. 183, 189 (2009); ac; cord Kaw Nation of Okla. v. United States, 103 Fed.Cl. 613, 634 (2012) (explaining that "the statutory language of section 1500 does not allow a court to disregard the respective timing of the complaints”). "No binding case law addresses the jurisdictional effect of the time of filing on complaints filed on the same day in the Court of Federal Claims and federal district court,” United Keetoowah Band, 86 Fed.Cl. at 189. Thus, the Court of Federal Claims is "divided among two camps. The majority view recognizes as disposi-tive the sequence of the two complaints’ filings. The minority view ... adopts a per se rule that a district court complaint filed the same day is pending regardless of time of filing.” Id. at 190; accord Res. Invs., 114 Fed.Cl. at 643 n.3. Nevertheless, when evidence is lacking regarding which complaint was filed first on a particular day, the Court of Federal Claims has generally held that the district court case was pending for purposes of § 1500. See, e.g., Coeur d'Alene Tribe v. United States, 102 Fed.Cl. 17, 26 (2011); Lan-Dale Co. v. United States, 85 Fed.Cl. 431, 20434-35 (2009). Here, Carl Parker mailed his complaints to the Court of Federal Claims and the OALJ, and both complaints were filed on the same day. However, because another requirement of § 1500 was not satisfied, see infra, the order in which the two complaints were filed is ultimately irrelevant. . Carl Parker states in the complaint that "Pig-ford Class Membership was denied” Gary Parker. Compl. ¶ 7. The court construes such ''denial" as a denial of relief. Carl Parker later averred that Gary Parker was improperly given Track A treatment. Therefore, the court also construes that alleged ''denial” of Pigford I "class membership” as a denial of Track B treatment. . Gaiy Parker’s deadline to petition the monitor for reexamination was October 29, 2004, 120 days after his Track A claim was denied. . In his September 26, 2006 letter to the monitor following denial of his Track A claim, which the court construes as a petition for reexamination of his claim, see supra Part II.D.l, Gary Parker made no mention of improper class assignment, only that he was "shocked” that the adjudicator had determined that he did not "establish[] through substantial evidence that [he] was discriminated against,” Compl. Ex. C at 22. Thus, to the extent that the USDA had a duty to ensure that Gary Parker was placed in Track B in lieu of Track A, any claim that the USDA breached that duty would be waived.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218586/	Post-Award Bid Protest; Judgment upon the Administrative Record; RCFC 52.1; Permanent Injunction. MEMORANDUM OPINION AND ORDER GRIGGSBY, Judge I. INTRODUCTION Plaintiff, By Light Professional Services, Inc. (“By Light”), brought this post-award bid protest matter challenging the United States Army Corps of Engineers’ (“USACE”) decision to award a contract for radio, satellite and microwave systems hardware and service support to Tribalco, LLC (“Tribalco”). By Light has moved for judgment upon the administrative record, pursuant to Rule 52.1 of the Rule^ of the United States Court of Federal Claims (“RCFC”). The government and Tribalco have also moved for judgment upon the administrative record, pursuant to RCFC 52.1. For the rea361sons discussed below, the Court DENIES By-Light’s motion for judgment upon the administrative record; GRANTS the government’s motion for judgment upon the administrative record; GRANTS Tribalco’s motion for judgment upon the administrative record; and DENIES By Light’s motion for a temporary restraining order and preliminary injunctive relief. II. FACTUAL AND PROCEDURAL BACKGROUND1 A. Factual Background In this post-award bid protest matter, By Light challenges the decision by the USACE to award a contract for radio, satellite and microwave systems hardware and service support under Solicitation No. W912DY-16-R-0015 (the “Solicitation”) to the defendant-intervenor in this matter, Tribalco. Compl. at ¶¶ 1, 5,33-36. Specifically, By Light alleges that the USACE committed several errors in evaluating responsive proposals for the Solicitation and By Light challenges the agency’s decision to award the contract to Tribalco upon four grounds. Id. at ¶¶ 45-73. First, By Light alleges that the USACE’s determination that By Light’s final proposal contained a deficiency — because the proposal did not include a task order number for work performed under a base IDIQ contract-was arbitrary and capricious. PI. Mot. at 12-15. Second, By Light alleges that the USACE “improperly introduced an unannounced criterion that descriptions of past projects performed as task orders under IDIQ contracts must include a task order number,” in violation of 48 C.F.R. § 15.303(b)(4). Id. at 16-17. Third, By Light alleges that the USACE erred in upgrading the rating regarding the relevancy of Tribal-eo’s past performance under the Solicitation’s Past Performance factor to a “relevant” rating, in violation of 48 C.F.R. § 15.305(a)(2)(iv). Id. at 18-21. Finally, By Light alleges that the USACE conducted an “irrational” evaluation of the final proposals submitted by By Light and Tribalco, thereby prejudicing By Light. Id. at 21-22.. By Light further alleges that it has been prejudiced by the aforementioned alleged errors, because it has been denied the opportunity to compete for award of the contract. PI. Mot. at 2. And so, By Light requests that the Court set aside the USACE’s award decision, direct the USACE to reevaluate By Light’s proposal and grant By Light certain declaratory relief. Compl. at Prayer for Relief. 1. The Solicitation On February 23, 2016, the USACE issued the Solicitation which requested proposals for a contract to provide radio, satellite and microwave systems hardware and service support throughout the United States and in select locations located outside the United States. AR at 116, 139, 141. The Solicitation calls for a hybrid, firm fixed-price IDIQ single award task order contract. Id. at 118. There are several provisions in the Solicitation that are relevant to By Light’s claims. First, the Solicitation calls for three evaluation factors: Technical Capability, Past Performance and Price. Id. at 204-08.2 The So362licitation also provides that the Technical Capability factor mil receive the greatest weight in evaluating responsive proposals, followed by, in descending order, the Past Performance factor and the Price factor. Id. at 210-11.' With respect to the Solicitation’s Technical Capability factor, the Solicitation provides that proposals must receive a minimum rating of “acceptable” to be eligible for award. Id. The Solicitation also provides that a proposal will receive an “unacceptable” rating if the proposal fails to meet the requirements of the Solicitation or contains deficiencies. Id. at 212. The Solicitation’s Technical Capability factor also includes three sub-factors: technical approach, personal qualifications and organizational structure, and experience. Id. at 206-07. Although these sub-factors are not individually weighted, the sub-factors contribute to the overall rating of the proposal. Id. at 206. Especially relevant to this dispute, the Solicitation’s experience sub-factor requires that offeroi’s provide three past experiences that are relevant in “scope, magnitude and complexity.” Id. at 207. In this regard, the Solicitation provides, in relevant part, that: Element 3, Tab C — Experience Offerors shall submit documentation of three past (completed within the last 36 months of the issuance of the RFP) or current projects (with at least one invoice paid) with similar scope, magnitude, and complexity to the work described in the RFP, specifically sections 4.1, 4.2, 4.3, and 4.4 of the PWS. Offerors shall not include introductory language in them proposal describing general experience. The Government in this section is interested only in three “projects,” which are defined as discrete efforts relevant to this PWS. An IDIQ contract or a BPA alone does not constitute a relevant “project" but a task order under an IDIQ contract or the placement of a call under a BPA may count as a “project” If the offeror submits more than three (3) projects, the Government will only review and consider the first three listed in the proposal. Key subcontractors are defined as those who will be performing 10% or more of the overall effort. Offerors shall submit documentation with a minimum of three past or current projects with similar scope, magnitude, and complexity to the work described in the solicitation. Experience must include the following information: ■ Contract title ■ Current Project Manager, including name, company name, phone number, and email address ■ Contract number I Contract type U Contract value ■ Date of award \| Period of Performance ■ Brief narrative (no longer than one page) describing the nature and complexity of the work ■ Role of the offeror (prime or subcontractor) and percent of the total contract value ■ Government Point of Contact (POC) including name, phone number, and email address [[Image here]] AR at 210-11. 363The POCs provided may be contacted by the Government as part of the evaluation of past performance. Id. (emphasis supplied). With respect to the Solicitation’s Past Performance factor, the Solicitation also provides that “[t]he Government will conduct a performance risk assessment based on the quality and relevancy of the offeror’s past performance, as well as that of its key subcontractors.” Id. In addition, the Solicitation provides that, if past performance information cannot be located: “past performance will be rated neither favorably nor unfavorably. The performance confidence rating will be considered ‘unknown.’” Id. Lastly, with respect to the Solicitation’s Price factor, the Solicitation provides that “[t]he Government will evaluate all aspects of the price proposal for fairness and reasonableness for providing the best value to the Government.” Id. 2. Evaluation Of Proposals Submitted By Tribalco And By Light The USACE conducted a question and answer period for the Solicitation and provided the vendor questions and government responses to these questions to all offerors in an Amendment to the Solicitation dated March 16, 2016. Id. at 982, 1831. On March 24, 2016, five offerors submitted timely proposals for the Solicitation, including By Light and Tribalco. Id. at 1832. In its initial proposal, By Light provided the contract number for the base IDIQ contract that By Light identified as one of the projects to satisfy the Solicitation’s experience sub-factor. Id. at 1032. The USACE subsequently determined that By Light’s failure to provide the task order number for this base IDIQ contract created a deficiency in By Light’s initial proposal because, “[t]he type of contracts listed must not be IDIQs or BPAs (should be task orders or delivery orders of an IDIQ, BPA, or standalone contract) ...”7d at 1313. The USACE also determined that the projects that By Light identified to satisfy^ the experience sub-factor were not of relevant “scope, magnitude, or complexity.” Id. at 1312. And so, the USACE concluded that the projects identified by By Light to satisfy the experience sub-factor demonstrated a weakness and a deficiency in By Light’s initial proposal. Id. at 1312-13. During its evaluation of Tribalco’s initial proposal, the USACE similarly determined that the projects that Tribalco identified to satisfy the experience sub-factor were not of relevant “scope, magnitude, or complexity.” Id. at 1337. And so, the USACE evaluated these projects' as a weakness in Tribalco’s proposal. Id. On May 18, 2016, the USACE issued a second amendment to the Solicitation, which extended the deadline for offerors to resubmit their proposals until May 25, 2016 (“Amendment 2”). Id. at 1355-57. On May 26, 2016, By Light, Tribalco and three other offerors timely submitted Final Proposal Revisions (“FPR”). Id. at 1832. In its FPR, By Light cured the prior deficiency in its initial proposal with respect to the experience sub-factor, by providing the task order number for the base IDIQ contract that By Light previously identified as one of the projects to satisfy this sub-factor. Id. at 1535. By Light also provided two new projects to satisfy the experience sub-factor in its FPR. Id. at 1531-42. But, By Light did not provide the task order number for the base IDIQ contract that it put forward as one of these new projects. Id. at 1537. And so, the USACE determined that this failure created a deficiency in By Light’s final proposal. Id. at 1656,1836. 3. The SSEB’s Evaluation Process The USACE’s Source Selection Evaluation Board (“SSEB”) met to evaluate the final proposals on June 21-25, 2016. Id. at 1648, 1832. In the SSEB’s report dated August 9, 2016, the SSEB evaluated each of the final proposals and decided to award the contract to Tribalco, because Tribalco’s final proposal was “far superior” to the other proposals received by the government. Id. at 1648-64. The SSEB’s report shows that the SSEB first evaluated the final proposals under the Solicitation’s Technical Capability factor. Id. at 1651-62. In this regard, the SSEB determined that By Light’s proposal had [*] strengths — including one significant strength — and no weaknesses, one deficiency 364and no uncertainties. Id. at 1654-56. The SSEB also determined that the single deficiency in By Light’s proposal arose from By Light’s failure to provide the task order number for one of the base IDIQ contracts identified to satisfy the Solicitation’s experience sub-factor. Id. at 1655-56. Specifically, the SSEB found that: The third experience was added but the contract number was incorrect. An IDIQ number was used instead. Per the [ARSS] solicitation, the contract number for previous performance is required. Failure to provide the contract number results in a deficiency ... Id. at 1656. And so, the SSEB rated By-Light’s proposal as “unacceptable” under the Solicitation’s Technical Capability factor. Id. at 1651. In evaluating Tribalco’s final proposal under the Solicitation’s Technical Capability factor, the SSEB determined that Tribalco corrected the weakness previously found in Tribalco’s initial proposal. Id. at 1658-59. And so, the SSEB determined that Tribalco’s final proposal had 15 strengths — including three significant strengths. Id. The SSEB also determined that Tribalco’s overall proposal was technically superior to the other proposals that the government received for the five following reasons: 1. “TribalCo’s technical support is [*] with [] and [].” Id. at 1659. 2. “TribalCo’s proposed technical approach allows them to rapidly address technical issues and to conduct timely repairs, surges and emergencies, which [sic] in turn will increase efficiency and decrease spending resulting in time and cost saving to the government.” Id. at 1660. 3. “TribalCo is the only vendor with []. Cost is obviously not the most significant factor. Operational efficiency is value to the government.” Id. at 1661. 4. “TribalCo has significant direct USACE experience with radio services support as the current Radio Service contractor.” Id. 5. “While all vendors may be able to provide support, TribalCo, [*] will be better positioned to provide immediate response for emergencies.” Id. And so, the SSEB rated Tribalco’s final proposal as “outstanding” under the Solicitation’s Technical Capability factor. Id. at 1974. The SSEB also evaluated the final proposals under the Solicitation’s Past Performance factor. Id. at 1651. During this evaluation, the SSEB rated the final proposals submitted by By Light and Tribalco as overall “satisfactory” under the Past Performance factor. Id. With respect to By Light, the SSEB found that By Light had experience with satellite related technology, but did not have any experience with handheld radios. Id. at 1734. And so, the SSEB initially rated the relevance of By Light’s past performance as “sómewhat relevant” under the Past Performance factor. Id. The SSEB later determined that, “[t]he solicitation states that a rating of “Relevant” or better must be achieved in order for a vendor to be eligible for award.” Id. And so, in order not to penalize or exclude By Light from consideration for “merely lacking relevant performance,” the SSEB changed By Light’s rating with respect to relevance for the Past Performance factor from “somewhat relevant” to “relevant.” Id. With respect to Tribalco, the SSEB also determined that Tribalco did not have any experience that was directly parallel to the contract to be awarded. Id. at 1748-49. And so, the USACE initially rated Tribalco’s final proposal as “somewhat relevant” under the Past Performance factor. Id. at 1734. But, in order to not penalize or exclude Tribalco from consideration for “merely lacking relevant performance,” the SSEB also changed Tribalco’s rating with respect to relevance under the Past Performance factor from “somewhat relevant” to “relevant.” Id. at 1734. Lastly, the SSEB evaluated the final proposals under the Solicitation’s Price factor. Id at 1651. In this regard, the SSEB compared the price offered by Tribalco and By Light. Id. Although By Light proposed a lower overall price than Tribalco, the SSEB determined, among other things, that “the 365government is concerned that By Light’s pricing does not accurately reflect the cost associated with performing the work required in accordance with the RFP due to the [*] and the low number of [] [full time employees].” Id. at 1664. And so, the SSEB rated By Light’s and Tribalco’s proposed price as “Fair and Reasonable.” Id. at 1651. After the SSEB completed its evaluation process for the Solicitation, the contracting officer issued a Source Selection Decision Document (“SSDD”) which included a tradeoff analysis comparing the final proposals submitted by Tribaleo and By Light, and a trade-off analysis comparing the final proposals submitted by Tribaleo and of another offeror, Commdex. Id. at 1831-50. In evaluating the Technical Capability factor, the contracting officer found that, “[t]he number of Full Time Employees (FTE’s) [*] proposed by By Light is roughly half of those used to estimate the [Independent Government Estimate for the Solicitation (“IGE”) ]. ... In comparison, Tribaleo proposed 8.5 FTE’s and their proposal meets the labor support needs of the PWS requirements and more closely aligns with the 4 FTE’s used in the develop-' ment of the IGE.” Id. at 1837. In evaluating the Solicitation’s Past Performance factor, the contracting officer further found that the government’s confidence in By Light’s and Tribalco’s ability to perform the work at an acceptable level was “satisfactory” for both offerors. Id. at 1840. But, in evaluating the Price factor, the contracting officer found that, “[although it appears that By Light is providing the lowest priced proposal, they are not providing the Government the Best Value when it comes to Centralized Support.” Id. at 1842. And so, after completing the trade-off analysis comparing the final proposals submitted by By Light and Tribaleo, the contracting officer determined that, even if By Light received an “outstanding” rating under the Solicitation’s Technical Capability factor, Tribalco’s proposal offered the best value to the government. Id. at 1836-50. The USACE awarded the contract to Tribaleo on September 19, 2016. Id. at 1852. B. Procedural History On October 11, 2016, By Light filed the complaint in this bid protest matter, as well as a motion for a temporary restraining order, motion for a preliminary injunction, memorandum in support of its motion for a preliminary injunction and motion for a protective order. See generally Compl; PI. Mot. for TRO; PI. Mot. for Prelim. Inj.; PI. Mem.; PI. Mot. for Prot. Order. With By Light’s agreement, the Court held in abeyance By Light’s motions for a temporary restraining order and for a preliminary injunction on October 12, 2016. Order, dated October 12, 2016 (Docket no. 11). Subsequently on October 13, 2016, Tribaleo filed a motion to intervene in this matter, which the Court granted on October 13, 2016. See generally Int. Mot. to Intervene; Order dated October 13, 2016 (Docket entry no, 14). On October 21, 2016, the government filed the administrative record. See generally AR. On November 14, 2016, By Light filed a motion for judgment upon the administrative record. See generally PI. Mot. On December 9, 2016, the government and Tribaleo filed their respective responses and oppositions to By Light’s motion for judgment upon the administrative record and cross-motions for judgment upon the administrative record. See generally Def. Mot.; Int. Mot. On December 19, 2016, By Light filed a response and opposition to the government’s and Tribalco’s cross-motions for judgment upon the administrative reeord and a reply in support of its motion for judgment upon the administrative record. See generally PI. Opp. On December 30, 2016, the government and Tribaleo filed their respective replies in support of their cross-motions for judgment upon the administrative record. See generally Def. Reply; Int. Reply. These matters have been fully briefed, the Court addresses the pending motions. III. LEGAL STANDARDS A. Jurisdiction And Bid Protests The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid protests brought by “an interested 366party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or aiiy alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1) (2011). In bid protest cases, this Court reviews agency actions under the “arbitrary and capricious” standard. See 28 U.S.C. § 1491(b)(4) (adopting the standard of review set forth in the Administrative Procedure Act). And so, under the Administrative Procedure Act standard, an award may be set aside if, “(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)). The United States Court of Appeals for the Federal Circuit has also recognized that: When a challenge is brought on the first ground, the test is “whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a “heavy burden” of showing that the award decision had no rational basis. When a challenge is brought on the second ground, the disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations.’ Id. at 1351 (citations omitted). In reviewing an agency’s procurement decision, the Court should recognize that the agency’s decision is entitled to a “presumption of regularity.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (citations omitted), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). And so, the Court should not substitute its judgment for that of the agency. Cincom Sys., Inc. v. United States, 37 Fed.Cl. 663, 672 (1997). “The protestor must show, by a preponderance of the evidence, that the agency’s actions were either without a reasonable basis or in violation of applicable procurement law” or procedure. Info. Tech. & Applications Corp. v. United States, 51 Fed.Cl. 340, 346 (2001), aff'd, 316 F.3d 1312 (Fed. Cir. 2003) (“ITAC’); see also Bannum, Inc. v. United States, 60 Fed. Cl. 718, 723 (2004); Gentex Corp. v. United States, 58 Fed.Cl. 634, 648 (2003). This standard “is highly deferential” and “requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors.” Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000) (citing Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974)). In addition, as long as there is “a reasonable basis for the agency’s action, the court should stay its hand even though it might, as an original proposition, have reached a different conclusion ...” Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (citations omitted). But, if “the agency ‘entirely fail[s] to consider an important aspect of the problem [or] offer[s] an explanation for its decision that runs counter to the evidence before the agency,’ ” then the resulting action lacks a rational basis and, therefore, is defined as arbitrary and capricious. Ala. Aircraft Indus., Inc-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). B. Judgment Upon The Administrative Record And Injunctive Relief Generally, Rule 52.1 limits this Court’s review of an agency’s procurement decision to the administrative record. RCFC 52.1; see Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379 (Fed. Cir. 2009) (“ ‘[T]he focal point for judicial review should be the administrative record already in existence’”.). And so, unlike a summary judgment motion brought pursuant to Rule 56, the existence of genuine issues of material fact does not preclude judgment upon the administrative record under Rule 52.1. Tech. Sys., Inc. v. United States, 98 Fed.Cl. 228, 242-43 (2011). Rather, the Court’s inquiry is whether, “given all the disputed and undis367puted facts, a party has met its burden of proof based on the evidence in the record.” A&D Fire Prot, Inc. v. United States, 72 Fed. Cl. 126, 131 (2006). In addition, under its bid protest jurisdiction, the Court “may award ‘any relief [it] considers proper, including declaratory and injunctive relief.’ ” 28 U.S.C. § 1491(b)(2); see also Centech Grp., Inc. v. United States, 564 F.3d 1029, 1037 (Fed. Cir. 2009). In deciding whether to issue a permanent injunction, the Court considers: (1) whether the plaintiff has succeeded upon the merits of the case; (2) whether the plaintiff will suffer irreparable harm if the court withholds injunctive relief; (3) whether the balance of hardships to the respective parties favors the grant of injunctive relief; and (4) whether it is in the public interest to grant injunctive relief. PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004); see also Amoco Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (“The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success.”); Centech Grp., Inc., 554 F.3d at 1037. These four factors are to be considered collectively, rather than individually, such that “[n]o one factor, taken individually, is necessarily dispositive. ... [T]he weakness of the showing regarding one factor may be overborne by the strength of the others.” FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993). Conversely, “the absence of an adequate showing with regard to any one factor may be sufficient” to deny injunctive relief. Id. A plaintiff who cannot demonstrate success upon the merits 'cannot prevail upon a motion for injunctive relief. Nat’l Steel Car, Ltd. v. Canadian Pacific Ry., Ltd., 357 F.3d 1319, 1325 (Fed. Cir. 2004) (finding that a plaintiff who cannot demonstrate a reasonable likelihood of success upon the merits cannot prevail upon its motion for preliminary injunctive relief), reh’g and reh’g en banc denied. The Federal Circuit has also found success upon the merits to be “the most important factor for a court to consider when deciding whether to issue injunctive relief.” Dellew Corp. v. United States, 108 Fed.Cl. 357, 369 (2012) (citing Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1312 (Fed. Cir. 2007)). However, while success upon the merits is necessary, it is not sufficient alone for a plaintiff to establish that it is entitled to injunctive relief. See Contracting, Consulting, Eng’g LLC v. United States, 104 Fed.Cl. 334, 353 (2012) (“Although plaintiffs entitlement to injunctive relief depends on it succeeding on the merits, it is not determinative because the three equitable factors must be considered, as well”) (citing PGBA LLC, 389 F.3d at 1228-29). IV. LEGAL ANALYSIS In its motion for judgment upon the administrative record,. By Light challenges the evaluation process for the Solicitation upon four grounds. First, By Light alleges that the USACE’s determination that By Light’s final proposal contained a deficiency — because the proposal did not include a task order number for work performed under a base IDIQ contract — was arbitrary and capricious. PI. Mot. at 12-15. Second, By Light alleges that the USACE “improperly introduced an unannounced criterion that descriptions of past projects performed as task orders under IDIQ contracts must include a task order number,” in violation of 48 C.F.R. § 15.303(b)(4). Id. at 16-17. Third, By Light alleges that the USACE erred in upgrading the rating regarding the relevancy of Tribal-co’s past performance under the Solicitation’s Past Performance factor to a “relevant” rating, in violation of 48 C.F.R. § 15,305(a)(2)(iv). Id. at 18-21. Finally, By Light alleges that the USACE conducted an “irrational” evaluation of the final proposals submitted by By Light and Tribalco, thereby prejudicing By Light. Id. at 21-22. The government and Tribalco both counter that the administrative record in this matter shows that the USACE conducted a reasonable evaluation process, in accordance with the requirements of the Solicitation and applicable law. For the reasons discussed below, the Court agrees. And so, the Court DENIES By Light’s motion for judgment 368upon the administrative record; GRANTS the government’s cross-motion for judgment upon the administrative record; and GRANTS Tribalco’s cross-motion for judgment upon the administrative record. A. By Light’s Challenge To The Solicitation’s Task Order Number Requirement Is Untimely As an initial matter, to the extent that By Light alleges in this post-award bid protest action that the Solicitation contains a patent ambiguity with respect to whether a task order number for work performed for an IDIQ contract is required to satisfy the Solicitation’s experience sub-factor, By Light’s claim is untimely. This Court has long recognized that an offeror wishing to challenge the terms of a solicitation must do so before offers are due. Blue & Gold Fleet, 492 F.3d at 1313-15 (holding that a protester who knew the agency’s interpretation of a solicitation but failed to challenge it before bids were due, waived its ability to object afterwards). It is also well established- that when a solicitation contains a patent ambiguity, an offeror must bring the patent ambiguity to the attention of the contracting officer prior to the close of the procurement process, or otherwise waive the ability to pursue a claim in this Court, Id. And so, By Light may not challenge an alleged patent ambiguity in the Solicitation with respect to the task order number requirement here, if By Light failed to raise a concern about this requirement before the conclusion of the procurement process. Id. In this case, the administrative record shows that By Light did not raise a concern about the Solicitation’s task order number requirement prior to submitting its final proposal.3 See AR at 982-92. The administrative record also shows that, although By Light did not raise this issue, By Light had ample opportunity to challenge the Solicitation’s task order number requirement prior to submitting its final proposal. In fact, the record evidence shows that the USACE conducted an extensive questiqn and answer process before the submissiop of initial proposals. Id. at 901. Athough more than 40 questions were put forward, By Light did not raise a question about the Solicitation’s task order number requirement. Id. at 901, 982-92.4 The administrative record also shows that By Light had ample notice of the Solicitation’s task order number requirement before final proposals were due. After finding that By Light’s initial proposal failed to include the task order number for a project involving work performed under an IDIQ contract, the USACE issued an evaluation notice specifically informing By Light that “[t]he type of contracts listed must not be IDIQs or BPAs (should be task orders or delivery orders of an IDIQ, BPA, or a standalone contract) ...” Id. at 1313. To the extent that By Light remained unclear about the requirement to provide a task order number for its IDIQ contracts, By Light had an obligation to raise such concerns before submitting its final offer. See Blue & Gold Fleet, 492 F.3d at 1313; see Pyramid Real Estate Servs., LLC v. United States, 95 Fed.Cl. 125, 137 n.16 (2010) (rejecting an offeror’s protpst because it failed to raise concerns about the solicitation during the proposal process despite the contracting agency’s answers and amendments to related provisions). Because By Light failed to do so, the administrative record shows that By Light has waived any claim regarding the Solicitation’s task order number requirement in this case. See Blue & Gold Fleet, 492 F.3d at 1313. 369B. By Light’s Claims Are Unsubstantiated By The Record Evidence 1. The Record Evidence Also Shows That The USACE Reasonably Determined That By Light’s Proposal Was Deficient Even if By Light could pursue its challenge to the Solicitation’s task order number requirement in this litigation, By Light’s challenge to this requirement is unsubstantiated by the administrative record. A plain reading of the Solicitation makes clear that the Solicitation requires that By Light provide a task order number for an IDIQ contract in order to satisfy the Solicitation’s experience sub-factor. Because there is no dispute that By Light failed to do so here, the administrative record demonstrates that the USACE reasonably determined that By Light’s final proposal contained a deficiency. In this regard, the Solicitation provides that, “[a]n IDIQ contract ... alone does not constitute a relevant ‘project’” under the Solicitation’s experience sub-factor. AR at 207. Rather, the Solicitation requires that “a task order under an IDIQ contract ... may count as a ‘project’ ”. Id. And so, the Solicitation clearly provides that an IDIQ contract alone cannot be a project for the purpose of satisfying the experience sub-factor. In addition, the Solicitation further requires, among other things, that: Offerors shall submit documentation with a minimum of three past or current projects with similar scope, magnitude, and complexity to the work described in the solicitation. Experience must include the following information: ... contract number ... Id. (emphasis supplied). And so, the plain text of the Solicitation also makes clear that among the information that must be provided to satisfy the experience sub-factor is a contract number for a particular project. Id. Because an IDIQ contract cannot be considered a “project” under the plain terms of the Solicitation, the USACE interpreted the Solicitation’s requirement to provide a “contract number” for projects involving an IDIQ contract to require that the task order number for work performed under an IDIQ contract be provided. Id. at 207, 1313. As the government observes in its cross-motion, the USACE’s reading of the Solicitation is reasonable because a base IDIQ contract could not be put forward as a “project” for the purpose of satisfying the Solicitation’s experience sub-factor. Def. Mot. at 22-23. Given this, the USACE reasonably interpreted the Solicitation to require that By Light provide the task order number for any project involving work performed under an IDIQ contract that had been provided to satisfy the Solicitation’s experience sub-factor. Because the Solicitation requires that By Light provide a task order number for its IDIQ contracts, the administrative record also demonstrates that the USACE reasonably concluded that By Light’s final proposal was deficient. There is no dispute that By Light’s final proposal did not provide the task order number for one of the IDIQ contracts that By Light identified to satisfy the Solicitation’s experience sub-factor. Id. at 1483-85. Given this, the USACE appropriately concluded that this failure constituted a deficiency in By Light’s final proposal. By Light’s contention that its final proposal was not deficient because By Light provided other information to satisfy the experience sub-factor — including the contract type, award date and period of performance — is also misguided. See PI. Mot. at 13; Id. at 1537-39. While the Solicitation does require that By Light provide this information, doing so did not relieve By Light of its obligation under the Solicitation’s experience sub-factor to also provide the task order number for the work performed under all of its IDIQ contracts. See AR at 207. By Light’s argument that it needed only to provide the contract number for its base IDIQ contract is also contrary to the plain language of the Solicitation. PI. Mot. at 12-15. And so, again, the record evidence demonstrates that the USACE reasonably determined that By Light’s final proposal was deficient. The Court will not set aside the agency’s reasonable procurement decision. 2. By Light Has Not Demonstrated That The Task Order Number Requirement Is An Unannounced Criterion By Light similarly fails to show that the Solicitation’s task order number require370ment is an unannounced evaluation criterion. To prevail upon this claim, By Light must show that: (1) the USACE used a significantly different basis in evaluating the proposals than was disclosed and (2) By Light has been prejudiced because it had a substantial chance to receive the contract award but for that error. NEQ, LLC v. United States, 88 Fed.Cl. 38, 48 (2009) (citing Banknote Corp. v. U.S., 56 Fed.Cl. 377, 387 (2003)). By Light makes neither showing here. Rather, the administrative record demonstrates that the USACE used the criterion set forth in the Solicitation to evaluate the experience sub-factor. As discussed above, the plain language of the Solicitation makes clear that an IDIQ contract number is insufficient to satisfy the experience sub-factor and that a task order number for the work performed under an IDIQ contract is required to comply with this sub-factor. The administrative record also demonstrates that the USACE informed By Light of this requirement prior to the submission of By Light’s final proposal. AR at 1313. Given this, the administrative record shows that the USACE evaluated By Light’s initial and final proposals under the same criterion, by requiring that a task order number for any IDIQ contract must be provided to satisfy the experience sub-factor. Id. at 1313, 1479-85.5 3. The USACE Did Not Err In Evaluating The Solicitation’s Past Performance Factor The administrative record also shows that, the USACE conducted a proper evaluation process with respect to its consideration of the Solicitation’s Past Performance factor. In this regard, By Light alleges the USACE erred by upgrading Tribalco’s rating with respect to relevance under the Past Performance factor from “somewhat relevant” to “relevant,” in violation of 48 C.F.R. § 15.305. PL Mot. at 18-21; AR at 1749; 48 C.F.R. § 15.305. By Light further alleges that it has been prejudiced as a result of this error. AR at 21. For the reasons discussed below, the Court disagrees. The record evidence demonstrates that, even if the USACE erred in its evaluation of the Past Performance factor as By Light suggests, By Light has not been prejudiced by such an error. In this regard, the administrative record shows that the USACE determined that both By Light and Tribalco “had relevant past performances” and that the USACE initially rated both offerors’ past experience as “somewhat relevant.” Id. at 1661; 1734; 1749. The record evidence further demonstrates that the SSEB later determined that, in order to not penalize or exclude either offeror from further consideration for award of the contract, the SSEB should upgrade both offerors’ ratings with respect to relevance under the Past Performance factor to “relevant.” Id. at 1734, 1749. To the extent that Tribalco benefitted from the USACE’s decision to upgrade its relevancy rating for past performance, the record evidence shows that By Light similarly bene-fitted from this decision. Given this, By Light has not shown how it has been prejudiced by the USACE’s decision and so, By Light cannot prevail on this claim. PI. Mot. at 18-21; see generally PI. Opp.; Banknote Corp., 365 F.3d at 1351 (A disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations.) 4. The USACE’s Trade-Off Analysis Was Reasonable Lastly, the record evidence does not support By Light’s claim that the USACE conducted an “irrational” evaluation of the final proposals submitted'by By Light and Tribalco. PI. Opp. at 9-13; see also PI. Mot. at 21-22. To the contrary, the administrative record shows that the USACE’s contracting officer performed a detailed and balanced trade-off analysis that reasonably compared the final proposals submitted by Tribalco and By Light. AR at 1832-50. With respect to the trade-off' analysis for the Solicitation’s Technical Capability factor, 371the contracting officer’s trade-off analysis found that Tribalco’s final proposal offered more strengths, even if By Light received an outstanding rating under this factor. Id. For example, the contracting officer found that: [t]he number of Full Time Employees (FTE’s) [*] proposed by By Light is roughly half of those used to estimate the [Independent Government Estimate for the Solicitation (“IGE”) ]. ... In comparison, Tribaleo proposed 3.5 FTE’s and their proposal meets the labor support needs of the PWS requirements and more closely aligns with the 4 FTE’s used in the development of the IGE. Id. at 1837. With respect to the Solicitation’s Past Performance factor, the contracting officer further found that the government’s confidence in By Light’s and Tribalco’s ability to perform the work at an acceptable level was “satisfactory” for both offerors. Id. at 1840. But, with respect to the Solicitation’s Price factor, the contracting officer found that, “although it appears that By Light is providing the lowest priced proposal, they are not providing the Government the Best Value when it comes to Centralized Support.” Id. at 1842. And so, the contracting officer ultimately concluded that Tribalco’s proposal offered the best value to the government. Id. at 1836-50. By Light’s contention that the USACE’s trade-off analysis is flawed because that analysis reflects a pre-determined outcome is also belied by the record evidence. PI. Opp. at 9-13, As demonstrated above, the record evidence shows that the USACE’s contracting officer carefully considered and weighed several evaluation factors and sub-factors in comparing By Light’s final proposal and Tribalco’s final proposal. By Light’s argument that the Court should set aside the USACE’s trade-off analysis— because the USACE allegedly did not reveal to By Light that a trade-off analysis had been performed — is equally misguided. Even if true, By Light does not explain how the USACE’s decision not to reveal this trade-off analysis violates terms of the Solicitation, or has prejudiced By Light. PI. Mot. at 22. Indeed, By Light points to no evidence in the administrative record to show that the USACE’s trade-off analysis lacked a rational basis, or that this analysis has not been performed in good faith. See generally PL Mot. and PI. Opp. Given this, the Court will not substitute its judgment for that of the USACE. Cincom Sys., Inc., 37 Fed.Cl. at 672. C. By Light Has Not Shown That It Is Entitled To Injunctive Relief Because By Light has not met its burden to demonstrate that the USACE’s evaluation process for the Solicitation was improper, By Light also fails to demonstrate that it is entitled to the injunctive relief that it seeks in this matter. When determining whether to grant injunctive relief, the Court considers: (1) whether the plaintiff has succeeded upon the merits of the case; (2) whether the plaintiff will suffer irreparable harm if the Court withholds injunctive relief; (3) whether the balance of hardships to the respective parties favors the grant of injunctive relief; and (4) whether it is in the public interest to grant injunctive relief. PGBA, LLC, 389 F.3d at 1228-29; see also Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983). In addition, where as here, the evidence demonstrates that a plaintiff will not succeed upon the merits of its claims, a plaintiff cannot prevail upon a claim for injunctive relief. Cf. Altana Pharma AG v. Teva Pharm. USA Inc., 566 F.3d 999, 1005 (Fed. Cir. 2009) (citing Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 (Fed. Cir. 2001)) (“Although the factors are not applied mechanically, a movant must establish the existence of both of the first two factors to be entitled to a preliminary injunction” or a temporary restraining order); Nat'l Steel Car, Ltd., 357 F.3d at 1325 (finding that a plaintiff who cannot demonstrate a reasonable likelihood of success upon the merits cannot prevail upon its motion for preliminary injunctive relief), reh’g and reh’g en banc denied. In this case, By Light has simply not demonstrated that any of its challenges to the USACE’s evaluation process for the Solicitation are supported by the administrative 372record. Given this, By Light also has not shown that it is entitled to injunctive relief. Y. CONCLUSION In sum, the administrative record in this case demonstrates that the USACE conducted a reasonable evaluation process for the Solicitation at issue in this litigation and that the agency’s evaluation process complied with the terms of the Solicitation and applicable law. Given this, By Light has not shown that the USACE’s actions here were arbitrary, capricious, an abuse of discretion, or not in accordance with the Solicitation or applicable law. And so, for the foregoing reasons, the Court: (1) GRANTS the government’s motion for judgment upon the administrative record; (2) GRANTS Tribalco’s motion for judgment upon the administrative record; (3) DENIES By Light’s motion for judgment upon the administrative record; and (4) DENIES By Light’s motion for a temporary restraining order and preliminary injunctive relief. Judgment shall be entered accordingly. Each party shall bear their own costs. Some of the information contained in this Memorandum Opinion and Order may be considered protected information subject to the protective order entered in this matter on October 13, 2016. This Memorandum Opinion and Order shall be filed under seal. The parties shall review the Memorandum Opinion and Order to determine whether, in their view, any information should be redacted in accordance with the terms of the Protective Order prior to publication. The Court hereby ORDERS that the parties FILE, by April 10, 2017, a joint status report identifying the information, if any, that they contend should be redacted, together with an explanation of the basis for each proposed redaction. IT IS SO ORDERED. . The facts recited in this Memorandum Opinion and Order are taken from the administrative record ("AR"); plaintiff’s complaint (“Compl.”); plaintiffs motion for judgment upon the administrative record ("PL Mot.”); and plaintiffs reply brief and opposition to the government’s motion for judgment upon the administrative record ("Pl. Opp.”). Except where otherwise noted, all facts recited herein are undisputed. . The following chart shows the Solicitation's three evaluation factors and their respective weight. . The government attached the Declaration of Jennifer L. Kelley, the contracting officer for the Solicitation, as an attachment to its opposition to By Light’s motion for judgment upon the administrative record and cross-motion. Def. Mot. at Attachment. But, the government has not moved to supplement the administrative record with this declaration. Because the existing administrative record is sufficient to permit meaningful judicial review, the Court does not consider this declaration for the purpose of resolving the parties’ cross-motions for judgment upcin the administrative record. . The administrative record suggests that the Solicitation’s task order number requirement may have been unclear to several other offerors. Four of five offerors failed to include a task order number for an IDIQ contract in their final proposals. Id. at 1686-89, 1700. . By Light also fails to demonstrate that it has been prejudiced because of the USACE's evaluation criterion. The administrative record shows that By Light would not have been awarded the contract at issue in this case even if the USACE had not found By Light's proposal to be deficient due to the lack of a task order number. AR at 1836.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218587/	ORDER OF DISMISSAL WILLIAMS, Judge. This matter comes before the Court on Defendant’s motion to dismiss. For the reasons stated below, Defendant’s motion to dismiss is granted. Plaintiff pro se Donald Jones seeks a $540,000,000 award as a relator in a qui tam action pursuant to Section 3730(d) of the False Claims Act. On July 31, 2011, Plaintiff filed a qui tam action in the United States District Court for the District of Columbia against “7 Major Banks and several smaller ones” to “enforce provisions of repayment of taxpayer funds under the Troubled Assets Recovery Program [ (“TARP”) ].” Compl. 5. The District Court dismissed this qui tam action because a relator may not proceed pro se in a qui tam action, and because Plaintiff failed to comply with Rule 8(a) of the Federal Rules of Civil Procedure. Def.’s Mot. to Dismiss 2. Plaintiff has the burden of establishing subject-matter jurisdiction in this Court. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). The Court must dismiss the action if it finds subject-matter jurisdiction to be lacking. Adair v. United States, 497 F.3d 1244, 1251 (Fed. Cir. 2007). The Court assumes all factual allega*2tions as true, and will construe the complaint in a manner most favorable to the Plaintiff when ruling on a motion to dismiss pursuant to Rule 12(b)(1). Pennington Seed, Inc. v. Produce Exch. No. 299, 457 F.3d 1334, 1338 (Fed. Cir. 2006). The filings of pro se litigants are held to “‘less stringent standards than formal pleadings drafted by lawyers.’ ” Naskar v. United States, 82 Fed.Cl. 319, 320 (2008) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). However, pro se plaintiffs still bear the burden of establishing the Court’s jurisdiction, and must do so by a preponderance of the evidence. See Reynolds, 846 F.2d at 748; Tindle v. United States, 56 Fed.Cl. 337, 341 (2003). The False Claims Act, 31 U.S.C. §§ 3729 et seq., imposes civil penalties and treble damages on those who have knowingly submitted false or fraudulent claims to the Government, and allows private individuals, known as relators, to bring a pm tarn action on behalf of the Government when the relator possesses information that a false or fraudulent claim has been submitted. Capelouto v. United States, 99 Fed.Cl. 682, 690 (2011). An individual “may bring a civil action for a violation of section 3729 for the person and for the United States Government. The action shall be brought in the name of the Government.” 31 U.S.C. § 3730(b) (2012). However, jurisdiction over qui tarn actions, including awards to relators, lies exclusively in the district courts. See id. at § 3732(a) (“Any action under section 3730 may be brought in any judicial district in which the defendant ... [is] found, resides, [or] transacts business .... ”); see also LeBlanc v. United States, 50 F.3d 1025, 1031 (Fed. Cir. 1995) (finding that qui tarn suits “may only be heard in the district courts”); Schweitzer v. United States, 82 Fed.Cl. 592, 595-96 (2008). Therefore, claims for the recovery of an award to a relator pursuant to § 3730 of the False Claims Act may only be heard in the district courts, despite being claims for money damages against the Government, which normally fall within the jurisdictional purview of this Court. Meschkow v. United States, 109 Fed.Cl. 637, 645 (2013); Giles v. United States. 72 Fed.Cl. 335, 336-37 (2006); see generally 28 U.S.C. § 1491(a) (2012). Conclusion Defendant’s motion to dismiss is GRANTED. The Clerk is directed to dismiss this action for lack of jurisdiction.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218588/	ORDER James F. Merow, Senior Judge On November 8, 2016, plaintiff filed a compilation of documents, including a civil cover sheet, a letter from the United Nations High Commission for Refugees, a letter reflecting the denial of a claim he made to the Department of Veterans Affairs, some documentation from the Social Security Administration, and a long narrative that appears to relate to *6a past criminal conviction, among other matters. See Doc. 1. Despite the fact that the filing includes no statement of the claim plaintiff would pursue before the court, the documents were docketed as a complaint. See id. Plaintiff has also applied for in forma pauperis status, see Doc. 3, and has filed a motion for summary judgment, see Doc. 4. This court is one of limited jurisdiction, as set forth in 28 U. S. C. § 1491(a): The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. Although the government has not yet responded to plaintiffs complaint, the court reviews its jurisdiction sua sponte. See Arctic Corner, Inc. v. United States, 845 F.2d 999, 1000 (Fed. Cir. 1988) (“A court may and should raise the question of its jurisdiction sua sponte any time it appeal's in doubt.”). A plaintiff bears the burden to demonstrate the court has jurisdiction over his claims by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). Here, plaintiff has failed to point to any basis, such as a statute or a contract, that entitles him to an award of money damages from the government. In fact, he has failed to identify any basis for relief of any kind. His filing is insufficient to establish the court’s jurisdiction, even under the lenient standard afforded to pro se plaintiffs. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (noting that complaints filed by pro se litigants are held to “less stringent standards than formal pleadings drafted by lawyers”). As such, this matter is DISMISSED for lack of subject matter jurisdiction. Plaintiffs motions seeking in forma pauperis status, Doc. 3, and summary judgment, Doc. 4, are DENIED as moot. The Clerk’s Office is directed to RETURN all future submissions received from plaintiff that are not in accordance with this court’s rules to plaintiff UN-FILED without further order of the court. SO ORDERED.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218589/	*156ORDER OF DISMISSAL MARY ELLEN COSTER WILLIAMS, Judge This matter comes before the Court on Defendant’s motion to dismiss. For the reasons stated below, Defendant’s motion to dismiss is granted. Plaintiffs complaint appears to be a form complaint for judicial review of a decision of the Commissioner of Social Security in the United States District Court for the Northern District of California, although Plaintiff has altered the caption to reflect the name of this Court. This form complaint states that “this court has jurisdiction pursuant to Title 42, U.S.C. § 405(g).” Plaintiff has the burden of establishing subject-matter jurisdiction in this Court. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). The Court must dismiss the action if it finds subject-matter jurisdiction to be lacking. Adair v. United States, 497 F.3d 1244, 1251 (Fed. Cir. 2007). The filings of pro se litigants are held to “ ‘less stringent standards than formal pleadings drafted by lawyers.’ ” Naskar v. United States, 82 Fed.Cl. 319, 320 (2008) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). However, pro se plaintiffs bear the burden of establishing tíie Court’s jurisdiction, and must do so by a preponderance of the evidence. See Reynolds, 846 F.2d at 748; Tindle v. United States, 56 Fed.Cl. 337, 341 (2003). The statute Plaintiff invokes to establish jurisdiction, 42 U.S.C. § 405(g), provides: Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia. 42 U.S.C. § 406(g) (2015). Because Plaintiffs action could only have been brought in district court, this Court lacks jurisdiction. Id.; Ross v. United States, 122 Fed.Cl. 343, 347 (2015). Defendant’s motion to dismiss is GRANTED, The Clerk is directed to dismiss this action for lack of jurisdiction.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218591/	RCFC 12(b)(1); Lack of Subject-Matter Jurisdiction RCFC 12(b)(6); Failure to State a Claim OPINION AND ORDER Margaret M. Sweeney, Judge For Loren A. Smith, Senior Judge This action is before the court on defendant’s motion to dismiss. On November 2, 2016, plaintiff, proceeding pro se, filed a complaint seeking various forms of relief. Plaintiff, a former litigant in the United States District Court for the District of Montana, seeks damages for personal injury and property damage caused by various alleged torts committed by members of the federal judiciary. Plaintiffs complaint asserts, inter alia, that specific judges on the United States Court of Appeals for the Ninth Circuit (hereinafter “Ninth Circuit”) committed tortious actions and conspired to deny plaintiff access to the court system. On January 31, 2017, defendant filed a motion to dismiss plaintiffs complaint for lack of jurisdiction, pursuant to Rule 12(b)(1) of the Rules of the U.S. Court of Federal Claims, or, in the alternative, for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Rules of the U.S. Court of Federal Claims (hereinafter “RCFC”). For the following reasons, the Court grants defendant’s motion to dismiss. I. Background Mr. Rothing filed two civil actions against Montana state court judges and state employees in the United States District Court for the Distinct of Montana alleging “violations of the Constitution, RICO conspiracy to obstruct justice and numerous tort violations....” Plaintiffs Response to Defen389dant’s Motion to Dismiss (hereinafter “P’s Resp.”) at 4. The eases were originally set before two different judges in the district, but they were ultimately consolidated before one of the district’s magistrate judges. Plaintiffs Complaint (hereinafter “Compl.”) at 2. On September 2, 2015, the magistrate judge dismissed both cases and issued an order declaring Mr. Rothing a vexatious litigant. Id. On September 11, 2015, Mr. Rothing filed an objection to the magistrate judge’s September 2 Order pursuant to 28 U.S.C. § 636(b)(1)(C) and Federal Rules of Civil Procedure Rule 72 (hereinafter “FRCP”), allowing a district court judge to de novo review a magistrate judge’s order. Id. at 3. Plaintiff alleges that Montana District Court Chief Judge Dana L. Christensen ignored his objection to the September 2 Order and, in doing so, ignored the “will of the law.” Id. Mr. Rothing then filed complaints under the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351-364 (hereinafter “JCDA”), and submitted those complaints to the Ninth Circuit. Id. Plaintiff alleges that three judges from the Ninth Circuit and a Ninth Circuit Executive dismissed his complaints and thus committed torts “by failing to uphold the law and by their failure to adhere to the mandatory rules for [proceedings under the [Judicial Conduct and Disability] Act.” Id. In addition to his original complaints against the federal judges from the Montana district, plaintiff subsequently filed JCDA complaints against three judges on the Ninth Circuit who were assigned to review those original complaints. Id. at 4, On November 2, 2016, plaintiff filed a complaint in this Court, naming three judges on the Ninth Circuit and the “Chief [Executive Officer” of the Ninth Circuit as defendants. Compl, at 1. Plaintiff asserts that “these individuals’ actions constitute torts of, but not limited to, negligence, fraud and malice, negligent and intentional infliction of emotional distress, nuisance, and breach of the implied covenant of good faith and fail’ dealing.” Id. Plaintiff, is seeking damages “pursuant to the Federal Tort Claims Act” (hereinafter “FTCA”) in the amount of $1,000,000 for personal injury and $450,000 for the regulatory taking of real property. Id. at 5. On January 31, 2017, the government filed a motion to dismiss Mr. Rothing’s complaint for lack of subject-matter jurisdiction, or, in the alternative, for failure to state a claim upon which relief can be granted. Defendant’s Motion to Dismiss (hereinafter “MTD”) at 1. The government contends that Mr. Rothing’s complaint fails to identify any money-mandating provision that properly invokes this Court’s jurisdiction. Id. Furthermore, the government argues that Mr. Roth-ing’s complaint fails to state a basis for a cognizable claim. Id. On February 21, 2017, plaintiff filed his response to the government’s motion to dismiss. In his response, Mr. Rothing posits that “subject matter jurisdiction of this Court is granted pursuant to the Federal Tort Claims Act, 28 USC 2671-2680 and is authorized by the Tucker [A]ct, also.” P’s Resp. at I. Plaintiff further argues that the components of his complaint that the defendant treats as torts are in actuality “pages of evidence citing the violations of the Constitution, Federal statutes and laws, the Fed. R. Civ. P., and multiple violations of the Rules for Proceedings under the Judicial Conduct and Disability Act, all of which fall under the jurisdiction of this Court, under the Tucker Act.” Id. at 2. On March 7, 2017, the government filed its reply in support of its motion to dismiss this case. The government reiterates its position that this Court lacks jurisdiction over tort claims and that neither the Constitution nor the JCDA provides a money-mandating provision to establish this Court’s jurisdiction. Defendant’s Reply in Support of its Motion to Dismiss (hereinafter “DV Reply”) at 2. The government also argues that plaintiffs complaint fails to sufficiently demonstrate the existence of an express or implied contract between the plaintiff and the government. Id. at 4. II. Discussion This Court’s jurisdictional grant is primarily defined by the Tucker Act, which provides this Court the power “to render any judgment upon any claim against the United States founded either upon the Constitution, 390or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States ... in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (emphasis added). Although the Tucker Act expressly waives the sovereign immunity of the United States against such claims, it “does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Rather, in order to fall within the scope of the Tucker Act, “a plaintiff must identify a separate source of substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part). When considering a motion to dismiss for lack of subject-matter jurisdiction, the Court “must accept as true all undisputed facts asserted in the plaintiffs complaint and draw all reasonable inferences in favor of the plaintiff.” Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (2011) (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). Further, pleadings from pro se plaintiffs are held to more lenient standards than pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). This leniency, however, does not extend to saving a complaint that lies outside of this Court’s jurisdiction. “Despite this permissive standard, a pro se plaintiff must still satisfy the court’s jurisdictional requirements.” Trevino v. United States, 113 Fed.Cl. 204, 208 (2013), aff'd, 557 Fed.Appx. 995 (Fed. Cir. 2014) (citations omitted). Pro se or not, the plaintiff still has the burden of establishing by a preponderance of the evidence that this Court has jurisdiction over its claims. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The Tucker Act explicitly excludes tort claims against the United States from this Court’s jurisdiction. “It is well settled that the United States Court of Federal Claims lacks — and its predecessor the United States Claims Court lacked — jurisdiction to entertain tort claims. Shearin v. United States, 992 F.2d 1195, 1197 (Fed. Cir. 1993); see also Sellers v. United States, 110 Fed.Cl. 62, 66 (2013). United States district courts have exclusive jurisdiction to hear tort claims against the United States, including all claims under the FTCA. See 28 U.S.C. § 1346(b)(1). Here, Mr. Rothing fails to establish by a preponderance of the evidence that this Court has jurisdiction over his claims. The first sentence of plaintiffs complaint states, [t]his claim is being filed pursuant to the [FTCA]....” Compl. at 1. In response to the government’s motion to dismiss, Mr. Rothing asserts that the FTCA is under this Court’s jurisdiction “because it is an Act of Congress.” P’s Resp. at 2. He then argues that his claims “are founded upon violations of Acts of Congress,” and specifically names the FTCA and JCDA. P’s Resp. at 3. Neither the FTCA nor the JCDA provide a cognizable source of jurisdiction for this Court. As previously discussed, this Court does not have jurisdiction over tort claims, and such jurisdiction lies exclusively with the United States district courts. See, e.g., Souders v. S.C. Pub. Serv. Auth., 497 F.3d 1303, 1307 & n.5 (Fed. Cir. 2007) (holding that the plaintiffs negligence claims sounded in tort and thus were beyond the jurisdiction of the United States Court of Federal Claims); Moore v. Durango Jail, 77 Fed.Cl. 92, 96 (2007) (holding that the Court o'f Federal Claims did not have jurisdiction over the plaintiffs claim because the “plaintiffs claim of negligence sounds in tort”). Apart from the fact that this Court lacks jurisdiction over claims under the FTCA, this Court also “does not have jurisdiction over other federal courts or them employees.” Trevino, 113 Fed.Cl. at 208 (citing Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994)). In addition to Mr. Rothing’s personal injury claims, he is seeking “$450,000 for the regulatory taking of my real property, due to the tortious actions of the courts, in conspiring to deny me access to the courts, as required by law.” Compl. at 5. While a regulatory takings claim might provide a basis for *391monetary relief as required by the Tucker Act (see Fisher, 402 F.3d at 1172), a thorough reading of the plaintiffs pleadings does not lead to any alleged facts regarding a “regulatory taking.” In plaintiffs own words, the regulatory taking of real property is “due to the tortious actions of the courts,” meaning the taking of property arises from the underlying torts and, as a result, would not provide an independent basis for a claim. The crux of plaintiffs case involves tor-tious conduct allegedly committed by the federal judiciary; “these individuals’ actions constitute torts of, but not limited to, negligence, fraud and malice, negligence and intentional infliction of emotional distress, nuisance, and breach of the implied covenant of good faith and fair dealing.” Compl. at 1. Mr. Rothing’s cause of action sounds in tort, and nothing has been provided that would lend this Court a basis to otherwise interpret Mr. Rothing’s complaint. Accordingly, the Court lacks subject-matter jurisdiction and the plaintiffs complaint must be dismissed. III. Conclusion For the reasons set forth above, defendant’s MOTION to dismiss is GRANTED. The Clerk is directed to enter Judgment in favor of defendant, consistent with this opinion. IT IS SO ORDERED.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218592/	Vaccine Act, 42 U.S.C. §§ 300aa-l et seq.-, Review of Special Master’s Decision; Off-Table Injury; Narcolepsy with Ca-taplexy ORDER AND OPINION Damich, Senior Judge: On December 28, 2016, Petitioner, Mykelle Jivon D’Tiole, filed a petition for review of the Special Master’s Decision denying compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-l to -34 (2012), (“Vaccine Act”).2 Petitioner alleged that an influenza (“flu”) vaccine administered on December 13, 2011, while he was a minor and without his parents’ permission, caused him to develop narcolepsy with cataplexy. On November 28, 2016, Special Master. Brian H. Corcoran denied compensation on the grounds that Petitioner did not establish by preponderant evidence that the vaccine caused Petitioner’s narcolepsy with cataplexy. D’Tiole v. Sec’y of HHS, No. 15-085V, 2016 WL 7664475, at 28, 2016 U.S. Claims LEXIS 2003, at 81 (Fed. Cl. Nov. 28, 2016) (hereinafter “D’Tiole”). In his motion for review, Petitioner requested this Court to enter judgment in his favor, and argued that the Special Master improperly required the Petitioner to prove causation through epidemiologic evidence as well as a specific biologic mechanism. The Petitioner also claimed that the Special Master abused his discretion when he issued a decision without a hearing. For the reasons set forth below, the Court finds that the Special Master’s decision was not arbitrary or capricious, or otherwise not in accordance with law, as he properly weighed the evidence, nor did he abuse his discretion by declining to hold a hearing. Petitioner’s motion for review is, therefore, DENIED. I. Factual Background On December 13, 2011, Petitioner went to his pediatrician for a well child visit. D’Tiole, at 1, 2016 U.S. Claims LEXIS 2003, at 2. At that time, Petitioner received FluMist3, a live attenuated influenza vaccine (“LAIV’). Id. His parents did not consent for him to receive the vaccine, and were not made aware of this until the spring of 2014. D’Tiole, at 3-4, 2016 U.S. Claims LEXIS 2003, at 8. 425On February 1, 2012, Petitioner was taken for treatment to the John Muir Medical Center Emergency Department (“Emergency Department”) after he had hurt his wrist falling while playing basketball. D’Tiole, at 3, 2016 U.S. Claims LEXIS 2003, at 2. He was diagnosed with a wrist fracture and underwent a closed reduction with percutaneous pinning under general anesthesia. Id. On February 10, 2012, Petitioner saw his pediatrician for a follow-up examination of his wrist fracture. D’Tiole, at 2, 2016 U.S. Claims LEXIS 2003, at 2-3. Petitioner offered statements suggesting that his sleep-related symptoms began around this time. D’Tiole, at 2, 2016 U.S. Claims LEXIS 2003, at 3. His mother, Ms. Sevela DePlush, stated that she noticed Petitioner behaving “differently” and “began noticing him exhibiting severe drowsiness” by February 2012, right after his surgery. Id. There are no medical records at this time, however, that refer to Petitioner’s sleeping problems. D’Tiole, at 2, 2016 U.S. Claims LEXIS 2003, at 2-3. Over a month later, on March 26, 2012, Petitioner saw his pediatrician again, complaining of ear pain and feeling tired all of the time, D’Tiole, at 2, 2016 U.S. Claims LEXIS 2003, at 3. The notes from this visit specifically state that he was falling asleep at 11 a.m. after waking at 6 a.m. Id. After this visit, Petitioner was prescribed antibiotics for his ear pain and was instructed to engage in better sleeping hygiene (e.g., limiting television time before sleep). D’Tiole, at 2, 2016 U.S. Claims LEXIS 2003, at 3-4. After a four month gap, on July 18, 2012, Petitioner was seen again by his pediatrician complaining that he had difficulties with his equilibrium and a “hard time focusing.” D’Tiole, at 2, 2016 U.S. Claims LEXIS 2003, at 4. The medical notes include statements by Petitioner that he was playing videogames late into the night, sleeping until noon thereafter, and having trouble focusing — but the examiner also noted that he was not experiencing dizziness or balance problems. Id. His examiner assessed him with a dysfunctional sleep pattern and directed him to care for the condition in a similar manner to that recommended in March 2012. Id. On September 6, 2012, Petitioner saw his pediatrician, complaining again about his lack of focus and constant sleepiness. Id. The medical note indicated that the Petitioner was still feeling tired and had trouble focusing. D’Tiole, at 2, 2016 U.S. Claims LEXIS 2003, at 5. The medical record also indicates that Petitioner was experiencing short “tremors” involving his eyelids drooping and his eyes wandering. Id. The impression to his examiner was possible seizure activity, and Petitioner was referred to a neurologist at Children’s Hospital in Oakland, California (“Children’s Hospital”). Id. On October 5, 2012, Petitioner underwent an initial neurological evaluation at Children’s Hospital, and received an electroencephalogram (“EEG”). Id. The results of the EEG were normal. Id. Petitionér was also seen by a specialist in the epilepsy department. Id. The medical diagnosis, based on the exam as well as the EEG results, indicated that Petitioner was not suffering from epilepsy. Id. The notes described Petitioner’s continued dizzy spells and eye-fluttering episodes, and categorized them as “recently experienced.” Id. Petitioner’s sleep problems were also mentioned, but were not identified as persistent. Id. The notes also stated that Petitioner often slept late on weekends with poor sleep hygiene as the likely cause of such problems. D’Tiole, at 3, 2016 U.S. Claims LEXIS 2003, at 6. On December 16,2012, Petitioner was seen in the Emergency Department, where he reported “he had 2 or 3 episodes at home where he felt weak and could not stand up and had some shaking of his extremities.” Id. The assessment section noted: “shaking episodes of uncertain cause,” and a diagnosis of “altered consciousness,” Id. In August 2013, Petitioner was examined by Stanford Hospital’s Sleep Medicine Clinic in Redwood City, California (“Clinic”). Id. The Clinic diagnosed him with “hypersomnia due to medical condition classified elsewhere and narcolepsy4 with cataplexy.”5 D’Tiole, at 4263, 2016 U.S. Claims LEXIS 2003, at 7. Notes contained in the record from the August 2013 visit identify statements by Petitioner’s mother that “everything seemed to start after [Petitioner] broke his wrist and required anesthesia.” Id. The notes also recorded progression in his symptoms, with a more robust daytime sleepiness. Id. The medical examiner prescribed a tidal of modaf-inil.6 Id. By 2014, Petitioner received further treatment for his symptoms, and narcolepsy with cataplexy was no longer merely suspected but confirmed as the proper diagnoses. Id. The confirmation was strengthened through tests (performed by the Clinic on January 16, 2014) revealing that Petitioner likely possessed the HLA allele7 associated with narcolepsy.8 D’Tiole, at 3, 2016 U.S. Claims LEXIS 2003, at 7-8. It was during treatment at the Clinic that Petitioner was confirmed to test positive for this specific HLA allele. D’Tiole, at 3, 2016 U.S. Claims LEXIS 2003, at 8. II. Procedural History Petitioner filed a petition for compensation under the Vaccine Act on January 27, 2015, claiming that the vaccine he received on December 13, 2011 caused him to develop narcolepsy with cataplexy. On July 13,2015, Respondent filed its Rule 4(c) Report asserting that Petitioner was not entitled to compensation because he could not carry the burden of proof under Althen v. Sec’y of HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005). After the Rule 4(c) Report was filed, the experts for each party submitted their reports. The Special Master then held a status conference. After a status conference, the Special Master proposed on February 16, 2016, that the Respondent move for a decision on the papers, as it was his assessment that it would be the most expeditious approach to resolving the case. On November 28, 2016 the Special Master’s decision was published. On December 19, 2016, Petitioner filed a Motion for Reconsideration which was denied by the Special Master on December 21, 2016. This appeal followed on December 28,2016. III. The Special Master’s Decision In his decision, the' Special Master focused on the issue of causation.9 He noted that the experts agreed that the Petitioner suffers from narcolepsy with cataplexy. Where they differ, however, is whether or not FluMist caused the symptoms, specifically the H1N1 strain found in FluMist. Each party submitted multiple expert reports. The 427Petitioner relied on the reports of Dr. Lawrence Steinman10, and the Respondents relied upon the reports of both Dr. Michael Kohrman and Dr. Andrew MacGinnitie. A. Petitioner’s Expert: Dr. Steinman Dr. Steinman opined that the FluMist vaccine interfered with specific receptors responsible for regulating daytime sleepiness resulting in his narcolepsy with cataplexy. Dr. Steinman relied on three expert reports and many, medical articles in support of his opinion. For his causation theory, Dr. Steinman opined that, “components from the wild flu virus contained in FluMist cross-react with certain self-proteins in the brain responsible for sleep regulation, via the mechanism of molecular mimicry.”11 D’Tiole, at 4, 2016 U.S. Claims LEXIS 2003, at 10. After this process occurs, Dr. Steinman opined that the body’s immune system then attacks the receptors responsible for regulating daytime sleepiness which then caused the narcolepsy in the Petitioner. Dr. Steinman relied on many studies connecting flu vaccines and narcolepsy. One study Dr. Steinman relied upon, M. Partinen et al., Increased Incidence and Clinical Picture of Childhood Narcolepsy Following the 2009 HlNl Pandemic Vaccination Campaign in Finland, 7 PLoSone 3:1-8 at 7 (2012) (“Partinen”), concerned the Pandemrix vaccine, an inactivated form of the flu vaccine containing the HlNl viral strain also found in FluMist.12 However, the study concluded that, “there is no other evidence of an increased risk of narcolepsy with any other vaccine than the As03 adjuvanted Pandem-rix.” Partinen at 7. Dr. Steinman also submitted two articles that he co-authored explaining why Pandem-rix may have caused narcolepsy. See S. Ahmed et al., Narcolepsy, 2009 A(HlNl) Pandemic Influenza^ and Pandemic Influenza Vaccinations: What is Known and Unknown About the Neurological Disorder, the Bole for Autoimmunity, and Vaccine Adjuvants, 60 J. of Autoimmunity 1-11 (2014) (“Ahmed I”); S. Ahmed et al., Antibodies to Influenza Nucleoprotein Cross-React with Human Hypocretin Receptor 2, 7 Sci. Translational Med. 294 (2015) (“Ahmed II”). Ahmed I proposed that the relationship between narcolepsy and Pandemrix is likely “attributable to how the specific influenza antigen component” was prepared. D’Tiole, at 5, 2016 U.S. Claims LEXIS 2003, at 13 (quoting Ahmed I at 1.) Ahmed II suggested that there was a ptrong correlation between the wild HlNl virus and narcolepsy. D’Tiole, at 7, 2016 U.S. Claims LEXIS 2003, at 18. In further support, Dr. Steinman relied on F. Han et al., Narcolepsy Onset is Seasonal and Increased Following the 2009 HlNl Pandemic in China, 70 Am. Neurological Ass’n 410 (2011) (“Han”). Dr. Steinman interpreted Han to signify that the wild HlNl influenza virus itself was correlated to narcolepsy. D’Tiole, at 7, 2016 U.S. Claims LEXIS 2003, at 19. B. Respondent’s Experts: Dr. Kohrman and Dr. MacGinnitie Dr. Kohrman submitted multiple rebuttals regarding Dr. Steinman’s reports. Dr. Kohr-man first opined that the relevant medical 428evidence reveals no proof that a live H1N1 type vaccine is associated with narcolepsy. He then opined that due to the Petitioner’s poor sleep hygiene it would be too difficult to pinpoint an onset date for the narcolepsy. In support, Dr. Kohrman first provided that because the FluMist and Pandemrix vaccines are significantly different in then-make-up, there is no link between FluMist and narcolepsy. Dr. Kohrman identified that, “FluMist is a non-adjuvanted vaccine, meaning that the adjuvant suggested to cause narcolepsy would not have been present in [the Petitioner’s] vaccine.” D’Tiole, at 9, 2016 U.S. Claims LEXIS 2003, at 26. Dr. Kohrman also relied heavily on the study Duffy et al., Narcolepsy and Influenza A(HlNl) Pandemic 2009 Vaccination in the United States, 83 Neurology 1827 (Oct. 15, 2014) (“Duffy”)), The study utilized both inactivated and LAIV vaccines. The Duffy authors ultimately concluded that the H1N1 virus strain could not be associated with an increased risk of narcolepsy. D’Tiole, at 9, 2016 U.S. Claims LEXIS 2003, at 26. Dr. Kohrman also discredited the Han article by showing that it was not a proper epidemiological study of narcolepsy in China, and, therefore, is unreliable.13 Dr. Kohrman also concluded that the Petitioner’s poor sleep habits, and lack of acute symptoms after receiving FluMist, make it difficult to determine when the symptoms occurred. D’Tiole, at 10, 2016 U.S. Claims LEXIS 2003, at 24. Dr. MacGinnitie concurred with Dr. Kohrman and explained that given FluMist’s distinct formulation, there is no such evidence linking it to narcolepsy. D’Tioli, at 11, 2016 U.S. Claims LEXIS 2003, at 30. Dr. MacGinnitie further explained the production process of each vaccine. He stated that vaccines like Pandemrix are produced by growing the strains in chicken egg cells and then deactivated to kill the virus while leaving the genetic core intact. D’Tiole, at 11, 2016 U.S. Claims LEXIS 2003, at 31. LAIV vaccines, such as FluMist, are cold-adapted, and delivered directly into the nose which results in a more limited viral replication “but would also generate antibody titers lower than that of a subunit vaccine like Pandemrix.” D’Tiole, at 11, 2016 U.S. Claims LEXIS 2003, at 31-32. It is the former antibodies (the higher count of antibodies caused by Pandemrix) that would, under Petitioner’s theory via molecular mimicry, inhibit the necessary receptions to cause narcolepsy. As such, Dr. MacGinnitie opined that the theory is limited to vaccines like Pandemrix. He also identified that Duffy observed no cases of narcolepsy out of thousands of patients who received FluMist. D’Tiole, at 12, 2016 U.S. Claims LEXIS 2003, at 33. Dr. MacGinnitie also highlighted the correlation between individuals with the HLA allele and narcolepsy and explained in detail how it affects the onset of narcolepsy. D’Tiole, at 12, 2016 U.S. Claims LEXIS 2003, at 33-34. C. The Special Master’s Conclusion Upon reviewing the expert reports and conclusions, the Special Master concluded that Petitioner did not satisfy his burden under Althen.14 The Special Master identified that there were “fundamental holes in the theory,” as Petitioner attempted to “leverage a theory that is reliable with respect to one form of the flu vaccine into a case involving a different form, but without showing that the theory is similarly reliable in the different setting.” D’Tiole, at 20, 2016 U.S. Claims LEXIS 2003, at 55. The Special Master concluded given the brand of vaccine, components of the vaccine, substantially different manufacturing process, and delayed symptoms of the injury, it was unlikely that Petitioner’s onset of narco429lepsy was due to Ms FluMist vaccine and, therefore, did not meet his burden of proof under the Althen standard. IV. Legal Standards Under the Vaccine Act, a court may set aside a Special Master’s findings of fact or conclusions of law only if they are found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C. § S00aa-12(e)(2)(B). With respect to findings of fact, the Special Master has broad discretion to weigh expert evidence and make factual determinations. See Bradley v. Sec’y of HHS, 991 F.2d 1570, 1575 (Fed. Cir. 1993). The Federal Circuit has clearly indicated its longstanding standard 'of review when the Court of Federal Claims hears petitions on review from the Special Masters: Congress assigned to a group of specialists, the Special Masters witMn the Court of Federal Claims, the unenviable job of sorting through these painful cases and, based upon their accumulated expertise in the field, judging the merits of the individual claims. The statute makes clear that, on review, the Court of Federal Claims is not to second guess the Special Masters [sic] fact intensive conclusions; the standard of review is umquely deferential for what is essentially a judicial process. Our cases make clear that, on our review ... we remain equally deferential. That level of deference is especially apt in a case in wMch the medical evidence of causation is in dispute. Hodges v. Sec’y of HHS, 9 F.3d 958, 961 (Fed. Cir. 1993) (internal citations omitted); see also Snyder v. Sec’y of HHS, 2014 U.S. App. LEXIS 1674, at 10-11 (Jan. 28, 2014) (quoting Hodges). “If the special master has considered the relevant evidence of the record, drawn plausible inferences and articulated a rational basis for the decision, reversible' error will be extremely difficult to demonstrate.” Hines v. Sec’y of HHS, 940 F.2d 1518, 1528 (Fed. Cir. 1991), TMs Court ought not to. second-guess the Special Master’s fact-intensive conclusions, particularly in cases “in which the medical evidence of causation is in dispute.” Hodges, 9 F.3d at 961. In such cases, which often involve expert testimony, the Federal Circuit has “unambiguously explained that special masters are expected to consider the credibility of expert witnesses in evaluating petitions for compensation under the Vaccine Act,” Porter v. Sec’y of HHS, 663 F.3d 1242, 1250 (Fed. Cir. 2011). “Such credibility determinations are Virtually unreviewable’ ” on appeal. Id. at 1251. With respect to questions of law,- legal rulings are reviewed de novo under the “not in accordance with law” standard. See, e.g., Moberly, 592 F.3d at 1321; Munn v. Sec’y of HHS, 970 F.2d 863, 870 n.10 (Fed. Cir. 1992). V. Discussion When evaluating a motion for review, as stated above, it is the Court’s task to determine whether the Special Master properly considered the relevant evidence in the record, came to a factual conclusion based on plausible inferences, and provided a reasoned explanation in Ms or her decision. Hines, 940 F.2d at 1528. It is not the Court’s task to second-guess the Special Master, especially in cases “in wMch the medical evidence of causation is m dispute.” Hodges, 9 F.3d at 961. Thus, on review, the Court accords deference to the Special Master’s, factual findings and fact-based conclusions. Nevertheless, the majority of Petitioner’s memorandum expresses general disagreement with the Special Master’s evaluation. Specifically, Petitioner argues three points of error by the Special Master. First, Petitioner alleges that the Special Master “required the petitioner to provide epidemiologic evidence in support of Ms theory connecting influenza vaccination to narcolepsy” as contrary to Althen and Capizzano v. Sec’y of HHS, 440 F.3d 1317 (Fed. Cir. 2006). See Pet’r’s Mem. of Objections at 2. Second, Petitioner contends that “the Special Master required the petitioner to provide proof of a specific biologic mechamsm ... and a logical sequence of cause and effect” demonstrating that the vaccine was the reason for the narcolepsy as contrary to Knudsen v. Sec’y of HHS, 35 F.3d 543 (Fed. Cir. 1994). Third, Petitioner argues that the Special Master’s decision to “decide the case without a hearing was an 430abuse of his discretion.” See Pet’r’s Mem. of Objections at 2. In light of the Special Master’s detailed and reasoned decision, this Court concludes that these arguments do not provide a basis for this Court to set aside the Special Master’s Decision. A. The Special Master Did Not Require Epidemiological Evidence but Appropriately Considered and Weighed All the Evidence Presented. Petitioner argues that the Special Master held Petitioner to a higher standard of proof than is required under Althen prong 1. Under the first prong, Petitioner is required to prove by a preponderance of the evidence a medical theory causally linking the vaccination and the injury. The Petitioner claims that the unreliability of his theory is based upon the fact that he did not “provide an epidemiological study linking live attenuated influenza vaccines to narcolepsy or a conclusive epidemiological study linking infection with the wild H1N1 virus to narcolepsy.” Pet’r’s Mem. of Objections at 11, Respondent concedes that the Special Master used epidemiological evidence in making his decision but maintains that the Special Master “properly considered” the evidence and “found it unpersuasive.” Resp’t’s Mem. in Response to Pet’r’s Mot. for Review at 9. The Federal Circuit held in Althen and Capizzano that ‘‘requiring epidemiologic studies ... impermissibly raises a claimant’s burden under the Vaccine Act.” Capizzano, 440 F.3d at 1325 (emphasis added). See also Cedillo v. HHS, No. 98-916V, 2009 WL 331968, at 92 (Fed. Cl. Feb. 12, 2009) (“it would [not] be proper for a special master to base a causation ruling entirely on epidemio-logic evidence; the special master must consider all the evidence of the record, including opinion evidence, circumstantial evidence, etc.”). Even though the molecular mimicry theory proffered in this case can be a “plausible component of a causation theory,” under Althen prong 1, it is not “always viewed as a plausible theory in every case.” R.V. v. Sec’y of HHS, No. 08-504V, 2016 U.S. Claims LEXIS 935, at 146 n.91 (Fed. Cl. Feb. 19, 2016). Upon reviewing the decision, this Court holds that the Special Master did not require Petitioner to present epidemiological evidence to establish a causal relationship. But rather the Special Master’s language indicates that Petitioner failed to establish causation altogether, thus failing the first prong under Althen. The Special Master notes, that the evidence presented by Petitioner considers a completely separate form of the influenza vaccine. At present, however, Dr. Steinman’s own research suggests that the theory he proposes applies only to a form of the flu vaccine not at issue in this case. It therefore lacks sufficient reliability in this context to carry Petitioner’s Althen prong one burden. D’Tiole, at 23, 2016 U.S. Claims LEXIS 2003, at 68. Moreover, the use of epidemiological evidence can be weighed by the Special Master under some circumstances. In Lampe v. Sec’y of HHS, 219 F.3d 1357, 1365 (Fed. Cir. 2000), the Federal Circuit held that, “[a]n epidemiological study may be probative medical evidence relevant to a causation determination.” See also Cedillo, 2009 WL 331968, at 92 (noting that when “a general causation issue has been the subject of epidemiological studies ... it is quite appropriate for the special master to consider such epidemiological evidence, and to give that evidence appropriate weight under the circumstances,” along with all other evidence). The Special Master properly weighed the evidence, including the epidemiological studies and assigned each its proper weight. The Special Master wrote, Petitioner’s theory could well become more reliable once there is stronger proof linking the LATV form of the H1N1 flu vaccine, or better and more consistent evidence linking the H1N1 wild virus alone, to narcolepsy. D’Tiole, at 23, 2016 U.S. Claims LEXIS 2003, at 67. This sentence does not indicate that the Special Master required Petitioner to offer epidemiological evidence, but rather 431the evidence Petitioner did put forth is unpersuasive.15 Moreover, the Special Master identified specific elements of the Petitioner’s reports that undercut his own argument. He identifies that both, Ahmed I and II thus stand for the proposition that something about the process of inactivating the viral strain in manufacturing that form of the flu vaccine is associated with increasing the number. of nucleotide antibodies — not that the mere presence of H1N1 proteins in any form, and in any version of the flu vaccine, will inevitably result in sufficient levels of the antibodies to produce the same cross-reactive autoimmune process ... This case, by contrast, involves a different form of the vaccine, subject to a wholly different manufacturing process in which the flu strain is live but attenuated. Other than also being an H1N1 strain, Petitioner has not shown why, or how, the LAIV version would be comparable to Pandemrix ... in increasing the nucleoprotein antibodies. D’Tiole, at 21, 2016 U.S. Claims LEXIS 2003, at 58-69. The Special Master also indicated that the Respondent’s experts persuasively demonstrated that the H1N1 strain used to manufacture FluMist is too different from the form studied in Ahmed II. D’Tiole, at 21 n. 20, 2016 U.S. Claims LEXIS 2003, at 59 n. 20. He later concludes that, “Petitioner attempted to close such gaps in his causation theory, but failed to do so persuasively, with his arguments consistently rebutted by evidence Respondent offered.” D’Tiole, at 21, 2016 U.S. Claims LEXIS 2003, at 60-61. Under Lampe and Cedillo, the Special Master has clear authority to weigh all the evidence, including epidemiological evidence probative to a relevant causation determination. The decision makes clear that the Special Master thoroughly and properly evaluated the evidence of record and made his determination (that Petitioner failed to prove causation), in a reasonable manner. As this court ought not to second-guess the Special Master’s fact-intensive conclusions, particularly in cases “in which the medical evidence of causation is in dispute,” Hodges, 9 F.3d at 961, the Court will not do so here. The Federal Circuit has “unambiguously explained that special masters are expected to consider the credibility of expert witnesses in evaluating petitions for compensation under the Vaccine Act.” Porter, 663 F.3d at 1250. Therefore, the Special Master’s conclusion that Respondent’s experts were more persuasive than Dr. Steinman was not improper. B, The Special Master Did Not Require Proof of a Specific Biologic Mechanism Petitioner maintains that the Special Master required proof of a specific biologic mechanism demonstrating causation in violation of Knudsen. The Federal Court stated in Knudsen, “to require identification and proof of specific biological mechanisms would be inconsistent with the purpose and nature of the vaccine compensation program.” Knudsen, 35 F.3d at 549, Or in other words, there is “no objective confirmation requirement in the Vaccine Act’s preponderant evidence standard.” Althen, 418 F.3d at 1279. The Federal Circuit continued in explaining that given the legislative intent of the Vaccine Act, the purpose was to establish a “fair [and] simple” compensation program where “awards are to be ‘made to vaccine-injured persons quickly [and] easily.’ ” H.R. Rep. No. 99-908, 99th Cong., 2d Sess. 18, reprinted in 1986 U.S.C.C.A.N. at 6344, 6348. Petitioner points to the Special Master’s unwillingness to extend the epidemiological study theories concerning Pandemrix to FluMist. Pet’r’s Mem. of Objections at 14. Petitioner relies on the Special Master’s language that, “[s]tudies measuring the nucleo-protein antibody levels in individuals vacci432nated with FluMist would also be useful in supporting the theory.” D’Tiole, at 23, 2016 U.S. Claims LEXIS 2003, at 67. Petitioner continues to argue that in the context in which this sentence was written, the Special Master required the Petitioner to prove the specific biologic mechanism he put forth. The Petitioner also claims that the Special Master’s observation in a footnote that, “there is no evidence that Petitioner had any of the HINl-derived nucleoprotein antibodies that would theoretically interact with his hypocre-tin production,” directly undermines the purpose of the Vaccine Act. D’Tiole, at 24 n, 24, 2016 U.S. Claims LEXIS 2003, at 69 n. 24. For “it is usually impossible to provide such evidence” of a specific biologic mechanism. Pet’r’s Mem. of Objections at 16. Regarding the lack of evidence regarding the nucleoprotein antibodies, in the next sentence of the footnote, the Special Master acknowledges that this omission “does not deserve any significant weight.” D’Tiole, at 24 n. 24, 2016 U.S. Claims LEXIS 2003, at 69 n. 24. The Special Master concluded that: It is simply too great of a leap for me to conclude that, because one form of the flu vaccine may plausibly cause narcolepsy due to manufactuiing differences that promote an excess of certain antigens that could theoretically provoke an autoimmune reaction, a significantly different form of the vaccine would necessarily have the same effect in the United States — especially given reliable epidemiologic evidence to the contrary, as well as admissions found in Petitioner’s own scientific evidence. D’Tiole, at 24, 2016 U.S. Claims LEXIS 2003, at 68-69. Even though it is inappropriate to require a Petitioner to prove a specific biologic mechanism under Althen, a claimant still must prove “a medical theory causally connecting the vaccination and the injury,” by the preponderant standard. Althen, 418 F.3d at 1278 (citing Grant v. Sec’y of HHS, 956 F.2d 1144, 1148 (Fed. Cir. 1992)). The Special Master did not require proof of a specific biologic mechanism, but rather that the petitioner’s own evidence suggested that his theory of causation did not apply to the vaccine he received. Further, the Special Master noted that because the molecular mimicry theory is short in establishing a logical causal connection between the vaccine and narcolepsy, the only evidence remaining are the comments made by the Petitioner’s mother in February 2012. The Special Master was not convinced that “some” narcolepsy symptoms experienced in February 2012 and then additional symptoms appearing “several months later” constituted a “coherent, logical sequence of cause and effect,” (Althen prong 2) that related back to his December 2011 vaccination. D’Tiole, at 24, 2016 U.S. Claims LEXIS 2003, at 70-71. Moreover, the Special Master held that the Petitioner did not establish the third Althen prong of timeliness. Petitioner has not adequately demonstrated that the proposed timeframe in which he would be expected to experience the autoimmune process interfering with his hypocretin production, and resulting in narcolepsy, was medically reasonable ... [T]he medical records are inconsistent on the scope or progression of these symptoms in the ten months after [Petitioner] received the vaccine. Thus, although there is evidence of onset in the late winter of 2012, the records from Petitioner’s neuro-logic and epilepsy consult in October 2012 make little mention of sleep problems as Petitioner’s primary concern, and do not themselves corroborate the earlier records. And ... there is zero record evidence that evinces the existence of an autoimmune process occurring in the seven months after vaccine administration. It is therefore impossible to conclude that the [Petitioner’s] proposed timeframe actually played out as would be expected. D’Tiole, at 25, 2016 U.S. Claims LEXIS 2003, at 70-71. Given the extreme deference Congress authorized for the Special Masters when drafting the Vaccine Act, it is this Court’s opinion that the Special Master’s reasoning was not arbitrary or capricious, or otherwise not in accordance with law. As explained above, the Special Master concluded that the Petitioner failed to meet his requirement under Althen, 433and, after reviewing the Special Master’s reasoning, this Court will not second guess his opinion. C. The Special Master was Within His Authority to Issue a Decision Without a Hearing and thus was Not an Abuse of Discretion Petitioner’s final argument revolves around the Special Master’s decision to issue an order on the written record without a hearing. Petitioner argues that under the circumstances of his case, he was not offered a “full and fair opportunity to present” his case citing Vaccine Rule 3(b) of the RCFC. However, Petitioner concedes that under the Vaccine rules, a Special Master may issue a decision without a hearing. See RCFC, App. B, Vaccine Rule 8(d) (“The special master may decide a case on the basis of written submissions without conducting an evidentiary hearing.”). See also 42 U.S.C. § 300aa-12(d)(3)(B)(iii)(v) (“[i]n conducting a proceeding on a petition a special master .,. may require the testimony of any person and the production of any documents as may be reasonable and necessary ... [and] may conduct such hearings as may be reasonable and necessary.”). Both the statute as well as the rule use the discretionary word “may.” In essence, the decision to hold a hearing falls within the complete discretion of the Special Master. Here, however, Petitioner argues that the decisions issued without a hearing are either cases in which: (1) the parties agreed, (2) “claims in which the petitioner is relitigating a medical theory” that was not persuasive in former cases, and (3) “claims in which the petitioner’s written submissions present a very weak case.” Petr's Mem. of Objections at 17. Further, Petitioner maintains that a hearing should have been given, inter alia, because, Petitioner is relying on a new medical theory that could not have been explained thoroughly via written submissions. Because of this, Petitioner argues that Dr. Steinman deserved an opportunity to explain why his medical theory extended from Pandemrix to FluMist. However, even though this is the first application of Dr, Steinman’s theory of Pan-demrix to FluMist, the theory of molecular mimicry is not new to the Special Masters. W.C. v. Sec’y of HHS, 704 F.3d 1352, 1360 (Fed. Cir. 2013) (attempting to establish the link between Multiple Sclerosis and an influenza virus via molecular mimicry), Hennessey v. Sec’y of HHS, 91 Fed.Cl. 126, 134-35 (2010) (expert’s overly broad application of the molecular mimicry theory made it meaningless). The Special Master concluded that holding an evidentiary hearing was not needed because “whether research involving Pan-demrix applies to FluMist — is self-evident from their reports.” D’Tiole, at 28, 2016 U.S. Claims LEXIS 2003, at 79. As such, there was no need to pose questions that uncovered new enlightening information non-existent from the filings. This is especially important, considering the Special Master explicitly limited his decision to the persuasiveness of the arguments. See D’Tiole, at 21, 2016 U.S. Claims LEXIS 2003, at 60-61 (“[petitioner attempted to close such gaps in his causation theory, but failed to do so persuasively, with his arguments consistently rebutted by evidence Respondent offered.”). The Special Master acknowledged the numerous exhibits and reports submitted by Petitioner over a year’s span in which Petitioner could have made a sufficient showing how the Pandemrix theory extends to FluMist. He further noted, “[t]he experts had ample opportunity to review each other’s opinions and respond accordingly, in keeping with the ‘full and fair opportunity’ duty that informs whether to hold a hearing.” D’Tiole, at 28, 2016 U.S. Claims LEXIS 2003, at 79. The Special Master has the most discretion in deciding when to rule, and given that he is well acquainted with the ebb and flow of the litigation, the Court is not in a position to second guess his decision. As the Special Master identified, “a hearing usually provides a petitioner with the opportunity to put on live testimony which aids the special master most in cases where witness credibility is at issue, or where there is a need to pose questions to a witness in order to obtain information not contained in, 434or not self-evident from, the existing filings.” D’Tiole, at 25, 2016 U.S. Claims LEXIS 2003, at 72. See Murphy v. HHS, No. 90-882V, 1991 WL 71500, at 2 (Cl. Ct. Spec. Mstr. Apr. 19, 1991) (a hearing is not necessary where the positions of the parties are fully developed and the special master does not need to weigh the credibility of the witnesses). In fact, multiple times throughout the decision, the Special Master acknowledged the “competency [and] expertise” of Dr. Steinman. D’Tiole, at 25 n 27, 2016 U.S. Claims LEXIS 2003, at 73 n. 27. In addition to not holding a hearing, Petitioner also alleged in the Motion for Reconsideration, that the Special' Master abused his discretion when he did not take into consideration an article referenced as an authority in Ahmed II before drafting his November decision.16 J. Montplaisir et al., Risk of Narcolepsy Associated with Inactivated Adjuvanted (AS0S) A/HlNl (2009) Pandemic Influenza Vaccine in Quebec, 9 PLOSone 9:1-9. This study demonstrated an increased incidence of narcolepsy associated with another version of the inactivated H1N1 pandemic vaccine, Arepanrix. D’Tiole v. Sec’y of HHS, No. 15-085V, 2016 WL 8136296, at 4, 2016 U.S. Claims LEXIS 2092, at 10 (Fed. Cl. Dec. 21, 2016). However, as the Special Master indicated, he has since reviewed it, and decided it does not provide grounds for reconsideration of the case: My reasoning runs parallel to the authors of Ahmed II, who themselves found that not all forms of vaccines more akin to Pandemrix than FluMist were similarly associated with narcolepsy ... It does not stand as a newly-discovered, let alone critical, evidentiary basis for reconsideration. D’Tiole, 2016 WL 8136296, at 4, 2016 U.S. Claims LEXIS 2092, at 11-12. Even though the Petitioner claims that this is a ease of first impression, this fact does not change this Court’s opinion that the Special Master did not abuse his discretion. As the Special Master correctly identified, “the standard is whether Petitioner has had a fair chance to present his case.” D’Tiole, 2016 WL 7664475, at 28, 2016 U.S. Claims LEXIS 2003, at 79. In this case the Special Master observed that “the experts all had ample opportunity to review each other’s opinions,” and a decision could have been made on the papers. D’Tiole, at 28, 2016 U.S. Claims LEXIS 2003, at 37. See also Veryzer v. Sec’y of HHS, 98 Fed.Cl. 214, 225 (2011) (“[i]n this case the special master observed that “both parties have expressed themselves fully herein, as certainly as [the witness] did in his lengthy report, (citations omitted), and, after a detailed opinion that thoroughly analyzed the opinions and credentials of both experts, he deemed the evidence to be so ‘patently unreliable’ that a hearing would be a waste of time and resources (citations omitted).”). The Court holds that the Special Master did not abuse his discretion by issuing a decision on the written record. VI. Conclusion For the reasons stated above, the Court DENIES Petitioner’s motion for review and SUSTAINS the decision of the Special Master. The clerk is directed to enter the judgment accordingly. IT IS SO ORDERED. . Petitioner's parents originally filed this claim on his behalf while he was a minor, but as he is of majority status, he is now identified as the Petitioner. . As noted in Agnew v. Sec'y of HHS, No. 12-551V, 2016 WL 1612853, at 3 (Fed. Cl. Spec. Mstr. Mar. 30, 2016), FluMist is a cold-adapted vaccine received intranasally. It contains live, but attenuated (meaning reduced in virulence), strains of the wild flu virus. See FluMist Package Insert, filed on June 20, 2016, as Resp’t’s Ex. G (Resp’t's Mot. for a Ruling on the Record), at 13-14. To achieve an immune response from the body’s adaptive immune system, the viral strains contained in the vaccine replicate at a temperature consistent with that found in the nasal cavity, but not at the higher temperatures found elsewhere in the body. Agnew, 2016 WL 1612853, at 3. As a result, the flu strain can replicate sufficiently to produce the antibodies necessary to fight a wild infection, without itself replicating enough to cause infection if transmitted to others. See Resp’t’s Ex. G at 13 ("the attenuated vaccine virus replicates to induce protective immunity"). In this case, Petitioner received a trivalent version of the vaccine, meaning that it "contain[s] three vaccine virus strains which are thought most likely to cause disease outbreaks during influenza season.” National Vaccine Injury Compensation Program: Addition of Trivalent Influenza Vaccines to the Vaccine Injury Table, 70 Fed. Reg. 19,092 (Apr. 12, 2005). , Narcolepsy is defined as “recurrent, uncontrollable, brief episodes of sleep, often associated with ... hallucinations, cataplexy, and sleep pa426ralysis." Dorland’s Illustrated Medical Dictionary 1232 (32nd ed. 2012) (hereinafter "Dorland’s"). . Cataplexy is a condition characterized by abrupt attacks of muscular weakness and hypoto-nia triggered by an emotional stimulus such as mirth, anger, fear, or surprise. Dorland's at 303. . Modaflnil is a central nervous system stimulant, administered orally, used in the treatment of narcolepsy, obstructive sleep apnea, and sleep disorders associated with shift work. Dorland's at 1171. . In layman's terms, an allele is a variant form of a gene that appears at a particular location on a particular chromosome. Regina Bailey, Allele — Á Genetics Definition, About (Feb. 17, 2017), http:// biology.about.com/od/geneticsglossary/g/alleles. htm. In this case, we are discussing a narcolepsy specific allele. . The specific HLA allele associated with narcolepsy with cataplexy is the HLA class II DQB 106:02, the same allele Petitioner has. See generally Mehdi Tafti, et al, Narcolepsy-Associated HLA Class I Alleles Implicate Cell-Mediated Cytotoxicity, 39(3) Sleep 581 (Mar. 1, 2016), found at https://www.ncbi.nlm.nih.gov/pmc/ articles/PMC4763366 (“Our findings provide a genetic basis for increased susceptibility to infectious factors or an immune cytotoxic mechanism in narcolepsy, potentially targeting hypocretin neurons."). . To receive compensation, a Petitioner must prove either (1) a "Table Injury” — i.e., an injury falling within the Vaccine Injury Table — corresponding to the vaccination in question or, (2) that the illness was actually caused by a vaccine — a Non-Table Injury. Moberly v. Sec'y of HHS, 592 F.3d 1315, 1321 (Fed. Cir. 2010) ("[t]o prove causation, a petitioner in a Vaccine Act case must show that the vaccine was 'not only a but-for cause of the injury but also a substantial factor in bringing about the injury.’ ”); Shyface v. Sec’y of HHS, 165 F.3d 1344, 1353 (Fed. Cir. 1999) (proving the vaccine was a substantial factor in bringing about the injury, the petitioner must show, "a medical theory causally connecting the vaccination and the injury.”). The Petitioner’s claim in this instance is a Non-Table Injury. . Throughout the decision, the Special Master stated that Dr. Steinman is a highly credible expert in this matter, as are Respondent’s experts. See D’Tiole, at 20, 2016 U.S. Claims LEXIS 2003, at 56 ("I do not dispute Dr. Steinman's qualifications or credibility on these matters.”). . Molecular mimicry is defined as a "sequence and/or conformational homology between an exogenous agent (foreign antigen) and self-antigen leading to the development of tissue damage and clinical disease from antibodies and T cells directed initially against the exogenous agent that also react against self-antigen.” D’Tiole, at 4 n. 9, 2016 U.S. Claims LEXIS 2003, at 10 n. 9 (citing Institute of Medicine, Adverse Effects of Vaccines: Evidence and Causality at 70 (K. Stratton et al., eds. 2011)). See also Adams v. Sec'y of the HHS, 76 Fed.Cl. 23, 37 n.23 (2007) ("Molecular mimicry is a phenomenon wherein, two separate peptides or proteins are not identical, but because of the structure or their component of amino acids, in terms of ... the way they may look to the immune system, they appear to be identical[.]”). . "A vaccine is rendered inactive through the process of destroying the biological activity of the virus in the vaccine, by the action of heat or other physical or chemical means.” D’Tiole, at 5 n. 10, 2016 U.S. Claims LEXIS 2003, at 11 n. 10 (citing Dorland’s at 925). . Han's authors acknowledged that the sample of patients in the study were not representative of China as a whole. This concession led Dr. Kohr-man to believe, and, therefore, opine that it did not constitute a reliable epidemiological study of narcolepsy in China. D'Tiole, at 10, 2016 U.S. Claims LEXIS 2003, at 27-28. . To establish a legal cause in an off-Table case, petitioners must establish each of the three Al-then factors by preponderant evidence: (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a proximate temporal relationship between vaccination and injury. Althen, 418 F.3d at 1278. . The Special Master acknowledges that the Petitioner potentially put epidemiological evidence into contention. However, "where.a petitioner relies on such evidence to suggest a vaccine likely could cause a particular disease or condition, then he must also persuasively explain or rebut contrary evidence — he cannot simply take refuge behind the general proposition that Vaccine Act claimants need not usually offer such evidence.” D’Tiole, at 23, 2016 U.S. Claims LEXIS 2003, at 67 n. 23. . This particular article was listed among 80 authorities in Ahmed II and was not offered by itself as evidence before the issuance of the Special Master’s decision. Petitioner further maintains that the Special Master failed to acknowledge in his decision to deny reconsideration a letter to the editor focusing on narcolepsy centers in the United States, France, and Canada. D'Tiole, 2016 WL 8136296, at 3, 2016 U.S. Claims LEXIS 2092, at 8 (discussing Dauvilliers et al., Letter to the Editor: Post H1N1 Narcolepsy-Cataplexy, 33 SLEEP 11:1428-1430). The Special Master did not discuss this article for it was a letter to the editor lacking reliable scientific variables, cited first by the Respondent, and "limited” in scientific usefulness. D'Tiole, 2016 WL 8136296, at 3, 2016 U.S. Claims LEXIS 2092, at 8 (identifying that the Dauvillers article, "creat[es] difficulty in making a specific association between narcolepsy onset and H1N1 infection as opposed to vaccination."), Because it is not an error to "disregard [a] piece of scientific literature not raised as significant by petitioner,” die Special Master did not err by omitting it from his order. D'Tiole, 2016 WL 8136296, at 4, 2016 U.S. Claims LEXIS 2092, at 10 (citing Cedillo v. Sec’y of HHS, 617 F.3d 1328, 1347 (Fed. Cir. 2010)).	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218593/	Post-Award Bid Protest; Cross Motions for Judgment on the Administrative Record; Price Realism. OPINION HORN, J. The protestor, UnitedHealth Military & Veterans Services, LLC (M & V), filed a 532post-award bid protest in this court challenging the decision of defendant, the United States, through the United States Department of Defense, Defense Health Agency (DHA), to award two Managed Care Support (MCS) contracts for health, medical, and administrative support services for TRICARE-eligible beneficiaries to defendant-interve-nors, Humana Government Business, Inc. (Humana) and Health Net Federal Services, LLC (Health Net). Protestor filed suit in the United States Court of Federal Claims after the United States Government Accountability Office (GAO) issued a decision denying M & V's protest. See generally UnitedHealth Military & Veterans Servs., LLC, et al., B-411837.2 et al., 2016 WL 6821970 (Comp. Gen. Nov. 9, 2016). TRICARE Program Background This bid protest challenges the award of the “T-2017” procurement for MCS services for the United States Department of Defense TRICARE program, which is the United States Department of Defense’s managed healthcare program for service members, retirees, and their families and survivors.2 The total non-overseas population of TRICARE-eligible beneficiaries in the United States was estimated by DHA in its acquisition strategy memorandum as approximately 9.2 million. Under the TRICARE program, the Department of Defense provides healthcare through military treatment facilities (MTFs) or reimburses private sector healthcare providers for healthcare services provided to eligible beneficiaries. The DHA is responsible for operating the TRICARE program.3 Because the military’s direct healthcare system does not fully satisfy the military’s healthcare needs, the Department of Defense awards contracts to MCS contractors to support the military health system and to optimize the delivery of healthcare services to all TRICARE-eligible beneficiaries. MCS contract services include: [Establishing civilian provider networks in designated geographic areas that meet statutorily-defined access standards for TRICARE Prime enrollees; providing comprehensive health care services to Prime enrollees whose primary care managers are TRICARE network providers and to users of TRICARE Extra and Standard; assisting military treatment facility ... Commanders in optimizing healthcare delivery in the direct care system, providing referrals for specialty services to an MTF provider prior to a civilian provider; enrolling beneficiaries in PRIME; paying healthcare claims for private sector medical services rendered to TRICARE eligi-bles; providing customer service and beneficiary/provider education activities for all TRICARE eligibles; and disease management. As the acquisition strategy for the “T-2017” procurement explained, “[t]his acquisition is to purchase administrative and support services for the receipt of health care from the private sector and for the integration of that private sector care with the DoD [Department of Defense] direct care system.” The “T-2017” procurement follows the current TRICARE contracts, referred to as TRICARE Third Generation, or “T-3” contracts, and the “T-2017” procurement represents the fourth generation of such MCS contracts since 1996. The “T-3” contracts have been held by three separate MCS contractors, each responsible for one region of the country: North, South, or West. Huma-na, Health Net, and M & V are the current TRICARE incumbent contractors performing the “T-3” contracts. Health Net holds the “T-3” contract for the North Region, Huma-na holds the “T-3” contract for the South Region, and M & V holds the “T-3” contract for the West Region. Distinct from the earlier “T-3” contracts, and as discussed further 533below, the “T-2017” procurement, at issue in this bid protest, divided the country into two regions, East and West.4 The “T-2017” procurement contemplated that DHA would award two “T-2017” contracts, one for the East Region and one for the West Region. The “T-2017” Solicitation To initiate the “T-2017” procurement, DHA issued Request for Proposals No. HT9402-15-R-0002 (the solicitation) on April 24, 2015, seeking two MCS contractors to “assist the Military Health System (MHS) in operating an integrated healthcare delivery system combining resources of the militaras direct medical care system and the Contractor’s managed care support to provide health, medical and administrative support services to TRICARE-eligible beneficiaries.”5 Under the “T-2017” contracts, the contractors would be required to perform the services necessary to support the TRICARE program, including establishing and maintaining provider networks, managing referrals between the military treatment facilities and the civilian network, managing beneficiary enrollment, providing medical management services, providing readily accessible customer service, and processing claims. Section C of the solicitation set forth four contract objectives: readiness, experience of eare, manage per capita cost, and population health. According to the solicitation, DHA intended to conduct a best value source selection and award two contracts, “consisting primarily of cost-plus fixed-fee types, with fixed-price elements, cost reimbursable elements and performance incentive fees....” DHA intended to select the best overall offer for the East and West Regions, “based upon an integrated assessment of teehnieal/management, past performance, and price/eost factors.”6 The solicitation stated that DHA would “conduct a full and open competition after exclusion of sources in this solicitation to foster an adequate number of viable Contractors to reduce any risk to the stability of the administration of the TRICARE program, and to ensure the continuous availability of healthcare services for TRICARE beneficiaries.” The East Region Contract was to cover approximately 5.9 million TRICARE-eligible beneficiaries, and the West Region Contract was to cover approximately 2.9 million TRICARE-eligible beneficiaries.7 The solicitation explained that DHA would select two different prime contractors “even if a potential Contractor submits proposals for more than one contract region and each of the proposals is evaluated as the best value for the Government for the contract region of submission.” Although DHA intended to award two contracts to two different prime contractors, offerors were permitted to submit proposals on one or both regions. According to the solicitation, if an offeror was determined to have' submitted best value proposals for both the East and West Regions, “the Offeror will be awarded the East Region contract, provided at least one other acceptable offer” was submitted for the West Region contract. The West Region contract would then go to the next best value proposal for the West Region. The “T-2017” contracts 534would consist of a base period of at least nine months, five one-year options periods, and a transition-out period. Relevant to this bid protest, the solicitation identified Contract Line Items (CLINs) for the work to be performed. CLINs X001 covered the reimbursable “Underwritten Healthcare Cost” for TRICARE Prime en-rollees, non-Prime underwritten beneficiaries, and military treatment facility enrollees. As explained in Section H of the solicitation, contractors would be required to underwrite the cost of civilian healthcare services, and Section H detailed special contract requirements regarding the contractors’ financial underwriting of those healthcare costs.8 According to Section H, the contractors would be responsible for paying network provider claims for services rendered up to a Maximum Allowable Charge rate established by regulation.9 The solicitation explained that the underwritten healthcare costs paid by the contractors would be cosUreimbursable. The solicitation provided offerors with DHA’s estimated, underwritten healthcare costs for the base year and for each option period for each region, and offerors were instructed to use the DHA’s estimates in them proposals. The solicitation directed that an offeror “shall not propose its own estimated healthcare costs, but use those supplied by the Government.” (emphasis in original). To account for the risks associated with financially underwriting healthcare costs, the solicitation directed offerors to propose an “Underwritten Healthcare Fixed Fee,” or “underwriting premium.” This fixed fee for each option period was identified in CLINs X002. The solicitation provided that this fixed fee would not be “subject to change after contract award.” The solicitation also stated that the fixed fee would “not be subject to change as a result of changes to administrative efforts during contract performance,” nor would it “be subject to change for increases or decreases in healthcare cost estimates because of change orders issued during contract performance.” Section H of the solicitation also included the healthcare underwriting incentives for the MCS contractors. This section explained that the contractors “may earn an underwriting incentive by either exceeding a minimum standard, or for performance above a fully satisfactory level in areas that reduce healthcare cost and are measurable.... ” In order to reduce the underwritten healthcare costs reimbursed by DHA (CLINs X001), the solicitation included a Network Discount Incentive and encouraged offerors to “proactively negotiate discounts with network providers.” By negotiating discount rates for healthcare services with network providers, the solicitation allowed offerors to propose a Guaranteed Network Provider discount for the base year and each option period of the contract, and explained that the contractor would be eligible to receive a financial incentive if the discount was exceeded during the life of the contract. These negotiated discount rates would lower the amount of underwritten healthcare costs that DHA would be required to reimburse the contractors under the terms of the contracts awarded. Offerors were to propose Guaranteed Network Provider discounts as percentage figures, not as fixed dollar amounts. In considering the proposals, the plug-in dollar amount that DHA had provided for CLINs X001 would be reduced by the percentage discount proposed by each offeror. According to the solicitation, “[t]he application of the Offeror’s guaranteed network provider discounts will be the only adjustments to the CLINs X001.” The solicitation explained that the Guaranteed Network Provider discount would be measured as an overall discount for care by civilian network providers, and that “[t]he difference between the Government’s estimate of Underwritten Healthcare Costs and the Offeror’s proposed discount amount is its proposed CLIN X001 Underwritten Healthcare Costs.” Therefore, each offeror’s Guaranteed Network Provider discount had the effect of reducing CLINs X001 for underwritten healthcare costs in 535their proposals, and, thus, reducing the total evaluated prices of the proposals. According to the solicitation, during contract performance, the achieved Guaranteed Network Provider discount would be calculated based on the overall average value of the actual discounts from TRICARE allowable charges. At the end of each option period, DHA would calculate the achieved dollar amount of the network discount by comparing the proposed Guaranteed Network Provider discount and what the TRICARE reimbursement methodology would have allowed in the absence of the negotiated discount rate. If the calculated average percentage discount for an option period is less than or equal to the proposed Guaranteed Network Provider discount, DHA would offset any dollar deficit from the next payment due to the contractor. If the calculated average percentage discount for an option period is greater than the proposed Guaranteed Network Provider discount, then DHA would pay an incentive amount to the contractor. Under the terms of the solicitation, the offerors assumed full financial risk for their proposed Guaranteed Network Provider discounts. The solicitation stated, in pertinent part: H.2.3.1.1.4. These guaranteed discounts shall not be adjusted for changes to TRI-CARE allowable amounts, the expansion of TRICARE coverage to additional procedures and Durable Medical Equipment (DME); or any other actions and conditions that may affect providers’ willingness to accept discounts. The Contractor fully understands the risks in financially underwriting the delivery of healthcare services under this contract, and assumes all risks of future conditions and changes that may affect the Contractor’s ability .to achieve the guaranteed discounts. (emphasis in original). The solicitation did not require offerors to submit supporting data or information as to the offerors’ approach to calculating the proposed Guaranteed Network Provider discounts. Aso relevant to this bid protest, the solicitation included CLINs X003, which were fixed-price CLINs for administration services costs for the base year and each option year of the contract, including the costs for managing and administering the underwritten healthcare costs. The solicitation instructed offerors to propose a per member, per month (PMPM) unit price for CLINs X003 that accounted for all “program administration costs,” including “all effort necessary to perform all contract requirements unless otherwise priced in another CLIN.” The solicitation included, as Attachment L-7, the government estimate for “member months” for each option period and for each region. The value of CLINs X003 would be determined by multiplying the proposed PMPM unit prices by DHA’s estimated number of member months for each option period and region. The solicitation explained that, during contract performance, for each option year, DHA would “unilaterally determine” the number of eligible TRICARE beneficiaries twice, once during the first six months, and again for months seven through twelve. Using the number of eligible beneficiaries, DHA would calculate the “member months” for the sixth-month period by multiplying the number of eligible beneficiaries by the number of months (six). After determining the member months for each six-month period, DHA would multiply the number of member months by the offeror’s fixed PMPM price to determine the CLIN X003 amount for the option period. The other CLINs in the solicitation also included CLIN 0001 for the contractors’ transition-in effort, for which offer-ors were instructed to propose a firm fixed-price, and CLIN 9001 for the contractors’ transition-out efforts, for which offerors were instructed to propose a cost plus fixed fee.10 Section L of the solicitation included proposal preparation instructions. Offerors were cautioned to follow the instructions provided in Section L and notified that proposals that take exception to the inclusion of specific requirements in the contract would not be considered. Similarly, offerors were instructed that non-conformance with the solicitation requirements could result in an unfavorable 536proposal evaluation or a rejection of the proposal. Pursuant to Section L of the solicitation, offerors were required to provide proposals comprised of five volumes for each region it chose to submit an offer. These volumes were to include an executed proposal, a technical proposal, information on past performance, a price/cost pi'oposal, and a volume on financial data. Offerors were directed to submit technical proposals “which effectively demonstrate^] the Offeror’s understanding of the requirements, and provide[d] a successful technical solution for the prospective contract.” Section L instructed that the “price/cost proposal, past performance information, and financial information shall not be addressed in the technical proposal volume, and no part of the technical proposal shall incorporate by reference portions of other volumes of the proposal.” Section L of the solicitation directed that the offerors’ technical proposals should not address the proposed Guaranteed Network Provider discounts, and that the discounts should only be addressed in the price proposals. Further, the solicitation stated “[t]he Offeror’s proposed guaranteed network provider discount percentages, the calculated discount dollar amounts, and the resulting proposed Underwritten Healthcare Costs shall be clearly identified” in the price proposal. Section M of the solicitation set forth the evaluation criteria that DHA would employ to determine which proposal represented the best value to the agency for the East and West region contracts. Of particular relevance to this post-award bid protest, the solicitation explained: M.2.2. Unrealistic Proposals. The Government may reject any proposal that is evaluated to be unrealistic in terms of program commitments, contract terms and conditions such that the proposal is deemed to reflect an inherent lack of competence or failure to comprehend the complexity and risks of the program. M.2.3. Evaluation Approach. The Government will evaluate the extent to which the proposal exhibits a clear understanding of the work requirements and the means required to fulfill the requirements. The Government will also evaluate the extent to which the proposal demonstrates an ability to meet or exceed the requirements defined in the Request for Proposal (RFP) and the quality of service which is likely to result from implementation of an Offeror’s proposed methods. (emphasis in original). In the section that followed, Section M.3., the solicitation set forth the evaluation factors and subfactors: Factor 1-Technical/Management Subfactor 1-Network Management Subfactor 2-Referral Management Subfactor 3-Medical Management Subfactor 4-Customer Service Subfactor 5-Claims Processing Subfactor 6-Program Planning and Control Subfactor 7-Transition Management Factor 2-Past Performance Factor 3-Price/Cost Factor 4-Small Business Participation Factor (emphasis in original). For Factor 1, Technical Management, Subfactor 1, Network Management, among other criteria, DHA intended to evaluate whether the offerors’ network sizing model effectively considered the number of providers required, types of providers required, Military Treatment Facility capacity, and the beneficiary population. The solicitation required the contractors to “establish and maintain networks of individual and institutional providers for TRICARE Prime and Extra which produce the best quality clinical outcomes for TRICARE beneficiaries” and are “sufficient in number, mix, and geographic distribution to provide the full scope of benefits for which all Prime enroll-ees are eligible.” The provider networks also were required to satisfy certain access standards in Prime Service Areas for TRICARE Prime enrollees. As to Subfactor 2, Referral Management, DHA would evaluate the effectiveness of the offerors’ proposals for managing referrals between MTFs and the civilian network. Under Subfactor 3, Medical Management, DHA would evaluate the offerors’ proposed approach “for designing, implementing, and maintaining integrated, comprehensive medical management programs for all care re537ceived by TRICARE-eligible beneficiaries in the civilian sector and for complementing medical management services available within the MTF.” As to Subfactor 4, Customer Service, DHA would evaluate the offerors’ proposed approaches to customer service to determine how well they provide “accurate, comprehensive customer information with knowledgeable, courteous, and responsive staff.” Under Subfactor 5, Claims Processing, DHA would evaluate the offerors’ proposals for the “inclusion of a readily adaptable, scalable claims processing system[s] which incorporate] industry best practices,” .Regarding Subfactor 6, Program Planning and Control, DHA would evaluate the extent to which the offerors’ proposals demonstrate “an effective management approach for establishing and maintaining, throughout the life of the contract, qualified, experienced key personnel.” Under Subfactor 7, Transition Management, DHA would evaluate the proposals for an “effective Integrated Master Schedule and Integrated Master Plan (IMP/IMS) which meets or exceeds the Government transition requirements.” The solicitation explained that, for Factor 1, each subfactor would receive a Techni-eal/Management rating and a proposal risk rating. These ratings were not consolidated into an overall factor rating. As to the technical rating, DHA would evaluate the quality of the offeror’s technical solution “for meeting the Government’s requirement.” The technical rating would be expressed as a color rating, either Blue/Outstanding, Purple/Good, Green/Acceptable, Yellow/Marginal, or Red/Unacceptable, as depicted in the following table: [[Image here]] With respect to the proposal risk rating for the subfactors, the solicitation stated that “[t]he Government will assess the degree to which the proposed approach has the potential for disruption of schedule, increased costs, degradation of performance, the need for increased Government oversight, and the likelihood of unsuccessful contract performance.” The proposal risk ratings were Low, Moderate, and High, as depicted in the following table: 538[[Image here]] With regard to Factor 2, Past Performance, offerors were required to submit information for the five largest contracts performed by the offeror, or by their first tier subcontractors, that were ongoing or had concluded within the three years prior to the date on which the solicitation was issued. DHA would assign a “performance confidence assessment rating relative to the Of-feror’s ability to successfully perform the requirements of this solicitation,” as defined in the following table: [[Image here]] As to Factor 3, Price/Cost, under Section M.9.6., the solicitation provided that “[t]he Government will evaluate the Offeror’s TEP [total evaluated price] for reasonableness. Line items will also be reviewed for unbalanced pricing.” Section M.9.2. of the solicitation explained that DHA would evaluate Factor 3, Price/Cost, based upon DHA’s calculated total price for each proposal, which is the sum of the “extended amounts” for the base and all five option periods for “CLIN 0001 Transition-In, CLIN X001 Underwritten Healthcare Cost, CLIN X002 Underwritten Healthcare Cost Fixed Fee, SLIN X003AA and SLIN X003AB Per Member Per Month (PMPM), CLIN X005 Service Assist Teams, CLINs 9001/9002 Transition-Out ... and the calculated amount for the extension of services.” Section M.9.4. explained that DHA would evaluate the underwritten healthcare costs, as follows: M.9.4.1. CLIN XOOlUnderwritten Healthcare Costs/CLIN X002 Underwriting Fixed Fee: 539The Government has provided the reimbursable cost estimates for underwritten healthcare costs. The application of the Offeror’s guaranteed network provider discounts will be the only adjustments to the CLINs X001. The Government will make the adjustments to all offers according to the Price Evaluation Template, tab entitled Healthcare Cost & Discount. The Offeror’s proposed underwriting fixed fee will not be subject to a most probable cost evaluation. It will be included as proposed in the Total Evaluated Price. (emphasis in original). Offerors were instructed to use the Price Evaluation Templates attached to the solicitation to present their proposed costs and prices. The solicitation included separate Price Evaluation Templates for the East Region and for the West Region. The Price Evaluation Templates were formulated to include DHA’s estimates with regard to Underwritten Healthcare Costs and the “Per Member Per Month (PMPM) eligible quantities for the two regions,” which offerors were to use as plug-in numbers. Offerors also were instructed to list their proposed staffing/man-loading in the Price Evaluation Templates as well as the number of Full Time Equivalents (FTEs) for each labor category and a breakdown of the FTEs by functional area. The solicitation stated that “the FTEs should reflect the Offeror’s proposed man-loading.” According to the Source Selection Plan, due to the complexities associated with the PMPM CLINs and the anticipated proposed Guaranteed Network Provider discount provisions, the solicitation also required that “ ‘Data Other than Certified Cost or Pricing Data’ shall be submitted by the Offeror to support the price reasonableness of its proposal,” and offerors were directed to include in their proposal a “Price/Cost Proposal Narrative” discussing their proposed PMPM prices and transition prices. At the conclusion of Section L was a “Cost Note” that stated: “The Government reserves the right .to request additional information in support of any proposed cost, as required for a reasonableness determination.” (emphasis in original). Factor 1 (Technical/Management) and Factor 2 (Past Performance) were of equal weight and, individually, were each more important than Factor 3 (Price/Cost). When combined, Factors 1 and 2 were significantly more important than Factor 3, Price/Cost. Factor 4 (Small Business Participation) was evaluated on an acceptable/non-acceptable basis. With regard to the technical subfac-tors, Subfactor 6 (Program Planning and Control) was the most important. Subfactor 7 was less important than Subfaetor 6, but more important than Subfaetors 1, 2, 3, 4, and 5 individually. Subfactors 1 through 5 were weighted equally. Prior to issuing the solicitation, DHA conducted market research and developed an Independent Cost Estimate (ICE). DHA hired an outside consultant to develop the ICE, which was determined to be $45,697,536,533.00 for the East Region contract and $19,902,918,734.99 for the West Region contract. The ICE estimated an average PMPM price of $8.81 in the East Region and $9.89 in the West Region. The ICE estimated further that performance of the services in Option Period 1 would require 2,085 Full Time Equivalents in the West Region and 4,013 Full Time Equivalents in the East Region. The solicitation was issued on April 24, 2015. Subsequently, DHA issued seven amendments and received 250 questions from potential offerors prior to the proposal deadline. During the pre-proposal question-and-answer period, M & V submitted the following inquiry: The RFP does not require submission of Certified Cost or Pricing Data, but does require submission of data other than Certified Cost or Pricing Data. The RFP further indicates that the Government will evaluate an offeror’s Total Evaluated Price (TEP) for reasonableness and the FAR [Federal Acquisition Regulation] indicates that price analysis shall be used when Certified Cost or Pricing Data are not required. Price analysis is the process of examining and evaluating a proposed price without evaluating its separate cost elements and proposed profit. Section L appears to require offerors to submit data 540and information that is required for a price realism analysis, but not a price reasonableness analysis. Will the government clarify its price evaluation methodology and amend the RFP to remove from section L.8 the need for offerors to submit schedules, templates, narratives, and other documentation regarding the individual cost element components of the offered price for CLINs where the Government will evaluate the offeror’s price based on a price reasonableness analysis?[11] In response to the question, DHA stated: “The solicitation requirements remain the same, calling for the submission of Data Other Than Certified Cost or Pricing Data.” Four offerors submitted proposals for the East Region contract, including M & V, Hu-mana, Health Net, and WellPoint Military Care Corporation (Wellpoint).12 Three offer-ors submitted proposals for the West Region contract, including M & V, Humana, and Health Net. After receiving the proposals, DHA conducted initial evaluations and, subsequently, established a competitive range and engaged in in-person discussions with the offerors. Offerors submitted final proposal revisions on February 16, 2016. The proposals submitted in response to the solicitation were evaluated by a source selection team that included a Source Selection Evaluation Board, a Source Selection Advisory Council, and a Source Selection Authority. The Source Selection Evaluation Board consisted of three independent evaluation teams, the Technical Evaluation Team (TET), a Past Performance Evaluation Team (PPET), and a Price/Cost Team (P/CT).13 The TET was divided into four sub-teams, with each team addressing one or two subfactors based on the subject matter expertise of its members. The first TET sub-team evaluated network management and referral management, the second TET sub-team evaluated medical management, the third TET sub-team evaluated customer service and claims processing, and the fourth TET sub-team evaluated program planning and control and transition management. The offerors’ final proposal revisions were evaluated by the sub-teams within the TET, the other members of the Source Selection Evaluation Board, and the Source Selection Advisory Council. The Source Selection Evaluation Board’s evaluation findings- were contained in two Source Selection Evaluation Board consensus reports, one for the East and West Regions. In the reports, the Chairperson of the Source Selection Evaluation Board summarized the evaluation findings of the TET, the PPET, and the P/CT. The proposals and the evaluation record were then reviewed by the Source Selection Authority, who prepared two Source Selection decision documents, to support the award decisions for the East and West Region contracts. The Source Selection Authority decision documents for both the East Region and West Region contract awards, which were 242 pages and 176 pages in length, respectively, demonstrated a lengthy and carefully considered evaluation process. East Region Evaluation The following table represents the offerors’ final proposed prices for the East Region contract in comparison to the ICE: The total evaluated prices, as depicted above, were affected in large part by the offerors’ proposed Guaranteed Network Provider discounts (CLINs X001), as well as the proposed PMPM administrative costs (CLINs X003). Regarding CLINs X001 for underwritten healthcare costs, the following chart shows the Guaranteed Network Provider discounts that each offeror proposed and the projected impact on the total underwritten healthcare costs for each option period: 541[[Image here]] In addition to the proposed Guaranteed Network Provider discounts' depicted in the table above, offerors also proposed a fixed fee for the underwritten healthcare costs, contained in CLINs X002. The following table captures the offerors’ proposed fixed fee as compared to the ICE fixed fee: Similarly, with respect to CLINs XOOB for PMPM administrative costs, the following chart shows the average PMPM unit prices proposed by each offeror in comparison to the ICE for the PMPM prices: The Source Selection Evaluation Board reviewed the proposals and drafted a summary of its evaluations for the Source Selection Advisory Council and the Source Selection Authority. The Source Selection Evaluation Board did not conduct a comparative analysis or propose a source selection recommendation. The following table depicts the offerors’ individual ratings for the factors and subfac-tors set forth in the solicitation, as assigned by the Source Selection Evaluation Board: 542[[Image here]] After the Source Selection Evaluation Board completed its report, the Source Selection Advisory Council reviewed the documentation of the Source Selection Evaluation Board’s evaluation to ensure that the Source Selection Evaluation Board had conducted a comprehensive review and evaluation of proposals in accordance with the evaluation criteria in Section M of the solicitation. The Source Selection Advisory Council determined that the Source Selection Evaluation Board complied with the evaluation criteria, and also conducted an analysis and comparison of the offerors’ final proposals in order to make an award recommendation to the Source Selection Authority. After reviewing the Source Selection Evaluation Board’s technical, past performance, and price/cost evaluation consensus reports, the Source Selection Evaluation Board Chairperson’s report, and the Source Selection Advisory Council’s report and recommendation, the Source Selection Authority conducted an independent comparative assessment and trade-off analysis of the offer-ors’ final proposals to reach an independent award decision for each region. The Source Selection Authority’s final evaluation resulted in the following findings concerning the East Region: [[Image here]] The Source Selection Authority found that, with regard to the East Region contract, “Humana is the best value offeror.” The Source Selection Authority’s decision document explained that “Humana has the superior proposal in the non-price Factors.” In finding that Humana’s proposal represented 543the best value to DHA, the Source Selection Authority explained: Under Factor 1, Teehnieal/Management, all offerors submitted strong proposals, and, as explained above, the degree of difference among the offerors was not dramatic. I determined that M & V ranked first in this Factor, with a slight advantage over both Humana and Health Net. I determine that Humana is ranked second for Factor 1, Health Net is ranked third, and WMC [Wellpoint] is ranked fourth. Under Factor 2, Past Performance, Huma-na has the clear advantage. For reasons explained above, the degree of distinction between Humana (rated Substantial Confidence) and M & V, WMC and Health Net (rated Satisfactory Confidence) was substantial. WMC is rated second in Factor 2. Between M & V and Health Net, I concluded that both were essentially equal in this Factor. Under Factor 3, Price, Health Net had the lowest Total Evaluated Price (TEP) ($40,-170,839,651), followed by Humana ($40,-517,947,263), followed by WMC ($40,712,-000,000). M & V proposed the highest TEP ($43,073,480,195). Under Factor 4, all offerors were rated acceptable. In making my decision I considered that, in accordance with RFP Section M.4, Factor 1, Technical/Management and Factor 2, Past Performance, are equal in importance, and individually, are more important than Factor 3, Price/Cost. Further, when combined, Factors 1 and 2 are significantly more important than Factor 3, Price/Cost. As to price, the Source Selection Authority found that the “P/CT Report documents a thorough analysis, including consideration of an Independent Cost Estimate (ICE) that fails to produce any findings that the prices proposed by the offerors are unreasonable.” The Source Selection Authority concurred with the contracting officer’s determination that the prices proposed by the offerors were reasonable and that no offeror’s proposal included unbalanced pricing. In the source selection decision document for the East Region contract, the Source Selection Authority recognized that “M & V did have a slightly better Factor 1 proposal than Humana,” however, Factors 1 and 2 were equal in importance and Humana has a “significant Factor 2 advantage” that outweighed “M & Vs slight advantage in Factor 1.” Moreover, because Humana’s proposal was determined to be the superior proposal in the non-price factors and Humana’s total evaluated price was lower than M & Vs total evaluated price, the Source Selection Authority concluded that a trade-off analysis was not necessary. The Source Selection Authority also concluded that a trade-off analysis was not required between Humana and Well-Point because Humana’s proposal was superior for Factors 1 and 2 and Humana’s total evaluated price was lower than Wellpoint’s total evaluated price. Because Health Net’s total evaluated price was lower than Huma-na’s total evaluated price, the Source Selection Authority conducted a trade-off analysis and determined that “Humana’s slight advantage in Factor 1 and significant advantage in Factor 2 significantly outweigh” the difference in price between Humana and Health Net’s proposals. Based on the Source Selection Authority’s analysis, as reflected in the source selection document, the Source Selection Authority ranked the offerors for the East Region “as Humana having the best value proposal, followed by Health Net, then [Wellpoint], and then M & V.” West Region Evaluation The following table represents the offerors’ final proposed prices for the West Region contract in comparison to the ICE: As explained above, the total evaluated prices were affected in large part by the offerors’ proposed Guaranteed Network Provider discounts (CLINs X001), as well as the proposed PMPM administrative costs (CLINs X003). Regarding CLINs X001 for underwritten healthcare costs, the following chart shows the Guaranteed Network Provider discounts proposed by each offeror and the projected impact on the total underwritten healthcare costs for each option period: 544[[Image here]] Offerors also proposed a fixed fee for the underwritten healthcare costs, contained in CLINs X002. The following table captures the offerors’ proposed fixed fee as compared to the ICE fixed fee: Similarly, with respect to CLINs X003 for PMPM administrative costs, the following chart shows the average PMPM unit prices proposed by each offeror in comparison to the ICE for the PMPM prices: As with the East Region proposals, the Source Selection Evaluation Board reviewed the West Region proposals and drafted a summary of its evaluations for the Source-Selection Advisory Council and the Source Selection Authority. The Source Selection Evaluation Board did not conduct a comparative analysis or propose a source selection recommendation. The following table depicts the offerors’ individual ratings for the factors and subfactors set forth in the solicitation, as assigned by the Source Selection Evaluation Board: 545[[Image here]] The Source Selection Advisory Council reviewed the Source Selection Evaluation Board’s documentation and evaluation of the proposals to ensure that the Source Selection Evaluation Board had complied with the evaluation criteria in the solicitation, The Source Selection Advisory Council also analyzed and compared the proposals and made an award recommendation to the Source Selection Authority. After reviewing the Source Selection Evaluation Board’s .technical, past performance, and price/cost evaluation consensus reports, the Source Selection Evaluation Board Chairperson’s report, and the Source Selection Advisory Council’s report and recommendation, the Source Selection Authority conducted an independent comparative assessment and trade-off analysis of the offer-ors’ final proposals to reach an independent award decision. The Source Selection Authority’s final evaluation resulted in the following findings concerning the West Region: 546[[Image here]] The Source Selection Authority determined that Humana’s proposal represented the best overall value to DHA, however, the Source Selection Authority explained that, if Huma-na could not be awarded the contract because of the restrictions in the solicitation, then Health Net’s proposal represented the next best overall value to DHA In conducting the best value analysis, the Source Selection Authority explained: Under Factor 1, Technical/Management, all offerors submitted strong proposals, and, as explained above, the degree of difference among the offerors was not dramatic. I determined that M & V ranked first in this Factor, with a slight advantage over both Humana and Health Net. I further determined that Humana was ranked second in this Factor, followed by Health Net. Under Factor 2, Past Performance, [sic] Humana has the clear advantage. For reasons explained above, the degree of distinction between Humana (rated Substantial Confidence) and M & V and Health Net (rated Satisfactory Confidence) was substantial. Between M & V and Health Net, I concluded that both were essentially equal in this Factor. Under Factor 3, Price, Health Net had the lowest Total Evaluated Price (TEP) ($17,-723,452,440), followed by Humana ($17,-882,351,687). M & V proposed the highest TEP ($18,803,253,647). Under Factor 4, all offerors were rated acceptable. In making my decision I considered that, in accordance with the RFP, Factor 1, Technical/Management and Factor 2, Past Performance, are equal in importance, and individually, are more important than Factor 3, Price/Cost. The Source Selection Authority also found that the “P/CT Report documents a thorough analysis, including consideration of the Independent Cost Estimate (ICE) that fails to produce any findings that the prices proposed by the offerors are unreasonable.” Accordingly, the Source Selection Authority concluded that the offerors’ proposed prices were reasonable and did not include unbalanced pricing. The Source Selection Authority concluded that Humana was the best value offeror because it “clearly demonstrated significantly better Past Performance” and proposed a price $920,901,960.00 less than M &'V’s proposed price. Thus, even though M & V had a “slightly better Factor 1 proposal than Hu-mana,” Factors 1 and 2 were equal in importance and Humana’s significant past performance advantage outweighed M & V’s slight advantage in Factor 1. After finding that Humana was the best value offeror for the West Region contract, the Source Selection Authority conducted a trade-off analysis between M & V and Health Net: Between M & V and Health Net, M & V has a better Technical Proposal for Factor 1. As noted above, for Factor 2, both offer-ors were assessed the same Past Performance rating of Satisfactory Confidence and after consideration of all reports and information I determined that I cannot distinguish a meaningful difference between the past performance of M & V and Health 547Net. It is clear that M & V had documented difficulties in performance during the [Redacted] contract transition and OP1, but has improved performance in OP2 of the [Redacted] contract and is now performing satisfactorily, It is equally clear that there has been some decline in Health Net’s performance over the span of their [Redacted] contract, however their performance remains satisfactory. They have also encountered difficulties in their [Redacted] contract, which is similar in scope, magnitude of effort, and complexities to this solicitation. Factors 1 and 2 are of equal importance in this evaluation. Therefore I find that the advantages in M & Vs proposal for Factor 1, and lack of a meaningful difference between their past performance ratings give an advantage to M & V over Health Net in the non-price evaluation factors. However, even though Factors 1 and 2 are each more important than Factor S, Price, I further find nothing in M & Vs technical proposal which warrants the significantly higher price of M & Vs offer at $1,079,801,207 over Health Net’s offer. The Source Selection Authority determined that, although M & V had an advantage over Health Net with regard to the non-price factors, M & Vs technical advantage did not warrant the additional $1,079,801,207.00 in price. Indeed, the Source Selection Authority found that “nothing” in M & Vs proposal “warrants the significantly higher price” of its offer. Accordingly, the Source Selection Authority ranked the offer-ors as Humana having the best value proposal, followed by Health Net, and then M & V. The Source Selection Authority decision documents demonstrate that Humana’s proposals for the East and West Region contracts offered the best overall value to the government in the East and West Regions. Due to the restrictions in the solicitation limiting an offeror to only one contract award, however, DHA awarded the East Region contract to Humana and the West Region contract to Health Net, as its proposal was found to represent the next-best value to the government. DHA notified the offerors of its award decisions on July 21, 2016. Procedural History M & V filed a bid protest at the GAO on August 1, 2016, after receiving a debriefing by DHA. WellPoint and Health Net also filed protests at the GAO that challenged DHA’s award of the East Region contract to Huma-na. On October 19, 2016, the GAO held a hearing to address the bid protest. On November 9, 2016, the GAO issued its decision denying the protests of M & V, Health Net, and WellPoint. In its decision, the GAO agreed with M & V that the agency was required to perform a price realism analysis under the terms of the solicitation, specifically Section M.2.2. The GAO explained that this section of the solicitation “warned offer-ors that the agency ‘may reject any proposal that is evaluated to be unrealistic in terms of program commitments, contract terms and conditions such that the proposal is deemed to reflect an inherent lack of competence or failure to' comprehend the complexity and risks of the program.’” UnitedHealth Military & Veterans Servs., LLC, et al., B-411837.2 et al., 2016 WL 6821970, at 4. Citing previous GAO decisions, and without further discussion of the solicitation language, the GAO found that when “a solicitation puts offerors on notice that a procuring agency may reject proposals that are evaluated as being unrealistic, the agency’s rejection of proposals is discretionary, but the realism evaluation is mandatory.” Id. at 5. The GAO concluded: [S]ection M.2.2 provided that the agency would consider whether a proposal reflected a realistic understanding of the risks and complexities associated with program commitments and the contract’s terms and conditions. Based on our review of the entire record, including the SSA’s testimony that explained the extensive contemporaneous documentation supporting his conclusions, we conclude that the agency complied with the solicitation provisions regarding a realism assessment. Id. at 6. The GAO denied the other protest grounds. On November 17, 2016, M & V filed the above-captioned post-award bid protest in this court. The complaint, when filed, included two counts, but only Count I remains for 548this court to consider. Protestor withdrew Count II on January 27, 2017.14 Count I of the complaint, which is the only remaining count in the complaint, alleges that the solicitation contained a requirement that the agency assess the realism of program commitments and contract terms and conditions, but that the contemporaneous record is devoid of any evidence that the agency assessed the realism of the offerors’ PMPM CLINs or Guaranteed Network Provider discounts. M & V asks this court to declare that DHA’s decision to award the “T-2017” contracts to Humana and Health Net lacked a rational basis and represented a clear and prejudicial violation of procurement regulations, to pennanently enjoin DHA from proceeding with the contracts awarded under the solicitation to Humana and Health Net, and to order DHA to re-evaluate the proposals in accordance with the terms of the solicitation in order to make a new best value trade-off decision. Protestor argues that it is entitled to permanent injunctive relief because it can demonstrate success on the merits, it will be irreparably harmed by the loss of the opportunity to compete fairly for the contracts if injunctive relief is not granted, and public interest weighs in favor of injunc-tive relief. In response to the complaint, Hu-mana and Health Net moved to intervene. After hearing from the parties, the court granted Humana and Health Net’s motions to intervene. All parties have cross-moved for judgment on the administrative record. The parties do not dispute that this court has subject matter jurisdiction to consider the above-captioned bid protest and that M & V has standing to pursue this bid protest. DISCUSSION Rule 52.1(c) of the Rules of the United States Court of Federal Claims (RCFC) (2016) governs motions for judgment on the administrative record. The court’s inquiry is directed to “ Vhether, given all the disputed and undisputed facts, a party has met its burden of proof based on the evidence in the record.”’ Mgmt. & Training Corp. v. United States, 115 Fed.Cl. 26, 40 (2014) (quoting A & D Fire Prot., Inc. v. United States, 72 Fed.Cl. 126, 131 (2006) (citing Bannum, Inc. v. United States, 404 F.3d 1346, 1356-57 (Fed. Cir. 2005))); see also Strategic Bus. Sols., Inc. v. United States, 129 Fed.Cl. 621, 627 (2016); Rotech Healthcare Inc. v. United States, 118 Fed.Cl. 408, 413 (2014); Eco Tour Adventures, Inc. v. United States, 114 Fed.Cl. 6, 21 (2013); DMS All-Star Joint Venture v. United States, 90 Fed.Cl. 653, 661 (2010). Pursuant to RCFC 52.1, in a bid protest, the court reviews the agency’s procurement decision to determine whether it is supported by the administrative record. See CW Gov’t Travel, Inc. v. United States, 110 Fed.Cl. 462, 481 (2013). The Administrative Dispute Resolution Act of 1996 (ADRA), Pub. L. No. 104-320, §§ 12(a), 12(b), 110 Stat. 3870, 3874 (1996) (codified at 28 U.S.C. § 1491(b)(l)-(4) (2012)), amended the Tucker Act to establish a statutory basis for bid protests in the United States Court of Federal Claims. See Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1330-32 (Fed. Cir. 2001); see also Sys. Application & Techs., Inc. v. United States, 691 F.3d 1374, 1380 (Fed. Cir. 2012) (explaining that the Tucker Act expressly waives sovereign immunity for claims against the United States in bid protests). The statute provides that protests of agency procurement decisions are to be reviewed under Administrative Procedure Act (APA) standards, making applicable the standards outlined in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970), and the line of cases following that decision. See, e.g., Per Aarsleff A/S v. United States, 829 F.3d 1303, 1309 (Fed. Cir. 2016) (quoting 549NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004)) (“Protests of agency procurement decisions are reviewed under the standards set forth in the Administrative Procedure Act (‘APA’), see 28 U.S.C. § 1491(b)(4) (citing .5 U.S.C. § 706), ‘by which an agency’s decision is to be set aside only-if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]’”); Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332); Res. Conservation Grp., LLC v. United States, 597 F.3d 1238, 1242 (Fed. Cir. 2010) (“Following passage of the APA in 1946, the District of Columbia Circuit in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970), held that challenges to awards of government contracts were reviewable in federal district courts pursuant to the judicial review provisions of the APA.”); Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1329 (Fed. Cir. 2004) (citing Scanwell Labs., Inc. v. Shaffer, 424 F.2d at 864, 868, for its “reasoning that suits challenging the award process are in the public interest and disappointed bidders are the parties with an incentive to enforce the law”); Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (“Under the APA standard as applied in the Scanwell line of cases, and now in ADRA cases, ‘a bid award may be set aside if either (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.’ ” (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332)); Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003). When discussing the appropriate standard of review for bid protest cases, the United States Court of Appeals for the Federal Circuit addressed subsections (2)(A) and (2)(D) of 5 U.S.C. § 706, see Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332 n.5, but focused its attention primarily on subsection (2)(A). See Croman Corp. v. United States, 724 F.3d 1357, 1363 (Fed. Cir. 2013) (“ ‘[T]he proper standard to be applied [to the merits of] bid protest cases is provided by 5 U.S.C. § 706(2)(A) [ (2006) ]: a reviewing court shall set aside the agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” ’ ” (quoting Banknote Corp. of Am. v. United States, 365 F.3d at 1350-51 (citing Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057-58 (Fed. Cir.), reh’g denied (Fed. Cir. 2000)), aff'd, 365 F.3d 1345 (Fed. Cir. 2004)))), reh’g and reh’g en banc denied (Fed. Cir. 2013) (alterations in original). The statute says that agency procurement actions should be set aside when they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D) (2012);15 see also Tinton Falls Lodging Realty, LLC v. United States, 800 F.3d 1353, 1358 (Fed. Cir. 2015); Orion Tech., Inc. v. United States, 704 F.3d 1344, 1347 (Fed. Cir. 2013); COMINT Sys. Corp. v. United States, 700 F.3d 1377, 1381 (Fed. Cir. 2012) (“We evaluate agency actions 550according to the standards set forth in the Administrative Procedure Act; namely, for whether they are ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” (quoting 5 U.S.C. § 706(2)(A); Bannum, Inc. v. United States, 404 F.3d at 1351)); Savantage Fin. Servs. Inc., v. United States, 595 F.3d 1282, 1285-86 (Fed. Cir. 2010); Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009); Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (noting arbitrary and capricious standard set forth in 5 U.S.C. § 706(2)(A), and reaffirming the analysis of Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332); Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1312 (Fed. Cir. 2007) (“ ‘[Tjhe inquiry is whether the [govern-mentl’s procurement decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” ’ ” (quoting Bannum, Inc. v. United States, 404 F.3d at 1351 (quoting 5 U.S.C. § 706(2)(A) (2000))); NVT Techs., Inc. v. United States, 370 F.3d at 1159 (“Bid protest actions are subject to the standard of review established under section 706 of title 5 of the Administrative Procedure Act CAPA’), 28 U.S.C. § 1491(b)(4) (2000), by which an agency’s decision is to be set aside only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ 5 U.S.C. § 706(2)(A) (2000).”) (internal citations omitted); Info. Tech. & Applications Corp. v. United States, 316 F.3d at 1319 (“Consequently, our inquiry is whether the Air Force’s procurement decision was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ 5 U.S.C. § 706(2)(A) (2000).”); Eco Tour Adventures, Inc. v. United States, 114 Fed.Cl. at 22; Contracting, Consulting, Eng’g LLC v. United States, 104 Fed.Cl. 334, 340 (2012). “In a bid protest case, the agency’s award must be upheld unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Turner Constr. Co. v. United States, 645 F.3d 1377, 1383 (Fed. Cir.) (quoting PAI Corp. v. United States, 614 F.3d 1347, 1351 (Fed. Cir. 2010)), reh’g and reh’g en banc denied (Fed. Cir. 2011); see also Tinton Falls Lodging Realty, LLC v. United States, 800 F.3d at 1358 (“In applying this [arbitrary and capricious] standard to bid protests, our task is to determine whether the procurement official’s decision lacked a rational basis or the procurement procedure involved a violation of a regulation or procedure.”) (citing Savantage Fin. Servs., Inc. v. United States, 595 F.3d at 1285-86); Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2013); McVey Co., Inc. v. United States, 111 Fed.Cl. 387, 402 (2013) (“The first step is to demonstrate error, that is, to show that the agency acted in an arbitrary and capricious manner, without a rational basis or contrary to law.”); PlanetSpace, Inc. v. United States, 92 Fed.Cl. 520, 531-32 (2010) (“Stated another way, a plaintiff must show that the agency’s decision either lacked a rational basis or was contrary to law.” (citing Weeks Marine, Inc. v. United States, 575 F.3d at 1358)). The United States Supreme Court has identified sample grounds which can constitute arbitrary or capricious agency action: [W]e will not vacate an agency’s decision unless it “has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)); see also Tinton Falls Lodging Realty, LLC v. United States, 800 F.3d at 1358; F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 552, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009); Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009), reh’g and reh’g en banc denied (Fed. Cir. 2010); In re Sang Su Lee, 277 F.3d 1338, 1342 (Fed. Cir. 2002) (“[T]he agency tribunal must present a full and reasoned explanation of its decision.... The reviewing court is thus enabled to per551form meaningful review ....”); Textron, Inc. v. United States, 74 Fed.Cl. 277, 285-86 (2006), appeal dismissed sub nom. Textron, Inc. v. Ocean Technical Servs., Inc., 223 Fed.Appx. 974 (Fed. Cir. 2007). The United States Supreme Court also has cautioned, however, that “courts are not free to impose upon agencies specific procedural requirements that have no basis in the APA.” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 654, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990). Under an arbitrary or capricious standard, the reviewing court should not substitute its judgment for that of the agency, but should review the basis for the agency decision to determine if it was legally permissible, reasonable, and supported by the facts. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43, 103 S.Ct. 2856 (“The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.”); see also Turner Constr. Co., Inc. v. United States, 645 F.3d at 1383; R & W Flammann GmbH v. United States, 339 F.3d 1320, 1322 (Fed. Cir. 2003) (citing Ray v. Lehman, 55 F.3d 606, 608 (Fed. Cir.), cert. denied, 516 U.S. 916, 116 S.Ct. 304, 133 L.Ed.2d 209 (1995)). “‘“If the court finds a reasonable basis for the agency’s action, the court should stay its hand even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations.””’ Weeks Marine, Inc. v. United States, 575 F.3d at 1371 (quoting Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971))); Jordan Pond Co., LLC v. United States, 115 Fed.Cl. 623, 631 (2014); Davis Boat Works, Inc. v. United States, 111 Fed.Cl. 342, 349 (2013); Norsat Int’l [America], Inc. v. United States, 111 Fed.Cl. 483, 493 (2013); HP Enter. Servs., LLC v. United States, 104 Fed.Cl. 230, 238 (2012); Vanguard Recovery Assistance v. United States, 101 Fed.Cl. 765, 780 (2011). Stated otherwise by the United States Supreme Court: Section 706(2)(A) requires a finding that the actual choice made was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) (internal citations omitted); see also U.S. Postal Serv. v. Gregory, 634 U.S. 1, 6-7, 122 S.Ct. 431, 151 L.Ed.2d 323 (2001); Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974), reh’g denied, 420 U.S. 956, 95 S.Ct. 1340, 43 L.Ed.2d 433 (1975); Co-Steel Raritan, Inc. v. Int’l Trade Comm’n, 357 F.3d 1294, 1309 (Fed. Cir. 2004) (In discussing the “arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with the law” standard, the Federal Circuit stated: “the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.”); In re Sang Su Lee, 277 F.3d at 1342; Advanced Data Concepts, Inc. v. United States, 216 F.3d at 1058 (“The arbitrary and capricious standard applicable here is highly deferential. This standard requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors.” (citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. at 285, 95 S.Ct. 438)); Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d 955, 959 (Fed. Cir. 1993); BCPeabody Constr. Servs., Inc. v. United States, 112 Fed.Cl. 502, 508 (2013) (“The court ‘is not empowered to substitute its judgment for that of the agency,’ and it must uphold an agency’s decision against a challenge if the ‘contracting agency provided a coherent and reasonable explanation of its exercise of discretion.’” (quoting Keeton Corrs., Inc. v. United States, 59 Fed.Cl. 753, 552755, recons. denied. 60 Fed.Cl. 251 (2004), and Axiom Res. Mgmt., Inc. v. United States, 564 F.3d at 1381)), appeal withdrawn, 559 Fed.Appx. 1033 (Fed. Cir. 2014) (internal citations omitted); Supreme Foodservice GmbH v. United States, 109 Fed.Cl. 369, 382 (2013); Alamo Travel Grp., LP v. United States, 108 Fed.Cl. 224, 231 (2012); ManTech Telecomms. & Info. Sys. Corp. v. United States, 49 Fed.Cl. 57, 63 (2001), aff'd, 30 Fed.Appx. 995 (Fed. Cir. 2002); Ellsworth Assocs., Inc. v. United States, 45 Fed.Cl. 388, 392 (1999) (“Courts must give great- deference to agency procurement decisions and will not lightly overturn them.” (citing Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985))), appeal dismissed, 6 Fed.Appx. 867 (Fed. Cir. 2001), and superseded by regulation as recognized in MVS USA, Inc. v. United States, 111 Fed.Cl. 639 (2013). According to the United States Court of Appeals for the Federal Circuit: Effective contracting demands broad discretion. Burroughs Corp. v. United States, 223 Ct.Cl. 53, 617 F.2d 590, 598 (1980); Sperry Flight Sys. Div. v. United States, 548 F.2d 916, 921, 212 Ct.Cl. 329 (1977); see NKF Eng’g, Inc. v. United States, 805 F.2d 372, 377 (Fed. Cir. 1986); Tidewater Management Servs., Inc. v. United States, 573 F.2d 65, 73, 216 Ct.Cl. 69 (1978); RADVA Corp. v. United States, 17 Cl.Ct. 812, 819 (1989), aff'd, 914 F.2d 271 (Fed. Cir. 1990). Accordingly, agencies “are entrusted with a good deal of discretion in determining which bid is the most advantageous to the Government.” Tidewater Management Servs., 573 F.2d at 73, 216 Ct.Cl. 69. Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d at 958—59; see also Res-Care, Inc. v. United States, 735 F.3d 1384, 1390 (Fed. Cir.) (“DOL [Department of Labor], as a federal procurement entity, has ‘broad discretion to determine what particular method of procurement will be in the best interests of the United States in a particular situation.’ ” (quoting Tyler Constr. Grp. v. United States, 570 F.3d 1329, 1334 (Fed. Cir. 2009))), reh’g en banc denied (Fed. Cir. 2014); Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 995 (Fed. Cir. 1996); Geo-Med, LLC v. United States, 126 Fed.Cl. 440, 449 (2016); Cybertech Grp., Inc. v. United States, 48 Fed.Cl. 638, 646 (2001) (“The court recognizes that the agency possesses wide discretion in the application of procurement regulations.”); Furthermore, according to the Federal Circuit: Contracting officers “are entitled to exercise discretion upon a broad range of issues confronting them in the procurement process.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001) (internal quotation marks omitted). Accordingly, procurement decisions are subject to a “highly deferential rational basis review.” CHE Consulting, Inc. v. United States, 552 F.3d 1351, 1354 (Fed. Cir. 2008) (internal quotation marks omitted). PAI Corp. v. United States, 614 F.3d at 1351; see also Weeks Marine, Inc. v. United States, 575 F.3d at 1368-69 (“We have stated, that procurement decisions ‘invoke[ ] “highly deferential” rational basis review.’ Under that standard, we sustain an agency action ‘evincing rational reasoning and consideration of relevant factors.’ ” (quoting CHE Consulting, Inc. v. United States, 552 F.3d at 1354 (quoting Advanced Data Concepts, Inc. v. United States, 216 F.3d at 1058))). On a motion for judgment on the administrative record, a disappointed bidder has the burden of demonstrating the arbitrary and capricious nature of the agency decision by a preponderance of the evidence. See Tinton Falls Lodging Realty, LLC v. United States, 800 F.3d at 1364; see also Grumman Data Sys. Corp. v. Dalton, 88 F.3d at 995-96; Davis Boat Works, Inc. v. United States, 111 Fed.Cl. at 349; Contracting, Consulting, Eng’g LLC v. United States, 104 Fed.Cl. at 340. The, Federal Circuit has indicated that “[t]his court will not overturn a contracting officer’s determination unless it is arbitrary, capricious, or otherwise contrary to law. To demonstrate that such a determination is arbitrary or capricious, a protester must identify ‘hard facts’; a mere inference or suspicion ... is not enough.” PAI Corp. v. United States, 614 F.3d at 1352 (citing John C. Grimberg Co. v. United States, 185 F.3d 5531297, 1300 (Fed. Cir. 1999)); see also Turner Constr. Co., Inc. v. United States, 645 F.3d at 1387; Sierra Nevada Corp. v. United States, 107 Fed.Cl. 735, 759 (2012); Filtration Dev. Co., LLC v. United States, 60 Fed.Cl. 371, 380 (2004). A bid protest proceeds in two steps. First ... the trial court determines whether the government acted without rational basis or contrary to law when evaluating the bids and awarding the contract. Second ... if the trial court finds that the government’s conduct fails the APA review under 5 U.S.C. § 706(2)(A), then it proceeds to determine, as a factual matter, if the bid protester was prejudiced by. that conduct. Bannum, Inc. v. United States, 404 F.3d at 1351; FirstLine Transp. Sec., Inc. v. United States, 119 Fed.Cl. 116, 126 (2014); Eco Tour Adventures, Inc. v. United States, 114 Fed. Cl. at 22; Archura LLC v. United States, 112 Fed.Cl. 487, 496 (2013). To prevail in a bid protest case, the protestor not only must show that the government’s actions were arbitrary, capricious, or otherwise not in accordance with the law, but the protestor also must show that it was prejudiced by the government’s actions. See 5 U.S.C. § 706 (“[D]ue account shall be taken of the rule of prejudicial error.”); see also Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d at 907 (“In a bid protest case, the inquiry is whether the agency’s action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and, if so, whether the error is prejudicial.”) ; Line Gov’t Servs., LLC v. United States, 96 Fed.Cl. 672, 694-96 (2010). In describing the prejudice requirement, the Federal Circuit also has held that: To prevail in a bid protest, a protester must show a significant, prejudicial error in the procurement process. See Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996); Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1662 (Fed. Cir. 1996). “To establish prejudice, a protester is not required to show that but for the alleged error, the protester would have been awarded the contract.” Data General, 78 F.3d at 1562 (citation omitted). Rather, the protester must show “that there was a substantial chance it would have received the contract award but for that error.” Statistica, 102 F.3d at 1582; see CACI, Inc.-Fed. v. United States, 719 F.2d 1567, 1574-75 (Fed. Cir. 1983) (to establish competitive prejudice, protester must demonstrate that but for the alleged error, “ ‘there was a substantial chance that [it] would receive an award — that it was within the zone of active consideration.’”) (citation omitted). Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir.), reh’g denied (Fed. Cir. 1999); see also Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d at 912; Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1326 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2011); Info. Tech. & Applications Corp. v. United States, 316 F.3d at 1319; Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 1332-33; OMV Med., Inc. v. United States, 219 F.3d 1337, 1342 (Fed. Cir. 2000); Advanced Data Concepts, Inc. v. United States, 216 F.3d at 1057; Stratos Mobile Networks USA, LLC v. United States, 213 F.3d 1375, 1380 (Fed. Cir. 2000). In Data General Corp. v. Johnson, the United States Court of Appeals for the Federal Circuit wrote: We think that the appropriate standard is that, to establish prejudice, a protester must show that, had it not been for the alleged error in the procurement process, there was a reasonable likelihood that the protester would have been awarded the contract .... The standard reflects a reasonable balance between the importance of (1) averting unwarranted interruptions of and interferences with the procurement process and (2) ensuring that protesters who have been adversely affected by allegedly significant error in the procurement process have a forum available to vent their grievances. This is a refinement and clarification of the “substantial chance” language of CACI, Inc.-Fed. [v. United States], 719 F.2d at 1574. Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir.), reh’g denied, en banc suggestion declined (Fed. Cir. 1996); see also Glenn Def. Marine (ASIA), PTE Ltd. v. Unit554ed States, 720 F.3d at 912; Bannum, Inc. v. United States, 404 F.3d at 1353, 1358 (“The trial court was required to determine whether these errors in the procurement process significantly prejudiced Bannum .... To establish ‘significant prejudice’ Bannum must show that there was a ‘substantial chance’ it would have received the contract award but for the [government’s] error's” in the bid process, (citing Info. Tech. & Applications Corp. v. United States, 316 F.3d at 1319; Alfa Laval Separation, Inc. v. United States, 175 F.3d at 1367; Statistica, Inc. v. Christopher, 102 F.3d at 1581; Data Gen. Corp. v. Johnson, 78 F.3d at 1562); see also Todd Constr., L.P. v. United States, 656 F.3d 1306, 1315 (Fed. Cir. 2011); Advanced Data Concepts, Inc. v. United States, 216 F.3d at 1057 (using a “reasonable likelihood” rule); Stratos Mobile Networks USA, LLC v. United States, 213 F.3d at 1380 (using a “substantial chance” test); Archura LLC v. United States, 112 Fed.Cl. at 496 (using a “substantial chance” test); Info. Scis. Corp. v. United States, 73 Fed.Cl. 70, 96 (2006) (using a “substantial chance” test), recons, in part, 75 Fed.Cl. 406 (2007). In this post-award bid protest, the parties dispute whether DHA’s evaluation of the proposals was reasonable and in compliance with the terms of the solicitation. The issue in this bid protest is whether the solicitation required DHA to perform a price realism analysis, and, if so, whether such an analysis of the offerors’ proposals was done by DHA. As explained further below, a price realism analysis considers whether an offer- or’s price is too low, such that it indicates a risk of poor performance and a lack of understanding of the solicitation requirements. See KWR Constr., Inc. v. United States, 124 Fed.Cl. 345, 356 (2015) (“Generally, a price realism analysis examines the performance risk of proposals in a fixed-price contract procurement, with particular attention to the risk of low-priced proposals....”) (internal citations removed). A price realism analysis differs from a price reasonableness analysis because a price reasonableness analysis considers whether an offeror’s price is too high.16 See Munilla Constr. Mgmt., LLC v. United States, 130 Fed.Cl. 635, 649 (2017) (explaining that an agency’s concern in making a price reasonableness determination is whether the prices are too high, and a “determination of whether an offeror’s prices are too low is made when an agency conducts a cost or price realism analysis”); see also EMTA Isaat, A.S. v. United States, 123 Fed.Cl. 330, 338 n.9 (2015) (“In general, a price reasonableness analysis has the goal of preventing the government from paying too much for contract work. A price realism analysis, on the other hand, investigates whether the contractor is proposing a price so low that performance of the contract will be threatened.”). Price realism is not defined in the FAR. See Mil-Mar Century Corp. v. United States, 111 Fed.Cl. 508, 541 n.36 (2013).17 Judges of this court have found that, in a fixed-price procurement, an agency is required to perform a price realism analysis when the solicitation expressly provides that the agency will evaluate price realism or states that “[t]he Government may reject any proposal that is ... unreasonably high or low in price when compared to Government estimates, such that the proposal is deemed to reflect an inherent lack of competence of [sic] failure to comprehend the complexity and risks of the program.” ViON Corp. v. United States, 122 Fed.Cl. 559, 573 (2015) (emphasis removed) (finding that such language commits the agency to conducting a price realism analysis); see also EMTA Isaat, A.S. v. United States, 123 Fed.Cl. at 338 (explaining that there “is no dispute that the plain language 555of the RFP required the government to conduct a price realism analysis” when the solicitation provided that “[a]ll offerors[’j proposed prices will be evaluated to ensure they are realistic, reasonable, and complete”); D & S Consultants, Inc. v. United States, 101 Fed.Cl. 23, 33 (2011), aff'd, 484 Fed.Appx. 558 (Fed. Cir. 2012) (explaining that the parties agreed that the solicitation required a price realism analysis because it stated “[tjhe Government may evaluate the offeror’s proposed labor rates to determine if the proposed rates are unrealistically low in order to assess the ability of the offeror to meet the PWS requirements and whether the proposal provides the Government with a high level of confidence of successful performance”). In Afghan American Army Services Corp. v. United States, another Judge on this court determined that an agency was required to conduct a price realism evaluation because the solicitation stated that the agency would “evaluate price proposals to determine whether the offered price reflects a sufficient understanding of the contract requirements and the risk inherent in the offeror’s approach” and that proposals with “an unreasonable (high or low) price may be deemed to be unacceptable and may not receive further consideration.” Afghan Am. Army Servs. Corp. v. United States, 90 Fed.Cl. 341, 357 (2009). Similarly, in Rotech Healthcare, Inc. v. United States, the court concluded that a price realism analysis was required because the solicitation stated that an “unrealistically low price may be grounds for eliminating a proposal.” Rotech Healthcare, Inc. v. United States, 121 Fed.Cl. 387, 404 (2015), appeal dismissed (Fed. Cir. No. 15-5113 Nov. 13, 2015) (explaining that “the only reason any consideration of realism is necessary is the language in the RFP stating that unrealistically low offers may be eliminated”). In this post-award bid protest, protestor argues that DHA improperly failed to conduct a price realism analysis, and, therefore, violated the plain language of the solicitation. As a result of this failure, protestor argues that DHA’s award decisions to Humana and Health Net were arbitrary and capricious and not in accordance with the law. Protestor points to the following language in Section M.2.2. of the solicitation: “The Government may reject any proposal that is evaluated to be unrealistic in terms of program commitments, contract terms and conditions such that the proposal is deemed to reflect an inherent lack of competence or failure to comprehend the complexity and risks of the program,” as the solicitation term that allegedly required DHA to conduct a realism analysis of the offerors’ proposed PMPM prices and Guaranteed Network Provider discounts. Protestor points to the term “unrealistic” in Section M.2.2. and asserts that “realism is the evaluation, of an offeror’s understanding through the lens of price and price elements.” During oral argument, protestor’s counsel argued that “the word ‘realism’ and ‘unrealistic’ means an evaluation of price.” Protestor argues that, because the offerors’ proposed PMPM prices and the Guaranteed Network Provider discounts were “contract terms” and Section M.2.2. of the solicitation explained that DHA “may reject any proposal that is evaluated to be unrealistic in terms of program commitments, contract terms and conditions,” pursuant to the language of the solicitation, DHA was obligated to consider the realism of the offerors’ proposed PMPM prices and Guaranteed Network Provider discounts. Protestor also assorts that the proposed level of effort associated with the PMPM prices represented the offerors’ “program commitment” to perform the administrative services required by the solicitation, thus, DHA was required to consider the realism of the proposed levels of effort because it was a “program commitment.”18 Protestor asserts that 556an “evaluation of the offerors’ technical proposals alone — without consideration of PMPM prices and guaranteed discounts— does not satisfy Section M.2.2. ⅛ realism requirement.” Protestor argues that “the plain language of Section M.2.2. obligated DHA to evaluate whether each offeror’s PMPM prices and level of effort were realistic to accomplish the Administrative Services required under” the solicitation, and whether each offeror’s Guaranteed Network Provider discount was realistic “and would allow the offeror to provide a network that meets the standards and produces best quality clinical outcomes for TRICARE beneficiaries.” Protestor also contends that the word “price” need not be expressly used in the solicitation in order to trigger a requirement to evaluate price realism. According to protestor, language in a solicitation indicating that a proposal may be rejected if it is “deemed to reflect an inherent lack of competence or failure to comprehend the complexity and risks of the program,” is “classic realism language.” Protestor asserts that, even if a solicitation does not expressly call for a price realism analysis, such an evaluation may be required when the “other classic indicia of price realism” are present. According to protestor, that Section M.2.2. stated that DHA “may reject any proposal that is evaluated to be unrealistic” did not give DHA discretion over whether to conduct an evaluation of realism, (emphasis added). To support its position, protestor relies on the decision in the bid protest regarding the awards at issue first filed by M & V at the GAO, UnitedHealth Military & Veterans Services, LLC, et al., B-411837.2 et al., which found that Section M.2.2. required DHA to perform a price realism analysis, although that decision also found that the agency had met the requirements of performing a price realism analysis. Protestor also cites to previous decisions of this court that considered solicitation language which stated that an agency may reject proposals evaluated to be unrealistic, including FCN, Inc. v. United States, 115 Fed.Cl. 335, 376 (2014), and ViON Corp. v. United States, 122 Fed.Cl. 559, 564 (2015), which found that the government was required to evaluate price realism. Protestor asserts that in FCN, Inc. v. United States, “the RFP stated that ‘unrealistically low offers may be considered unacceptable and rejected on that basis,’ ” and the court concluded that this language obligated the government to evaluate price realism. FCN, Inc. v. United States, 115 Fed.Cl. at 376 (emphasis in original). According to protestor, in ViON Corp., the court found that the agency was required to conduct a price realism analysis when the solicitation “expressly provides that ‘[t]he Government may reject any proposal that is ... unreasonably high or low in price when compared to Government estimates, such that the proposal is deemed to reflect an inherent lack of competence of [sic] failure to comprehend the complexity and risks of the program.’” (second emphasis added). Protestor, M & V, argues that “[t]he only difference” between the clause in ViON Corp. and “the one at issue here is that the clause in ViON [Corp.] refers to unreasonably high or low prices, while the clause here refers to unrealistic contract terms and program commitments.” Protester contends that, because PMPM prices and Guaranteed Network Provider discounts are contract terms they should have been “subject to a realism evaluation under the plain terms of Section M.2.2.” Additionally, protestor argues that the location of Section M.2.2. within the solicitation is irrelevant. According to protestor, that Section M.2.2. is at the beginning of Section M of the solicitation and precedes the discussion of the price/cost factor evaluation criteria does not remove the obligation to conduct a price realism analysis. Protestor cites two GAO decisions: Logistics 2020 Inc., B-408543, 2013 WL 6235560, at 6 (Comp. Gen. Nov. 6, 2013) and B & B Medical Services, Inc., B-409705.4, 2015 WL 4480686, at 7 (Comp. Gen. June 29, 2015). Protestor contends that finding solicitation language to require a price realism analysis only when it is contained within certain sections of a solicitation would render Section M.2.2. superfluous and be inconsistent with the fundamental principle of interpretation that meaning must be given to all parts of a solicitation. 557Protestor further asserts that, contrary to the conclusion in the GAO decision, there is no evidence in the contemporaneous administrative record that DHA conducted a required price realism evaluation. Although the GAO determined in UnitedHealth Military & Veterans Services, LLC, et al., B-411837.2 et al., that DHA, in fact, had conducted a realism evaluation, protestor contends that the administrative record “proves otherwise” and that this court should afford “no deference” to that part of the GAO decision. Protestor points out that neither the P/CT [priee/cost team] reports, the technical evaluation team reports, nor the source selection decision documents assessed whether the offerors’ proposed PMPM prices were realistic. Similarly, as with PMPM prices, protestor asserts that “the evaluation record is entirely devoid of any realism analysis of the offerors’ proposed guaranteed network discounts.” Protestor argues that it was prejudiced.by DHA’s failure to evaluate price realism. According to protestor, “[h]ad DHA performed a realism analysis, it would have realized that the awardees’ [for both the East and West Region contracts] PMPM prices and guaranteed discounts put the success of the contract[s] at risk, endangering DoD’s ability to ensure high-quality, cost-effective care for military members and their families.” Protestor explains that an awardee that proposes unrealistic prices and an inadequate level of effort for the PMPM CLINs puts the contract at risk because “all of the critical administrative services required under the contract” would be performed under these CLINs, including “building and maintaining a network to provide quality care to DoD personnel and their families; providing medical management to ensure that care is both high-quality and cost effective; processing claims in an accurate and timely manner; and providing other services to beneficiaries, providers, and the government.” Protestor argues that Humana and Health Net proposed PMPM prices in the East and West regions that were [Redacted] and [Redacted] lower than the ICE, respectively, as opposed to protestor’s proposed PMPM prices which were higher than the ICE. With regard to the proposed Guaranteed Network Provider discounts, protestor states that the “TRI-CARE program already pays rates that are materially below commercial market rates, and guaranteed discounts under the RFP reduce those payments still further” such that “[d]eeper discounts and lower payments reduce the number of providers (and especially high-quality, in-demand providers) willing to join the network.” As stated by protestor, as a result of deeper discounts and lower payments to providers, “[t]he network shrinks, quality of care. suffers, and costs jump.” Protestor alleges that Humana and Health Net proposed Guaranteed Network Provider discounts that exceeded the historical benchmark contained in the contemporaneous record, and “because DHA failed to evaluate the realism of the offerors’ discounts, the agency never considered whether the awardees’ proposed discounts were too aggressive and would result in adverse effects on the network and healthcare costs.” Additionally, protestor argues that DHA “failed to assess the impact of the awardees’ low underwritten healthcare cost fixed fees on the proposed discounts,” and, thus, failed to account for the risk that “Humana and Health Net will be motivated to achieve their discounts, even if it means degrading quality of care and higher costs for the government and beneficiaries,” Protestor states that “it proposed realistic PMPM prices and levels of effort, and discounts right in line with historical experience” such that “had DHA assessed the realism of the offerors’ proposals as they stand, UnitedHealth would have been in a better position to win the East or West region awards.” In the alternative, protestor asserts the questionable and speculative argument that, had M & V known DHA would not conduct a price realism analysis, M & V “would have been more aggressive with its pricing, and leveraged its position as an insurer with a national presence” in order to propose a greater Guaranteed Network Provider discount and a lower underwritten healthcare fixed fee, which, according to protestor, would have resulted- in a substantial .chance of award to M & V. Why protestor would not have submitted its most competitive proposals in the first instance alludes the court. Moreover, protestor appears to suggest that 558it might have reduced its proposal prices just to get the contract award, even though, presumably, it had calculated the most appropriate offers pursuant to which it could properly meet the scopes of the work detailed in the contracts, when it submitted its proposals in response to the solicitation at issue. In opposition, defendant and defendant-intervenors argue that the plain language of the solicitation did not require, “or permit,” a price realism analysis and, to the extent a price realism analysis was required, the administrative record demonstrates that DHA’s evaluation of the offerors’ proposals satisfied any possible requirement to evaluate the realism of the proposed PMPM prices and Guaranteed Network Provider discounts. Defendant explains that, although agencies are always required to perform a price reasonableness evaluation before awarding a contract under FAR § 15.402(a) (2017), the solicitation language determines whether an agency is required to evaluate proposals for price realism. Citing FAR § 15.404 — 1(d)(2), defendant asserts that, when evaluating proposals for a fixed-price contract, agencies are not always required to conduct a price realism analysis. According to defendant, “absent an express price realism provision” an agency only should perform a price realism evaluation on a fixed-price contract when the solicitation “1) expressly states that the agency will review prices to determine whether they reflect a lack of technical understanding; and 2) states that a vendor/offeror’s submission may be rejected on the basis of low prices.” Defendant cites to the GAO’s decision in ERIMAX, B-410682, 2015 WL 993532, at 4 (Comp. Gen. Jan. 22, 2015). Defendant argues that neither of the scenarios that would permit or require an agency to conduct a price realism evaluation are applicable to the “T-2017” procurement. Defendant and defendant-intervenors also assert that protestor “attempts to read Section M.2.2. in isolation, rather than in the context of the rest of the evaluation criteria.” Defendant and defendant-intervenors explain that Section M.2.2., which contained the language protestor relies upon to assert its price realism claim, preceded Sections M.3M.10, which set forth the factors and subfac-tors that DHA was required to consider in its evaluation of the proposals, and DHA’s evaluation was limited to those factors and sub-factors. Defendant argues that Section M.2.2. did not create new factors or subfactors for DHA to employ. According to defendant, Section M.2.2. “simply gave DHA the discretion to immediately reject a proposal that was ‘evaluated to be unrealistic in terms of program commitments, contract terms and conditions such that the proposal is deemed to reflect an inherent lack of competence or failure to comprehend the complexity and risks of the program’ ” based on the factors and subfactors specified in Sections M.8M.10 of the solicitation. To further support the argument that Section M.2.2. offered DHA a discretionary basis for rejection and did not impose a requirement to analyze price realism, defendant and defendant-intervenors assert also that Section M.2.2. did not include language such as “will,” “shall,” or “must,” but provided a basis on which DHA “may reject any proposal that is evaluated to be unrealistic in terms of program commitments, contract terms and conditions.” (emphasis added). According to defendant and defendant-intervenors, unlike Sections M.3-M.10, which employed terms such as “will evaluate” and “will perform,” Section M.2.2. did not commit the agency to any additional evaluation requirements. Given that the solicitation used non-discretionary language throughout Section M, defendant argues that, if DHA intended to include a mandatory requirement in Section M.2.2., then it would have included mandatory language similar to other provisions of Section M. With regard to the cases on which protestor relies to support its position, including ViON Corp. and FCN, Inc., defendant and defendant-intervenors argue that the cases are distinguishable from the “T-2017” procurement. Defendant and defendant-interve-nors assert that those cases discuss solicitations that expressly stated offerors’ proposals could be rejected based on low prices, and Section M.2.2. in the solicitation now under review does not reference low prices. Additionally, defendant and defendant-intervenors argue that the cases on which protestor re559lies discussed solicitations in which the price realism requirement was included in the price factor, but the “T-2017” solicitation did not reference price realism in Section M.9, the price/cost factor. Defendant and defendant-intervenors also argue that, even if the court were to determine that Section M.2.2. required DHA to evaluate the realism of the offerors’ Guaranteed Network Provider discounts and PMPM prices, the administrative 'record demonstrates that DHA’s evaluation of the offerors’ proposals satisfied that requirement. Defendant and defendant-intervenors assert that the nature and extent of a price realism evaluation is within the broad discretion of the agency. Defendant and defendant-inter-venors argue that, according to the several hundred pages of evaluation and decision documents, the Source Selection Authority conducted an integrated assessment, of the proposals and determined that the offerors understood the requirements of the solicitation and demonstrated their capability to satisfy the requirements. Defendant also argues that the price/cost evaluation team “effectively considered” the realism of the offerors’ prices because the team compared the prices of the offerors against each other and against the ICE and found the prices to be in the “range of reasonableness” even though the prices were below the ICE. Defendant and defendant-intervenors further argue that, even if the court were to find that DHA was required to conduct a price realism evaluation, and even if DHA did not do so, still protestor could not prevail in this bid protest because protestor has not demonstrated that it has suffered prejudice. Defendant and defendant-intervenors assert that, in order to sufficiently demonstrate prejudice, protestor must show that, if DHA had conducted the price realism evaluation there is a substantial chance that DHA would have found the other offerors’ proposals to have lacked in competence and failed to comprehend the complexity and risks of the program. Defendant and defendant-intervenors contend that such a finding would be unlikely given that both Humana and Health Net are established healthcare companies that have satisfactory, or better, past performance records, both submittéd strong technical proposals that demonstrated a clear understanding of the contract requirements, and both proposed comparable prices.19 Defendant further argues that protestor has failed to demonstrate irreparable harm and that the public interest weighs against an injunction as it would result in delays to TRICARE program improvements designed to improve military readiness and the quality of healthcare for military members, retirees, and their families. Although protestor asks this court to arrive at the same result that the GAO found in UnitedHealth Military & Veterans Services, LLC, et al., B-411837.2, et al., that a price realism analysis was required, this court has a different view. The GAO found that Section M.2.2. required DHA to perform a price realism analysis.20 In its decision, the GAO explained “[w]e have held that where, as here, a solicitation puts offerors on notice that a procuring agency may reject proposals that are evaluated as being unrealistic, the agency’s rejection of proposals is discretionary, but the realism evaluation is mandatory.” 560UnitedHealth Military & Veterans Servs., LLC, et al., B-411837.2 et al., 2016 WL 6821970, at 5. Although the undersigned has high regard for the GAO and the quality of the decisions issued by the GAO, this court is not bound by decisions of the GAO. See CBY Design Builders v. United States, 105 Fed.Cl. 303, 341 (2012) (citing Centech Grp., Inc. v. United States, 554 F.3d 1029, 1038 n.4 (Fed. Cir. 2009) (GAO decisions are “not binding” authority, but may be “instructive in the area of bid protests.”)). In finding that Section M.2.2. required a realism evaluation, the GAO decision did not explain its basis other than to cite to previous GAO decisions in which the GAO determined that such an evaluation is required when (1) the solicitation expressly states that the agency will review prices to determine whether they are so low that they reflect a lack of technical understanding, and (2) the solicitation states that a proposal can be rejected for offering low prices. See UnitedHealth Military & Veterans Servs., LLC, et al., B-411837.2 et al., 2016 WL 6821970, at 5 (citing [with no comment] Optex Sys., Inc., B-408591, 2013 WL 5946181, at 3; Esegur-Empresa de Seguranca, SA, B-407947 et al., 2013 WL 1898790, at 4 (Comp. Gen. Apr. 26, 2013); Waterfront Techs., Inc.-Protest and Costs, B-401948.16 et al., 2011 WL 2566578, at 15-16 (Comp. Gen. June 24, 2011)). In this bid protest, the solicitation did not state that the agency would review prices to determine whether they reflected a lack of understanding or that proposals could be rejected for offering low prices. In fact, notably absent from the plain language of Section M.2.2. is the word “price.” As a result, offerors were not put on notice that their proposals would be evaluated for price realism. Given the GAO precedent discussed below, it appears that the GAO’s decision in United Health Military & Veterans Services LLC, et al., B-411837.2 et al., takes a different approach than the majority of previous GAO decisions. Thus, it is not clear why the GAO concluded that Section M.2.2. required a price realism analysis and the court does not find the GAO’s decision in UnitedHealth Military & Veterans Services, LLC, et al. persuasive. The administrative record in this bid protest demonstrates DHA’s extensive evaluation process and source selection methodology. As protestor asserts, agencies are required-to evaluate proposals and make contract awards based on the criteria set forth in the solicitation. See NEQ, LLC v. United States, 88 Fed.Cl. 38, 47-48 (2009) (“It is hornbook law that agencies must evaluate proposals and make awards based on the criteria stated in the solicitation.”). It is equally well-established that agencies cannot evaluate proposals based on criteria that are not disclosed in the solicitation. See NVE, Inc. v. United States, 121 Fed.Cl. 169, 180 (2015). This court in Banknote Corp. of America, Inc. v. United States stated: It is hornbook law that agencies must evaluate proposals and make awards based on the cintería stated in the solicitation. This requirement is firmly rooted in the Competition in Contracting Act (CICA) ... which indicate^] that an agency shall evaluate competitive proposals and assess their qualities solely on the factors and subfac-tors specified in the solicitation. See 10 U.S.C. §§ 2305(a)(2)(A), 2305(a)(3)(A) (2000) .... It thus is beyond peradventure that the government may not rely upon undisclosed evaluation criteria in evaluating proposals, Acra, Inc. v. United States, 44 Fed.Cl. 288, 293 (1999), and, where appropriate, must disclose the factors’ relative importance, Isratex, Inc. v. United States, 25 Cl.Ct. 223, 230 (1992). See also Cube Corp. v. United States, 46 Fed.Cl. 368, 377 (2000); Dubinsky v. United States, 43 Fed.Cl. 243, 266 (1999). That said, an agency still has “great discretion in determining the scope of an evaluation factor.” Forestry Surveys and Data v. United States, 44 Fed.Cl. 493, 499 (1999). Consistent with these precepts, in a case such as this, a protester must show that: (i) the procuring agency used a significantly different basis in evaluating the proposals than was disclosed; and (ii) the protester was prejudiced as a result — that it had a substantial chance to receive the contract award but for that error. * * * [I]t is well-settled that “a solicitation need not identify each element to be considered by the agency during the course of the 561evaluation where such element is intrinsic to the stated factors.” Analytical & Research Tech., Inc. v. United States, 39 Fed.Cl. 34, 45 (1997)[.] Banknote Corp. of Am., Inc. v. United States, 56 Fed.Cl. 377, 386-87 (2003), aff'd, 365 F.3d 1345 (Fed. Cir. 2004) (footnote and other citations omitted); see also NVE, Inc. v. United States, 121 Fed.Cl. at 180; Transatlantic Lines, LLC. v. United States, 122 Fed.Cl. 624, 632 (2015); FirstLine Transp. Sec., Inc. v. United States, 100 Fed.Cl. 359, 388 (2011) (“It is a fundamental principle of procurement law that an agency must conduct its best-value analysis using the evaluation factors and subfactors specified in the solicitation.” (citing 48 C.F.R. § 15.101-1(b)(1) (2011); 48 C.F.R. § 15.305(a) (2011); Acra, Inc. v. United States, 44 Fed.Cl. 288, 293 (1999))); PlanetSpace, Inc. v. United States, 92 Fed.Cl. at 536-37; NEQ, LLC v. United States, 88 Fed.Cl. at 47-48; PHT Supply Corp. v. United States, 71 Fed.Cl. 1, 13-14 (2006). In accordance with the well-established principle that an agency must evaluate proposals in accordance with the solicitation terms, it is improper for an agency to conduct a price realism analysis in a fixed-price procurement when the solicitation does not expressly or implicitly require a price realism analysis because such an analysis would employ unstated evaluation criteria. See NVE, Inc. v. United States, 121 Fed.Cl. at 180; see also Ceres Envtl. Servs., Inc. v. United States, 97 Fed.Cl. 277, 306 (2011) (“In situations where the solicitation does not expressly or implicitly require a price realism analysis, it is improper for an agency to conduct a price realism analysis and then reject a proposal for having an unrealistically low price.”); DMS All-Star Joint Venture v. United States, 90 Fed.Cl. at 663 n.11 (“A price realism analysis is analysis to determine if the offeror’s proposed prices are %%• realistically low.” (emphasis in original) (internal citations removed)); Munilla Constr. Mgmt., LLC v. United States, 130 Fed.Cl. at 649 (“Nothing in the Solicitation indicates the Navy would assess price as a proxy for determining an offeror’s understanding of contract requirements and nothing otherwise committed the Navy to a realism analysis.”); Afghan Am. Army Servs. Corp. v. United States, 90 Fed.Cl. at 356. Generally, when an award of a fixed-price contract is contemplated, “a proposal’s price realism is not ordinarily considered, since a fixed-price contract places the risk” of loss on the contractor. See Acad. Facilities Mgmt. v. United States, 87 Fed.Cl. 441, 466 (2009) (citing FAR 15.404-1), Absent instruction from the solicitation, an agency is not required, or permitted, to consider realism in a fixed-price contract because “the fixed price task order puts the risk of underpriced offers on the contractor.” Rotech Healthcare, Inc. v. United States, 121 Fed.Cl. at 404; see also Afghan Am. Army Servs. Corp. v. United States, 90 Fed.Cl. at 356. In a fixed-price procurement, when the solicitation does not expressly or implicitly state that a price realism analysis would be conducted, and the agency conducts a price realism analysis, an offeror can challenge the analysis as “arbitrary, capricious, or an abuse of discretion” because the agency would have relied upon undisclosed evaluation criteria in making its award. See NVE, Inc. v. United States, 121 Fed.Cl. at 180; see also Banknote Corp. of Am., Inc. v. United States, 56 Fed. Cl. at 386. In the above-captioned bid protest, if, in the solicitation, DHA had committed itself to evaluating the realism of the offerors’ proposed PMPM prices and Guaranteed Network Provider discounts, then DHA would have been required to perform a price realism evaluation. Conversely, if the solicitation did not require a price realism analysis, then DHA was not permitted to evaluate the realism of the offerors’ prices, including the proposed PMPM prices and Guaranteed Network Provider discounts. Thus, in this post-award bid protest, the court is tasked with determining whether the solicitation, specifically Section M.2.2., required DHA to evaluate the realism of the offerors’ proposed PMPM prices and Guaranteed Network Provider discounts. To make this determination, the court looks to the plain language of the solicitation, specifically Section M.2.2. See Per Aarsleff A/S v. United States, 829 F.3d at 1309 (explaining that, when the interpretation of a term in a solicitation is contested, the court should begin with the plain lan562guage of the document); see also Banknote Corp. of Am., Inc. v. United States, 365 F.3d at 1353 (holding that “[i]nterpretation of the solicitation is a question of law over which we exei’cise independent review.... We begin with the plain language of the document”); Fulcra Worldwide, LLC v. United States, 97 Fed.Cl. 523, 538-39 (2011) (“Interpretation of the solicitation begins with the plain language of the document.”); Line Gov’t Servs., LLC v. United States, 96 Fed.Cl. at 708 (explaining that the “well-settled principles of contract interpretation .., apply with equal force to the interpretation of government solicitations” and “require the court to begin with the plain language of an agency’s solicitation”). In interpreting the meaning of a solicitation term, the court must consider the solicitation as a whole, “interpreting it in a manner that harmonizes and gives reasonable meaning to all of its provisions.” See Per Aarsleff A/S v. United States, 829 F.3d at 1309 (citing Banknote Corp. of Am., Inc. v. United States, 365 F.3d at 1353); see also Fulcra Worldwide, LLC v. United States, 97 Fed.Cl. at 538 (explaining that context defines the meaning of any given term or provision in a government solicitation). As set forth above, Section M.2.2. of the solicitation stated: M.2.2. Unrealistic Proposals. The Government may reject any proposal that is evaluated to be unrealistic in terms of program commitments, contract terms and conditions such that the proposal is deemed to reflect an inherent lack of competence or failure to comprehend the complexity and risks of the program, The plain language of the solicitation at issue does not further define the specific “program commitments, contract terms and conditions” that DHA could find to be unrealistic in an offeror’s proposal, but the language does describe the conditions upon which the agency can reject a proposal. During oral argument, protestor argued that “contract terms and conditions, by its plain terms, includes price” because “[t]he price is a term of the proposal which then becomes a term of the contract.” To the extent protestor is arguing that price is an essential contract term, the court rejects the contention that any reference in a solicitation to evaluating the realism of contract terms would necessitate a price realism analysis. Although an agency may implicitly commit to conducting a price realism analysis in certain instances, the mere reference to the realism of contract terms is insufficient to trigger the detailed and in-depth analysis required in a price realism evaluation. Although, in addition to ViON Corp. v. United States and FCN, Inc. v. United States, protestor also cites the following cases to support its position that DHA was required to conduct a price realism analysis, each of these cases is distinct from the above-captioned bid protest, and not helpful to protestor: Erinys Iraq Ltd. v. United States, 78 Fed.Cl. 518, 531 (2007), in which the court explained that the solicitation expressly required a “Price Realism Analysis” that'would “be a separate review and evaluation of the proposed price to determine the degree to which an offeror proposed realistic prices”; Dyncorp Int’l LLC, B-407762.3, 2013 WL 3475184, at 8 (Comp. Gen. June 7, 2013), in which the GAO found that the solicitation did not require a price realism analysis because nothing in the solicitation stated that the agency planned to evaluate proposed prices to determine whether they were so low that they reflected a lack of technical understanding, and nothing in the solicitation stated that the agency could reject a proposal for offering unrealistically low prices; NJVC, LLC, B-410035, 2014 WL 5358430, at 9 (Comp. Gen. Oct. 15, 2014), in which the GAO concluded that absent a clear indication in the RFP that price would be considered in assessing technical understanding or performance risk under the technical and management factors, the agency was neither required to nor permitted to consider an offeror’s price under these factors; Sci. Applications. Int’l Corp., B-407105, 2012 WL 5521341, at 8 (Comp. Gen. Nov. 1, 2012), in which the GAO found that the solicitation effectively provided for a price realism evaluation when it indicated that the agency would evaluate price proposals to determine whether proposed prices were compatible with the scope of effort, were not unbalanced, and were neither excessive nor insufficient for the effort to be accomplished, and that this may be grounds 563for eliminating a proposal from competition on the basis that the offeror does not understand the requirement; Flight Safety Servs. Corp., B-403831, 2010 WL 5241433, at 4 (Comp. Gen. Dec. 9, 2010), in which the GAO found that, although the solicitation did not state that offerors’ prices would be evaluated for realism, it effectively provided for such an evaluation when it established that the Air Force could reject a proposal if the of-feror’s low price reflected an inherent lack of competence or failure to comprehend the complexity and risks of the program. In each of these cases, when a price realism analysis was required, the solicitation explicitly referred to “price” or “rates.” As noted above, Section M.2.2. does not include the word “price.” As these cases explain, this court has previously concluded that an agency is committed to conducting a price realism analysis when the solicitation provides that “[t]he Government may reject any proposal that is ... unreasonably high or low in price when compared to Government estimates, such that the proposal is deemed to reflect an inherent lack of competence [or] failure to comprehend the complexity and risks of the program.” ViON Corp. v. United States, 122 Fed.Cl. at 573.21 Similarly, the GAO has explained: [E]ven where a solicitation does not expressly require a price realism evaluation, we will conclude that such an evaluation is required where (1) the RFP expressly states that the agency will review prices to determine whether they are so low that they reflect a lack of technical understanding, and (2) the RFP states that a proposal can be rejected for offering low prices. Optex Sys., Inc., B-408591, 2013 WL 5946181, at 3 (Comp. Gen. Oct. 30, 2013) (finding that the agency was required to consider price realism because the solicitation included price language similar to that quoted above) (emphasis added). Although protestor cites to Dyncorp International LLC, B-407762.3, 2013 WL 3475184, and NJVC, LLC, B-410035, 2014 WL 5358430, for support, in these cases, the GAO reached a conclusion adverse to protestor’s current argument. In Dyncorp International LLC, B-407762.3, the GAO found that the solicitation did not require a price realism analysis because nothing in the solicitation stated that the agency planned to evaluate proposed prices to determine whether they were so low that they reflected a lack of technical understanding, or that the agency could reject a proposal for offering unrealistically low prices. Also, in NJVC, LLC, B-410035, the GAO concluded that absent a clear indication in the solicitation that price would be considered in assessing technical understanding or performance risk under the technical and management factors, the agency was neither required to, nor permitted to, consider the technical and management factors through the lens of price. The current post-award bid protest is similar to the facts in Dyncorp International LLC, B-407762.3, and NJVC, LLC, B-410035, and distinguishable from the other cases cited by protestor and on which protestor relies, because the solicitations at issue in a11 of those cases contemplate a price realism analysis, and Section M.2.2. does not. As discussed above, Section M.2.2. does not state that the agency will review prices to determine whether an offeror understands the technical requirements or that a proposal can be rejected for offering a low price, and, in fact, M.2.2. does not refer to high or low prices at all. Instead, Section M.2.2, states that DHA could reject a proposal that was unrealistic in terms of program commitments, contract terms, and conditions. That Section M.2.2. explains that a proposal could be rejected if its program commitments, contract terms, and conditions are found to “reflect an inherent lack of competence or failure to comprehend the complexity and risks of the program,” is not sufficient to establish, under the factors identified in ViON Corp. v. United States, that DHA was implicitly committed to conducting a price realism analysis. Thus, protestor’s argument that Section 564M.2.2. required a price realism analysis fails to pass the test that protestor itself puts forth to support this bid protest. Additionally, when Section M.2.2. is read in the context of Section M in its entirety, protestor’s argument is unpersuasive. As explained above, Sections M.3-M.10 set forth, in detail, the evaluation factors and subfae-tors that DHA would use to evaluate the proposals, and DHA was required to follow the evaluation criteria set forth in conducting its evaluation. Immediately following Section M.2.2. in the solicitation was Section M.2.3., which obligated DHA to evaluate whether the proposals demonstrated the offerors’ understanding of the requirements, as well as the ability to fulfill the requirements, of the solicitation. In contrast to Section M.2.2., which stated that “[t]he Government may reject any proposal,” Section M.2.3. stated that “[t]he Government will evaluate the extent to which the proposal exhibits a clear understanding of the work requirements and the means required to fulfill the requirements.” (emphasis added). When read together, Sections M.2.2, and M.2,3. inquired DHA to evaluate whether proposals exhibited a clear understanding of the work requirements and an ability to meet those requirements, and granted DHA the discretion to reject a proposal that presented unrealistic “program commitments, contract terms and conditions” such that the proposal reflected a “lack of competence or failure to comprehend the complexity and risks of the program.” Additionally, as defendant and defendant-intervenors highlight, Section M.9 of the solicitation specifically explained in what context DHA would evaluate “FACTOR 3, PRICE/COST” of each proposal. Within Section M.9, Section M.9.4. indicated that “[t]he Government will perform a cost realism analysis/most probable cost evaluation, in accordance with FAR 15.404-l(d), on the Offeror’s proposed CLIN 9001 Transition-Out, estimated cost.”22 In Section M.9.6. the solicitation explained that “[t]he Government will evaluate the Offeror’s TEP [total evaluated price] for reasonableness. Line items will also be reviewed for unbalanced pricing.” Section M.9 did not include price realism language.23 The plain language of Section M.2.2. explains its purpose and meaning, which was to grant DHA the authority to reject any proposals that the agency considered unrealistic due to “an inherent lack of competence or failure to comprehend” the program commitments, contract terms, and other conditions including the complexity and risks of the program, in light of the evaluation factors and subfactors delineated in Sections M.3M.10. There is no requirement in Section M.2.2. for DHA to make a positive or negative finding as to the realism of the proposed PMPM prices and Guaranteed Network Provider discounts. Instead, the phrase “may reject” afforded DHA discretion to reject a proposal determined to be unrealistic based on the evaluation criteria described in the solicitation. See Mil-Mar Century Corp. v. United States, 111 Fed.Cl. at 542 (holding that an agency was not required to perform a realism analysis because the solicitation stated that the agency “may reject” a proposal that reflected a lack of realism). The solicitation did not, as protestor asserts, create an obligation to evaluate price realism. Based on an independent reading of the plain language of the solicitation, the court concludes that the solicitation did not require DHA to conduct a price realism analysis. Because the solicitation did not require a price realism analysis, DHA was not permit565ted to evaluate the realism of the offerors’ proposed prices because, if DHA had conducted a price realism analysis, it would have relied on unstated evaluation criteria. Because protestor’s price realism argument is its sole, remaining protest ground, protestor’s challenge of DHA’s decisions to award the East and West Region TRICARE contracts to Humana and Health Net fails. CONCLUSION For the reasons stated above, protestor’s motion for judgment on the administrative record is DENIED. Defendant and defendant-intervenors’ cross-motions for judgment on the administrative record are GRANTED. Having failed to succeed on the merits, protestor’s request for declaratoiy and injunc-tive relief is DENIED. The Clerk of the Court shall enter JUDGMENT consistent with this opinion. IT IS SO ORDERED. . The statute at 10 U.S.C. § 1072(7) (2012) defines the "TRICARE program” as the managed healthcare program that is established by the Department of Defense under the authority of Title 10 Chapter 55 of the United States Code. Pursuant to regulation, the TRICARE program is established for the purpose of implementing a comprehensive managed healthcare program for the delivery and financing of healthcare services in the military health system. See 32 C.F.R. § 199.17(a) (2017). . Under the TRICARE program, beneficiaries elect one of three options; TRICARE Prime, TRI-CARE Extra, or TRICARE Standard. . The Source Selection Plan for the ''T-2017 procurement explains that DHA intends to award only two regional contracts in order to "achieve financial and administrative efficiencies and to keep MCS contracts synchronous." . According to the acquisition strategy document included in the administrative record, prior to issuing the solicitation, "DHA conducted market research via requests for information (RFIs), an Industry Forum, and health care industry subject matter experts.” . Pursuant to 10 U.S.C. § 1073a(a) (2012), healthcare contracts must be awarded on a best value basis "to the maximum extent consistent with furnishing high-quality health care in a manner that protects the fiscal and other interests of the United States,” . The East Region Contract was to include Alabama, Arkansas, Connecticut, Delaware, District of Columbia, Florida, Georgia, Illinois, Indiana, Iowa (Rock Island Arsenal Area only), Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri (St. Louis area only), New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas (excluding Western Texas), Vermont, Virginia, West Virginia, and Wisconsin. The West Region Contract was to include Alaska, Arizona, California, Colorado, Hawaii, Idaho, Iowa (except the Rock Island Arsenal area), Kansas, Minnesota, Missouri (except the St. Louis area), Montana, Nebraska; Nevada, New Mexico, North Dakota, Oregon, South Dakota, Texas (only Western Texas), Utah, Washington, and Wyoming. . By statute, contractors are required to financially underwrite the delivery of healthcare services under the TRICARE program. See 10 U.S.C. § 1072(7). . The solicitation included a list of non-underwritten categories that were excluded from the requirement. . CLIN 9002 accounted for the fixed fee associated with the contractor's transition-out efforts. The solicitation also included CLINs X004, X005, X006, and X007. . Section L of the solicitation required that " 'Data Other than Certified Cost or Pricing Data' shall be submitted by the Offeror to support the price reasonableness of its proposal.” . WellPoint intervened in the GAO protest, but is not a party in the above-captioned bid protest. . According to the SSA's source selection documentation, the contracting officer evaluated Factor 4, Small Business Participation. . Count II of the complaint had alleged that procurement law and regulations require offer-ors to submit proposals that comply with solicitation instructions and requirements, and that Hu-mana and Health Net submitted proposals that explicitly deviated from the solicitation’s requirements. In a subsequent filing, protestor stated: "After reviewing the facts presented by Humana and Health Net in their briefs, UnitedHealth withdraws Count II of its Complaint, which alleged that Humana's and Health Net’s proposals violated the Solicitation's stated requirements regarding network utilization.” As a result of protestor’s withdrawal, the court does not consider Count II of the complaint. . The language of 5 U.S.C. § 706 provides in full: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. 5 U.S.C. § 706. . FAR Part 15.404 — 1 (a) requires a price reasonableness evaluation and provides that the "contracting officer is responsible for evaluating the reasonableness of the offered prices” in a negotiated procurement. 48 C.F.R. § 15.404 — 1(a)(1) (2017). The parties do not dispute that the agency considered price reasonableness. . Unlike price realism, FAR 15.404 — 1 (d) defines a cost realism analysis as "the process of independently reviewing and evaluating specific elements of each offeror’s proposed cost estimate to determine whether the estimated proposed cost elements are realistic for the work to be performed; reflect a clear understanding of the requirements; and are consistent with the unique methods of performance and materials described in the offeror's technical proposal.” 48 C.F.R. § 15.404 — 1(d)(1). . Protestor also argues that, to the extent the court finds the solicitation to be ambiguous, that ambiguity was latent and must be construed against DHA. Defendant and defendant-interve-nors, however, argue that, if the court were to find the solicitation to be ambiguous, then it was patently ambiguous and M & V has waived its ability to assert its interpretation, and, moreover, that extrinsic evidence demonstrates that the solicitation did not require a price realism analysis. Defendant and defendant-intervenors point out, citing protestor's question during the question and answer period prior to the submission of proposals, that protestor believed that the solicitation did not provide for a price realism evaluation. Defendant-intervenor Health Net argues that protestor's price realism interpretation "was conceived for the first time during the GAO bid *556protest process.” Given the court’s finding, however, it need not reach this issue. . Because the court finds that a price realism analysis was not required, the court does not get to the issue of prejudice. Yet, the court notes that the basis for rejection is an "inherent lack of competence or failure to comprehend the complexity and risks of the program.” Given the prior participation of both Humana and Health Net in the immediately previous "T-3” contracts, it is not surprising that DHA did not find Huma-na and Health Net to lack a basic understanding of the "program commitments, contract terms and conditions," including the complexity and risks of the program. Moreover, the outlying price proposals for both the East and West Region contracts were submitted by M & V, which submitted a price approximately two billion dollars higher than the awardee's price proposal for the East Region contract and approximately one billion dollars higher than the awardee’s price proposal for the West Region contract. All of the other offerors submitted price proposals that were relatively close in value. . As explained above, the GAO determined that DHA was required to consider price realism and that the agency adequately considered price realism. While asking the court to adhere to the GAO decision that a price realism analysis was required, protestor asks this court to afford "no deference” to the GAO’s conclusion that DHA adequately considered price realism. . Also, in SecureNet Co. Ltd. v. United States, 72 Fed.Cl. 800, 812-13 (2006), the court found that a solicitation did not call for a price realism evaluation when the only reference to price realism in the solicitation was "defined in terms of whether the offer is too high, rather than too low." . A cost realism analysis, which is defined in FAR 15.404 — 1(d), is distinct from a price realism analysis, "a term not employed in the FAR.” DMS All-Star Joint Venture v. United States, 90 Fed.Cl. at 662-63 (explaining that ”[c]ost realism is a technique that is applied to cost-reimbursement contracts” and price realism "examines the performance risk of proposals in a fixed-price contract procurement, with particular attention to the risk of low-priced proposals, and may include the cost realism analysis references in FAR 15.404-l(d)”). . Additionally, as discussed above, Section L of the solicitation directed offerors to propose their PMPM prices and Guaranteed Network Provider discounts in their price proposals, and offerors were instructed not to address their price proposals in their technical proposals. Thus, the solicitation contemplated a clear separation between the evaluation of the technical and price proposals.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218596/	OPINION BRUGGINK, Judge. Plaintiff, Dr. Kathleen Kaplan, appearing pro se, filed her complaint on January 27, 2014. Plaintiff is a former employee of the Air Force Office of Scientific Research (“AFOSR”), which is part of the Air Force Research Laboratory (“AFRL”), She brings this suit under the Equal Pay Act, 29 U.S.C. § 206(d)(1) (2012). She contends that while she was employed at AFOSR, she was paid less than males doing comparable work. She claims that she is entitled to additional pay beginning in 2011. We held a three-day trial from December 6 to December 8, 2016. After post-trial briefing, the matter is ready for disposition. Because the’ government has demonstrated that it had in place a merit system that explains the differential in pay, the Laboratory Personnel Demonstration Project, we find against plaintiff. In reaching our finding in favor of the government, we are mindful that Dr. Kaplan appears pro se. BACKGROUND Dr. Kaplan is trained' as a computer scientist. She earned three degrees in computer science: a B.S. from the University of Massachusetts Lowell, a M.S. from the Florida Institute of Technology, and a D.Sc. from George Washington University. Tidal Transcript (“Tr.”) 46; PX 121.2 Dr. Kaplan spent a number of years in academia before moving to AFOSR in August of 2005. I. The Air Force Office of Scientific’ Research The AFOSR, part of the Ah' Force Re-searéh Laboratory, manages the research investment for the United States Air Force. AFOSR’s mission is to “[discover, shape, and champion basic science that profoundly impacts the future Air Force.” PX 145 at KAPL005102. In large part, the agency pursues its mission by directly funding research by others-as well as through certain scholarship and.outreach programs. Over the years, the agency has undergone several reorganizations. The most recent occurred in 2013 and resulted in AFOSR changing from having three “directorates”—the Physics & Electronics Directorate; the Mathematics, Information, & Life Sciences Directorate; and the Aerospace, Chemical & Material Sciences Directorate—to five “divisions,” namely, Dynamical Systems & Control; Quantum & Non-Equilibrium Processes; Information, Decision, & Complex Networks; Complex Material and Devices; and Energy, Power, & Propulsion. II, Dr. Kaplan and Her Alleged Comparators During her tenure at AFOSR, she held three different positions. She began in 2005 as a program manager, which she held from her hire date until January of 2011. Tr. 53, As the result of an Equal Employment Opportunity settlement, Dr. Kaplan left her program manager position and became the deputy director of the Physics & Electronics Directorate on January 10, 2011. Tr. 67. She held her deputy director position until AFOSR completed the 2013 reorganization, which resulted in her assuming a program officer position in the Information, Decision, & Complex Networks division in February of 2013. Plaintiff claims that she is entitled to an increase in pay based on her performance in these three positions. Because of the lapse 237of time between performance, evaluation, and the time for which pay increases became effective, the relevant performance assessment cycles began in October 2009, Dr. Kaplan offers six male comparators— men who she argues received more pay while performing work that required substantially equal skill, effort, and responsibility. Her alleged comparators, two for each position, are Dr. Wu and Dr. Schlossberg for her program manager position, Dr. DeLong and Dr. Blackwood for her deputy director position, and Dr. Bonneau and Dr. Nachman for her program officer position. Defendant does not concede that these men are proper comparators, even if they might have shared a title with plaintiff, because their work did not involve equal skill, effort or responsibility. Defendant also argues that the agency used a merit-based system that linked pay to performance, thus providing a reason for the difference in pay regardless of whether the comparators’ work involved equal skill, effort, or responsibility. In view of the importance of the agency’s novel system of linking pay to performance, known as the Laboratory Personnel Demonstration Project, we begin with an extensive description of that program. III. The Laboratory Personnel Demonstration Project The APRL replaced the General Schedule (“GS”) compensation system with the Laboratory Personnel Demonstration Project (the “Lab Demo”) in March 1997, hence it was in place throughout plaintiffs employment period and its effects would have been reflected in the pay Dr. Kaplan received at the commencement of the years at issue here. Tr. 547. As described in AFRL Manual 36-104 (the “Manual”),3 the Lab Demo “is an improved personnel management system which provides laboratory management, at the lowest practical level, the flexibility, authority, and control to achieve a quality workforce and laboratory.” PX 50 at KAPL000238.4 In relevant part, the Lab Demo replaced the GS 1-15 grade levels used commonly across federal civilian employment with four broadband levels, DR-I through DR-IV, with DR-IV being the highest grade and equivalent to GS-15. Id. at KAPL000241. Dr. Kaplan and each of her alleged male comparators took part in what is known as the “DR pay plan,” which is specific to APRL scientists and engineers (“S & E”). Id. at KAPL000238. In order to “provide an effective, efficient, and flexible method for assessing, compensating, and managing the laboratory workforce,” the Lab Demo implements what is known as a contribution-based compensation system (“CCS”). Id. A contribution is the “measure of the value of what an employee accomplished.” DX 5 at AFKAP032215. As opposed to simply judging an employee’s performance, in assessing an employee’s contribution, the focus is on the positive impact an employee’s actions have with respect to advancing “the purpose, vision, mission, and objectives of the organization,” here, the Air Force. Id. That is, the system seeks to “[n]ever confuse motion with progress,” Tr. 838 (Dr. Christian), nor is mere longevity rewarded for its own sake. Every year, S & E employees are assessed and given scores by their supervisors based on four factors: problém solving, communication, technology management, and teamwork and leadership. Each factor has a corresponding descriptor—often referred to as a “rubric”—that describes the expected level of work specific to the S & E career path and an employee’s particular broadband level. These rubrics are published in the APRL Manual 36-104, to which the employees have access, PX 50 at KAP000353-56; Tr. 157. In a process described in more detail below, the four factor scores are averaged to determine an employee’s Overall Contribution Score (“OCS”), which, in conjunction with the standard pay line (“SPL”),5 serves as the primary 238basis for individual pay increases beyond an employee’s then-current pay. In theory, the CCS allows Lab Demo employees to more quickly reach the equivalent of a GS-15/ step-10 than under the GS system, if their contributions merit such a progression. There are also two types of bonuses that are available to Lab Demo employees. The broadband IV bonus is used when an “employee’s OCS indicates that he/she should receive a base pay increase that would place him/her over the GS-15/step-10 pay cap.”6 Id. at KAPL000310. What is referred to as the CCS bonus is used “to recognize unsustainable contributions, [for example if] the employee had an opportunity in a given year that’s not going to last... they might be recognized with a CCS bonus.” Tr. 579. This gives the employee’s supervisors the ability to reward a one-off contribution without increasing the employee’s expected OCS for the next cycle. According to the Manual, “[t]he annual CCS assessment scoring process begins with input from the employee, which provides an opportunity to state the perceived accomplishments and jevel of contribution.” PX 50 at KAPL000280-81. The assessment cycle begins on October 1 and ends on September 30 of the following year. Id. at KAPL000281. For example, an assessment cycle that runs from October 1, 2016 to September 30, 2017 would determine an employee’s pay for the 2018 calendar year. For that reason, the pay Dr. Kaplan received in January 2011, the beginning of what she asserts is the relevant limitations period, was a reflection of the prior operation of the Lab Demo from 2005 through 2009, insofar as her performance was evaluated. At the beginning of the cycle, supervisors are directed to “provide the broadband level descriptors, factors, and key elements to employees, as well as discuss expectations for the upcoming assessment period so that employees know the basis on which their contribution will be assessed.” Id. The Manual also dictates that there be a mid-cycle review in April or May of a particular cycle. “At this time, the employees’ contributions to the mission will be discussed, as well as future professional development and career opportunities .... The supervisor completes the AFRL Form 279, CCS Feedback, to facilitate and document the mid-cycle review.” Id. The scoring process occurs during the end-of-cycle assessment, which begins when the employee performs a self-assessment, summarizing their contributions in a way that “reflect[s] the impact or result of each activity rather than just listing the activity itself.” Id. These self-assessments are then reviewed by the employee’s first-level supervisor as he or she creates a preliminary assessment, which “is determined using the employee input, to include any team participation, and the supervisor’s personal knowledge of the employee’s overall contribution to the laboratory mission.” Id. at KAPL000282. The first-level supervisor then takes the preliminary assessment to the First-Level Meeting of Managers (“First-Level MoM”), the opportunity for an employee’s first-level supervisor and first-level supervisors of similar employees to “meet with their respective second-level supervisor to review and discuss preliminary assessments, refine them into numerical CCS factor scores, and adjust any factor write-ups based on results of the meeting.” Id. As mentioned above, each factor has a corresponding set of descriptors, or a rubric, that describes the expected contribution specific to the four broadband levels. Supervisors are to use these rubrics in their evaluations. Factor scores can range from 0.0 to 5.9. Contributions that are assessed to correspond with the descriptors associated with the level I broadband receive a score within the range of 0.75 to 1.9. “Contributions meeting level II descriptors are assessed at scores of 2.0 to 2.9, and so forth.” Id. Contributions that fail to meet the descriptors for a level I 239contribution receive a score of 0,0; similarly, contributions relevant to a specific factor that exceed expectations for level IV can receive a score as high as 5.9. In other words, contributions beyond what is expected for an employee at that level are more highly leveraged in terms of scoring. The four factor scores are averaged to reach an employee’s OGS. The Manual provides that [t]he maximum compensation for broadband level IV is the GS-15/Step-10 salary and equates to a total OCS of just below 4.9. If the average of CCS factor scores exceeds 5.25, the total OCS will be set to 5.25 with the individual identified to upper management as having exceeded the maximum contribution defined by the broadband. However, contribution exceeding the level IV descriptors would not commonly occur. Id. After the First-Level MoM, the Pay Pool Manager (“PPM”) takes part in what is referred to as the “PPM MoM.” “The purpose of this meeting is .to ensure consistent application of the CCS process ....” Id. at KAPL000283. The PPM may direct subordinate supervisors to take a second look at scores if he or she finds that the CCS process has not been consistently applied. The PPM approves the scores after they have been finalized. Once the PPM has approved and finalized all assessments, the first-level supervisors are then required to conduct assessment feedbacks with the employee being evaluated. Id. The feedback session is expected to include “a discussion of the contribution statements, factor scores, OCS, developmental and career opportunities, and expectations for the upcoming cycle.” Id. A copy of the “Annual Contribution Evaluation Form,” known as “AFRL Form 280,” is then given to the employee. The AFRL Form 280 “documents decisions made during the MoM to include factor write-ups and factor scores,” Id. The grievance period begins after the employee receives his or her AFRL Form 280. In the absence of a successful grievance, the employee’s actual OCS is then compared to her “expected OCS,” in order to determine whether she is being properly compensated. As mentioned above, the Standard Pay Line can be used to generate an employee’s expected OCS by determining the OCS score that correlates with the employee’s current basic pay. If an employee’s actual OCS is greater than their expected OCS, they are eligible for an increase in pay based on their increased contribution. 240Program Manager Assessment Cycle Expected OCS Actual OCS Delta OCS Resulting Base Salary Total CCS and Broadband IV Bonuses Dr. Kaplan 10/01/09-9/30/10 [ 3 [] [ 3 ■ t 3 f 3 10/01/10-9/30/11 C ] [ 1 r 3 I 3 [] • Dr, Schlossberg 10/01/09-9/30/10 [ ] [ ] [ ] [ 3 [ 3 10/01/10-9/30/11 [ ] [ 3 [ 3 [ 3 r 3 Dr. Wu 10/01/09-9/30/10 [ 3 [ '] [ ] l 3 [ 3 10/01/10-9/30/11 N/A PX22.2M1.32, 175; DX 100, Deputy Director Assessment Cycle Expected OCS Actual OCS Delta OCS Resulting Base Salary Total CCS and Broadband IV Bonuses Dr, Kaplan 10/01/09-9/30/10 t 3 [ 3 [ 3 C 3 [ 3 24110/01/10-9/30/i 1 [ 3 [ 3 [ 3 [ 3 [] 10/01/11-9/30/12 13 [ 3 [ 3 [ 3 [3 10/01/12-9/30/13 □ n [] [ J □ Dr. Blackwood 10/01/09-9/30/10 [ 3 [ ] C 3 [ 3 [ 3 10/0 i/10-9/30/11 [ 3 l ■] [ 3 [ 3 r 3 10/01/11-9/30/12 L J [ 3 [ 3 [ 3 n 10/01/12-9/30/1,3 [ 3 [ 3 r i i: 3 n Dr. DeLong 10/01/09-9/30/10 [ 3 [ 3 [3 [ 3 [ 3 10/01/10-9/30/11 f .3 [ 3 [3 [ 3 [ 3 10/01/11-9/30/12 [ 3 [ 3 [J [ 3 [ 3 10/01/12-9/30/13 r ] [ 3 i: .3 [ 3 [ 3 Px 9, 10, 18, 19,24,25,26, 27, 28, 31, 32; DX 100, 242Program Officer Assessment Cycle Expected OCS Actual OCS Delta OCS Resulting Base Salary Total CCS and Broadband IV Bonuses Dr. Kaplan 10/01/11-9/30/12 [ ] [ 3 E 3 E 3 E3 10/01/12-9/30/13 [ ] [ 3 E 3 E 3 E3 10/01/13-9/30/14 [ ] E 3 E 3 E 3 E3 10/01/14-9/30/15 [ I [ 3 E 3 E 3 E3 Dr, Nachman 10/01/11-9/30/12 C ] E 1 E3 t 3 C 3 10/01/12-9/30/13 [ .1 E 3 E3 E 3 E 3 10/01/13-9/30/14 [ ] E 3 E3 E 3 E 3 10/01/14-9/30/15 E ] [ 3 E3 [ 3 E 3 Dr, Bonneau 10/01/11-9/30/12 [ 3 E 3 E3 E -3 E 3 10/01/12-9/30/13 [ 3 E 3 E 3 E 3 E 3 10/01/13-9/30/14 N/A 10/01/14-9/30/15 N/A PX 9, 10, 20,21,36, 37, 39,44, 45,139; DX 100, Sixteen witnesses testified during trial. We also received the transcript of the de bene esse deposition of Colonel Robert Kraus, a former first-level supervisor of Dr. Kaplan. We will list the witnesses in order of their appearance along with a brief biographical description. As relevant, we will discuss the particulars of their testimony in more detail below. On the first day of trial, four witnesses testified. The first was Dr. Kaplan. Second was Dr. Frederica Darema, former director of the Mathematics, Information, and Life Sciences Directorate and current director of 243APOSR. Third was Dr. Thomas Russell, former AFOSR director and the Pay Pool Manager (“PPM”) for the assessment cycles that set Dr. Kaplan’s 2011, 2012, and 2013 pay. Dr. Patrick Carrick was the fourth witness to testify and was the PPM that set Dr. Kap-lan’s pay for 2014. Dr. Kaplan served as Dr. Carrick’s deputy when he was the director of the Physics & Electronics Directorate. On the second day of trial, Dr. Carrick concluded his testimony and the following six witnesses testified. Ms. Lisa Aiken, a paralegal for the Department of Justice and the fifth witness to testify, helped prepare defendant’s exhibit 100—a gathering of the salaries and overall contribution scores of plaintiffs and her comparators, along with a total of their bonuses, if any. Colonel Andrew Szmerekovsky, the sixth witness to testify, was the PPM responsible for the assessment cycle that set Dr. Kap-lan’s pay for 2015. Ms. Michelle Williams testified seventh. She was the chief of the personnel demonstration project office in the headquarters of the APRL at all times relevant to this case. Eighth to testify was Ms. Terry Brailsford, who was at all relevant times the chief of operations management and responsible for human resources. Ms. Mary Jackson was the ninth witness. She was the contribution-based compensation system coordinator for the APOSR Lab Demo System. Dr. Milton Blackwood, one of plaintiffs alleged comparators for her deputy director position, testified tenth. On the third and final day of trial, the remaining six witnesses testified: Dr. Hugh DeLong, one of plaintiffs alleged comparators for her deputy director position (he appeared by videoconference); Dr. Robert Bon-neau, one of plaintiffs alleged comparators for her program officer position; Dr. Arje Nachman, one of plaintiffs alleged comparators for her program officer position; Mr. Raheem Lawal, not an alleged comparator but a program manager beginning in 2005; Dr. Thomas Christian, Jr., the PPM responsible for setting Dr. Kaplan’s pay for 2016 and until December 2016, the director of APOSR; and Lieutenant Colonel Jamie Morrison, the branch chief of the Engineering and Information Sciences branch and Dr. Kaplan’s first-level supervisor beginning in April of 2015. The de bene esse deposition of Colonel Robert Kraus, Dr. Kaplan’s first-level supervisor prior to Lt. Col. Morrison, was admitted as Court Exhibit 1. DISCUSSION The Equal Pay Act provides in relevant part that: No employer having employees subject to any provision of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex .... 29 U.S.C. § 206(d)(1). Dr. Kaplan believes that, during her service as a program manager, deputy director, and program officer with APOSR, the government violated this provision and did so willfully. Even though the limitations period, assuming a willful violation, goes back no further than January 2011, she can challenge the operation of the Lab Demo project as far back as October of 2009, when the assessment cycle fixing her pay for 2011 began. To successfully prove a violation of the Equal Pay Act, she has the burden to demonstrate that she was paid less than her respective male comparators for a job that required substantially equal skill, responsibility, and -effort. Cooke v. United States, 85 Fed.Cl. 325, 341 (2008). If plaintiff is able to establish her prima facie ease, the burden shifts to defendant to demonstrate by a preponderance of the evidence that the difference in pay is due either to “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor 244than sex.” 29 U.S.C. § 206(d)(1). The burden on the employer is “a heavy one,” and it must demonstrate that the factor causing the difference in wage is actually the gender-neutral factor identified. Cooke, 85 Fed.Cl. at 347. The government attributes the pay disparity between Dr. Kaplan and her male comparators to the proper functioning of the Lab Demo system, which was in place at all times relevant to this case, and which compensates employees according to the quality of their performance by measuring an employee’s contribution to the AFOSR mission through an organized procedure that uses predetermined criteria. It contends that plaintiff was fairly scored for her contribution under that system, and as a result of her lower contribution to the mission of AFOSR, she continued to be paid less than her alleged comparators. To establish the merit system defense, defendant must demonstrate that the Lab Demo “was an organized and structured procedure by which employees were evaluated systematically and in accordance with predetermined criteria. Under such a merit system, an employer may reward workers for outstanding experience, training, and ability, so long as the resulting salary differential is not based upon sex. ” Raymond v. United States, 31 Fed.Cl. 514, 518 (1994) (internal citations omitted). Further, a merit-based system does not have to be devoid of subjectivity. EEOC v. Aetna Ins. Co., 616 F.2d 719, 726 (4th Cir. 1980) (“An element of subjectivity is essentially inevitable in employment decisions; provided that there are demonstrable reasons for the decision, unrelated to sex, subjectivity is permissible.”). Finally, “[i]f the merit system is not in writing, the employer must also show that the employees were aware of it.”7 Cooke, 85 Fed.Cl. at 347 (citing Aetna, 616 F.2d at 725). There is no question that plaintiff was paid less than the male employees she selected as comparators. Nevertheless, it is unnecessary for us to consider whether plaintiff has established that these men performed work that required substantially equal skill, responsibility, or effort because the government has clearly established the second-listed defense above—the application of a merit system.8 We conclude for reasons set out below that the Lab Demo is a legitimate and comprehensive merit system that adequately explains the difference in pay between Dr. Kaplan and her alleged male comparators. The Lab Demo system is as free from subjectivity as one could reasonably expect a merit system to be. Also, we find that, in assessing both Dr. Kaplan and her alleged male comparators, her supervisors deviated from the Lab Demo procedures only to a minor and inconsequential degree, causing no prejudice to Dr, Kaplan.9 As plaintiff points out, and as can be seen from the chart set out above, plaintiffs beginning salary in 2011, when she began her term as a Deputy Director, was approximately $9,000—512,000 less than the other two deputy directors were making that year, not considering the differences in bonuses. Plaintiff argues that this illustrates her claim of disparate treatment. In response, the government points out that her salary commencing that year was the result of the assessment cycle for October 2009-September 2010, during which time she was not yet a deputy director but was a 245program manager, The Lab Demo contemplates that in such a situation, her default salary would be carried along from the prior position, as adjusted by the assessment results. Although supervisors had the discretion, when someone moved positions in that fashion, to raise the base pay in anticipation of a greater expected contribution, that did not occur in her case. Despite her change in title, her salary as Deputy Director thus was determined by her prior performance in the program manager position. This happened again in February 2013 when her position changed from deputy director to program officer. Her pay as a program officer commencing in that year was fixed by her evaluation for the preceding assessment cycle when she was worldng as a deputy director. There is no reason to think that plaintiff was treated any differently in this respect than anyone else in the agency who moved between positions. All of this was consistent with the manual.10 The mere fact that she held the same title as her higher paid comparators is not an indictment of the system. The relevant inquiry is whether the agency’s application of the assessment process was legitimate. If it was, then the disparity in salary from year to year would continue. Given the nature of the Lab Demo, it is inevitable that employees with the same job title will receive different salaries based on their respective contributions and those differences are cumulative. We also note that the Lab Demo is more agile than the GS system when it comes to recognizing an employee’s impactful work with higher compensation. For example, Dr. Bonneau, an alleged compartator for Dr. Kaplan’s program officer position, joined the AFOSR as a DR-III level program manager in 2007. Tr. 730. While serving as a program manager, Dr. Bonneau quickly raised his OCS score to the [ ] maximum in the assessment cycle beginning October 1, 2010. PX 43. This represented a nearly [] OCS increase from his expected OCS of [ ] from the previous cycle, PX 42. In other words, in two years, Dr, Bonneau was able to raise his Actual OCS by a significantly greater amount than Dr, Kaplan did through all assessment cycles relevant to this litigation.11 The actual fairness and consistency of this somewhat mechanical grading scheme is thus dependent in the first instance on the quality of the first-line supervisors’ scoring and then on whether there was meaningful second-level review. Here we have no reason to question either the inputs—admittedly somewhat subjective—or the higher-level reviews. Through testimony elicited at trial and other evidence in the record, the government was able to demonstrate that each of Dr. Kap-lan’s first-level supervisors, namely, Dr. Car-rick, Colonel Kraus, and Lieutenant Colonel Morrison, used the required rubric and did not consider Dr. Kaplan’s gender while preparing their assessments, Court Ex. 1 at 11-12, 24-26; Tr. 381, 385, 890, 903. For example, Lieutenant Colonel Morrison testified about his use of the Lab Demo rubrics during his assessments as follows: “what I’m doing is I’ve got that rubric in front of me and I’m trying to match what language [from the rubric] best describes the activity that I’ve seen.” Tr. 890. These first-line evaluations, which arguably could be the most problematic in terms of subjectivity, were then reviewed by second-line supervisors, the PPMs. Dr. Russell, Dr. Carrick, Colonel Szmerekovsky, and Dr. Christian testified that both Dr. Kaplan’s and 246her comparators’ OCS scores accurately reflected their contribution, and were in line with those of other employees, Tr. 258-59, 409-12, 492, 830-31. In addition, AFOSR administrators, Ms. Terry Brailsford and Ms. Mary Jackson, explained that they observed the meetings of managers in order to ensure a level of uniform application of the procedures. Ms. Brailsford, the Chief of Operations Management who attended all MoMs since at least 2010, testified that the standardized rubrics were used in the MoMs to assess each employee’s contributions. Tr. 627. Ms. Jackson, the CCS coordinator who also attended all MoMs at all times relevant to this litigation, testified, as did Ms. Brailsford, that gender did not play a role in the Lab Demo process. Tr. 627, 655. Plaintiff cannot point to any credible evidence to rebut this, testimony. In effect, her challenge amounts to no more than an effort to have the court substitute its assessment of her performance for that of her supervisors. Dr. Kaplan, in her post-trial reply brief, identifies a number of instances in which she believes that the government’s i'eliance on the PPMs’ testimony is misplaced due to alleged inconsistencies in their statements at trial. We are not persuaded, however. As an example, plaintiff argues that “Col Szmere-kovsky did not address the ‘red flags’ with Col Kraus using copied Lab Demo instruction text as Dr. Kaplan’s contributions,” Pl.’s Post-Trial Reply 14.12 However, it was only Dr. Kaplan who identified the copying itself to be a “red flag,” not Colonel Szmerekovsky. The only “red flag” that Colonel Szmerekov-sky clearly identified in his testimony was that Colonel Kraus was signaling that Dr. Kaplan’s contribution level in certain areas was below the level at which Dr. Kaplan was expected to contribute as a DR-IV employee. Tr. 469-70. Dr. Kaplan makes a number of arguments attempting to show that the Lab Demo procedures were not followed. In all of them that are actually relevant to this case, plaintiff is either mistaken in fact or plaintiffs comment highlights an inconsequential deviation that we find was not prejudicial to her participation in the Lab Demo process. We hold that plaintiff has not shown that the agency failed to adequately follow the procedures of the Lab Demo. Plaintiff also advances several arguments that we find amount to nothing more than her disagreements with how her contributions were valued through the Lab Demo process. She fails to demonstrate, however, that there was an impermissible level of subjectivity. For example, in her post-trial brief, Dr. Kaplan takes issue with how Dr. Christian only pointed out “one thing” when he “was asked to compare Dr. Kaplan’s impressive communications contributions which only received a [ ] with Dr. Nachman’s less-than-impressive [communication] contributions which received a [ ].” Pl.’s Post-Trial Br. 38. The one contribution that Dr. Kaplan is referencing related to Dr. Nachman’s visit to the Intelligence Advanced Research Projects Activity (“IARPA”). Dr. Christian testified that this communication was particularly important because IARPA exists to support the intelligence community, “so it’s a very important organization doing work that highly benefits the nation.” Tr. 841. Dr. Christian went on to explain that “[t]here is tremendous money that IARPA puts into research, and this allows the Air Force to let them know what we’re doing and inform them.” Id. Dr. Kaplan cites this to illustrate the fact that one contribution can carry a lot of weight while another may have little influence on a factor score, thus showing the “complete subjectivity” of the system. Pl.’s Post-Trial Br. 38. We disagree with her characterization. Indeed, it is difficult to imagine-any merit-247based system passing muster under Dr. Kap-lan’s view. With respect to her position as a program officer, we note that the assessments performed by Dr. Kaplan’s supervisors were corroborated, in part, by unfavorable reviews by the Air Force Scientific Advisory Board (“SAB”) in front of which Dr. Kaplan presented in March 2016.13 Dr. Christian described the SAB as follows: “The SAB is a very ... independent, objective, and I’ll use the term ‘eminent experts.’ They’re from universities. They’re from government laboratories .... And they review every directorate within the research laboratory, of which AFOSR is one.” Tr. 846-47. When Dr. Kaplan assumed the program officer position in February 2013, she inherited the “Software and Systems” portfolio from Dr. Bon-neau. Tr. 740. Relevant here, the SAB reviewed the Software and Systems portfolio when it was under Dr. Bonneau in 2012 and under Dr. Kaplan in 2016. In 2012, Dr. Bon-neau received the highest possible rating from the SAB for the Systems and Software program. PX 44. Under Dr. Kaplan in 2016, the SAB found that it “was the only one to be highly deficient,” and “strongly recommended that no money be put into it until it was restructured.” Tr. 848. Two months later, Dr. Kaplan was placed on a contribution improvement plan based on a finding that her contributions were not commensurate with her pay. PX 213. While we have discussed only a few examples of the evidence plaintiff cites to demonstrate bias, we believe that they are illustrative and are satisfied that the difference in the contribution scores are not the result of an improper amount of subjectivity. The Lab Demo system is structured to limit subjectivity, while recognizing that the assessments of first-line supervisors are to some extent subjective. The First-Level MoM, PPM MoM, and the employees’ ability to later file grievances all work towards introducing objective points of comparison. As Dr. Christian testified, the “second set of eyes” provided by the other supervisors in the FirsL-Level MoM minimize subjectivity. Tr. 835-36. We are also satisfied that the description by Colonel Szmerekovsky, the PPM that set Dr. Kaplan’s pay for 2015, is accurate, He viewed it as his job in the PPM MoM to “ensure the integrity of the system,” Tr. 468, and to make certain that there was a similar or consistent standard when [the supervisors are] looking at the rubric across the board .... And if it’s not consistent, [if] one person appears to be too hard on their people and one person appears to be too easy, we try to normalize it ... through discussion and say, hey, why are you rating this because ... this doesn’t match the rubric or this isn’t consistent with how we’ve been providing ratings. Tr. 519. Finally, plaintiff also challenges what she considers to be inconsistency in the award of bonuses. For example, Dr. Kaplan argues that Dr. Russell, the PPM for the assessment cycles that set Dr. Kaplan’s 2011, 2012, and 2013 pay, could not explain how Dr. Nach-man and Dr. Bonneau, who both received an Overall Contribution Score of [], were awarded different bonuses. However, as the government points out, Dr. Russell was able in a brief examination of Dr. Bonneau’s AFRL Form 280 to identify at least one illustration that Dr. Bonneau was working beyond his portfolio and contributing at levels higher than Dr. Nachman, thus entitling him to a larger bonus. Tr. 212. In any event, while there was some uncertainty regarding the bonuses expressed during trial, we are satisfied that the two types of bonuses were adequately described in the Manual, which was consistent with Ms. Williams’ testimony, among others. See e.g., PX 50 at KAPL000272-73, 000310; Tr. 579. We also note that Dr. Kaplan’s actual OCS never came close to the 4.85 score that would make the broadband IV bonus relevant to her total compensation. Also, she has failed to demonstrate any unsustainable contribution for which she should have been awarded a CCS 248bonus. Accordingly, we see no reason to question her supervisor’s judgment in not awarding her a bonus. CONCLUSION Dr. Kaplan was paid less than her alleged comparators, but even if those men did work performed under similar working conditions that required substantially equal skill, effort and responsibility, the government has satisfied it burden of proving that those pay differences are entirely attributable to the operation of its merit pay system. We have considered all of Dr. Kaplan’s other arguments and find them to be without merit.14 Accordingly, plaintiffs complaint is dismissed. The Clerk of Court is directed to enter judgment in favor of the United States, No costs. . "PX” refers to admitted exhibits offered by plaintiff: "DX" refers to admitted exhibits offered by defendant. . Dr. Kaplan testified that she had access to the Manual and was aware of the Lab Demo system at all times relevant to this litigation. Tr. 157. . The page citations for exhibits refer to the Bates pages provided during discovery. .The SPL relates an employee's contribution to basic pay for a given year. It is expressed on a graph with possible contribution scores along the x-axis and potential annual basic pay amounts along the y-axis. The SPL is a straight line with a positive slope and can be used to determine an employee’s expected OCS, given her current sala*238ry, as well as to determine whether an employee is over-, under-, or equitably compensated, given her actual contribution. An employee is considered equitably compensated if her pay is within 0.3 OCS above or below the SPL. PX 50 at KAPL000279. . We note that Dr. Kaplan never received a score high enough to warrant a broadband IV bonus. . We note that the Lab Demo is in writing and that we are not persuaded by plaintiffs arguments that slight deviations or discretionary decisions by the supervisors amounted to a change to some unwritten policy. . Not that we have any misgivings about the quality of the government’s evidence on this point. There was ample evidence that plaintiff was not performing the work that required substantially the same skill, effort and responsibility, For example, her work as deputy director was more often administrative in nature, whereas Dr. DeLong served as acting director of his directorate at this time, while also managing a portfolio. Dr. Bonneau, one of her comparators for the program officer position, in addition to his other duties, served as "cochair of the large-scale networking group for the Office of Science and Technology Policy for the White House.” Tr. 737. .For example, Dr. Kaplan testified that she only received mid-cycle feedback for two assessment cycles relevant to this litigation. Tr. 78-79. Because this mid-cycle review was not a part of the end-of-cycle assessment process that determined her pay, this deviation from the Lab Demo carries little weight in plaintiff’s attempt to rebut the government’s affirmative defense. . The manual gives management the authority to make such a change in pay when an employee moves within the system but does not make it mandatory. PX 50 at KAPL000272. The Manual provides that "[w]hen setting basic pay ... managers must consider an employee's expected level of contribution based upon academic qualifications, competencies, experience ... [and their] current OCS” among other factors. Icl. We decline the opportunity to second guess her supervisors as plaintiff has failed to show how their decision was irrational or otherwise inconsistent with the Manual. . While the system allows for more rapid progression, it also contemplates situations where an employee is unable to further increase her contribution. The Manual provides that "[i]t is reasonable to expect an employee's ability to increase contribution to eventually plateau .... In [this] case[], artificial bumps that increase scores (such as from a 2.2 to 2.3) should be avoided if contribution remains the same.” Id. at KAPL000283. . This is a reference to Colonel Kraus’s replacement of some of the language from Dr. Kaplan's self-assessment with that of the rubric's description of a lower broadband level during the end-of-cycle assessment that set her pay for 2015. Dr. Kaplan also argues that, since Colonel Kraus copied the language, his assessment was not based on her actual contribution. We are satisfied that this was Colonel Kraus's way of describing her actual contribution and note that her AFRL Form 280 from that year also mentions a number of specific contributions that she made. See PX 37. Moreover, as defendant points out, Ms, Michelle Williams testified that she did not find Colonel Kraus's taldng excerpts from the rubric in the manner that he did to be inappropriate. Tr. 588. . We note that a presentation in March of 2016 would be relevant for setting Dr. Kaplan's pay for 2017, and that Dr. Kaplan was removed from her position in November of 2016. We find the SAB’s assessment to be relevant in that it demonstrates the negative impact that Dr. Kaplan had over time on an inherited program. . Plaintiff argues that she was denied a number of advancement opportunities that she believes would have helped her bolster her contribution. We are satisfied that her supervisor’s actions in this regard were based on legitimate management considerations and are not a reflection of gender bias. In her post-trial brief, plaintiff also makes a general argument regarding other female employees that were paid less than the male employees they replaced. At trial, Dr. Kap-lan made a relevance objection when defendant's counsel began a line of questioning designed to elicit facts that could rebut this argument. We sustained plaintiff’s objection after she stated that she would not be pursuing such an argument. Tr. 291.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218597/	OPINION AND ORDER SWEENEY, Judge In this postaward bid protest, plaintiff Torres Advanced Enterprise Solutions, LLC (“Torres”) contends that the United States Department of State (“State Department”) improperly awarded a contract for local guard services at a United States embassy to defendant-intervenor G4S Joint Venture (“G4S”). Specifically, Torres alleges several irregularities with the State Department’s evaluation of the offerors’ proposals, including bias, bad faith, and disparate treatment. Before the court are two motions: Torres’s motion to supplement the administrative record and for expedited discovery (“motion to supplement”), and Torres's motion for a preliminary injunction. As explained in more detail below, the court denies both motions. I. background A. The Incumbent Contract In November 2011, the State Department awarded Torres contract SAQMMA12C0008 for the provision of local guard ’ services at the United States Embassy in Asunción, Paraguay.1 AR 1, 12. The contract was for one base year, with four one-year option periods. Id. at 4-5. The State Department exercised each option, extending the contract to February 28, 2017. Id. at 148, 154, 158, 269. On January 31, 2017, the State Department extended the contract for an additional six months, until August 30, 2017. Id. at 313; accord id. at 312. The State Department described the purpose’ of the work to be performed by Torres in the contract’s statement of work: The primary mission of the local guard service is to provide protection for United States personnel, facilities and equipment from damage or loss due to violent attack and theft. The local guards act as an early warning signal to the American Embassy and the [regional security officer]. The local guard force will also carry out specific actions as described in the General Orders and individual Post Orders .... The local guard services shall prevent unauthorized access; protect life; maintain order; deter criminal attacks against employees[,] dependents and property and terrorist acts against all U.S. assets[;] and prevent damage to Government property. Id. at 12; see also id. at 123 (explaining that “General Orders provide directions and instructions of general application to the Contractor personnel” while “Post Orders provide detailed instructions to persons assigned to a specific guard post”). The specific tasks for which Torres was responsible included office building entry control, official residence entry control, vehicular entry control, inspection and surveillance, perimeter patrols, mobile patrols, maintenance of operational records (including post logs, incident reports, and daily time-and-attendance records), provision and assignment of guards and relief guards for each post, on-site su501pervision of employees, ensuring that the required number of security checks are completed during each shift using a Guard Electronic Monitoring System (“GEMS”), furnishing communications equipment, surveillance detection, submission of a contingency plan, and employee training. Id. at 14-22, 41-43. Torres’s performance of the contract was to be monitored by the regional security officer—a Bureau of Diplomatic Security special agent—who also served as the contracting officer’s representative. Id. at 12; see also id. at 31 (reflecting that the designated contracting officer’s representative was the assistant regional security officer). Torres’s project manager, who was to manage Torres’s workforce and act as Torres’s liaison with the embassy, was required to implement the directives of the contracting officer and the contracting officer’s representative. Id. at 19, 37. Torres was also responsible for providing a guard force commander to lead the guard force, and one or more individuals to supervise the guard force. Id. at 19, 37-38. In addition, the contract contained a clause addressing the procedures for handling contract performance issues (“clause E.l”). Id. at 26-27. In relevant part, it provided: When the Contractor fails to provide the services at the performance standards required by this contract, the Government shall assess a negative incentive expressed as a deduction for each instance of unacceptable performance and/or non-performance .... Unless the deficiencies were not reasonably discoverable by the Government, the Government will notify the Contractor and assess deductions as soon as practicable after the unacceptable performance and/or non-performance is discovered by the Government. If the Contractor believes that mitigating circumstances precluded the Contractor from meeting the terms and conditions of the contract as it relates to performance or administration of the contract, a request for waiver or reduction of the amount of the deductions can be requested. ... The Contractor’s request for relief should provide a detailed explanation as to why the circumstances surrounding the contract noneompliance occurred and why this action could not have been prevented. [[Image here]] The Contractor shall be required to submit a Quality Assessment and Compliance Report (QACR) with' each invoice submission. ... The QACR shall serve as the Contractor’s certification that all services included on the invoice were rendered in accordance with the contractual terms and conditions. In the event that the Contractor failed to deliver all the required services as well as meet the requirements, an explanation shall be given in the QACR as to why the noncompliance action(s) occurred and what action will be taken during the next month to preclude the same and/or similar noncompliance actions. The Contractor shall also address why their Quality Control Plan (QCP) failed to prevent and/or mitigate the noncompliance acts and what action has been taken or will be taken to modify the QCP accordingly. Furthermore, the Contractor shall state whether any part of its Management Plan was revised as part of its efforts to preclude the same and/or similar noncompliance actions in the future. Where the Contractor’s review of work performed in any month reveals that the work was not performed in accordance with the terms and conditions of the contract, ... the Contractor shall not bill the U.S. Government for these services unless the Contractor identifies the nonconforming services. The Contractor shall reduce the amount of each invoice submitted for payment by the amount of work not performed in accordance with the terms and conditions of the contract .., unless the Contractor plans to submit a request for waiver or reduction of the amount of the deductions. Id. at 26-27. The contract also incorporated by reference three of the FAR’s inspection-related provisions: FAR 62.246-3, Inspection of Supplies—Cost-Reimbursement (May 2001); FAR 52.246-4, Inspection of Services—Fixed-Price (August 1996); and FAR 62.246-6, Inspection—Time-and-Material and Labor-Hour (May 2001). Id. at 26. All three 502provisions (1) require the contractor to “provide and maintain an inspection system acceptable to the Government” that covers the contracted-for supplies and services, (2) require the contractor to maintain “[c]omplete records of all inspection work performed” and make such records “available to the Government during contract performance and for as long afterwards as the contract requires,” and (3) permit “[t]he Government .... the right to inspect and test” the contracted-for supplies and services. FAR 52.246-3(b)-(c); FAR 52.246-4(b)-(c); FAR 52.246-6(b)-(c). B. Performance Under the Incumbent Contract During the course of the contract, the State Department prepared regular CPARs regarding Torres’s performance. The first CPAR, signed by the regional security officer and dated June 6, 2013, was for the base year of the contract—February 29, 2012, to February 28, 2013. AR 151-53. The second CPAR, signed by the regional security officer and dated April 26, 2014, was for the first option year—March 1, 2013, to February 28, 2014, Id. at 155-57. The third CPAR, signed by the prior contracting officer and dated April 13, 2016, was for the second option year—March 1, 2014, to February 28, 2015. Id. at 271-74. fhe fourth CPAR, which is unsigned and undated, was for the third option year—March 1, 2015, to February 28, 2016. Id at 275-78. The fifth CPAR, signed by the current contracting officer, Yenny Guillory,2 and dated December 29, 2016, was for the first nine months of the fourth option year—February 29, 2016, to November 23, 2016. Id. at 279-82. All five of these CPARs reflect that the State Department was satisfied with Torres’s performance—tlje assessing officials consistently rated Torres as “Very Good” in the areas being rated, such as “Quality,” “Schedule,” and “Management.” Id. at 151-53, 155-57, 271-82; see also M. at 281 (reflecting Ms. Guillory’s assessment, in the CPAR dated December 29, 2016, that “[t]he interaction between Torres and the Government has been excellent”). The assessing officials did note that minor issues arose during contract performance, but indicated that Torres was quick to resolve them. Id at 152-53,156, 273, 276-77, 280-81; see also id. at 280-81 (reflecting Ms. Guillory’s comments, in the CPAR dated December 29, 2016, (1) that although the guard force commander did not meet the language proficiency requirement, he was doing an “excellent job,” and (2) that “Torres receives a deduction] letter from the [contracting officer’s representative] approximately once every 1-2 months,” but “takes swift and firm action upon receipt” of those letters). Indeed, the record reflects that Torres received only five deduction letters and one notice of major nonconformance during the time periods covered by'these CPARs, as follows: • A February 28, 2013 deduction letter noting that a guard was found sleeping at his post for one hour on February 21, 2013, id. at 323; • A March 21, 2014 deduction letter noting that a post was unmanned for twelve hours on November 17, 2013, id. at 325, to which Torres responded with a letter, dated March 27, 2014, indicating that it counseled the guard force commander and the shift supervisor to ensure that all posts are properly manned, id. at 327; • A May 6, 2016 deduction letter noting that on April 5, 2016, guards at four posts were not provided the required breaks and one post was unmanned for one hour, id. at 329-30, to which Torres responded with a letter, dated May 11, 2016, indicating that it counseled the guard force commander and the shift supervisor to ensure that all posts are properly manned and sufficient relief guards are available to provide the required breaks, id. at 331-32; • A May 20, 2016 deduction letter noting that a post was unmanned for twelve hours on May 9, 2016, and that three 503posts were unmanned for twelve hours on May 15, 2016, id. at 333; • A July 20, 2016 notice of major noncon-formance regarding guard use of personal cell phones while on duty, id. at 338-39, issued because two guards were observed “looking at the screens of their smart phones instead of being alert on duty” on July 12, 2016, id. at 335-36, to which Torres responded with a letter, dated July 25, 2016, indicating that the two guards were suspended (one for three days and the other for five days) and counseled that personal cell phone use was a violation of General and Post Orders, that shift supervisors were instructed to look for personal cell phones during post inspections, and that guards were being required to leave their personal cell phones at a designated location when reporting for duty, id. at 340; accord id. at 335; and • An October 5, 2016 deduction letter noting that a post was unmanned for twelve hours on October 2, 2016, because the guard at the post was using his personal cell phone while on duty, id. at 342, to which Torres responded with a letter, dated October 7, 2016, contending that the acknowledged violation was more properly classified as a failure to follow General and Post Orders rather than as an unmanned post, and advising that (1) the guard was removed from the contract, (2) it had established a personal cell phone policy in which guards were required to check in their personal cell phones prior to reporting to their posts and could only access their phones for emergencies or during lunch breaks, (3) it would remind the guards of its policy during musters and refresher training, (4) it would remove guards from the contract for violation of its policy, and (5) it would screen the backpacks, purses, and bags of all local guard force personnel reporting for duty, id. at 344-45; see also id at 346 (indicating that Ms. Guillory agreed with Torres’s response). See also id. at 327, 331, 340 (reflecting that when Torres responded to the State Department’s correspondence, it regularly stated that it took the violations noted by the State Department “very seriously”). Ultimately, the assessing officials all reported that based on what they knew of Torres’s performance, they would either still award Torres the contract, id. at 153, 157, or recommend that Torres be awarded similar contracts in the future, id. at 274, 277, 281; see also id. at 313 (reflecting, in a contract modification signed by Ms. Guillory on January 31, 2017, that the State Department extended Torres’s contract performance by six months). Torres continued to receive deduction letters after November 23, 2016. Indeed, it received three additional deduction letters in 2016, as follows: • A November 30, 2016 deduction letter noting that a guard was found sleeping at his post for thirty minutes on November 22, 2016, id. at 347, to which Torres responded with a letter, dated December 6, 2016, indicating that (1) the guard had been suspended for three days and counseled that he had violated General and Post Orders, (2) all local guard force personnel would receive refresher training on their duties, (3) the guard force commander would assess shift hours, and (4) shift supervisors would ensure during their inspections that guards remain alert at their posts, id. at 349; • A December 13, 2016 deduction letter noting that a guard at one post did not have a radio on December 9, 2016, that the radio being used by the guard at that same post on December 12, 2016, had a dead battery, and that many of Torres’s radios were in poor condition, id. at 351, to which Torres responded with a letter, dated December 19, 2016, indicating that it (1) counseled the guard force commander and the shift supervisors of their responsibility to ensure that all guards possess the required equipment and that such equipment is in proper working condition, (2) counseled the project manager, guard force commander, and shift supervisors of their responsibility to inspect the equipment and turn in nonfunctioning 504equipment for repair, and (3) would remind guards of the proper handling of radios at every muster and during a refresher training, id. at 353-54; and • A December 22, 2016 deduction letter noting that a guard did not properly maintain the log at his post on December 12, 2016, and that a post was left unmanned for one hour on December 21, 2016, id. at 356, to which Torres responded with a letter, dated December 29, 2016, indicating that it had ■ counseled the guard force commander, shift supervisors, and senior guards to ensure that all posts were properly manned, and that it had reminded guards during musters of their responsibility to maintain the logs at their assigned posts, id. at 358-59. See also id. at 349 (reflecting Torres’s statement that it took the violation noted by the State Department in the November 30, 2016 deduction letter “very seriously”). The State Department continued to note deficiencies in Torres’s performance in 2017. The first such deficiency related to an incident on February 12, 2017, in which “an unknown individual walked up to the embassy and threw two bottles filled with liquid over the wall in front of the CAC 1 window.” Id. at 361. Jonathan Welch, the contracting officer’s representative, “reviewed camera footage of the incident and the guards’ responses” and discovered: E-4 (CAC 1—Pedestrian Access Control): Leading up to the ... event, this guard had head down in a personal cell phone while sitting at the CAC 1 desk and did not notice the individual walk from across the street, walk up the stairs, place his belongings on the bench, walk up to the window in front of CAC 1 and throw two objects over the Embassy wall. The guard eventually noticed movement and stood up, just in time to see the individual throwing objects. This guard then made eye contact with E-8 and shrugged shoulders. Seconds after the event, the guard searched for money and gave the money to the E-8 guard to pick up a bag of food/water at the street corner of the compound. Throughout the rest of the 12 hour shift, E-4 improperly used the government provided computer to surf the internet and watch movies, while continuously utilizing a personal cell phone and ignor[ing] assigned duties. At the end of the shift, E-4 screened some incoming guards’ bags, while letting other bags pass without inspection. There is no way to determine how many cell phones made it onto the compound Sunday night. RT-1 (Senior Relief Guard): Throughout the 12 hour shift, this senior guard sat next to E4, utilized a personal cell phone, and watched the movies E4 selected on the government computer. Occasionally this guard left, presumably to relieve another guard, and later returned to perform the same activities already mentioned above. E-8 (CAC 1 Vehicle Screening): [T]his guard was on the exterior of CAC 1 vehicle entrance and saw the individual walk toward the CAC 1 pedestrian entrance window, throw two objects over the wall, pick up his bag from the bench, and slowly walk away from the area. The guard slowly walked in the direction of the individual, made no attempt to intercept, identify, or resist the criminal activity. After the criminal activity, the guard made no attempt to intercept or identify the individual. The guard stood in place and watched the suspect slowly depart the area, cross the street, and disappear' from the camera’s view. These actions are in violation of the general guard orders and the overall mission of the local guard force service. The guard at E-8 then walked to the CAC 1 pedestrian door, took money from the guard at E-4, retrieved a bag of food/water from the street corner, and retened it to the guard at E-4. Id. Mr. Welch reached several conclusions: The E4 guard position ... cannot be trusted to effectively screen backpacks, purses, and bags of all [local guard force] personnel reporting for duty, when this guard is in fact using a personal cell phone throughout the shift. This check must be performed by the Supervisor. The cell phones must not be stored in an accessible area, such as under the desk of CAC 1. For emergencies, guards should give the phone number of the [local guard force] radio 505dispatch as the emergency number to call, with the Supervisor number as a secondary to all family members, school administrators, etc. The major non-conformance issue of personal cell phones on duty has not been addressed adequately since the first notification six months ago. This deficiency endangers performance of the contract and the safety and security of the Mission. Id. at 362. Thus, in a deduction letter dated March 1, 2017, Mr. Welch directed Torres to (1) develop “[a] comprehensive plan to control cell phone usage on duty”; (2) schedule training on General Orders, defensive tactics, and the use of batons and handcuffs; and (3) propose corrective action “that will actually stop this activity from happening in the future.” Id. Torres’s Director of Operations and Senior Program Manager, Richard Orth, responded to the deduction letter on March 7, 2017, acknowledging the violations, id at 363, and describing Torres’s proposed corrective action:. Following the incidents of February 12, 2017, Mr. Victor Segovia, Torres Project Manager!,] conducted remedial training [as directed], ... ... Torres has removed the guards that were caught using their cell phones while on duty from the contract. Torres has put a policy in place that all guards will check in their personal cell phones prior to reporting to them posts and pick them up when they complete their duties. These cell phones will now be stored in the Guard Force Commander’s office or secured in a locker at other sites such as USAID and Peace Corps. Torres will allow the guards to use their cell phones for emergencies when relieved from their post and during their assigned lunch break. At no time will a guard have his/her personal cell phone at post. Torres will remind all guards of this policy at every shift change and during refresher training and will remove guards from the contract for non-compliance. In addition, the Shift Supervisor will oversee the screening of all backpacks, purses, and bags of all [local guard force] personnel reporting for duty. Torres has given all [local guard force] personnel the phone number of the [local guard force] radio dispatch as the emergency number to call, with the Supervisor number as a secondary number to provide to all family members, school administrators, and others as needed. Id. at 364. That same day, Mr. Welch advised Mr. Orth via electronic-mail that he did not consider Torres’s plan to be comprehensive. Id. at 366. He acknowledged that “some of the required actions in the deduction letter have been met,” but noted: , This is the third corrective action plan for cell phones since July 2016. Obviously, the previous two plans were unsuccessful. This third corrective action plan must be comprehensive and well thought out. For example, your letter states the guards will have access to their phones during lunch breaks and emergencies. Who will be checking in and checking out the cell phones to guards, opening and closing the door to the [guard force commander’s] office throughout the day and night? Supervisors and the [guard force commander] are the only guards able to access the [guard force commander’s] office. Supervisors and the [guard force commander] cannot be on phone issuance duty. For [off-site locations,] what is the comprehensive plan to prevent cell phone use on duty? Stating the phones will be stored in a locker is a start, but not comprehensive. How will claims of theft or tampering of the phones be avoided? How will the phones be identified to each guard? I’m sure there are other questions the supervisors and guards will have. A one sentence policy will result in confusion and potentially grievances by guards in the near future. Id. at 366-37. Mr. Welch therefore advised Mr. Orth that he expected Torres to submit “a full written policy” and “a comprehensive corrective action plan that explains how this 506checking-in/out of phones will actually work.” Id. at 367. Mr. Orth acknowledged Mr. Welch’s request via electronic-mail, id at 366, and in a March 31, 2017 letter, described Torres’s revised corrective action: a. Following the incidents of February 12, 2017, [Mr. Segovia] conducted remedial training [as directed]. ... b.Torres has removed the Guards that were caught using their cell phones while on duty from the contract. c. Torres has put a policy in place that all Guards will check in their personal cell phones prior to reporting to their Posts. Guards will not have access to their personal phones during the duration of their duties and will only be able [to] pick them up when they complete their duties. d. The Shift Supervisor will write the Guard’s name on a tag and will attach it to the cell phone. The Shift Supervisor will give the Guard a copy of the cell phone tag which will include the cell phone claim number. These cell phones are to be placed in a secure box during shifts. This box will be kept in the Guard Force Commander’s office. e. In the case of an urgent situation or emergency the Guard will advise the Supervisor of the problem. Then the Supervisor will allow the Guard access to a Government Furnished Property/Contractor Furnished Property ... telephone/eell phone. f. Additionally, the Shift Supervisor will oversee the screening of all backpacks, purses, and bags of all [local guard force] personnel reporting for duty at the Main Embassy Compound to ensure no cell phones go with the Guard to his/her Post. g. For other locations oversight of this policy will fall under the Senior Guard at Post .... h. At no time should a Guard have his/ her personal cell phone at post. Torres Supervisors will remind all guards of this policy at every shift change and during Annual Refresher Training. i.Torres will remove guards from the contract for non-compliance[.] Id. at 369-70. ' While Torres was resolving the issues revealed by the February 12, 2017 bottle-throwing incident, another incident occurred that revealed additional deficiencies in Torres’s contract performance. See generally id. at 371-73. As a result of an investigation of a residential burglary by Mr. Welch at the end of February 2017, Ms. Guillory discovered that Torres’s “mobile patrol guards [were] not performing their contractual duties.” Id. at 371. Specifically, the initial investigation revealed a more than 12 hour gap of a residential check on’ this residence from 1942 on Sunday night until 0808 Monday morning, at which time the mobile patrol notified the occupant of an open garage door. The burglary occurred sometime in that 12 hour gap, during which there should have been at least 3 more checks during the night shift. Correct performance may have at most detected and deterred the burglary and theft of personal property, and at least narrowed the window of investigation. Id. Further investigation, entailing the “review of mobile patrol logs, GEMS logs, and [Global Positioning System (“GPS”) ] tracking data for each mobile patrol” for the four-day period suirounding the burglary, “revealed falsified logs by drivers calling in locations to the security dispatcher where the drivers were not actually located, GEMS reports reflecting unsatisfactory rounds including zero checks on some residences in a 12 hour shift, and GPS tracking data supporting the unsatisfactory GEMS reports.” Id. This review also revealed that “two day shift drivers left their patrol area for hours during each shift,” spending “hours at residential neighborhoods, businesses, and other locations in the cities of Luque and San Lorenzo, both approximately 10 kilometers outside their patrol areas, and, not coincidentally— the homes of record of the respective drivers.” Id. Ms. Guillory concluded that “[supervision of the mobile patrol [was] nonexistent,” explaining: “GEMS reports do not match logs called in by the mobile patrols, but the discrepancies have gone undetected 507(or at the least unreported to the [contracting officer’s representative]) by the Supervisors, Guard Force Commander, and Program Manager.” Id. at 371-72. She further concluded that these performance deficiencies constituted violations of the contract and Post Orders. Id. at 372-73. Accordingly, in a March 3, 2017 letter, Ms. Guillory advised Torres that the State Department considered the violations to be “a condition that imposes an unacceptable performance risk [that would] be documented as such” in a CPAR, and directed Torres to submit a corrective action plan within ten business days. Id at 373. Mr. Orth responded to Ms. Guillory’s letter on March 16, 2017. Id. at 374-76. He acknowledged the violations, id. at 374, and described Torres’s plan for corrective action: [Mr. Segovia] counseled the [guard force commander] and the Shift Supervisors reminding them to be more proactive in their inspections of the Mobile Patrols. The [guard force commander] conducted a meeting with all of the drivers and reminded them to adhere to the Standards of Conduct while performing them duties. The two drivers who left their assigned posts without proper authorization were counseled, removed from Mobile Patrol duties and reassigned to static guard posts. The [guard force commander] now closely monitors and evaluates GEMS reports. [Mr. Segovia] has proposed to the [contracting officer’s representative] adding another monitor where the Radio Dispatcher is located. This will enable the Radio Dispatcher to more effectively supervise the rounds of each Mobile Patrol and verify locations using the GPS tracking system. On March 3, 2017[, Mr. Orth] met with the [Mr. Segovia], [the guard force commander] and Supervisors and briefed them on the importance of proactively conducting Quality Control Inspections and ensuring guard compliance of their General Orders and Post Orders. On March 4, 2017[, Mr. Orth] conducted a ride along inspection with Mobile Patrols and Supervisors. ... A refresher training will be scheduled for all Mobile Patrol drivers for next month (April 2017) to enhance and improve the performance of the [Mobile Patrol] posts. Id. at 375. Ms. Guillory was not entirely satisfied with the described corrective action. Id. at 377-78. In a March 17, 2017 letter, she directed Torres to remove the two guard/drivers who left their assigned posts from the contract due to their “failure to comply with the standards of conduct”—they “misuse[d] paid labor hours and resources provided to perform duties exclusive of the scope of the contract.” Id. at 377. She further directed Torres to remove another employee from the contract for his conduct related to the falsification of the mobile patrol logs. Id.; see also id. at 379 (indicating that this employee was another guard/driver). Finally, she directed Torres to submit a revised corrective action plan within ten business days. Id. at 378. In a March 31, 2017 letter, Mr. Orth advised Ms. Guillory that Torres had removed the three guards/drivers from the contract and that its employees were “closely monitor[ing] the Mobile Patrols through daily reviews of the Vehicle Tracking System ... and the GEMS reports.” Id. at 379-80. That same day—March 31, 2017—Ms. Guillory prepared a sixth CPAR for Torres’s performance of the contract during the final three months of the fourth option year— November 24, 2016, to February 28, 2017. Original AR 279-311, June 30, 2017. In this CPAR, Ms. Guillory described the recent issues with Torres’s performance, including the issues with the mobile patrols, and described some additional concerns. Id, at 280-85. For example, with respect to “Management,” she wrote: Torresfs] management was assessed at three levels: the corporate management support, local program support office, and the [local guard force] supervisors. Overall management has suffered due to lack of quality control inspections^] lack of involvement by the corporate [project management office,] and the local [project manager] serving as the sole instructor for the guards for both basic training and refresher training. The [project manager] 508has [been] engaged in support of other Torres contracts in country, instead of the [local guard force]. The [local guard force] supervisors generally employ sound management tactics and have done a good job .... However, supervision of mobile patrols is not satisfactory. ... [Local guard force] supervisors are ineffective in managing the drivers, and their lack of supervision allowed the mobile patrol to create unsafe conditions for embassy personnel .... Despite evidence of insufficient checks documented in GEMS reports, supervisors continued sending the GEMS reports to the Government, without reviewing the data for correct compliance,' putting the burden on the Government to identify their shortfalls. Id. at 281. Additionally, with respect to “Training,” she wrote: All new guards should receive 80 hours of orientation and initial training; however, starting January 10, 2017 the Program [sic] Manager put on the basic course that lasted less than 40 hours without informing the Government of the course schedule or requesting a reduced time requirement^] and the quality of the training was not up to the contract requirements. After further inspection by the [contracting officer’s representative], some required courses were left out of the training. At [the contracting officer’s representative’s] direction, the [project manager] added more days and required training courses to meet [contract] requirements. The [project manager] was the instructor of the basic training course, which took him away from performing any other management duties for the duration of the course, .,, Other Torres contracts took precedence over the [local guard force] contract during the January basic training and February refresher training, which took place February 28, 2017. The basic training was moved from the main training facility to a small office (without [contracting officer’s representative] notification or approval) with little to no space for practical exercises, and the refresher training lacked logistical resources (a red man suit) due to Torres’[s] other contracts taking precedence for facilities and equipment. Id. at 282. In conjunction with her comments, Ms. Guillory downgraded Torres’s ratings for “Quality” and “Management” from “Very Good” to “Unsatisfactory.” Id. at 280; see also id. at 280 (reflecting that Ms. Guillory increased Torres’s rating for “Schedule” from “Satisfactory” to “Very Good”), 280-86 (reflecting that Ms. Guillory offered many positive comments regarding various aspects of Torres’s contract performance). She concluded the CPAR by remarking that the State Department lacked confidence that the identified issues could be resolved, and ultimately concluded that given what she knew of Torres’s performance, she would not recommend that Torres be awarded similar contracts in the future, Id. at 286. Mr. Orth, on Torres’s behalf, responded to this latest CPAR on April 13, 2017, reiterating many of the comments and explanations that he had provided in prior correspondence. See id. at 286-311. Additionally, responding to Ms, Guillory’s management-related comments, he wrote: Torres’s Quality Control Inspections by Senior Corporate personnel are value added to the contract and not required by the contract, And even though not required, the Government statement that there has been a lack of inspections or involvement by senior management is untrue. Torres [Chief Executive Officer (“CEO”)] Jerry Torres has conducted at least 60 Quality Control Inspections within the last 18 months. This includes Mobile Patrols, Marine Residence, Peace Corps Training site, USAID, and Peace Corps Administration site. Torres Regional Administrative Manager Ivana Tuset has conducted Quality Control Inspections of the Project Management Office during the current Period of Performance. The [project manager] also conducted Quality Control Inspections on 24 November 2016, 19 December 2016, 14 February 2017 and 28 February 2017 during the current Period of Performance. The Director of Operations/Senior Program Manager conducted his semi-annual Quality Control Inspection of the Paraguay [local guard force] 4 and 8 March 2017, .,, The current contract ... does not require the Project Manager to be dedicat509ed exclusively to the contract. Therefore, basing an Unacceptable rating on something that is not required by the Contract is inappropriate. The [project manager] provides oversight of all [local guard force] training. He conducted specific classes within Basic Guard Courses with very small class size (six people) 10-23 January 2017.... The [project manager] normally does not serve as the Primary Torres Instructor, however, on occasion he serves as the Primary Instructor as needed. Additionally, [h]e supports Torres’s other instructors as needed. Id, at 289-90; see also id. at 292 (disputing Ms. Guillory’s comment that Torres’s other contracts took priority over the contract for the United States Embassy in Asuncion, Paraguay). Further, with respect to mobile patrols, Mr. Orth provided: Similar incidents have occurred on a sporadic basis in previous years and Torres consistently has fired the personnel responsible. Previous CPAR[s] did not cite Mobile Patrol problems, but instead noted that, “Anytime Post had an issue with guard performance, Torres has responded quickly to remedy whatever problem there may be.” Torres also has feed the three Guard/Drivers involved on 21 March 2017. The single Mobile Patrol incident cited in the evaluation is not a systemic issue with Torres. To the extent it is an issue, it is with the quality of the local labor force available to serve as guards. G4S had similar issues previously with Mobile Patrols during its contract. Under the previous G4S contract, the [local guard force] had issues with Guard/Drivers that were far worse than Torres has experienced. Guard/Drivers and policemen were getting caught sleeping inside the vehicles during duty hours.3 Residences were not checked as per Post Orders. G4S did not replace Mobile Patrol vehicles as required by the contract when [they] reached their maximum number of kilometers allowed. G4S only had one relief guard over the life of its previous contract. Torres’s management has improved significantly on this performance and has had to fee far fewer guard/drivers than the previous contractor according to Torres’s [project manager,] who served as G4S’s [project manager]. Id. at 293 (footnote added); see also id. at 306 (“Mobile Patrol deficiencies are common worldwide by Security Companies performing Local Guard Force Services for U.S. Missions.. The rating provided is inconsistent with prior evaluation practices and disproportionately punitive of Torres. Torres identified an issue with local personnel and took swift corrective action to fire the drivers involved.”). Finally, Mr. Orth addressed Ms. Guillory’s training-related comments: With respect to training times, in an email dated 18 January 2017 the [project manager] informed the [contracting officer’s representative] that the Basic Guard Course is taking less time to cover all the required máterial. The [contracting officer’s representative] stated, “Less than 80 hours may be reasonable for a small class, In order to assist me in making that determination, please send me the detailed course schedule for last week and this week. Also, I will need to review each student’s results of class quizzes, class examinations, mid-term examination, and final examination.” Torres added additional training hours after the [contracting officer’s representative’s] review. The fewer the people to be train[ed] tends to speed up training time. Torres trains to Standard not to Time. Those trained passed all requirements in less than 80 hours. As all Government required courses were taught to standard, and Torres conveyed the fact of the accelerated schedule to the [contracting officer’s representative], Torres should not receive a poor evaluation. Id. at 292; accord id. at 301-02. Mr. Orth summed up: As it has done previously, during the current rated period, Torres continued to respond rapidly to remedy problems identified by the Government in deduction] letters, deficiency notices, or otherwise. Given that Local Guard Force Services 510contracts rely on humans, predominately low paid guards, to execute the majority of the requirements of the contract, there is the potential that mistakes and errors will occur, including poor performance by selected individuals. In previous evaluations, the Department of State appears to have recognized and accounted for this reality. Therefore, how Torres responds to and corrects issues should be the primary criteria for evaluating performance. Torres prides itself on identifying and correcting problems before they occur to the maximum extent possible. In those instances where problems occur, as noted in previous [Contractor Performance Assessment Reporting System (“CPARS”) ] evaluations, Torres responds rapidly to remedy identified deficiencies. Torres’s Project Manager who previously served as the G4S [project manager] on the Paraguay [local guard forces] contract, has never had a negative comment in the previous CPAR[s] cited above. Embassy personnel have recognized Torres’s strong performance as recently as last month and again in April 2017. Id. at 307-08. He therefore indicated his nonconcurrence with the CPAR and requested a reevaluation. Id. at 311. In the meantime, despite Torres’s efforts to closely monitor its mobile patrols, the State Department identified several instances when a mobile patrol failed to complete the four required rounds during a shift (in most instances, the mobile patrols completed three rounds). AR 383-84. In an April 12, 2017 deduction letter, Mr. Welch indicated that the failures occurred with two mobile patrol units on March 24, 2017, one mobile patrol unit on March 25, 2017, two mobile patrol units on March 26, 2017, one mobile patrol unit on April 1, 2017, and one mobile patrol unit on April 5, 2017. Mr. Welch stated that Torres had “failed to provide a corrective action that [would] stop this activity from happening” and prompted Torres to “put in place a realistic and reliable corrective action plan j;o correct the quality of [its] patrol services.” Id. at 385. In an April 19, 2017 letter, Mr. Orth acknowledged the violations, id. at 386, and provided Mr. Welch with a timeline of Torres’s “additional corrective action”: 1. On April 12, 2017, a Contractor-Furnished Property ... computer with internet service was placed at the Radio Dispatcher Post. The Radio Dispatcher can now more effectively supervise the rounds of each Mobile Patrol and verify locations using the GPS tracking system in near real time. 2. Starting on April 20, 2017[, Mr. Segovia] will use the Daily Mobile Patrol Rounds Verification Report to conduct daily reviews of GEMS Reports[,] the Vehicle Tracking System ... [,] the Mobile Patrol Logs ... [,] and Radio Dispatcher Logs from the previous 24 hours. He will submit this Report to the [contracting officer’s representative and Mr. Orth]. 3. Starting on April 20, 2017[, the guard force commander], Supervisors and Radio Dispatchers will also use the Daily Mobile Patrol Rounds Verification Report to monitor and review Mobile Patrol rounds. 4. Starting on April 20, 2017[,] ... when the Mobile Patrolman (Guard/Driver) conducts the radio check every thirty minutes, reporting the patrol’s location and Residence cheeks for the last 30 minutest,] the Radio Dispatcher will confirm the Residences to be checked over the next 30 minute period. 5. On April 21, 2017[,] Torres has scheduled Refresher Training for all Mobile Patrol Drivers to enhance and improve the performance of the [Mobile Patrol] posts. Torres will conduct this Refresher Training in two groups to maintain continuity of services. M. at 386-87. Meanwhile, on April 13, 2017, six days prior to Mr. Orth’s letter describing Torres’s additional corrective action and the same day that Torres responded to the most recent CPAR, Ms. Guillory sent a cure notice to Torres’s CEO, advising him that the State Department considered Torres’s “deficient performance under the [contract] as an unacceptable condition that may endanger performance of the contract and place the security of the U.S. Embassy in Asunción, Paraguay in serious jeopardy.” Id. at 390. 511She indicated that the purpose of the cure notice was to “draw Torres’s immediate attention to the need to make a reasonable effort to stabilize the delivery of services in accordance with the terns and conditions of [the] contract.” Id. In particular, she explained: It is clear from the deficiency notices, deduction letters and non-performance compliance[ ] letters submitted during Option Year Four (4) and the current [extension of that option year], [that] the [United States government] has documented the deficiencies and violations to contract requirements starting July 20, 2016 through April 5, 2017. Torres has not resolved the documented deficiencies regarding cell phone usage, Mobile patrol[s] ... [,] and lack of Quality Controls on behalf of the contractor. Id. Ms. Guillory then discussed the three areas of deficient performance—personal cell phone usage, mobile patrols, and quality control—in more detail. Id. at 391-94. With respect to the first two areas, she summarized the problems and responses that were described in earlier correspondence and the most recent CPAR. Id. at 391-93. With respect to quality control, Ms. Guillory wrote: The FAR clauses which are incorporated by reference into the contract clearly put the burden of implementing quality control onto the contractor. It is clear from the discussion under the cell phone and vehicle rounds [issues] that Torres is failing to perform the quality control required under the terms of the contract. While the government has the right to conduct quality assurance, this right does not shift the burden of performing quality control from the contractor to the government. Torres must implement an acceptable quality control plan as required by the terms of the contract. Torres ... has not provided an accurate [Quality Assessment and Compliance Report] in regards to: 1.Failure to make rounds on the mobile patrol: failure to self-report issues and failure to self-deduct when applicable. The government has to do a thorough daily review of operations instead of a spot check. 2. GEMS reports have been not accurate and GPS systems find recurring failure to comply with the contract requirements .... 3. Cell phone use: failure to self-report issues and failure to self-deduct when applicable. 4. Deductions directed by the [United States government]. The [contracting officer’s representative] has to reject invoices that did not include requested deductions on a monthly basis. 5. The contractor has failed to self-report and self-deduct through the life of this contract[ and] the [United States government] has had to dedicate time to find the issues. 6. ... [Mr.] Segovia has failed to report failures and non-compliance issues under this contract described [from] July 20, 2016 to April 6, 2017. One of his duties ... : Responsible for all quality control of guard services. At the Corporate level, Torres ... has failed to reassure the [United States government] that issues described above will be resolved effectively and in a timely manner. Id. at 393-94. Overall, Ms. Guillory concluded that Torres’s “substandard performance ... [had] been a recurring issue beginning in” the fourth option year and continuing through the six-month extension of contract performance, and that the State Department lacked “reassurance that the issues will be effectively resolved regarding the cell phone usage, the mobile patrol violations and the lack of quality control.” Id. at 395. She therefore “demand[ed]” that Torres submit a corrective action plan within ten business days “that clearly and comprehensively addressed the steps to immediately correct each of the” specified deficiencies, warning Torres that she might “consider it reasonable and necessary” to terminate the contract for default. Id. Mr. Orth responded to the cure notice on April 24, 2017. Id. at 396. With respect to the personal cell phone use issue, he noted that since Torres implemented the revised corree-512five action plan set forth in its March 31, 2017 letter, it “[had] not had a cell phone incident,” Id. at 398-99. With respect to the mobile patrol issues, he provided some new information—for example, explaining that the failure of some of the guard/drivers to complete four rounds during their shifts on March 24 to 26, 2017, was due to the need to respond to alarms at residences, the need to remain at a residence with an open gate, and a vehicle breakdown—and then reiterated both the corrective action described in his March 16, 2017 letter and the additional corrective action described in his April 19, 2017 letter. Id. at 402-03. And, with respect to the quality control issues, he summarized the number and types of quality control inspections that Torres’s personnel had recently conducted. Id. at 406. After addressing these three issues, Mr. Orth responded to each -of the numbered problems identified by Ms. Guillory: Failure to make rounds on the mobile patrol: failure to self-report issues and failure to self-deduct when applicable: Since the beginning of the contract the [project manager], [guard force commander] and Shift Supervisors have counseled, suspended and/or terminated many guard/drivers for not following .,. Post-specific Orders. Torres has used more than 20 qualified guards, including several Senior Guards, as Mobile Patrol drivers in a constant search to improve the work of the [local guard force], specifically the Mobile Patrols. Torres deemed these actions as on-the-spot corrections not warranting self-reporting. GEMS reports have been not accurate and GPS systems find recurring failure to comply with the contract requirements ... : Torres has always provided GEMS reports on a daily basis to the [contracting officer’s representative]. Torres’s latest [corrective action plan], addressing Mobile Patrol deficiencies and dated April 19, 2017, will also correct this recent shortfall. Cell phone use: failure to self-report issues and failure to self-deduct when applicable: Since the contract began on February 28, 2012, Torres has, through the daily inspections conducted by its [project manager], [guard force commander] and Shift Supervisors, counseled, suspended and/or terminated many guards for not following General/Post Orders as they relate to the use of cellular phones while on duty. Torres deemed these actions as on-the-spot corrections not warranting self-reporting. Through the life of this contract the [project manager], [guard force commander] and Shift Supervisors have notified the [contracting officer’s representative] of several issues of non-compliance by [local guard force] personnel. Deductions directed by the [United States government]. The COR has to reject invoices that did not include requested deductions on a monthly basis. Torres has always included [United States government-directed deductions in its invoices. The contractor has failed to self-report and self-deduct through the life of this contract, the [United States government] has had to dedicate time to find the issues. Since the contract began on February 28, 2012, Torres has, through the daily inspections conducted by its [project manager], [guard force commander] and Shift Supervisors, counseled, suspended and/or terminated guards for not following General/Post Orders as they relate to the use of cellular phones while on duty. Torres deemed these actions as on-the-spot corrections not warranting self-reporting. Until February 2017, the [contracting officer’s representative] appeared satisfied with the actions taken by Torres to identify and correct these issues, and therefore Torres had no reason to self-deduct. [Mr.] Segovia! ] has failed to report failures and noncompliance issues under this contract described [from] July 20, 2016 to April 5, 2017. One of his duties ... : Responsible for all quality control of guard services. From July 20, 2017 through April 6,2017, [Mr.] Segovia[ ] has counseled, suspended and/or terminated guards from this contract for failures and non-compliance by [local guard force] personnel. He has disciplined Guards and other [local guard force] personnel .... Guards have' been disciplined for- sleeping on Post, using cell phones and reporting late for work, and Mobile Patrols have been disciplined for not making their rounds per the contract. 513Id. at 405-06. Finally, Mr. Orth described Torres’s proposed corrective action: i. As stated above, Torres has implemented a more robust daily method for ensuring contract compliance by its Mobile Patrols .... Torres will self-deduct based on the results of the Daily Mobile Patrol Rounds Verification Reports when warranted. ii. [Mr. Orth] will travel to Paraguay from May 6-10, 2017 to assess the implementation of Torres’s [corrective action plans] as well as to conduct another [quality assurance/quality control (“QA/QC”)] inspection of the [local guard force]. He intends to meet with the [contracting officer’s representative] and [regional security officer] to discuss [local guard force] performance and to discuss collaboratively how Torres can continue to improve its contract performance. iii. Torres’s CEO will continue performing spot (ad-hoc) QA/QC inspections while in Paraguay. iv. Torres's Regional Administrative Manager will continue monthly, if not biweekly, [Project Management Office] inspections. v. During his weekly [project manager] teleconference call, [Mr. Orth] will assess contract compliance, identify potential issues and develop and implement proactive solutions before they become issues. Id. at 407. Ms. Guillory responded to Mr. Orth’s letter on May 9, 2017, taking issue with a number of his statements. Id. at 410-12. Among other comments, she remarked that (1) an April 20, 2017 review of GEMS records from two to three randomly selected days over a four-month period (from November 2016 to February 2017) revealed “1,450 failures to make rounds”; (2) clause E.l and the inspection-related FAR provisions “clearly put the burden of implementing quality control onto the contractor”; (3) “[t]he government has a tracking record of deductions, deficiency letters and other performance related communication between the [contracting officer’s representative] and the [project manager] to support [allegations] of lack of quality control measures and self-reporting by Torres”; and (4) Torres was required, pursuant to clause E.l, to self-report all incidents that resulted in Torres counseling, suspending, and/or terminating any employees. Id. at 411-12. Ms. Guillory directed Torres to submit a revised cure notice response that addressed her comments.4 Id. at 412. C. The Solicitation for the Follow-On Contract As Torres continued to perform under the local guard services contract, and in anticipation of the expiration of that contract, the State Department prepared to solicit proposals for the follow-on contract. See generally id. at 414-61. Ultimately, on January 81, 2017, the State Department issued solicitation SAQMMA16R0125, requesting proposals to provide local guard services at the United States Embassy in Asunción, Paraguay, for up to five years (one base year and four option years). Id. at 462, 465. Pursuant to Section L of the solicitation, each offeror was to submit its proposal in two volumes, one containing its price proposal and one containing its technical proposal. Id. at 519-20. The technical proposal was to be divided into three main sections: management plan, past performance and experience, and preliminary transition plan. Id. at 524— 25. The management plan section was to contain five subsections: organization and management, key personnel, training program, contingency plan, and quality control plan. Id. at 624. Of relevance in this protest is the contingency plan, which was to address how the offeror would “ensure continuity of contractually obligated services (anticipated and unanticipated) during adverse events to include (but not be limited to) labor disputes, civil unrest, natural disasters, dissolution of the Joint Venture (if applicable), or any other situation that would negatively impact the U.S. Mission.” Id. at 527; see also id. at 528 (indicating that the following possible occurrences should be addressed in the contingen-514ey plan: labor action, civil unrest, natural disaster,- dissolution of joint venture, mass casualty, scheduled and unscheduled absences of key personnel, and currency/economic crisis). Also relevant in this protest is the past performance and experience section of the technical proposal, for which the offer-ors were instructed to “[l]ist all contracts and subcontracts the Offeror (and each partner in the joint venture) has held over the past five years for the same or similar work.” Id. at 529. Further, in the past performance subsection of their technical proposals, offerors were to “[pjrovide the following information for each contract and subcontract”: 7. Brief discussion of any technical problems and their resolution. 8. Brief discussion of any terminations (partial or complete) and the type (convenience or default) as well as any deficiehcy notices, corrective action plans, show cause letters or cure notices (provide explanatory details). 9. Listing of deductions taken under -any listed contracts, with explanatory details and resolution. 10. Brief description of any deficiency notices received related to contract noncompliance and a brief description of the corrective actions to remedy the non-compliant performance. Id. Offerors were advised that the State Department might contact their customers to “request additional past performance information.” Id. at 529-30. Because the solicitation provided that the State Department would award the contract to the responsible offeror with the lowest-priced, technically acceptable proposal, id. at 538, the State Department planned to conduct “[a] price evaluation to determine the total price proposed by each Offeror” and a “[technical evaluation to determine the technical acceptability of the offer to the solicitation’s technical requirements,” id. at 533. Regarding the latter assessment, the State Department identified the factors and sub-factors that it would evaluate, • which mirrored the required sections and subsections of the technical proposal, id., and then described the relative importance of each factor and subfactor: The relative importance of the technical evaluation factors is: Factor A, the Management Plan, is relatively equivalent to Factor B, Past Performance and Experience. Each of those factors is of greater importance than Factor C, the Preliminary Transition Plan. The sub-factors within Factor A, the Management Plan ... are listed in descending order of importance^ Organization and Management, Key Personnel, Training Program, Contingency Plan, and Quality Control Plan]. Within Factor B, Past Performance and Experience, the Experience sub-factor is of greater importance than the Past Performance sub-factor. Id. at 534. The State Department then addressed how it would evaluate the proposals on each subfactor. Id. at 535-37. With respect to the contingency plan subfaetor, it provided: [T]o be considered acceptable and receive a “pass” in the Contingency Plan sub-factor, the proposal must be complete and clear, comply with the requirements of the solicitation, demonstrate a thorough understanding of the requirements and demonstrate the ability to perform the prospective contract successfully in the areas identified in this sub-factor. Id. at 536. And, with respect to the past performance subfactor, it provided: Past performance includes the Contractor’s record of conforming to contract requirements and to standards of good workmanship; the Contractor’s record of forecasting and controlling costs; the Contractor’s adherence to contract schedules, including the administrative aspects of performance; the Contractor’s history of reasonable and cooperative behavior and commitment to customer satisfaction; the Contractor’s record of integrity and business ethics[;] and generally, the Contractor’s business-like concern for the interest of the customer. In evaluating past performance, the Government may use past performance information obtained from sources other than those identified by the Offeror in its proposal, e.g., its own records, other Fed515eral agencies or companies, and information available through commercial sources. The Government uses past performance information primarily to assess an Offer- or’s capability to meet the solicitation performance requirements, including the relevance and currency of the Offeror’s work experience. ... The Government may obtain past performance information from the Past Performance Information Retrieval Systems (PPIRS). Id. at 537. Finally, the State Department indicated: The Government will evaluate the Offer- or’s proposal on an Acceptable/ Unacceptable basis. To be considered technically acceptable, the technical proposal must provide the information requested in Section L, conform to the requirements of the solicitation and demonstrate the ability to perform the prospective contract successfully. The Government will consider the [described] factors and sub factors ... when determining the acceptability of the technical proposal. The Offeror’s response, or lack thereof, will be taken into consideration in the final evaluation. A rating of “unacceptable” for any sub-factor listed for the Technical Proposal may render the entire Technical Proposal unacceptable. Id at 535; accord id. at 538. Proposals were due by February 28, 2017. Id. at 462, 518. Only two offerors submitted proposals, id. at 2291, 2303: Torres, a limited liability company, id. at 1139, and G4S, a joint venture between G4S Secure Integration LLC, G4S Secure Solutions International Inc., and Wackenhut Paraguay S.A., id. at 867, 1018, 1021. See also id at 820-1138 (G4S’s proposal), 1139-520 (Torres’s proposal). D. Evaluation of Proposals for the Follow-On Contract Upon their receipt by the State Department, the proposals were evaluated by a Technical Evaluation Panel (“TEP”) composed of three individuals—Mr. Welch and two security program officers from the Bureau of Diplomatic Security. Id. at 1527, 1531, 1535. In its initial review, the TEP determined that neither proposal was technically acceptable. Id at 2291. Accordingly, it sought additional information from the offer-ors via letters sent by Ms. Guillory. Id at 1536-42. Specifically, from G4S, the TEP sought information related to the organization and management, key personnel, quality control plan, and preliminary transition plan portions of its proposal. Id. at 1536-37. The TEP did not seek information related to the contingency plan or past performance portions of G4S’s proposal. Id; cf. id. at 1074-91 (containing G4S’s contingency plan, in which G4S characterized the [...]), 1115-17 (containing G4S’s past performance information, which was presented in three charts—(1) [...], (2) [...], and (3) [...]5—and reflected that G4S reported numerous corrective action plans, an even greater number of deductions, and at least one cure notice). From Torres, the TEP sought information related to the organization and management, quality control plan,' training program, past performance, and preliminary transition plan portions of its proposal. Id. at 1539-41. With respect Torres’s past performance, the TEP requested: 1. ... As the incumbent, the Government has noted staffing shortages (i.e. [project management] office) during the duration of the contract. Provide all the information as to composition and makeup (to include the list of names) of the current [project'management office] in Asunción, duration of performing duties and description of duties. 2. ... Please provide information and detail as to all deductions, contract non-compliance letters, deficiency notices and corrective actions plans taken for the current contract periods option year three (3) [a]nd Option Year (4) .... Id. at 1541. In its March 20, 2017 response to the discussion issues, Torres supplied the requested staffing and past performance information, but also questioned the assertion that there were staffing shortages in the program management office. Id. at 1746-53. 516It appears that in the meantime, Ms. Guil-lory prepared a cost/price evaluation report in which she determined that neither Torres’s total evaluated price of nor G4S’s total evaluated price of was “fair and reasonable,” and that both price proposals were “unacceptable” and “highly risky.”6 Id. at 2247-51. But see id, at 2250 (concluding that G4S’s total evaluated price was both “fair and reasonable” and “neither fair nor reasonable,” that G4S’s price proposal was both “acceptable” and “unacceptable,” and that G4S’s price proposal both carried “little or no risk” and was “highly risky”7). She concluded that discussions were warranted to address her concerns. Id. at 2251. On April 13, 2017, Ms, Guillory sent both offerors another letter requesting additional information. Id. at 1816-21. Her letter to G4S addressed only one issue—that G4S’s proposed price “appear[ed] to be [...].” Id. at 1816. In response, G4S indicated that [...]. Id, at 1823. Subsequently, in a May 3, 2017 electronic-mail message, Ms. Guillory advised G4S that [.,.]. Id. at 2209. Neither G4S nor Ms. Guillory referenced the February 2, 2017 amendment to the solicitation -in which the State Department [...]. See id. at 642, 662-63; see also id. at 1145 (reflecting that G4S acknowledged receipt of the amendment on February 27,2017). In her letter to Torres, Ms. Guillory noted that Torres’s performance during the fourth option year of the existing local guard services contract was poor in several respects, specifically identifying issues with the mobile. patrol, the provision of adequate training, compliance with Post Orders (related to the use of personal cell phones and government-furnished vehicles), and key personnel. Id. at 1818-20. Accordingly, she posed the following questions: Question 1: Address the past performance issues identified above for the Mobile Patrol, Training, and Post Orders violations. How will Torres effectively mitigate these problems and avoid them on the future contract? [[Image here]] Question 2: Mr. [.. .]-has been proposed as the [...] on your proposal]) H]ow [will] Torres ,.. assess and comply with the requirements on ... solicitation SAQM-MA16R0126 having Mr. [...] involved in other projects as ,., the [...] needs to be dedicated exclusively to the local guard contract... ? Question 3: The violations of several sections of the contract during the option year (4) in the government’s experience is due to lack of oversight from, the [project manager] and [local guard force] [sic]. Does Torres plan to reassess the proposed personnel? Id. at 1820. On April 26, 2017, Torres provided a comprehensive response to the issues raised and questions posed by Ms. Guillory. See id. at 1836-47. With respect to the mobile patrol and compliance with Post Orders issues, Torres generally reiterated what had been stated in the correspondence related to those violations, and then answered Ms. Guillory’s questions. See id. at 1837-39, 1842-44. Then, with respect to the training issues, Torres explained that recent basic training did not last the full eighty hours required by the contract because of the small number of guards being trained, and that the contracting officer’s representative was aware of the situation as it was occurring. Id. at 1840. But see id, at 2299 (indicating that electronic-mail messages revealed that, the contracting officer’s representative was informed that 517training finished early after the training was complete). Torres also described its training resources. Id. at 1840-42. Next, with respect to the key personnel issue, Torres proposed an alternate project manager. Id. at 1845-47. Finally, Torres described the positive feedback that it had recently received from embassy personnel regarding its performance. Id. at 1836-87. Upon, the close of discussions, the TEP evaluated the offerors’ final proposals and reached a consensus rating on each factor and subfactor: Factor Torres G4S Management Plan Acceptable Acceptable Organization and Management Acceptable Acceptable Key Personnel Acceptable Acceptable Training Program Acceptable Acceptable Contingency Plan Acceptable Acceptable Quality Control Plan Acceptable Acceptable Past Performance and Experience Unacceptable Acceptable Past Performance Unacceptable Acceptable Experience Acceptable Acceptable Preliminary Transition Plan Acceptable Acceptable Id. at 2252-90. With respect to G4S’s proposal, the TEP made the following comments regarding the contingency plan subfactor: “The Offeror prepared a complete and well composed plan that takes various extraneous factors into consideration. The panel found no weaknesses within the offeror’s plan.” Id. at 2255. It also provided comments regarding the past performance subfaetor: “The Offeror has proven confident [sic] on past performance criteria as they have shown a long history of successful work accomplishments with different agencies locally and abroad. The company has significant experience working with US embassies around the world.” Id. at 2257. Finally, it made the following comments regarding the past performance and experience factor: “G4S demonstrated corporate experience working on similar or even more complex security services overseas. Past performance is acceptable[.] The TEP find[s] G4S’s track [sic] of past performance references satisfactory.” Id. at 2269. With respect to Torres’s proposal', the TEP made extensive comments related to Torres’s response to the second round of discussion questions pertaining to past performance. Id. at 2276-89. It concluded: “The Offeror’s past performance and understanding of Embassy Asuncion’s current contract, modifications, and exhibits has caused the Panel to question [its] ability to perform satisfactorily on this project. Torres’[s] final proposal does not satisfy those questions ....” Id. at 2289. It then provided comments regarding the past performance and experience factor: “The [fjinal proposal provided additional information related to past performance and corrective actions. The Panel does not find Torres acceptable on past performance and ... this final proposal does not satisfy the Panel’s concerns. The Panel does not consider the past performance of this offeror to be advantageous to the US Government.” Id. In its report to Ms. Guillory, the TEP expanded upon its concerns with Torres’s past performance: The Offeror’s understanding of Embassy Asunción’s current contract, modifications, and exhibits has caused the Panel to ques518tion [its] ability to perform satisfactorily on this project. Tfie Panel does not have confidence that the Offeror can correct the major deficiencies to include mobile patrol issues, lack of understanding of post orders and ... modifications to the contract, violation of post orders, [and] lack of quality controls. The Technical Evaluation Panel found the proposal from Torres ... very risky to the [United States government] .... Past performance issues on Option Year Four[ include] misunderstanding of requirements under the current contract, lack of quality controls and contract measures of completion, [and] lack of quality [c]ompliance review for GEMS reports and therefore incorrect invoicing for services that were not rendered. Id. at 2292-93; accord id. at 2301; see also id. at 2298 (“[P]ast performance issues [related to the mobile patrols] have put the burden of identifying any and all non-compliance by the Contractor on the Government, which has in turn forced the Government to spend many man hours via the [contracting officer’s representative] and [locally engaged] staff performing qualjty control functions that are contractually required to be performed by the contractor. The panel finds this behavior by the contractor to be unreasonable and uncooperative and shows a lack of commitment to customer satisfaction.”), 2299-300 (“[T]he Panel found the lack of demonstrable understanding of [the contract’s training requirements] unacceptable .... In order to conform to contract requirements, the requirements must be understood. Failure to understand basic contract requirements for training demonstrates a potential liability to the [United Spates government].”), 2300 (finding Torres’s explanations regarding the personal cell phone issues unpersuasive). Ultimately, the TEP found Torres’s proposal to be technically unacceptable and G4S’s proposal to be technically acceptable. Id. at 2293-94, 2296. In a May 19, 2017 document bearing the title “Price Negotiation Memorandum,” Ms. Guillory summarized the acquisition process for the follow-on local guard services contract, including the TEP’s ratings of the of-ferors’ final proposals.8 Id. at 2302-05. She then related the TEP’s narrative evaluations of proposals.9 Id. at 2305-09. After setting forth the TEP’s comments, Ms. Guillory indicated her agreement with the TEP’s conclusions; The contracting officer agreed with the TEP findings that G4S is technically acceptable. Revisions to its proposal were logical and satisfactory to the TEP and the contracting office [sic]. The contracting officer also agreed that Torres was unacceptable due to its past performance and concerns over the understanding of current contract commitments reflected [in] their response to past performance inquiries. Therefore, G4S is the only[] technically acceptable offeror representing the best value to the Department. Id. at 2310. Next, Ms. Guillory conducted a price evaluation. Id. at 2310-13. She indicated that G4S’s total evaluated price after discussions was $10,301,376.58, and that Torres’s total evaluated price after discussions was [...]. Id. at 2310. She then analyzed whether G4S’s proposed price was fair and reasonable, given that it was significantly higher than the independent government estimate of [...]. Id. at 2311-13. She found that the differences between G4S’s proposed price and the independent government estimate could be explained by valid choices made by G4S and limitations with the independent government estimate. Id. at 2312-13. 519Accordingly, she concluded that G4S’s proposed price was fair and reasonable. Id at 2313. After conducting a price evaluation, Ms. Guillory assessed whether G4S was a responsible offeror. Id. She explained: The Contracting Officer conducted the requisite checks of [the] Federal Awardee Performance Information and Integrity System (FAPIIS)[ and the PPIRS] for ah parties of the joint venture. The Contracting Officer also cheeked the System for Award Management (SAM) to ensure there were no active exclusions. No derogatory information was found that precludes contract award to G4S Secure Integration LLC/G4S Secure Solutions International Ine./G4S Soluciones de Seguridad S.A.10 G4S Joint Venture has adequate financial resources; can comply with the performance schedule; has a satisfactory performance record; and has the necessary organization, experience and technical skills to perform the contract. In addition, G4S is currently performing satisfactorily under numerous local guard contracts around the world. Id. (footnote added). Accordingly, Ms. Guillo-ry determined that it was “in the best interest of the U.S. Government to award a contract for local guard services at the U.S. Embassy in Asunción, Paraguay to the G4S [joint venture] ... at a fair and reasonable price of’ $10,301,376.58. Id. at 2314. E. Contract Award and Debriefing On May 31, 2017, Ms. Guillory advised both offerors that G4S had been awarded the contract. Id. at 2315-17; accord id. at 2325-498 (containing the contract). Pursuant to the solicitation, the notice to G4S triggered the ninety-day transition period to be conducted in accordance with G4S’s transition plan. Id at 2315-16. On June 5, 2017, at Torres’s request, Ms. Guillory provided Torres with a written pos-taward debriefing. Id. at 2320-24. She explained that Torres’s past performance was deemed unacceptable, and described the deficiencies identified by the TEP. Id. at 2320-21; see also id. at 2323 (“Torres[’s] past performance responses were deemed unacceptable, therefore Torres’[s] proposal was unacceptable^] G4S’[s] proposal was deemed technically acceptable on all factors.”). II. PROCEDURAL HISTORY Torres filed the instant protest on June 26, 2017. In its complaint, Torres alleges that “the State Department intentionally sought to create a basis to deny the award to Torres ... by taking routine performance issues and exaggerating them into major deficiencies” and “performing] an early and abbreviated CPARS evaluation that could be considered by the TEP as negative past performance information.” Compl. ¶ 27; accord id. ¶ 68 (characterizing the State Department’s actions as “mere pretexts”). With respect to the former allegation, Torres states that “the State Department’s handling of routine performance issues took a marked shift in March 2017,” id. ¶ 65, when Ms. Guillory “began to send Deficiency Letters and Cure Notices herself, bypassing the embassy level communication with the [contracting officer’s representative] that had proved effective in all previous years,” id. ¶ 67; accord id. ¶ 34. According to Torres, “[t]he issues raised [by Ms. Guillory] reflected a dramatic change from prior practice, which recognized that a guard force of approximately 85 local guards will occasionally experience issues with guard performance, and instead emphasized responsiveness.” Id. ¶ 67. With respect to its allegation that the State Department “performed an early and abbreviated CPARS evaluation,” id. ¶ 27, Torres asserts that on April 3, 2017, the State Department “posted a CPAR for Torres’[s] performance on the [local guard force] contract during the time period from November 24, 2016 through February 28, 2017,” 520despite the fact that “CPARS reviews were normally conducted on a yearly basis,” id, ¶47. Torres further asserts that Mr. Orth discussed the contents of the CPAR “with State Department personnel,” including Mr. Welch, during a conference call on April 13, 2017. Id. ¶ 49. According to Torres, it submitted its comments on the CPAR shortly after the conference call concluded, but before it did so, it received a cure notice from the State Department. Id. ¶ 60. Torres further alleges in its complaint that “[t]he State Department’s bad faith toward Torres is rooted, at least in part, in” the fact that Torres filed a bid protest on September 12, 2016, “to challenge the State Department’s July 13, 2016 decision to award G4S a contract for the provision of local guard force services at the U.S. Embassy in Buenos Aires, Argentina.” Id. ¶ 28. In that protest, Torres “alleged that the State Department demonstrated unfair bias toward Torres and treated Torres and G4S disparately.” Id. ¶ 29. Ultimately, on February 3, 2017, the State Department took corrective action. Id. ¶ 30. According to Torres, that protest “angered” the State Department employees responsible for managing local guard force contracts, id. ¶¶ 32, 66, causing them to declare “that Torres would be unable to participate in future solicitations or that it should not ‘bother’ to do so,” and to invite another company “to bid as a competitor to Torres as a ‘favor’ to the State Department,” id. ¶33. In addition to its allegations of bias, Torres alleges that in evaluating the proposals for the follow-on local guard services contract in Asunción, Paraguay, the State Department did not treat the offerors equally but instead subjected Torres’s proposal to a higher level of scrutiny. Id. ¶¶ 70-71. Specifically, Torres contends that “G4S has a significant histpry of labor problems in Latin America and performance issues on contracts throughout the world,” id. ¶ 71, but that its proposal—the contingency plan in particular—“did not meaningfully address its recent, local history of labor unrest,” id. ¶73. Torres also contends that “G4S has had numerous performance issues similar to those used by the State Department to find Torres’[s] past performance unacceptable,” id. ¶ 75, but that “the State Department failed to account for these and other deficiencies in G4S’[s] past performance,” id. ¶ 76. Ultimately, Torres asserts that the State Department’s award of the follow-on local guard services contract to G4S was arbitrary, capricious, or otherwise contrary to law. Id. ¶¶ 77-84. In particular, Torres contends that • “the [State] Department’s solicitation process was marred by irregularity because [it] made unsupported findings of ‘unacceptability,’ failed to properly weigh the factors and subfactors for Past Performance and Experience, ... engaged in conduct that showed bias and favoritism, and ultimately awarded the contract to G4S despite Torres’[s] history of acceptable-to-excellent performance in Paraguay and its bid which was significantly lower than G4S’[s] bid,” id. ¶ 81; • “[t]he decision to deny the award to Torres was arbitrary and capricious because the evaluating officials treated Torres and [G4S] in disparate fashion by emphasizing isolated past performance issues for Torres while failing to impose the same degree of scrutiny to the performance issues of the winning bidder,” id. ¶ 82; . • “The decision to deny the award to Torres was arbitrary and capricious because it lacked a rational basis and was influenced by the improper conduct and bias of [State Department] personnel,” id. ¶ 83; and • “[t]he State Department violated [the Competition in Contracting Act of 1984] because it did not treat all offer-ors on a level playing field and did not meet the requirement of full and open competition,” id. ¶ 80. Torres seeks an injunction preventing the State Department from proceeding with the contract awarded to G4S; a declaration that the contract award was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; an order setting aside the contract award and awarding the contract to Torres; and attorney’s fees and costs. Id. at 22-23. 521Along with its complaint, Torres filed a motion for a preliminary injunction, and then, two weeks later, its motion to supplement. The parties briefed both motions on an expedited basis, and the court heard argument on July 28, 2017. III. BID PROTEST STANDARD OF REVIEW The United States Court of Federal Claims (“Court of Federal Claims”) possesses “jurisdiction to render judgment on an action by an interested party objecting to ... the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement,” 28 U.S.C. § 1491(b)(1) (2012), and may “award any relief that the court considers proper, including declaratory and injunc-tive relief except that any monetary relief shall be limited to bid preparation and proposal costs,” id. § 1491(b)(2). The court reviews the challenged agency action pursuant to the standards set forth in 5 U.S.C. § 706. Id. § 1491(b)(4). Although section 706 contains several standards, “the proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004). IV. TORRES’S MOTION TO SUPPLEMENT The court first addresses Torres’s motion to supplement. Generally, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). An administrative record typically contains the materials developed and considered by an agency in making a decision subject to judicial review. See id. at 142-43, 93 S.Ct. 1241 (remarking that an agency’s finding must be “sustainable on the administrative record made” by the agency at the time of its decision); Cubic Applications, Inc. v. United States, 37 Fed.Cl. 345, 349-50 (1997) (“[T]he primary focus of the court’s review should be the materials that were before the agency when it made its final decision.”). The administrative record “should be supplemented only if the existing record is insufficient to permit meaningful review consistent with the” applicable standard. Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009); accord id. at 1380 (“[Supplementation of the record should be limited to cases in which the ‘omission of extra-record evidence precludes effective judicial review.’ ” (quoting Murakami v. United States, 46 Fed.Cl. 731, 735 (2000), aff'd, 398 F.3d 1342 (Fed. Cir. 2005))). One situation in which an administrative record may be insufficient to permit meaningful judicial review is when a protestor alleges that a procurement decision was tainted by bad faith or bias. Inforeliance Corp. v. United States, 118 Fed.Cl. 744, 747 (2014); Int’l Res. Recovery, Inc. v. United States, 61 Fed.Cl. 38, 41-42 (2004); Orion Int’l Techs. v. United States, 60 Fed.Cl. 338, 343-44 (2004). In such cases, the administrative record is likely to be bereft of evidence to support the protestor’s claim. See Pitney Bowes Gov’t Sols., Inc. v. United States, 93 Fed.Cl. 327, 332 (2010) (“Where bias is alleged, the administrative record frequently will not be complete or suffice to prove or disprove the allegation.”); Beta Analytics Int’l, Inc. v. United States, 61 Fed.Cl. 223, 226 (2004) (“[R]are indeed would be the occasions when evidence of bad faith will be placed in an administrative record, and to insist on this—and thus restrict discovery regarding bad faith to cases involving officials who are both sinister mid stupid— makes little sense.”). However, because of the presumption that federal government contracting officials perform their duties in good faith, see Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1239 (Fed. Cir. 2002), a protestor may not rely on “innuendo or suspicion” to justify discovery and supplementation of the administrative record with evidence of bad faith or bias, Orion Int’l Techs., 60 Fed.Cl. at 344; accord Pitney Bowes Gov’t Sols., Inc., 93 Fed.Cl. at 332 (noting that a protestor’s allegations of bias may “not rest merely on counsel’s argu522ment; suspicion, or conjecture”); DataMill, Inc. v. United States, 91 Fed.Cl. 722, 732 (2010) (requiring “concrete and specific reasons—rather than nebulous assertions” to establish the necessity for discovery). Rather, a protestor “must first make a threshold showing of either a motivation for the Government employee in question to have acted in bad faith or conduct that is hard to explain absent bad faith,” and then “persuade the Court that discovery could lead to evidence which would provide the level of proof required to overcome the presumption of regularity and good faith.” Beta Analytics Int’l, Inc., 61 Fed.Cl. at 226; accord Madison Servs., Inc. v. United States, 92 Fed.Cl. 120, 130 (2010) (“[W]here the procuring agency has provided for its decision a reasonable explanation, borne out by an administrative record that otherwise appears complete ..., the proffered extra-record material must indicate some personal animus or bias on the part of agency officials, reveal a latent inconsistency in the existing record, or otherwise give some indication that the agency’s explanation is pretextual. Absent this threshold showing, a plaintiffs] bare allegations of bad faith are insufficient to place the issue or the proffered extra-record evidence before the court.”). The threshold showing made by the protestor must be “strong,” Pitney Bowes Gov’t Sols., Inc., 93 Fed.Cl. at 332, “based on hard evidence,” Int’l Res. Recovery, Inc., 61 Fed.Cl. at 43, and “well grounded,” id. See also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (remarking that “there must be a strong showing of bad faith or improper behavior before” a court can permit “the administrative officials who participated in the decision to give testimony explaining their action”), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1323 n.2 (Fed. Cir. 2003) (holding that the trial court did not err in refusing to allow discovery on the issue of bias because there was no evidence in the administrative record showing bias, and because allegations of error in the evaluation of proposals are “insufficient to overcome the presumption that the contracting officer acted in good faith”); Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1341 (Fed. Cir. 2001) (“[Discovery of the contracting officer’s reasoning is not lightly to be ordered and should not be ordered unless record evidence raises serious questions as to the rationality of the contracting officer’s [decision].”). In its motion to supplement, Torres contends that the administrative record lacks the evidence necessary to establish that the State Department’s award decision was tainted by bias and bad faith. It therefore requests that it be permitted to (1) depose Ms. Guillory and Mr. Welch, (2) obtain State Department records concerning G4S’s performance on United States embassy contracts, (3) obtain any past performance questionnaires reviewed by the TEP in connection with evaluating G4S’s past performance, (4) request certain State Department correspondence and other documents, (6) conduct discovery related to the State Department’s management of performance issues with other local guard services contracts, and (6) supplement the administrative record with the information that it anticipates will be obtained through discovery and the three declarations it attached to its motion to supplement (two from Mr. Orth and one from Alan E. Subirat). According to Torres, the information it seeks will allow it to prove that the State Department’s rating of its proposal on the past performance subfactor was motivated by bias, that the State Department’s negative assessments of its performance were little more than pretexts for denying it the follow-on local guard services contract, and that the State Department engaged in disparate treatment in favor of G4S. The court addresses each contention in turn. A. Bias First, with respect to its allegation of bias, Torres contends that the State Department’s “motivation for concocting an unacceptability finding was rooted in antipathy of certain [State Department] officials against Torres,” which, “[f]or at least a year, ... has manifested through overly critical and biased 523reviews, adverse treatment of Torres in solicitations, and outright statements of bias.” Pl.’s Mot. Suppl. 5. In support of this contention, Torres relies on an electronic-mail message, a conversation, a purported pattern of the State Department rejecting its proposals, and the fact that it alleged bias in a prior protest. The electronic-mail message that Torres relies on was sent by Edoardo Giglio, an executive director at Field Support Services Group, to an individual at Security and Management Services, Torres’s partner on its local guard services contract for the United States Embassy in Pakistan, on April 17, 2017. Mr. Giglio wrote: “We know you are currently partnered with Torres and are aware of the current legal problems which the US State Department has with Torres which will see them not included in any further bidding.” Suppl. Orth Decl. Ex. A at 2. Thereafter: Torres ... contacted Mr. Giglio to verify that he sent the email and that he had identified Tim Lykes, the Director of Global Security at Textron Systems, as the source of the statement contained therein that the Department of State had told Torres “not to bother” tendering for the forthcoming Pakistan local guard force contract. Torres contacted Mr. Lykes who stated words to the effect that Torres’[s] relationship with the [State Department] was “vitriolic” and “got to the point where [the State Department] says it’s irreconcilable differences.” Mr. Lykes declined to identify his sources within the [State Department], but further stated that he “go[es] down to State Department often and' [he is] aware of who is in favor and who is not.” During that conversation, Mr. Lykes reported that State Department personnel invited Textron to prepare a proposal for the Pakistan [request for proposals]. Mr. Lykes described Textron’s decision to get involved as a “favor” for the Department of State. Suppl. Orth Decl. ¶ 13.11 Neither the electronic-mail message from Mr. Giglio nor the conversation with Mr. Lykes constitutes the strong evidence required to permit discovery and supplementation of the administrative record. Mr. Giglio’s message and Mr. Lykes’s conversation concerned a contract in Pakistan, and, to the extent that Mr. Lykes was asserting that the State Department considered its relationship with Torres to be poor as a general proposition, he declined to name any specific State Department employees who held this view. Allegations concerning another contract and allegations from unnamed State Department employees are woefully inadequate to support a claim that the individuals involved in awarding the follow-on local guard services contract in Asunción, Paraguay—namely, Ms. Guillory, Mr. Welch, and the two other members of the TEP—were biased against Torres. In addition to relying on the electronic-mail message and the conversation, Torres contends that between 2010 and 2014, it “was awarded a dozen [State Department] local guard force contracts with a success rate of approximately 30%,” but thereafter, “[without any meaningful explanation, ... the [State Department] began systematically denying [its] proposals.” Pl.’s Reply 4. Specifically, it notes that it has only been awarded one local guard force contract since 2014 (in Burundi), while at least fourteen other proposals were rejected. In four cases, Torres’s proposal was found to be technically acceptable but was not the lowest-priced.12 In another four cases, Torres’s proposal was the lowest-priced, but was found to be technically 524unacceptable.13 And, in one case, Torres’s proposal was found to be both technically unacceptable and not the lowest-priced.14 Torres argues that the State Department’s actions in these post-2014 procurements reflect a pattern of purposely finding Torres’s proposals to be technically unacceptable only when Torres offers the lowest price.15 However, there is another, innocent explanation for the pattern that Torres discerns in the State Department’s actions: Torres’s proposals were, in actuality, technically unacceptable when found to be so. In the absence of any evidence that the State Department improperly found Torres’s proposals to be technically unacceptable, Torres’s suspicion that the State Department has conspired to reject its proposals in all procurements is insufficient to support its request for discovery and supplementation of the administrative record. The final evidence of bias offered by Torres relates to the basis of a prior protest it filed in this court. Specifically, in September 2016, Torres filed a protest challenging the State Department’s decision to award the local guard services contract for the United States Embassy in Argentina to G4S. Torres alleged that in making the award, the State Department “demonstrated unfair bias against Torres and disparate treatment in favor of G4S.” Pl.’s Mot. Suppl. 7. In one of the declarations that Torres submitted in support of its allegation, Mr. Subirat, who was employed at the United States Embassy in Argentina until December 27, 2016, stated that ten months prior to preparing his declaration in January 2017, two State Department employees at the United States Embassy in Argentina told him “that a Contracting Official in Washington DC pushed them to help remove Torres from being the security guard contractor.” Subirat Deck Ex. A Ultimately, on February 3, 2017, the State Department took corrective action. The fact that the State Department took corrective action in the Argentina procurement after Torres filed a protest alleging bias is not sufficient to allow discovery and supplementation of the administrative record in this protest. Torres provided no evidence that the State Department employees involved in the Argentina procurement were in any way involved in awarding the follow-on local guard services contract in Asunción, Paraguay; indeed, according defendant, the only overlap was that one individual served on the TEP in both procurements, and that individual was instructed not to discuss the Argentina procurement during the Paraguay procurement. Moreover, to the extent that the statement relayed by Mr. Subirat is accurate, it pertains to the Argentina contract, not the Paraguay contract. In short, Torres’s invocation of the Argentina procurement in support of its claim of bias in the procurement of the follow-on local guard services contract in Asunción, Paraguay is unavailing. B. Pretextual Performance Assessments Second, Torres contends that the State Department “began to manufacture” negative assessments of Torres’s performance of the local guard services contract in Asunción, Paraguay as a pretext to denying it the follow-on local guard services contract. Pl.’s Mot. Suppl. 7. In support of this contention, Torres refers to the “shift in March 2017 to a harsh and unrealistic assessment of Torres’[s] performance issues and attempts to remedy them” and “the State Department’s decision to conduct an early CPARS review that the TEP could use to support an ‘unacceptable’ past-performance rating.” Id. Torres avers that the adverse performance assessments were done in bad faith, relying on the evidence in the administrative record 525related to the personal cell phone use, training, and mobile patrol issues. With respect to its assertion that the State Department began to note deficiencies with its performance more frequently and more harshly, Torres remarks that prior to it filing a protest related to the Argentina procurement, the State Department only “occasionally” cited Torres “for isolated performance deficiencies and credited” Torres “for addressing them quickly and effectively.” Id. at 7-8; accord id. at 8 (“Notwithstanding these relatively minor, infrequent performance issues, State Department personnel considered Torres’[s] performance to be very good or exceptional.”). Thereafter, Torres asserts, the State Department “began treating what had been routine performance issues as major deficiencies.” Id. at 8; accord id. at 18 (asserting that State Department employees “began taking an increasingly aggressive and inflexible stance”). In addition, Torres alleges, the State Department altered how it handled the deficiencies; rather than the contracting officer’s representative handling them at the local level, communications mostly originated from the Arlington, Virginia office of the contracting officer. Finally, Torres emphasizes that the State Department approved two of the corrective action plans it submitted on May 22, 2017—related to the personal cell phone use and mobile patrol issues—on June 1, 2017, one day after the State Department awarded the contract to G4S. While there is no question that the State Department noted deficiencies with Torres’s performance more often during the fourth option year of the contract (and beyond) than it did during the first four years of contract performance, and that some of the correspondence regarding the deficiencies originated with the contracting officer rather than the contracting officer’s representative, these facts do not suggest that the State Department was inventing reasons to deprive Torres of the follow-on local guard services contract. Torres does not dispute that all of the violations noted by the State Department actually occurred or that the contracting officer was authorized to correspond with it regarding deficiencies. Indeed, the most straightforward explanation for the State Department’s actions is that Torres’s performance was actually deficient. Accordingly, Torres’s allegations are not enough to demonstrate that any State Department employee had a motivation to act in bad faith or that bad faith is the likely explanation for the State Department’s actions. Furthermore, the State Department’s acceptance of two of Torres’s corrective action plans one day after awarding the follow-on local guard services contract to G4S is not, as Torres asserts, evidence that the State Department used the personal cell phone use and mobile patrol issues as mere pretexts for denying Torres that contract. There is nothing inherently improper with the State Department requiring, rejecting, and approving corrective action plans. Next, with respect to its assertion that the State Department conducted an irregular CPARS evaluation for the three-month period ending February 28, 2017, Torres notes that previously, the State Department issued CPARs on an annual basis. However, defendant, relying on declarations from Mr. Welch and Ms. Guillory and supporting documents, provides a reasonable explanation for the issuance of this CPAR. As reflected in the administrative record, it was the State Department’s practice to prepare a CPAR for Torres at the end of every year of contract performance. However, on November 22, 2016, Mr. Welch received an electronic-mail message from Torres requesting a past performance questionnaire for use in its proposal for a State Department procurement in Peru. After learning that the State Department discouraged such questionnaires, Mr. Welch instead prepared a CPAR for the first nine months of the fourth option year'. Then, in keeping with regular practice, the State Department prepared another CPAR for Torres at the end of the fourth option year. Torres responds that notwithstanding the fact that it requested a past performance questionnaire in November 2016, Mr. Welch should not have prepared a CPAR to satisfy Torres’s request because “a [past performance questionnaire] is only required if a CPAR review has not been conducted within the past three years,” and a CPAR for Tor526res’s performance already existed within that time period. Pl.’s Reply 5. Nevertheless, Torres contends, because a CPAR was prepared in November 2016, there was no reason for the State Department to issue another CPAR three months later, rather than at the end of the contract in August 2017. Torres’s argument is unconvincing. First, Mr. Welch’s preparation of a CPAR in November 2016 was triggered by a request from Torres. Second, although Torres provides support for the fact that Mr. Welch correctly declined to complete the requested past performance questionnaire, it does not cite any statute, regulation, policy, or procedure prohibiting Mr. Welch from preparing a CPAR in lieu of a past performance questionnaire. Third, defendant’s explanation that the State Department returned to its regular practice of preparing CPARs at the conclusion of each year of contract performance is eminently reasonable; indeed, had the State Department not done so and then awarded the follow-on local guard services contract to Torres, G4S could have argued that the November 2016 CPAR was irregular. Altogether, Torres has not made a strong showing that the CPAR prepared at the conclusion of the fourth option year was likely the result of bad faith conduct. C. Disparate Treatment Third, with respect to its assertion of disparate treatment, Torres contends that the State Department overlooked G4S’s “failure to provide complete past-performance information as required by the [solicitation],”16 Pl.’s Mot. Suppl. 12; found G4S’s contingency plan to be acceptable even though it reflected that G4S’s [...], id.; omitted from the administrative record evidence to support its conclusion that it did not find any “derogatory information” that would “predude[] contract award” to G4S, id.; disregarded the fact that its “overall past performance [was] no worse than that submitted by G4S,” Pl.’s Reply 7; and did not evaluate G4S’s proposal in accordance with the solicitation. In support of its contentions that G4S omitted required past performance information from its proposal and that the State Department omitted supporting information from the administrative record, Torres relies on allegations included in Mr. Orth’s supplemental declaration. Mr. Orth asserts that “Torres has reason to believe that at least one member of the G4S joint venture recently held a contract with Archer Daniels Midland LLC ... in Paraguay, from which it was removed or replaced due to serious performance issues.” Id. at 12 (citing Suppl. Orth Decl. ¶¶ 5-9). Mr. Orth further indicates that it was Torres’s understanding that “G4S was removed from that contract because its Paraguay based guards were involved in drug smuggling and theft,” and “that this information was reported to the State Department.” Id. at 12-13 (citing Suppl. Orth Decl. ¶¶ 9-10). Torres’s allegations regarding the contract between a member of the G4S joint venture and Archer Daniels Midland LLC are nothing more than suspicion and innuendo. Mr. Orth does not indicate the source of his information, the precise identity of the company that contracted with Archer Daniels Midland LLC, or the individual or individuals at the State Department who were informed of the contract issues. Accordingly, Torres has failed to make the necessary threshold showing to justify discovery and supplementation of the administrative record. Next, in support of its contention that G4S’s contingency plan failed to [...], Torres, relying on Mr. Orth’s original declaration, represents that “[p]ublicly available reports show that G4S has a significant history of labor problems in Latin America,” and that “mere months before G4S submitted its proposal, G4S’[s] labor force in Paraguay protested the company’s alleged violation of their rights to fair compensation, health and safety.” Id. (citing Orth Decl. ¶¶ 45-46). However, Mr. Orth only specifically references one article: “Guardias de seguridad se manifestan por derechas eludidados,” published in La Nación on December 19, 2016. 527Orth Decl. ¶ 45. Although Torres did not provide a copy or a translation of the article, the article is on La Nación’s website,17 and when run through an online translator,18 it reveals that G4S’s security guards had long been outraged by bad treatment and other irregularities, including salary and bonus issues, but were moved to protest when their Christmas baskets contained only cider and a sweet bread. There is no indication in the article that G4S’s security guards engaged in a strike or otherwise stopped working. According to Torres, the TEP acted improperly by “blindly accept[ing]” G4S’s contingency plan. However, Torres does not allege that the TEP knew or should have known of G4S’s purported labor problems (of which Torres presents scant evidence); rather, it alleges only that the TEP did not investigate G4S’s assessment that there was a [...]. Even if the TEP was required to conduct such an investigation, its failure to do so is not necessarily attributable to bad faith. See Info. Tech. & Applications Corp., 316 F.3d at 1323 n.2 (noting that allegations of error in the evaluation of proposals are “insufficient to overcome the presumption that the contracting officer acted in good faith”). Thus, Torres has failed to make the necessary threshold showing to justify discovery and supplementation of the administrative record. Then, in support of its contention that its reported past performance was roughly equivalent to G4S’s reported past performance, Torres relies on (1) the past performance information submitted by G4S in its proposal, which reveals numerous corrective action plans, an even greater number of deductions, and at least one cure notice; and (2) the TEP’s failure to remark on these past performance issues. However, while the evidence noted by Torres may support a claim that the State Department did not evaluate the offerors’ past performance in an equal manner, it is insufficient evidence that the State Department acted in bad faith in conducting the evaluations. See id. Finally, in support of its contention that the State Department’s evaluation of G4S’s proposal diverged from the process described in the solicitation, Torres alleges that the State Department’s decision to award the follow-on local guard services contract at a higher price was reached by improperly considering technical factors when evaluating the offerors’ price proposals. Torres also contends that the State Department unlawfully made its award decision using a best value trade-off analysis instead of the required lowest-price, technically acceptable approach. While these allegations may support a claim of evaluation error, neither of these purported errors constitutes strong evidence of bad faith. D. Conclusion As described above, Torres has not offered strong evidence of bias or bad faith to support its request for discovery and supplementation of the administrative record. The court therefore denies Torres’s motion to supplement in its entirety. Y. TORRES’S MOTION FOR A PRELIMINARY INJUNCTION The court next addresses Torres’s motion for a preliminary injunction. The Court of Federal Claims has the authority to award injunctive relief pursuant to 28 U.S.C. § 1491(b)(2), and is guided in making such an award by Rule 65 of the Rules of the United States Court of Federal Claims. Preliminary injunctive relief is an extraordinary and drastic remedy. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam); FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993). A protestor “seeking a preliminary injunction must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 528Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 (Fed. Cir. 2004). None of the four factors, taken individually, is dispositive, and a “weakness of the showing regarding one factor may be overborne by the strength of the others.” FMC Corp., 3 F.3d at 427. Conversely, “the absence of any one factor may be sufficient” to deny preliminary injunctive relief. Id.; see also Wind Tower Trade Coal. v. United States, 741 F.3d 89, 100 (Fed. Cir. 2014) (“[A] showing on one preliminary injunction factor does not warrant injunctive relief in light of a weak showing on other factors.”). The award of preliminary injunctive relief is within the discretion of the court. FMC Corp., 3 F.3d at 427, “When injunctive relief is warranted, it will only be issued upon a showing by a preponderance of the admissible evidence.” Textron, Inc. v. United States, 74 Fed.Cl. 277, 287 (2006). A. Likelihood of Success on the Merits To prevail on its motion for a preliminary injunction, Torres must establish that it is likely to succeed on the merits of its protest. Under the applicable standard of review, see supra Part III, the court may set aside a procurement action if “(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” A court reviews a challenge brought on the first ground “to determine whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, and the disappointed bidder bears a heavy burden of showing that the award decision had no rational basis.” ‘When a challenge is brought on the second ground, the disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations.” Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (citations omitted) (quoting Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1332-33); accord Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000) (“The arbitrary and capricious standard ... requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant factors.”); see also Citizens to Preserve Overton Park, Inc., 401 U.S. at 416, 91 S.Ct. 814 (“The court is not empowered to substitute its judgment for that of the agency.”). In addition to showing “a significant error in the procurement process,” a protestor must show “that the error prejudiced it.” Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996); see also Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005) (holding that if the procuring agency’s decision lacked a rational basis or was made in violation of the applicable statutes, regulations, or procedures, the court must then “determine, as a factual matter, if the bid protester was prejudiced by that conduct”). “To establish prejudice ..., a protester must show that there was a ‘substantial chance’ it would have received the contract award absent the alleged error.” Banknote Corp. of Am., 365 F.3d at 1350 (quoting Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1086 (Fed. Cir. 2001)); see also Data Gen. Corp., 78 F.3d at 1562 (“[T]o establish prejudice, a protester must show that, had it not been for the alleged error in the procurement process, there was a reasonable likelihood that the protester would have been awarded the contract.”). 1. Violation of Applicable Regulations In its motion for a preliminary injunction, Torres first contends that the State Department violated its obligation to treat Torres “in an impartial, fair, and equitable manner.” Pl.’s Mot. Prelim. Inj. 14. Under the Competition in Contracting Act of 1984, when a federal executive agency conducts a procurement for property or services, it normally must “obtain full and open competition through the use of competitive procedures in accordance with” the pertinent statutes and the FAR. 41 U.S.C. § 3301(a)(1) (2012); accord FAR 6.101 (“[C]ontracting officers shall promote and provide for full and open competition in soliciting offers and awarding Government contracts.”). The FAR requires federal acquisitions to be conducted “with integrity, fairness, and openness,” FAR 5291.102(b)(3), and instructs contracting officers to “[e]nsure that contractors receive impartial, fair, and equitable treatment,” FAR 1.602-2(b); accord FAR 1.102-2(c)(3) (requiring procuring agencies to treat all prospective contractors “fairly and impartially”); FAR 15.306(e) (“Government personnel involved in the acquisition shall not engage in conduct that ... [flavors one offeror over another.”). Torres argues that the State Department violated the precepts of these FAR provisions during the procurement of the follow-on local guard services contract by (1) “deciding from the outset that Torres should be denied the Paraguay contract (despite Torres's] lowest-priced offer) in retaliation for Torres’[s] Argentina protest or based on the same animus that necessitated that protest in the first instance,” (2) undertaking “to generate inaccurate, pretextual past-performance assessments that [the State Department] could rely on to support a finding that Torres's] proposal was technically unacceptable,” and (3) holding “Torres’fe] proposal to a stricter standard of review and overlooking] G4S’[s] comparable history of past performance.” Pl.’s Mot. Prelim. Inj. 17-18. The. first two contentions constitute allegations of bias and bad faith, and the third contention is an allegation of disparate treatment. a. Bias and Bad Faith As previously noted, federal government contracting officials are presumed to perform their duties in good faith. Am-Pro Protective Agency, Inc., 281 F.3d at 1239. Accordingly, a protestor alleging that a procurement was tainted by bad faith or bias may only overcome that presumption with eleai’ and convincing evidence. Id.; Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004); see also CACI, Inc.-Fed. v. United States, 719 F.2d 1567, 1582 (Fed. Cir. 1983) (remarking that “inferences of actual or potential wrongdoing” must be based “on hard facts” and not “on suspicion and innuendo”). Moreover, that evidence must demonstrate “some specific intent to injure the plaintiff.” Torncello v. United States, 681 F.2d 756, 770 (Ct. Cl. 1982), quoted in Galen Med. Assocs., Inc., 369 F.3d at 1330. In support of its contention that the State Department’s decision to award the follow-on local guard services contract to G4S was affected by bias that either predated or resulted from Torres’s protest of the award decision in the Argentina procurement, Torres offers nothing more than suspicion and innuendo. It does not allege that any of the individuals with influence over the procurement in Paraguay—such as Ms. Guillory or Mr. Welch—had any involvement in the procurement in Argentina or, to the extent that such an individual exists, that the individual was biased against it. Further, the fact that the State Department took corrective action in the Argentina procurement after Torres filed its protest claiming bias does not establish that the State Department was biased against Torres; the State Department could have taken corrective action in response to Torres’s claim of disparate treatment or for another reason altogether.19 Finally, Torres has not demonstrated that any bias exhibited by the State Department in the Argentina procurement tainted the State Department’s actions in other procurements. In short, Torres has not offered “hard facts” in support of its claim of bias. In support of its contention that the State Department generated past performance assessments during its performance of the existing local guard services contract as a pretext to deny it the follow-on local guard services contract, Torres again offers nothing more than suspicion and innuendo. With respect to the performance deficiencies noted by the State Department during the fourth option year of the existing local guard services contract (and beyond), Torres does not dispute that its performance was deficient or that the contracting officer was entitled to correspond with Torres regarding the deficiencies. Nor does Torres claim that the State Department was acting outside the bounds of the contract in notifying Torres of the deficiencies and requiring corrective ac530tion. Accordingly, the most reasonable explanation for the State Department’s actions is that Torres’s performance was, in fact, deficient. Torres has offered no “hard facts” to demonstrate otherwise. Similarly, with respect to the CPAR that the State Department prepared for the final three months of the contract’s fourth option year, Torres has not provided any “hard facts” demonstrating that the State Department was doing anything more than continuing its practice of preparing CPARs at the conclusion of every year of contract performance. In sum, Torres has not demonstrated that the State Department’s decision to award the follow-on local guard services contract to G4S was tainted by bias or bad faith in contravention of the pertinent FAR provisions’, b. Disparate Treatment The court next turns to Torres’s claim of disparate treatment. It is well established that procuring agencies “must treat all offerors equally, evaluating proposals evenhandedly against common requirements and evaluation criteria.” Banknote Corp. of Am. v. United States, 56 Fed.Cl. 377, 383 (2003) (citing Seattle Sec. Servs., Inc. v. United States, 45 Fed.Cl. 560, 569 (2000)), aff'd, 365 F.3d at 1345; see also L-3 Commc’ns EO-Tech, Inc. v. United States, 83 Fed.Cl. 643, 653 (2008) (“Waiver of a mandatory requirement of the solicitation for the benefit of only one offeror invalidates a procurement decision.”); PGBA, LLC v. United States, 60 Fed.Cl. 196, 207 (2004) (“[U]neven treatment goes against the standard of equality and fair-play that is a necessary underpinning of the federal government’s procurement process and amounts to an abuse of the agency’s discretion.”), aff'd, 389 F.3d at 1219. In this protest, Torres alleges that the State Department treated it and G4S unequally.20 Specifically, it contends that the State Department (1) overlooked G4S’s failure to include all required past performance information in its proposal; (2) failed to investigate G4S’s representation, in its contingency plan, that the [...]; (3) provided no support for its assertion that it did not find any derogatory information regarding the members of the G4S joint venture that would prevent it fi’om awarding the contract to G4S; (4) disregarded that its past performance was no worse than G4S’s past performance; and (5) failed to evaluate G4S’s proposal in accordance with the solicitation. First, there is no evidence in the administrative record supporting Torres’s contention that G4S did not include all of the required past performance information in its proposal. Second, Torres has not identified any provision in the solicitation that required the State Department to investigate the representations of the offerors in their contingency plans, especially in the absence of any evidence that those representations were erroneous. Third, Torres has not identified any evidence in the administrative record reflecting that Ms. Guillory falsely represented that she did not find any disqualifying information when evaluating G4S’s responsibility. Finally, while the administrative record may contain evidence supporting Torres’s contention that the State Department evaluated the offerors’ proposals on an unequal basis, it is unclear whether the State Department’s purported errors (1) constitute violations of the relevant FAR provisions or (2) prejudiced Torres.21 In sum, Torres has not established, at this juncture, that it is likely to "succeed on its claim that the State Department violated the provisions of the FAR requiring equal treats ment. 2. Rational Basis Torres also contends in its complaint and in its motion for a preliminary injunction that the .State Department’s decision to award the follow-on local guard services con531tract to G4S lacks a rational basis. Although it does not devote much attention to this contention in its motion for a preliminary injunction,22 Torres alleges in its complaint that during its evaluation of proposals, the TEP (1) made “unsupported findings of ‘un-aeceptability,’ ” (2) “failed to properly weigh the factors and subfaetors for Past Performance and. Experience,” and (3) “ultimately awarded the contract to G4S despite Torres’[s] history of acceptable-to-exeellent performance in Paraguay and its” significantly lower total evaluated price.23 Compl. ¶ 81. Torres’s allegations pertain mostly to the TEP’s evaluation of its past performance. When a protestor challenges a procuring agency’s evaluation of past performance, the court’s review is limited to ensuring that the evaluation was reasonable and performed in accordance with the solicitation; in other words, the procuring agency’s evaluation is entitled to great deference. Am. Auto Logistics, LP v. United States, 117 Fed.Cl. 137, 186 (2014) (collecting cases). As an initial matter, the administrative record reflects that the TEP evaluated Torres’s past performance in accordance with the solicitation. Pursuant to the solicitation, the State Department intended to evaluate past performance “to assess an Offeror’s capability to meet the solicitation performance requirements,” and in conducting such evaluations, reserved the right to “use past performance information obtained from sources other than those identified by the Offeror in its proposal, e.g., its own records, other Federal agencies or companies, and information available through commercial sources.” AR 537. The administrative record reflects that in evaluating Torres’s past performance, the TEP relied on the information contained in Torres’s proposal, information in its possession regarding Torres’s performance as the incumbent contractor (which informed its discussion questions), and Torres’s responses to the discussion questions. There is no evidence in the administrative record indicating that the TEP’s evaluation of Torres’s past performance contravened the solicitation. Further, the administrative record reflects that the TEP’s evaluation of Torres’s past performance was reasonable. The TEP quite appropriately focused on Torres’s most relevant past performance—its performance on the incumbent contract. See Seattle Sec. Servs., Inc., 45 Fed.Cl. at 567. It posed two sets of discussion questions related to the deficiencies in Torres’s performance, and after reviewing Torres’s responses, concluded that Torres had not sufficiently addressed the underlying issues (related to, for example, mobile patrols, training, personal cell phone use, quality control, and understanding the contract) or convinced the TEP that it could satisfactorily perform under the follow-on local guard services contract. Both of these conclusions are reasonable and well supported. Torres also alleges that the TEP improperly weighed the subfaetors of the past performance and experience factor. In particular, Torres implies that an unacceptable rating on a less important subfactor should not result in an unacceptable rating for the factor as a whole when the more important subfactor is rated as acceptable. As Torres notes, the solicitation .provided that the experience subfactor was “of greater importance than” the past performance subfactor. AR 534. However, the solicitation also provided that “[a] rating of ‘unacceptable’ for any sub-factor ... may render the entire Technical Proposal unacceptable.” Id. at 535. Accordingly, even if the TEP was obligated to rate Torres’s proposal as acceptable for the past performance and experience factor as a result of its acceptable rating for Torres’s experience (which it was not24), the TEP was entitled to rate Tor532res’s technical proposal as unacceptable based only on the unacceptable past performance rating. Finally, the court notes that the fact that Torres offered the lowest total evaluated price is ultimately irrelevant because the State Department declared its intent to award the contract to the offeror with the lowest-priced, technically acceptable proposal, and Torres’s proposal was deemed technically unacceptable. In sum, Torres has not demonstrated that it is likely to succeed on its claim that the State Department’s decision not to award the follow-on local guard services contract to Torres lacked a rational basis. 3. Conclusion As described above, Torres has not established that it is likely to succeed on the merits of its claims that (1) the State Department violated the provisions of the FAR requiring that all offerors be treated in an impartial, fair, and equitable manner and (2) the State Department’s decision not to award the follow-on local guard services contract to Torres lacked a rational basis. In other words, Torres has not demonstrated that the State Department’s decision to award the follow-on local guard services contract to G4S was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Consequently, an award of preliminary injunctive relief would not be appropriate. Nevertheless, for completeness, the court addresses the remaining factors for establishing the need for injunctive relief: irreparable injury, the balance of harms, and the public interest, B. Irreparable Injury With respect to the irreparable injury factor, a protestor “must show that without a preliminary injunction it will suffer irreparable harm before a decision can be rendered on the merits.” Akal Sec., Inc. v. United States, 87 Fed.Cl. 311, 319 (2009); accord IBM Corp. v. United States, 118 Fed.Cl. 677, 683-84 (2014). In its motion for a preliminary injunction, Torres contends that it would be irreparably injured absent a preliminary injunction because it would lose (1) the opportunity to compete for the follow-on local guard services contract, (2) the profits it anticipates from that contract, and (3) the opportunity to obtain effective relief once G4S begins performance of that contract. This court has recognized that a lost opportunity to compete for a contract—and the attendant inability to obtain the profits expected from the contract—can constitute irreparable injury. See, e.g., Akal Sec., Inc., 87 Fed.Cl. at 319; Heritage of Am., LLC v. United States, 77 Fed.Cl. 66, 78 (2007); Overstreet Elec. Co. v. United States, 47 Fed.Cl. 728, 743 (2000). However, G4S is not scheduled to begin contract performance until August 31, 2017. Consequently, the lost profits alleged by Torres cannot be characterized as an irreparable injury at this time. Similarly, Torres remains able to obtain effective relief prior to August 31, 2017—it can seek a permanent injunction. In short, Torres’s alleged injuries are not irreparable. Torres also alleges, in its complaint, that absent a preliminary injunction, G4S will continue its “transition activities unabated during the protest,” and as a result, will begin offering employment to Torres’s guards (pursuant to a contractual right of first refusal). Compl. ¶ 88. Torres avers that such offers would reduce the number of guards at the embassy, “thereby imperiling the performance of the current contract to the detriment of the U.S. embassy and its staff.” Id. However, the depletion of Torres’s guard force is not an irreparable injury because Torres is not prevented from hiring new guards to replace the guards hired by G4S or, as defendant notes, from jointly employing guards with G4S during the transition period. C. The Balance of Harms In addition to considering whether a protestor would suffer an irreparable injury absent a preliminary injunction, “[t]he court must balance the harm plaintiff would suffer without preliminary relief against the harm that preliminary relief would inflict on defendant and on defendant-intervenor. Generally, if the balance tips in favor of defendant, a preliminary injunction is not appropriate.” Akal Sec., Inc., 87 Fed.Cl. at 320 (citation omitted); accord Reilly’s Wholesale Produce v. United States, 73 Fed.Cl. 705, 715 (2006). Torres contends that while the injury 533it would suffer absent a preliminary injunction is irreparable, the harm that the State Department would suffer from a preliminary injunction is minimal. Defendant disputes Torres’s contention, asserting that Torres’s contract performance remains deficient and is threatening the security of the embassy. Based on the evidence in the administrative record and the declarations of Ms. Guillory and Mr. Welch,25 the court agrees with defendant that the balance of harms strongly weighs in defendant’s favor. Evidence in the administrative record reflects that Torres’s deficient performance contributed to two major security breaches. First, on February 12, 2017, an unknown individual threw two liquid-filled bottles over the embassy’s wall. One guard employed by Torres failed to notice the individual approaching the embassy because she was looking at the screen of her personal cell phone, while another guard employed by Torres observed the individual approaching the embassy, throwing the bottles, and leaving the scene, but did nothing to prevent the incident or apprehend the individual. Further, throughout the remainder of the twelve-hour shift, the first guard continued to use her personal cell phone and watch movies on a government-provided computer, ignoring her duties, and a senior guard sat beside her, also using his personal cell phone and watching movies. Second, at the end of February 2017, a residence used by the embassy was burglarized, and an investigation revealed that the mobile patrol assigned to that route did not cheek the residence for a twelve-hour period (during which the burglary occurred), when at least three such cheeks should have occurred. Had the mobile patrol cheeked the residence as required, the burglary might have been averted or, at a minimum, the window of investigation would have been considerably shorter than twelve hours. According to the State Department, a third troublesome incident occurred shortly after it awarded the follow-on local guard services contract to G4S. Sometime between June 9 and June 11, 2017, Torres’s office was burglarized. Among the items Torres reported stolen were ten laptop computers; a thumb drive; and a safe containing $40 cash, current and old checkbooks, and a banking fob. Documents stored on one of the laptop computers—belonging to Mr. Segovia and password-protected—included human resources documents and the existing local guard services contract (including exhibits). Documents stored on the thumb drive—which was inserted in Mr. Segovia’s laptop computer and was not password-protected—included General and Post Orders, Torres policies, Torres training materials and records, and the existing local guard services contract (including exhibits). These documents contained the locations of all guard posts, the guards’ schedules, and guard orders for normal and emergency operations. A Torres employee discovered the burglary on June 13, 2017, and reported it to Mr. Segovia. Mr. Segovia then reported the burglary to the Paraguayan National Police, Mr. Orth, and Torres’s CEO, but not to any United States government officials. Mr, Welch learned of the burglary on June 16, 2017, after an embassy employee mentioned a news report regarding the discovery of the stolen safe, but was not told until the following day that contract-related documents had been stolen. Ms, Guillory sent Torres a letter on June 19, 2017, describing the “major” performance deficiencies related to the bur534glary: Torres’s failure to file an incident report and Torres’s failure to safeguard information.26 Def.’s Resp. Ex. E at 1-2. She advised Torres that these deficiencies would be noted on its CPAR. She also characterized Torres’s failure to notify the State Department of the burglary as a “very grave breach of trust.” Id. at 2. In their declarations, both Ms. Guillory and Mr. Welch explain that Torres’s recent history of deficient performance—especially as related to the bottle-throwing incident, the residential burglary, and the burglary at Torres’s office—has endangered the safety and security of five embassy facilities, sixty residences, and more than 300 embassy employees and family members. They have lost all confidence that Torres can fulfill the contract’s mission to protect United States personnel and property. All of the incidents described by the State Department reveal serious issues with Torres’s performance, but the court is especially troubled by Torres’s failure to report the June 2017 burglary to the State Department immediately upon its discovery. The documents that Torres believed were stolen included extremely sensitive information that would be valuable in planning an attack on the embassy or its employees.27 That it took four days for Torres to inform the State Department that this information had been stolen suggests that Torres does not fully comprehend the importance of its mission to ensure the safety and security of the embassy and its employees.28 Consequently, the harm in allowing Torres to continue to perform beyond the August 30, 2017 contract expiration date—the natural result of a preliminary injunction, which would halt the current transition29—is too great to ignore. The balance of harms is unambiguously in defendant’s favor.30 D. The Public Interest Finally, when “employing the extraordinary remedy of injunction,” a court “should pay particular regard for the public consequences” of doing so. Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). There is no dispute that “the public interest in honest, open, and fair competition in the procurement process is compromised whenever an agency abuses its discretion in evaluating a contractor’s bid.” Overstreet Elec. Co., 47 Fed.Cl. at 744; accord Bona Fide Conglomerate, Inc. v. United States, 96 Fed.Cl. 233, 242 (2010) (noting the “overriding public interest in preserving the integrity of the procurement process”). “However ‘there is a countervailing public interest in minimizing disruption [to the agency].’ ” Akal Sec., Inc., 87 Fed.Cl. at 321 (quoting Heritage of Am., LLC, 77 Fed.Cl. at 78); accord Aero Corp., S.A. v. United States, 38 Fed.Cl. 237, 242 (1997) (“[A] procuring agency should be able to conduct procurements without excessive judicial infringement upon the agency’s discretion.”). In this protest, there is a significant public interest *535in ensuring the safety of United States citizens (and the security of United States property) abroad. This interest is endangered when the federal government lacks confidence that its chosen contractor can provide the necessary protection. Accordingly, the public interest weighs in defendant’s favor. VI. CONCLUSION For the reasons set forth above, the court DENIES Torres’s motion to supplement and DENIES Torres’s motion for a preliminary injunction. As discussed after oral argument, the parties will provide the court with a proposed schedule for further proceedings. The court has filed this ruling under seal.' The parties shall confer to determine agreed-to proposed redactions. Then, by no later than Friday, August 18, 2017, the parties shall file a joint status report indicating their agreement with the proposed redactions, attaching a copy of those pages of the court’s ruling containing proposed redac-tions, with all proposed redactions clearly indicated. IT IS SO ORDERED. . The court derives most of the facts in the background section from the administrative record ("AR") and the applicable version of the Federal Acquisition Regulation ("FAR”). In addition, the court describes the contents of a March 31, 2017 Contractor Performance Assessment Report ("CPAR”) that was originally included in the administrative record filed on June 30, 2017, but was removed when defendant filed a corrected administrative record on My 17, 2017. A "modified” version of this CPAR, dated June 21, 2017, is included in the corrected administrative record, See AR 314-22. However, the "modified" version of the CPAR does not contain Torres’s April 13, 2017 comments, and those comments are relevant to Torres's contentions in this protest. . Ms. Guillory apparently became the contracting officer sometime between July 20, 2016, and October 12, 2016. Compare AR 338-39 (reflecting that Kelli Parker was the contracting officer on July 20, 2016), with id. at 346 (reflecting that Ms. Guillory was the contracting officer on October 12, 2016). . "The Mobile Patrol is a two-man team consisting of a Mobile Patrolman and a Paraguayan National Police officer or Supervisor AR 107. . Torres's revised response to the cure notice is not included in the administrative record. Torres alleges in its complaint that it sent its revised response to the State Department on May 22, 2017. Compl. ¶ 57. . "G4S Local Opeo” is Wackenhut Paraguay, S.A. AR1021, 1023. . Although Ms. Guillory’s handwriting is not clear, the cost/price evaluation report appears to be dated May 10, 2017. See AR 2251. Indeed, that is the date that defendant included in its index to the administrative record. However, Ms. Guillory’s reference to the need for discussions, id., suggests that she prepared the report prior to sending the offerors price proposal-related discussion questions on April' 13, 2017, see id. at 1816-21. . These contradictions were not the only errors in the cost/price evaluation report. In fact, almost every paragraph contains a substantive error, a typographical error, or an inconsistency. The court recognizes that only a small portion of federal government procurement decisions are protested. However, this fact does not absolve federal government contracting officials of their duty to ensure that their decisions are documented in a complete and coherent manner. Ms, Guillory’s cost/price' evaluation report does not meet this standard. . Ms. Guillory included in her memorandum a chart purportedly summarizing the TEP’s consensus ratings, but one of the ratings she noted for Torres was inaccurate; the TEP rated Torres's proposal as acceptable, not as unacceptable, for the management plan factor. Compare AR 2296 (reflectjng the TEP’s acceptable rating), with id. at 2305 (indicating Ms. Guillory’s inaccurate portrayal of the TEP’s rating). However, given that Ms. Guillory's assessment of Torres’s proposal was focused on the past performance subfactor, see id at 2310, her error likely did not affect the award decision. . These narratives were incomplete in two respects; (1) they did not address each factor and subfactor evaluated by the TEP, and (2) with respect to the narrative for Torres, Ms. Guillory only included the TEP’s comments on Torres’s final proposal, which were focused solely on the past performance subfactor. AR 2305-09. . According to G4S’s proposal, the joint venture was between G4S Secure Integration LLC, G4S Secure Solutions International Inc., and Wack-enhut Paraguay S.A. AR 867, 1018, 1021. It is unclear why Ms. Guillory checked the databases for information regarding G4S Soluciones de Seguridad S.A., or whether Ms. Guillory checked the databases for information regarding Wacken-hut Paraguay S.A. . Defendant argues that the court should not consider the contents of the declarations submitted by Torres in support of its motion to supplement. The court disagrees; Torres is entitled to "rely on extra-record evidence to support its claim that discovery regarding bad faith conduct is necessary.” Beta Analytics Int’l, Inc., 61 Fed. Cl. at 226. Indeed, defendant itself relies on extrarecord evidence—the declarations of Ms. Guillory and Mr. Welch—in opposing Torres’s motion to supplement. See, e.g., Def.’s Resp. 31, 33, 36-37. . Torres submitted these proposals for the following contracts: Worldwide Protective Services (Februaiy 12, 2016), the United States Embassy in Slovakia (June 25, 2016), the United States Embassy in Rwanda (August 18, 2016), and the United States Embassy in Colombia (August 22, 2016). . Torres submitted these proposals for the following contracts: the United States Embassy in Guatemala (August 28, 2015), the United States Embassy in Austria (October 13, 2015), the United States Embassy in Botswana (March 2, 2016), and the United States Embassy in Argentina (July 14, 2016). . Torres submitted this proposal for the contract at the United States Embassy in Greece (December 2016), .This purported pattern is belied by the fact that Torres’s proposals have been found' to be both technically unacceptable and not the lowest-priced, and by the fact that Torres has actually been awarded a local guard services contract in the relevant time period. . A portion of Torres’s contention that G4S omitted required past performance information from its proposal was mooted by defendant's subsequent correction of the administrative record to add six pages from G4S’s proposal that had been inadvertently omitted. See Mot. File Attached Administrative R. 2, July 17, 2017; AR 1116.1—.6. . See Guardias de seguridad se manifestan por derechas eludidados. La Nación, Dec. 19, 2016, http://www.lanacion.com.py/2016/12/19/ guardias-seguridad-se-manifiestan-derecho seludidos/. . Google Translate, https://translate.google. com/. . The notice of corrective action filed by defendant in that protest did not specify the State Department's reason for taking corrective action. Def.'s Notice Corrective Action, Torres Advanced Enter. Sols., LLC v. United States, No. 16-1128C, ECF No. 36. . Torres also alleges that the State Department’s disparate treatment of the offerors was motivated by bad faith. However, because disparate treatment, regardless of motivation, is a sufficient ground to sustain a protest, the court need not consider whether any disparate treatment by the State Department was motivated by bad faith. . Because Torres did not have access to the administrative record when it Sled its motion for a preliminary injunction, it Srst raised the unequal evaluation issue in its reply brief. Defendant and defendant-intervenor addressed the issue at oral argument, but neither party has fully fleshed out its arguments in writing. . Indeed, Torres does not pursue this contention in its motion for a preliminary injunction, only briefly asserting that "the decision to deny the award to Torres lacks a rational basis ...." Pl.'s Mot. Prelim. Inj. 14. . To the extent that Torres contends that the State Department's decision to award the follow-on local guard services contract to G4S lacked a rational basis due to the existence of bias, bad faith, or disparate treatment, the court previously addressed those grounds for Torres’s contentions. See supra Section V.A. 1. .It is entirely reasonable to suppose a situation in which an offeror's past performance is so poorly rated that it overwhelms the offeror’s demonstrated experience. . The court is permitted to consider extrarecord evidence, such as declarations from relevant officials at the procuring agency, in assessing the harm that the procuring agency would suffer from the imposition of an injunction. See PlanetSpace, Inc. v. United States, 90 Fed.Cl. 1, 5 (2009) (“Standing apart from evidence supplementing the administrative record ... are evi-dentiary submissions that go to the prospective relief sought in this court. The latter relate to an issue wholly within the court’s purview. Accordingly, '[i]t is the responsibility of this [cjourt, not the administrative agency, to provide for factual proceedings directed toward, and to find facts relevant to, irreparability of harms or prejudice to any party or to the public interest through grant or denial of injunctive relief.’ ... Evidence respecting relief ... 'necessarily would not be before an agency decision-maker effecting a procurement decision such as a source selection award, ... but would necessarily post date and flow from such agency decision.' Accordingly, such evidence is admitted, not as a supplement to the administrative record, but as part of this court’s record." (citations omitted)). . Section H.17 of Torres’s local guard services contract obligates Torres to safeguard all information related to Torres’s performance of the contract. AR 48-49. General Order 9 requires Torres to submit an incident report to the regional security officer within twenty-four hours of an incident that is "not of a routine nature.” Id. at 164. . In a declaration prepared on July 25, 2017, Ivana Paola Tuset Roiz, Torres’s Administrative and Human Resources Manager, stated: “Contrary to the initial reports and discussions with the [contracting officer's representative], Victor Segovia’s laptop was not stolen, but was instead later located in Torres’[s] main Paraguayan office .... ” Tuset Roiz Decl. ¶ 7. This statement does not negate that Torres (1) believed that the laptop computer and attached thumb drive had been stolen, (2) advised the State Department as late as June 26, 2017, that the laptop computer and attached thumb drive had been stolen, or (3) did not inform the State Department that it believed that contract-related documents were stolen until four days after it discovered the burglary. . During oral argument, counsel for Torres averred that a Torres employee had been directed to inform the State Department of the burglary, but failed to do so. While this may be true, the court cannot accept a factual representation in the absence of a sworn declaration from someone with personal knowledge. . Ms. Guillory states that the State Department and G4S are "approximately halfway through the transition period” and that "[shopping the transition now would essentially require an entirely new 90 day transition period at the end of the protest .... ” Guillory Decl. ¶ 26. . G4S would also be harmed by a preliminary injunction due to the need to halt the transition.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218598/	OPINION AND ORDER SMITH, Senior Judge This bid protest action comes before the Court on the parties’ cross-motions for judgment on the administrative record and defendant’s Motion to Dismiss plaintiffs original and supplemental complaints. Plaintiff, Geiler/Schrudde & Zimmerman, A Joint Venture (“GSZ”), alleges the following: (1) the United States Department of Veterans Affairs (“Agency”) acted arbitrarily and capriciously in awarding the bid to defendant-intervenor, Innovative Support Solutions, Inc. (“ISS”); (2) GSZ should have been awarded the bid because it was the lowest-priced offeror; and (3) GSZ’s status as a Service-Disabled Veteran-Owned Small Business (“SDVOSB”) was improperly revoked by the Agency. For the reasons set forth below, the Court dismisses plaintiffs Supplemental Complaint, and grants the United States’ (“government”) and defendant-intervenor’s motions for judgment on the administrative record. I. Background A. Factual History On June 9, 2015, the Agency issued the Request for Proposals (“RFP”) for Solicitation No. VA 289-15-R-0311 (“Solicitation”) for the upgrade of a chiller plant at one of the Agency’s medical centers in Lexington, Kentucky, Administrative Record at -45 (hereinafter “AR _”). The RFP was expressly set aside for SDVOSBs. Id. The federal SDVOSB program reserves specific government contracts for service-disabled veteran-owned small businesses. 38 U.S.C. § 8128 (2012). The RFP requires that each offeror submit a price proposal and a technical proposal. AR 70. The Agency would then award the Solicitation to whichever offeror submitted the “lowest price, technically acceptable offer.” AR 72; accord FAR 15,101-2 (2017). The offeror with the lowest “evaluated price” wins the award if it meets or exceeds the RFP’s non-price factors. AR 72. In this case, there are four evaluation factors currently at issue. AR 73-74. First, the experience factor requires offerors to provide three “completed projects” with a contract value of at least $3 million showing experience in “civil, HVAC, electrical, low voltage, mechanical, and fire protection.” AR 73. The standard for acceptability is “complete project title, locations, contract, price, trades involved, [and] start and completion dates.” Id. Second, the infection control measures factor requires “successful” measures taken ■for the “Highest Risk Group 4 for Type A, B, C, and D mitigation precautions.” Id. The standard for acceptability is a demonstration of “[t]wo successfully] completed projects” that applied the “Highest Group 4 mitigation precautions.” Id. Third, the past performance factor requires three “completed projects” with a contract value of at least $3 million. AR 74. The standard for acceptability is based on whether the government deems those submissions “satisfactory” after an evaluation on the “relative merits.” Id. Fourth, the price factor requires each offeror to list a “base offer,” along with a detailed price breakdown. AR 45, 49, 74. The Agency will then evaluate the price based on reasonableness, pursuant to FAR 15.4, as well as a possible cost realism analysis to determine if the price was consistent with the offeror’s technical proposal. FAR 15.404 (2017). The standard for acceptability is the achievement of a price proposal consistent with the requirements and contract documents. Id. 582The Agency received six proposals, including those submitted by ISS and GSZ. AR 1667-2126. Each offeror submitted a bid bond with their proposals. AR 2127-2158. The Agency then determined that ISS had the lowest evaluated price at $8,663,000, while the plaintiff submitted the third-lowest price at $8,964,548. AR 2159-60. Once it determined that ISS proposed the lowest price, the Agency evaluated ISS for technical acceptability. AR 2161—88. The Technical Evaluation Board (“TEB”), determined that ISS was technically acceptable for all non-price factors. AR 2161-82. Following the determination of technical acceptability, the Source Selection Authority (“SSA”) issued its recommendation that ISS receive the bid because it was the “best overall value to the [government” and the lowest price, technically acceptable offer. AR 2188. On September 23, 2015, the Agency notified plaintiff that it had not received the award. AR 2189-202. On September 24, 2015, ISS was awarded the bid. AR 2203-04. B. Procedural History 1. Original Complaint On October 1, 2015, plaintiff filed a protest with the Government Accountability Office (“GAO”) contesting the Agency’s decision to grant the award to ISS. AR 2279-83, 2820-31. Plaintiff alleged, in relevant part, that (1) the Agency should have evaluated and accepted GSZ’s alternative price proposal and (2) ISS’s proposal was technically unacceptable. AR 2820. On January 7, 2016, the GAO ultimately denied those claims, and dismissed in part and denied in part the remainder of plaintiffs protest. AR 2820-31. On February 8, 2016, plaintiff filed its Original Complaint in this Court. Post Award Bid Protest (hereinafter “Compl.”), ECF No. 1, at 1. On May 9, 2016, plaintiff filed its Motion for Judgment on the Administrative Record, based on the following arguments: (1) ISS’s three submitted projects prove that it is non-responsible and technically unacceptable; (2) ISS’s submitted bonding commitment shows that it is non-responsible and technically unacceptable; (3) ISS failed to meet the infection control measures factor, and thus is ineligible for the award as a matter of law; and (4) the Agency failed to properly evaluate all price proposals. Plaintiff Geiler/Schrudde Zimmerman’s Motion for Judgment on the Administrative Record (hereinafter “P’s MJAR”), ECF No. 24 at 2-3. On June 10, 2016, the government filed a motion to dismiss plaintiffs original complaint or, in the alternative, for judgment on the administrative record. Defendant’s Motion to Dismiss or, Alternatively, for Judgment on the Administrative Record, and Opposition to Plaintiffs Motion for Judgment on the Administrative Record (hereinafter “D’s MJAR”), EOF No. 30 at 1-2. The government rejects plaintiffs claims and argues that plaintiff lacks standing, asserting that GSZ lost its SDVOSB status upon the death of Mr. William R. Geiler, Jr., the service-disabled veteran, on March 18, 2016. Id. at 5. The government argues that, because plaintiff is no longer an “interested party,” it lacks standing to protest the Agency’s award decision. Id. at 7; 28 U.S.C. § 1491(b)(1) (2012). Additionally, on June 10, 2016, defendant-intervenor, ISS, filed its Cross-Motion for Judgment on the Administrative Record. De-fendanfc-Intervenor’s Opposition to Plaintiffs Motion for Judgment Upon the Administrative Record and Cross-Motion for Judgment upon the Administrative Record (hereinafter “DPs MJAR”), ECF No. 28 at 1-2. ISS argues that plaintiff cannot adequately demonstrate that ISS was ineligible to receive the award. Id. 2. Supplemental Complaint Mr. Geiler’s death triggered a revocation of GSZ’s SDVOSB status. Defendant’s Motion to Dismiss the First Amended Supplemental Complaint or for Judgment on the Second Administrative Record, and Opposition to Plaintiffs Motion Regarding the Same (hereinafter “D’s Supp. MJAR”), ECF No. 83 at 6. On April 29, 2016, the Agency’s Center for Verification and Enforcement (“CVE”) corresponded with the Geiler family regarding their entities’ SDVOSB statuses. Supplemental Administrative Record at 21-22 (hereinafter “SAR_”). On May 5, 2016, the CVE e-mailed a Notice of Proposed Cancellation (“NOPC”) to each of the Geiler entities, informing them that their SDVOSB sta583tuses might be revoked due to Mr. Geiler’s death, pursuant to 38 C.F.R. § 74. SAR 30-38. On June 7, 2016, the CVE e-mailed each entity a Notice of Verified Status Cancellation (“NVSC”), cancelling their SDVOSB statuses. SAR 91-94. On July 6, 2016, the Geiler Company, Inc, (“Geiler Co.”) submitted a consolidated appeal to the Office of Small and Disadvantaged Business Utilization and Center for Verification and Evaluation (“OS-DBU”) contesting the CVE’s decision to cancel the SDVOSB statuses of all of the Geiler family’s entities. SAR 102. On August 22, 2016, the OSDBU denied Geiler Co.’s consolidated appeal, upholding the CVE’s decision to cancel the SDVOSB statuses of all of the entities. SAR 173-86. On October 20, 2016, plaintiff filed its Supplemental Complaint, contesting the Agency’s decision to cancel its SDVOSB status. Plaintiffs First Amended Proposed Supplemental Complaint (hereinafter “P’s Supp. Compl”), ECF No. 58 at 2-3. On March 6, 2017, plaintiff filed its Motion for Judgment on the Administrative Record as to the Supplemental Complaint. Plaintiffs Motion for Judgment on the Administrative Record as to the Plaintiffs Supplemental Complaint (hereinafter “P’s Supp. MJAR”), ECF No. 80 at 1. Plaintiff argues that (1) its due process rights were violated and (2) the Agency’s decision-making process in revoking the SDVOSB status was arbitrary and capricious. Id. at 5. On April 3, 2017, .the government filed a motion to dismiss the supplemental complaint or, alternatively, for judgment on the administrative record. D’s Supp. MJAR at 1-2. The government contends that (1) plaintiff lacks standing because the Agency’s cancellation of plaintiffs SDVOSB status is wholly unrelated to the original suit; and (2) judgment on the administrative record should be granted because the Agency did not violate plaintiffs due process nor act arbitrarily and capriciously. Id. The original motions and supplemental motions for judgment on the administrative record are fully briefed and ripe for review. II. Discussion A. Standard of Review The Court’s jurisdictional grant is found primarily in the Tucker Act, which provides the Court of Federal Claims the power “to render any judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States ... in eases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2012). Athough the Tucker Act explicitly waives the sovereign immunity of the United States against such claims, it “does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Rather, in order to fall within the scope of the Tucker Act, “a plaintiff must identify a separate source of substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part). Specifically, this Court has jurisdiction over bid protest actions, pursuant to 28 U.S.C. § 1491(b). The Court evaluates bid protests under the Administrative Procedure Act’s standard of review for an agency action. Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005) (citing Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)). Under Rule 52.1 (formerly Rule 56.1) of the Rules of the Court of Federal Claims, the parties are limited to the administrative record, and the Court makes findings of fact as if it were conducting a trial on a paper record. Id. at 1354. Looking to the administrative record, the Court must determine whether a party has met its burden of proof based on the evidence in the record. Id. at 1355. Standing in bid protests is framed by 28 U.S.C. § 1491(b)(1), which requires that bid protest be brought by an “interested party.” A protestor is an “interested party” if it “(1) [is an] actual or prospective bidder and (2) possesses] the requisite direct economic interest.” Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009) (citing Rex Serv. Corp. v. United States, 448 584F.3d 1305, 1308 (Fed. Cir. 2006)). “To prove a direct economic interest as a putative prospective bidder, [the bidder] is required to establish that it had a ‘substantial chance’ of receiving the contract.” Id.; see also Info. Tech. & Appl. v. United States, 316 F.3d 1312, 1319 (Fed. Cir. 2003) (“To establish prejudice, [the protestor] must show that there was a ‘substantial chance’ it would have received the contract award but for the alleged error in the procurement process.”); Statistica, Inc. v. Christopher, 102 F.3d 1577, 1580 (Fed. Cir. 1996). The nature of the protest will dictate the necessary factors for a “direct economic interest.” Sys. Appl. & Techs. v. United States, 691 F.3d 1374, 1382 (Fed. Cir. 2012). B. Post-Award SDVOSB Status Before the Court can review the merits of plaintiffs Supplemental Complaint, it must first examine the question of jurisdiction. See Myers Investigative & Sec. Servs. v. United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002) (stating that jurisdiction is a threshold question). The government asserts that plaintiff lacks standing to bring its Supplemental Complaint. The Court is inclined to agree, as the SDVOSB revocation does not affect the award of the original procurement and, as a result, is unrelated to the Original Complaint. Additionally, the government argues that when the plaintiff lost its SDVOSB status, it ceased to be an interested party in the bid protest, as it no longer retained a “direct stake in the relief sought.” D’s MJAR at 9. This Court does not agree. Under the Tucker Act, a protestor is an interested party if it “was an actual ... bidder or offeror, and ... had a direct economic interest in the procurement.” Distributed Solutions, Inc. v. United States, 539 F.3d 1340, 1344 (Fed. Cir. 2008) (emphasis added), In post-award protests, a protestor must also prove that “it had a ‘substantial chance’ of receiving the contract.” NEIE, Inc. v. United States, No. 13-164 C, 2013 WL 6406992, at 14 (Fed. Cl. Nov. 26, 2013) (emphasis added) (quoting Digitalis Educ. Solutions, Inc. v. United States, 664 F.3d 1380, 1384 (Fed. Cir. 2012)). Standing is determined at the time of the award. Plaintiff was a SDVOSB at the time of the award on September 23, 2015. Therefore, it is irrelevant that Mr. Geiler died after the Original Complaint was filed. This Court retains jurisdiction over plaintiffs Original Complaint. As plaintiff had standing at the time of its Original Complaint, its current SDVOSB status is outside of the scope of this protest. For standing under the Tucker Act, the plaintiff must have an “objection] to a ... regulation in connection with a procurement.” 28 U.S.C. § 1491(b)(1) (2012). Courts have broadly construed the phrase “in connection with,” Id.; RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999); see also Gov’t Tech. Servs. LLC v. United States, 90 Fed.Cl. 522, 529-30 (2009). However, an “agency’s actions under a statute [must] so clearly affect the award and performance of a contract” for it to be “in connection with a procurement.” RAMCOR, 185 F.3d at 1289; see also Spherix, Inc. v. United States, 62 Fed.Cl. 497, 503 (2004). Plaintiffs SDVOSB status was revoked in an unrelated proceeding, independent of the contract award at issue. SAR 173-85; see also SAR 190-91, 211-15 (showing that Geiler Co. had its SDVOSB status cancelled from a protest involving another procurement bid). As this Court has jurisdiction over the Original Complaint, regardless of plaintiffs current lack of SDVOSB status, the post-award revocation of that SDVOSB status does not “clearly affect”.the procurement, and this Court will not endeavor to encroach upon the autonomous jurisdiction of the OSDBU. Therefore, defendant’s Motion to Dismiss- the Supplemental Complaint is granted for lack of jurisdiction. C. GSZ’s Motion for Judgment on the Administrative Record In its Motion for Judgment on the Administrative Record, plaintiff argues that ISS is ineligible for the award and that the Agency did not adequately evaluate the price proposals of the other offerors. This Court does not agree. Plaintiff is merely a “disappointed bidder,” and it has failed to overcome the “heavy burden of showing that the award decision ‘had no rational basis.’” Impresa Construzioni Geom. Domenico Garufi v. 585United States, 238 F.3d 1324,1333 (Fed. Cir. 2001) (quoting Saratoga Dev. Corp. v. United States, 21 F.3d 445, 456 (D.C. Cir. 1994)). 1. Awardee Ineligibility GSZ alleges that ISS’s proposal is not technically acceptable because it did not meet the “[s]olicitation’s mandatory requirements,” and is, thus, ineligible for the award as a matter of law. P’s MJAR at 11. Plaintiff argues that ISS is unqualified because the following demonstrations were allegedly insufficient under the Solicitation; its (1) first project consisting of replacing four air handling units; (2) second project providing temporary power via a critical power distribution system; (3) third project requiring the upgrade of another chiller plant at a hospital; (4) bonding commitment that included the indemnity obligations of one and (5) three projects demonstrating infection control measures taken. Id. at 13-17. In determining whether an agency’s procurement decision was arbitrary and capricious, the Court should not substitute an agency’s otherwise reasonable and rational decision for that of its own. Plasan N. America, Inc. v. United States, 109 Fed.Cl. 561, 571 (2013). The rational basis standard is “highly deferential” and entitles the agency “to a presumption of regularity.” CW Gov't Travel, Inc. v. United States, 110 Fed.Cl. 462, 479 (2013). So long as an agency “ ‘consider[s] the relevant factors’ and is ‘within the bounds of reasoned decision[-]making,’ ” the rational basis standard will be met. Info. Scis. Corp. v. United States, 80 Fed.Cl. 759, 773-74 (2008) (quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)). Discretion is further enhanced when an agency conducts a “technical evaluation of an offeror’s proposal.” L-3 Commc’ns Eotech, Inc. v. United States, 87 Fed.Cl. 656, 664 (2009). The Court might disagree with an agency’s technical conclusion, but it typically will not seeond-guess such “discretionary determinations” that fall within the ambit of an agency’s expertise. E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 1996); see also Fort Carson Servs. v. United States, 71 Fed.Cl. 571, 586 (2006) (requiring the “greatest deference possible” because of the “special expertise of procurement officials”). In arguing that ISS is ineligible for the award, plaintiff asserts that ISS’s first project failed to satisfy the experience and past performance requirements required by the RFP. The Agency determined that ISS met the experience and past performance requirements through the demolition and replacement of four “air-handling ... units installed on the roof of [a] building” at one of the Agency’s departments. AR 2094. ISS indicated that this project was substantially completed. Id. Plaintiff argues that the RFP demanded “completed” projects, not “substantially completed” projects, and, as a result, ISS’s first project does not meet the RFP’s requirement. P’s MJAR at 13. Additionally, plaintiff asserts that the first project fails the civil 'and fire protection requirements because ISS only performed “minor repairs relating to sidewalks and green areas,” and “only relocated one [] fire sprinkler,” respectively. Id. at 14. This Court will not infringe upon the Agency’s discretion by concluding that ISS was not technically acceptable absent evidence that the Agency acted unreasonably. In bid protest actions, “small errors made by the procuring agency are not sufficient grounds for rejecting an entire procurement.” Grumman Data Sys. Corp. v. Widnall, 15 F.3d 1044, 1048 (Fed. Cir. 1994); see also M.W. Kellogg Co./Siciliana Appalti Costruzioni, S.p.A. v. United States, 10 Cl.Ct. 17, 26 (1986) (“Where a defect in a bid is trivial or a mere formality, not material, the bid is not required to be rejected out of hand.”). Further, the RFP does not define the terms “civil” or “fire protection work.” Instead, those terms are part of the “minutia of the procurement process,” over which the Agency has discretion. E.W. Bliss Co., 77 F.3d at 449. As such, the Agency did not abuse its discretion in finding the first project technically acceptable. Plaintiff further contends that ISS’s second project fails to satisfy the experience and past performance requirements, The Agency determined that ISS’s task of providing temporary power distribution systems to “support two data center power panels” was technically acceptable. AR 2097. GSZ argues that 586“welding together two shipping containers,” and providing “two [ ] 1,000 KVA generators and two [ ] 500 KVA UPS systems” are not civil and low voltage work, respectively. P’s MJAR at 14. Again, the Agency rendered a conclusion that falls within its discretion, and this Court will not infringe upon that discretion. Additionally, plaintiff argues that ISS’s third project failed to meet the $3 million threshold required by the RFP, and that ISS was not even a part of the project team. ISS’s third project was the upgrade of another chiller plant at Advocate Good Samaritan Hospital, which the Agency determined to be technically acceptable. AR 2099. The Court reiterates that the Agency determines what qualifies as adequate work under the RFP. Glenn Def. Mañne (Asia), PTE Ltd. v. United States, 97 Fed.Cl. 568, 578 (2011) (saying that, as long as the “[solicitation provides sufficient information to allow offerors to bid intelligently and to allow the agency to meaningfully evaluate competing proposals,” it is valid). Moreover, ISS’s demonstration indicates that this project was valued at $3,157,800, with the owner of the hospital providing the chillers and towers. Plaintiff argues that ISS should not have included the cost of those chillers and towers in total project cost because ISS did not directly pay for them. The TEB, SSA, and GAO took no issue with this inclusion. AR 2161-58. Plaintiff does not provide sufficient evidence to warrant a finding that the Agency’s decision was outside the scope' of its discretion. Plaintiff then argues that, because ISS subcontracted out its third project, that project should not apply under experience and past performance requirements. FAR 15.305(a)(2)(iii) states that past performance evaluations can include “subcontractors [that] will perform” important aspects of the solicitation. Id.; see also Braseth Trucking, LLC v. United States, 126 Fed.Cl. 608, 615 n.8 (2016). Though the TEB determined the inclusion of this project was a weakness in ISS’s proposal, that weakness alone did not disqualify ISS from the award. AR 2161. This determination falls well within the Agency’s discretion, and this Court shall not interfere with that discretion. Plaintiff next asserts that ISS’s bid bond is deficient because the indemnity obligation of * was not incorporated into the original bid bond documents. AR 2070. Western Surety, through its affiliate CNA Surety (“CNA”), acts as the surety for ISS. On July 6, 2015, CNA notified the Agency that * would be the indemnifier for CNA. Id. Essentially, plaintiff is arguing that, because * is not named in ISS’s bid bond documentation, the reliability of ISS’s performance and ’s indemnification is insufficient and renders the bid bond invalid. The government asserts that there is not enough evidence to prove “such support compromise[s]” the obligations of the parties, and that ISS satisfactorily “identified the RFP; the project name; ISS as the principal; and [CNA] as the surety[, indemnified by *].” D’s MJAR at 24. The Agency received adequate information to make a rational decision and was well within the bounds of its discretion in determining that ISS had a clear bid bond obligation. Furthermore, plaintiff argues that the three projects ISS submitted do not meet the RFP’s requirements as to infection control measures. ISS demonstrated that it was the primary contractor for one project, while the other two projects were performed by ISS’s subcontractors. AR 2113-15. Once again, FAR 15.305(a)(2)(iii) allows agencies to consider subcontractor experience and past performance when evaluating a prime contractor’s bid proposal. FAR 15.305(a)(2)(iii) (2017). The Agency has not abused its discretion by following the FAR. Finally, plaintiff argues that because the Solicitation required successful demonstrations of type “A, B, C, and D” infection mitigation, ISS’s failure to demonstrate type A, B, or C is a failure to meet the RFP’s requirements. AR 73 (emphasis added). The government argues that the RFP does not explicitly state that the bidder demonstrate all four types, and that demonstration of type D precautionary measures may qualify a bidder as to types A, B, and C. Bowman Transp. Inc. v. Arkansas-Best Freight Sys, Inc., 419 U.S. 281 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974) (“[U]phold[ing] a decision of less than ideal clarity if the agency’s path may reasonably be discerned.”). The TEB 587determined that ISS’s proposal was adequate. The RFP required demonstrations of infection mitigation, and the Agency reasonably concluded that ISS had the experience and past performance necessary to complete the contract. 2. The Agency’s Price Evaluation In addition to its argument that ISS was not qualified to receive the award, plaintiff alleges that the Agency “failed to properly evaluate all price proposals,” arguing that the Agency (1) failed to evaluate the proposals in accordance with FAR 15,4 by ignoring GSZ’s alternate price and (2) inaccurately deemed ISS responsible under FAR 9.1. P’s MJAR at 17-33. The Court disagrees with those assertions. The Agency asked each offeror to list its “base offer” and provide a price breakdown so that it might evaluate each offeror’s proposed price in “accordance with FAR 15.4.” AR 45, 49, 74. FAR 15.4 provides the general procedures by which an agency evaluates price proposals. An agency may evaluate price using any “analytical techniques and procedures... singly or in combination with others,” so long as it “ensure[s] that the final agreed-to price is fair and reasonable.” FAR 15.404-1(a)(1) (2017). An agency may compare offerors’ prices to each other if there is adequate price competition or compare proposed prices to historical prices. Id. 15.404-1(b)(2)(i)-(ii) (listing the two “preferred techniques”). The “level of detail” required for each analysis will be determined by a totality of the circumstances. Id. 15.404-1(a)(1). Among the six proposals there existed a competitive standard deviation of “4.77%,” and none of the proposed prices were too far off the Agency’s estimate of $7,306,026. See AR 74, 2188 (determining reasonableness “by comparing offered prices with the [Agency’s] estimate”). Furthermore, “good price realism” was reflected through the RFP’s adequate price competition. Id. When there exists a “firm-fixed-price contract... comparison of the proposed prices will usually satisfy the requirement to perform a price analysis, and a cost analysis need not be performed.” FAR 15.305(a)(1) (2017). This Court is not persuaded by plaintiffs argument that the price evaluation was conducted “impossibly]” fast. P’s MJAR at 29. A more in-depth evaluation of each offeror’s price would have been unnecessary, as ISS’s offer was the lowest and its proposal was technically acceptable. This Court is unmoved by plaintiffs argument that the Agency should have analyzed GSZ’s alternate price. In its proposal, GSZ listed its base offer at $8,964,548. P’s MJAR at 30. Plaintiff argues that a more in-depth evaluation would have alerted the agency to a potential $450,000 deduction, lowering the base offer to $8,514,548 and making GSZ the lowest bidder. Id.; AR 1673. By its own admission, the potential $450,000 decreasé is contingent upon an outside-party subcontractor who might perform the work for less money. See AR 1673 (“[GSZ] would have to contract directly with [subcontractor’ for those [] changes.”). If GSZ truly believed that its base offer was $450,000 lower than the number provided, it should have reflected the lower number in its base offer. The GAO determined that the Agency was not required to “evaluate GSZ’s Voluntary alternate’ price,” and this Court agrees with that decision. See AR 2828-30. Finally, the Agency properly determined that ISS is a responsible bidder pursuant to FAR 9.104. A determination of responsibility is well within the bounds of an agency’s discretion, and nothing in the record supports the plaintiffs assertion that ISS was non-responsible. The administrative record supports a finding that the Agency’s decision-making was reasonable and proper. As such, this Court must reject plaintiffs arguments and uphold the Agency’s award. III. Conclusion For the reasons set forth above, plaintiffs MOTION for Judgment on the Administrative Record as to the Supplemental Complaint is DENIED. Defendant’s MOTION' to Dismiss the Supplemental Complaint is GRANTED. Plaintiffs MOTION for Judgment on the Administrative Record as to the Original Complaint is DENIED. Defendant’s and defendant-intervenor’s CROSS-MOTIONS for Judgment on the Administrative Record as to the Original Complaint are *588GRANTED. The Clerk is directed to enter Judgment in favor of the defendant, consistent with this Opinion,2 IT IS SO ORDERED. . This opinion shall be unsealed, as issued, after July 24, 2017, unless the parties identify protected and/or privileged materials subject to redaction prior to that date. Said materials shall be identified with specificity, both in terms of the language to be redacted and the reasons therefor.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218599/	MEMORANDUM OPINION AND ORDER GRIGGSBY, Judge I. INTRODUCTION ' Petitioner, Forrest Q. Spahn, seeks review of the September 11, 2014, decision of the special master denying his claim for compensation under the National Childhood Vaccine Injury Act (“Vaccine Act”), 42 U.S.C. § 300aa-1 to -34 (2012). Petitioner alleges that the tetanus-diphtheria (“Td”) vaccine that he received on June 19, 2007, significantly aggravated his obsessive-compulsive disorder (“OCD”). Petitioner also seeks review of the October 29, 2014, decision of the special master granting-in-part and denying-in-part petitioner’s motion to redact the special master’s decision. In addition, petitioner has moved for leave to file new evidence to support his Vaccine Act claim. For the reasons set forth below, the Court: (1) DENIES petitioner’s motion for review of the special master’s September 11, 2014, decision and SUSTAINS the decision of the special master; (2) DENIES petitioner’s motion for review of the special master’s October 29, 2014, decision on petitioner’s motion to redact and SUSTAINS the decision of the special master; (3) DENIES petitioner’s motion for leave to file new evidence; and (4) REMANDS this matter to the special master for a period of 90 days, for the special master to resolve petitioner’s pending motions for fees and costs. II. FACTUAL AND PROCEDURAL BACKGROUND A. Factual Background In this Vaccine Act matter, petitioner, Forrest Q. Spahn, alleges that the tetanus-diphtheria vaccine that he received on June 19, 2007, caused a significant aggravation of his obsessive-compulsive disorder symptoms. See Dec. at 1, 4; see Petition. On September 11, 2014, the special master denied petitioner’s claim for compensation under the Vaccine Act. Dec. at 1. 1. Petitioner’s Medical History Petitioner’s medical history is discussed in detail in the special master’s September 11, 2014, decision and is summarized here. See generally Dec. Mr. Spahn was born in 1991 at 33 weeks of gestation. Pet’r’s Ex. 3 at 32. Mr. Spahn had respiratory distress during 592delivery that caused anoxia (lack of oxygen), and he spent the first month of his life in the hospital. Pet’r’s Ex. 4 at 16; Pet’r’s Br. at 11. Vaccines were deferred throughout petitioner’s childhood. Pet’r’s Ex. 4 at 21. Prior to receiving the Td vaccine in 2007, Mr. Spahn suffered intermittent bouts of OCD. Pet’r’s Prehr’g Br., Sept 30, 2013, at 7. On June 19, 2007, Mr. Spahn saw a pediatrician for a physical examination in anticipation of entering the ninth grade. Dec. at 4. The pediatrician noted at the time that Mr. Spahn did not identify any health concerns. Id. At this appointment, Mr. Spahn received the Td vaccine. Id.) Pet’r’s Ex. 6 at 1. At the end of the summer of 2007, Mr. Spahn developed tics. Dec. at 4. On October 10 and 17, 2007, Mr. Spahn met with a clinical psychologist. Dec. at 5; Pet’r’s Ex. 6. The psychologist noted that Mr. Spahn “exhibited repeated stereotypic movements with his hands and legs, as well as with his head and neck. He exhibited facial tics.” Pet’r’s Ex. 6. The psychologist also speculated that Mr. Spahn may have mild autism. Id. A school l’eport created in April 2008 corroborates the onset of tics. Dec. at 5; Pet’r’s Ex. 12 at 12. Specifically, this report states that petitioner started the school year with “a clear florid exacerbation of OCD symptoms involving a need to engage in repetitive behaviors,” which began interfering with his school work. Dec. at 6; Pet’r’s Ex. 12 at 12. On November 30, 2007, Mr. Spahn’s father brought petitioner to the emergency room due to “an increase in OCD [symptoms] and stress at home.” Pet’r’s Ex. 2 at 36. Petitioner remained in the hospital for two weeks, and he underwent several forms of counseling at that time. Dec. at 6; Pet’r’s Ex. 2 at 3. Ultimately, petitioner was diagnosed with autistic spectrum disorder, OCD, and tic disorder. Dec. at 6; Pet’r’s Ex. 2 at 2. After the hospitalization, Mr. Spahn was examined by three physicians who each noted his tics. Dec. at 6; Pet’r’s Ex. 12 at 6; Pet’r’s Ex. 9 at 1; Pet’r’s Ex. 12 at 11-13. 2. Proceedings Before The Special Master On June 12, 2009, petitioner’s mother filed a petition pursuant to the Vaccine Act alleging that Mr. Spahn was injured by the Td vaccine, resulting in Mr. Spahn experiencing symptoms of OCD. See Pet. In April 2010, the Secretary of Health and Human Services (the “Secretary”) responded to the petition by arguing that petitioner failed to put forward evidence that the Td vaccine can cause tics. See Resp’t’s Rep’t, April 23, 2010. As a result, the special master ordered petitioner to file an expert report to support petitioner’s claim. Dec. at 7. During the course of the proceedings before the special master, Mr. Spahn reached the age of majority, and he was designated as the named petitioner in this case. Dec. at 7, n.10; Order, Apr. 3, 2013. On April 26, 2011, Mr. Spahn filed an expert report authored by Dr. Burk Jubelt, a neurologist. Dec. at 7; Pet’r’s Ex. 14. In the report, Dr. Jubelt opined that the Td vaccine contained thimerosal,' and that thimerosal-containing vaccines can cause tics. Id. The Secretary responded to Dr. Jubelt’s expert report by arguing that the vaccine that petitioner received on June 19, 2007, contained only trace amounts of thimerosal. Dec. at 8; Resp’t’s Ex. A at 8. On August 10, 2011, petitioner filed three scholarly articles regarding the safety of thimerosal authored by Nick Andrews, Kathleen Stratton, and Thomas Verstraeten, respectively. Dec. at 8; Pet’r’s Ex. 17-1, 17-2, 17-3. Petitioner also filed findings regarding thimerosal from the Institute for Vaccine Safety and the Illinois Department of Public Health, as well as an additional expert report authored by Dr. Jubelt regarding the effects of thimerosal on Mr. Spahn. Dec. at 8; Pet’r’s Ex. 15,16,17. On September 1, 2011, the special master instructed petitioner to work with Dr. Jubelt to present a medical theory explaining how the Td vaccine can cause tics. Dec. at 8-9; Order, Sept. 1, 2011. To that end, on January 12, 2012, petitioner filed a third expert report authored by Dr. Jubelt. Dec. at 9; Pet’r’s Ex. 18. Dr. Jubelt opined that thimerosal creates DNA breaks, citing a scholarly article written by David Baskin. Pet’r’s Ex. 18,18-1. Dr. Jubelt also opined that thimerosal can deplete glutathione, a chemical necessary to brain development. Pet’r’s Ex. 18. To support 593this medical theory, Dr. Jubelt cited an article written by S.J. James. Pet’r’s Ex. 18, 18-2. The Secretary responded to Dr. Jubelt’s expert report with expert reports that criticize the medical articles that Dr. Jubelt relied upon in his expert report. Resp’t’s Ex. A, C. The Secretary submitted an expert report authored by Dr. Jeffrey Johnson, a neurologist. Dec. at 9; Resp’t’s Ex. A, C. In that report, Dr. Johnson criticized the Andrews and Verstraeten articles relied upon by petitioner, because these articles studied infants who received a full battery of vaccines. Resp’t’s Ex. A. Specifically, Dr. Johnson opined that the aforementioned articles were irrelevant to this case, because Mr. Spahn received one Td vaccine as an adolescent. Id, Dr. Johnson also opined that the Baskin and James articles upon which petitioner relies wei’e inapplicable to this case, because these articles address a higher dosage of thimero-sal than Mr, Spahn received. Id, Lastly, the Secretary submitted an expert report authored by Dr. Michael Kohrman, a toxicologist, which similarly criticized the Andrews study, because that study involved infants. Resp’t’s Ex, C. On May 22, 2012, the special master ordered petitioner to respond to the Secretary’s expert reports. Order, May 22, 2012. Thereafter, petitioner submitted another expert report authored by Dr. Jubelt. Pet’r’s Ex. 19. Mr. Spahn also filed an expert report authored by Dr. H. Vasken Aposhian, a toxicologist, who offered an expert opinion about a genetic mutation known as CPOX4. Dec. at 10; Pet’r’s Ex. 20. In this report, Dr. Aposhi-an opined that a person who has the CPOX4 mutation is hyper-susceptible to mercury and would be affected by a single dose of thimer-osal even into adolescence. Pet’r’s Ex. 20. Dr. Aposhian also opined that, because Mr. Spahn had a reaction to thimerosal after receiving the Td vaccine, he likely has the CPOX4 mutation. Id. On January 22, 2013, the Secretary submitted a rebuttal expert report authored by Dr. Johnson that characterized the opinion set forth in Dr, Aposhi-an’s report to be speculation without scientific merit. Dec. at 10; Resp’t’s Ex. F. On February 13, 2018, the special master scheduled a hearing to consider petitioner’s claim. Dec. at 11; Order, Feb. 13, 2013. The special master also ordered the parties’ experts to limit their hearing testimony to what had been disclosed in their respective expert reports. Order at 1-2, Feb. 13, 2013. Prior to the hearing date, the parties reached a preliminary settlement agreement. Dec. at 11; Joint Status Report, May 1, 2013. But, the Department of Justice subsequently declined to grant the necessary settlement authority to amicably resolve the case. Dec. at 11; Resp’t’s Status Report, June 3, 2013. And so, the special master rescheduled the evidentia-ry hearing in this matter. Order, July 1, 2013. On July 23, 2013, the Secretary filed a motion for summary judgment arguing, among other things, that the expert opinions of Drs. Jubelt and Aposhian lacked credibility. Dec. at 12; See Resp’t’s Mot, Summ. J. Mr, Spahn filed an opposition to the Secretary’s motion on August 23, 2013, and the Secretary replied on September 12, 2013. Dec. at 12. On August 30, 2013, petitioner moved for interim attorney’s fees and costs. See Pet’r’s Mot. for Expedited Payment of Interim Costs. On June 3, 2014, petitioner filed a second motion for attorney’s fees and for expedited payment of costs. See Pet’r’s Second Mot. for Expedited Payment of Interim Costs. To date, the special master has not ruled on petitioner’s motions.1 Pet’r’s Second Mot, for Expedited Payment of Interim Costs at 1. On September 30, 2013, petitioner filed a prehearing brief that clarified that he alleges that the Td vaccine significantly aggravated his OCD, but did not cause this condition. Dec. at 12; Pet’r’s Prehr’g Br. at 1. Because petitioner revised his theory of the case, the special master suggested that petitioner provide additional evidence regarding how the progress of his OCD after the vaccine compares to the disorder’s standard progression. 594Order, July 2, 2013 at 2, 6. Petitioner did not provide any additional evidence. Dec. at 13. And so, the special master resolved the Secretary’s motion for summary judgment. Id. 3. The Special Master’s Decisions On September 11, 2014, the special master issued a decision granting the Secretary’s motion for summary judgment and denying petitioner’s Vaccine Act claim. See generally Dec. In the decision, the special master found that, as a preliminary matter, petitioner’s claim depended upon whether thimerosal aggravated petitioner’s tics. Dec. at 17. The special master found that the only evidence connecting thimerosal to the tics was the conclusory statements of petitioner’s experts, and the special master concluded that such statements were insufficient to create a genuine issue of fact warranting a hearing. Id. at 29. And so, the special master determined that disposition of the case on summary judgment was appropriate. Id. at 29-31. With respect to petitioner’s medical theory that the thimerosal in the Td vaccine significantly aggravated petitioner’s tics, the special master found that the Verstraeten and Andrews epidemiology articles adequately showed that tics could be caused by thimero-sal. Id. at 19. But, the special master found, among other things, that the Verstraeten and Andrews articles did not apply to petitioner’s specific case, because these articles address infants. Id. at 21. The special master also considered several medical articles that petitioner submitted to show the biological mechanism that may have caused, or aggravated, his tics. Id. at 22-27. Specifically, the special master considered the article by David Baskin, which stated that cells exposed to thimerosal can have damaged DNA. Id. at 22-23. But, the special master concluded that the dosage of thimero-sal that Mr. Spahn received was not enough to be toxic according to this article. Id. at 23. The special master similarly concluded that the James article, upon which petitioner relied to show how thimerosal could deplete the brain chemical glutathione, was also not relevant to petitioner’s case, because the dosage of thimerosal addressed in the article was not similar to the dosage that petitioner received. Id. at 24. The special master considered several other medical articles that petitioner cited to in his brief in opposition to the Secretary’s motion for summary judgment. Id. at 25-26. The special master assessed these articles and ultimately dismissed the articles as irrelevant, because they did not study tics. Id. The special master also considered the argument that petitioner’s anoxia at birth created a vulnerability to thimerosal, but the special master concluded that petitioner’s experts did not demonstrate a connection between anoxia and vulnerability to thimerosal. Id. at 27. Finally, the special master further concluded that, without genetic test results showing whether Mr. Spahn has the CPOX4 mutation, Dr. Aposhian’s medical theory that Mr. Spahn has this gene is circular reasoning and insufficient to substantiate petitioner’s claim. Id. at 27-28. Given this, the special master found that petitioner’s evidence had gaps that had not been addressed by petitionei’’s experts, and that these evidentiary gaps undermined the reliability of the opinion of petitioner’s experts. Id. at 29. And so, the special master concluded that there was no genuine dispute of material fact and that the material facts in this case showed that petitioner had not proven his significant aggravation claim. Id. at 30. On September 25, 2014, Mr. Spahn moved to redact the decision of the special master to remove the names of petitioner, petitioner’s mother and father, petitioner’s schools, petitioner’s treating physicians, as well as petitioner’s birthdate and certain background facts. See Mot. to Redact Dee. On October 29, 2014, the special master granted-in part and denied-in-part petitioner’s motion. Order Granting-In-Part and Denying-In-Part Mot. to Redact Dec. at 1. In the decision, the special master granted petitioner’s request to redact the name of petitioner’s father, petitioner’s birthdate, and certain background facts. Id. at 4-6. But, the special master denied petitioner’s request to redact petitioner’s name, petitioner’s mother’s name, as well as the names of petitioner’s schools and treating physicians, because the special master concluded that the petitioner’s name had 595already been published in the Federal Register and none of the other requested redac-tions fell within the categories of information that the Vaccine Act permits to be redacted. Id, at 4-5; 42 U.S.C. § 300-12(d)(4)(B). Petitioner, alleging error, seeks review of the special master’s decisions. B. Procedural History On October 11, 2014, petitioner filed a motion for review of the September 11, 2014, decision of the special master to deny his Vaccine Act claim. See Mot. for Review. The Secretary responded to the motion for review on November 10, 2014. See Resp.'to Mot. for Review. On November 26, 2014, petitioner filed a motion for review of the special master’s October 29, 2014, decision granting-in-part and denying-in-part-petitioner’s motion to redact the special master’s September 11, 2014, decision. See Mot. for Review of Order on Mot. to Redact Dec. The Secretary filed a response to petitioner’s second motion for review on December 29, 2014. Resp. to Mot. for Review of Order on Mot. to Redact Dec. On February 4, 2015, the Court held a hearing on petitioner’s motions for review. See Scheduling Order, Jan. 6, 2015. On August 3, 2015, the Court ordered the parties to file supplemental briefs regarding any recent legal authority bearing on the matter. See Order, Aug. 3, 2015. On August 14, 2015, petitioner filed a supplemental brief focusing on the United States Court of Appeals for the Federal Circuit’s decision in Simanski v. Sec’y of Health & Human Servs., 671 F.3d 1368 (Fed. Cir. 2012). Pet’r’s Supplemental Brief on Mot. for Review at 2. On August 21, 2015, the Secretary filed a response to petitioner’s supplemental brief. Resp’t’s Resp. to Supplemental Br. On June 2, 2016, the Court ordered the parties to file supplemental briefs regarding United States Court of Appeals for the Federal Circuit's opinion in Moriarty by Moriarty v. Sec’y of Health & Human Servs., 844 F.3d 1322 (Fed. Cir. 2016). Order, June 2, 2016. On June 17, 2017, the Secretary filed a response to the Court’s order. Resp’t’s Resp. to Order June 2, 2016. On June 17, 2016, petitioner filed a supplemental brief regarding Moriarty. Pet’r’s Second Supplemental Brief on Mot. for Review at 3. On June 24, 2016, the Secretary filed a responsive supplemental brief. See Resp’t’s Resp. to Pet’r’s Second Supplemental Brief on Mot. for Review. This matter was subsequently reassigned twice-on January 26, 2017, and March 29, 2017.See Notice of Reassignment, January 26, 2017; Notice of Reassignment, March 29, 2017. On May 11, 2017, petitioner moved for leave to file new evidence. See Mot. for Leave to File New Evidence. On May 18, 2017, the Secretary filed a response and opposition to petitioner’s motion for leave to file new evidence. See Resp’t’s Resp. to Pet’r’s Mot. for Leave to File New Evidence. III. STANDARDS FOR DECISION A. Vaccine Act Claims The United States Court of Federal Claims has jurisdiction to review the record of the proceedings before a special master and, upon such review, may: (A) uphold the findings of fact and conclusions of law of the special master and sustain the special master’s decision, (B) set aside any findings of fact or conclusion of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law, or (C) remand the petition to the special master for further action in accordance with the court’s direction. 42 U.S.C. § 300aa-12(e)(2). The special master’s determinations of law are reviewed de novo. Andreu ex rel. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1373 (Fed. Cir. 2009). The special master’s findings of fact are reviewed for clear error. Id. (citation omitted); see also Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d 1339, 1345 (Fed. Cir. 2010) (“We uphold the special master’s findings of fact unless they are arbitrary or capricious.”). The special master’s discretionary rulings are reviewed for abuse of discretion. 596Munn v. Sec'y of Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992). In addition, a special master’s findings regarding the probative value of the evidence and the credibility of witnesses will not be disturbed so long as they are “supported by substantial evidence.” Doe v. Sec’y of Health & Human Servs., 601 F.3d 1349, 1355 (Fed. Cir. 2010) (citation omitted); see also Burns v. Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that the decision of whether to accord greater weight to contemporaneous medical records or later given testimony is “uniquely within the purview of the special master”). This “level of deference is especially apt in a case in which the medical evidence of causation is in dispute.” Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993). And so, the Court will not substitute its judgment for that of the special master, “if the special master has considered all relevant factors, and has made no clear error of judgment.” Lonergan v. Sec’y of Health & Human Servs., 27 Fed.Cl. 579, 580 (1993). Under the Vaccine Act, the Court must award compensation if a petitioner proves, by a preponderance of the evidence, all of the elements set forth in 42 U.S.C. § 300aa-11(c)(1), unless there is a preponderance of evidence that the illness is due to factors unrelated to the administration of the vaccine. 42 U.S.C. § 300aa-13(a)(1). A petitioner can recover either by proving an injury listed on the Vaccine Injury Table (“Table”), or by proving eausation-in-fact. See 42 U.S.C. §§ 300aa-11(c)(1)(C); Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). And so, to receive compensation under the National Vaccine Injury Compensation Program, a petitioner must prove either that: (1) the petitioner suffered a “Table Injury” that corresponds to one of the vaccinations in question within a statutorily prescribed period of time or, in the alternative, (2) the petitioner’s illnesses were actually caused by a vaccine. See 42 U.S.C. §§ 300aa-11(c)(1)(C)(i-ii), 300aa-13(a)(1)(A), 300aa-14(a); see also Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1321 (Fed. Cir. 2010); Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1320-21 (Fed. Cir. 2006). In addition, in Table and non-Table cases; a petitioner bears a “preponderance of the evidence” burden of proof. 42 U.S.C. § 300aa-13(a)(1)(A); Althen, 418 F.3d at 1278 (citing Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344, 1352-53 (Fed. Cir. 1999)). And so, a petitioner must offer evidence that leads the “trier of fact to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the [judge] of the fact’s existence.” Moberly, 592 F.3d at 1322 n.2 (brackets existing) (internal quotation omitted); see also Snowbank Enter. v. United States, 6 Cl.Ct. 476, 486 (1984) (holding that mere conjecture or speculation is insufficient under a preponderance standard). To establish a prima facie case when proceeding on a causation-in-fact significant aggravation theory, a petitioner must “prove, by a preponderance of the evidence, that the vaccine was not only a but-for cause of the injury but also a substantial factor in bringing about the injury.” Shyface, 165 F.3d at 1352. In addition, petitioner must prove by a preponderance of the evidence: (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of. cause' and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between the vaccination and the injury. Althen, 418 F.3d at 1278. But, medical or scientific certainty, is not required. Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 548 (Fed. Cir. 1994). In Althen, the Federal Circuit addressed these three elements to prove causation in fact. Althen, 418 F.3d at 1278. All three elements “must cumulatively show that the vaccination was a ‘but-for’ cause of the harm, rather than just an insubstantial contributor in, or one among several possible causes of, the harm.” Pafford v. Sec’y of Health & Human Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006). In addition, if a petitioner establishes a prima facie case, the burden shifts to the respondent to show, by a preponderance of the evidence, that the injury was caused 597by a factor unrelated to the vaccine. See 42 U.S.C. § 300aa-13(a)(1)(B); Sec’y of Health & Human Servs. v. Whitecotton, 514 U.S. 268, 270-71, 115 S.Ct. 1477, 131 L.Ed.2d 374 (1995). But, regardless of whether the burden of proof ever shifts to the respondent, the special master may consider the evidence presented by the respondent in determining whether the petitioner has established a pri-ma facie case. See Stone v. Sec’y of Health & Human Servs., 676 F.3d 1373, 1379 (Fed. Cir. 2012) (“[E]vidence of other possible sources of injury can be relevant not only to the ‘factors unrelated’ defense, but also to whether a prima facie showing has been made that the vaccine was a substantial factor in causing the injury in question.”); de Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1353 (Fed. Cir. 2008) (“The government, like any defendant, is permitted to offer evidence to demonstrate the inadequacy of the petitioner’s evidence on a requisite element of the petitioner’s case[-]in-chief.”). B.Vaccine Rule 8 And RCFC 56 Vaccine Rule 8(d) provides that, [a] special master may decide a case on the basis of written submissions without conducting an evidentiary hearing. Submissions may include a motion for summary judgment, in which event the procedures set forth in RCFC 56 will apply. RCFC App. B, Vaccine Rule 8(d); see also Simanski v. Sec’y of Dept. of Health & Human Servs., 671 F.3d 1368, 1371 (Fed. Cir. 2012) (Noting that “the Vaccine Rules provide that the special masters can decide cases on written submissions, including, in appropriate cases, by summary judgment.”) Pursuant to Rule 56 of the Rules of the United States Court of Federal Claims (“RCFC”), summary judgment is appropriate when there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Biery v. United States, 753 F.3d 1279, 1286 (Fed. Cir. 2014), After adequate time for discovery, RCFC 56 mandates the entry of summary judgment against a party who fails to establish an element of the case on which the party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Federal Circuit has also recognized that, in ruling on a motion for summary judgment, a special master can decide whether the petitioner’s evidence is sufficient to allow the matter to proceed to a hearing. Simanski, 671 F.3d at 1382. C. Redaction, Vaccine Rule 18 Generally, decisions of the special master are publically disclosed without re-dactions. 42 U.S.C. § 300aa-12(d)(4). But, the Vaccine Act provides that financial information and medical files are eligible for redaction. Id. Specifically, section 300aa-12(d)(4)(B) of the Vaccine Act provides, in pertinent part, that: A decision of the special master or the court in a proceeding shall be disclosed, except that if the decision is to include information— (i) which is a trade secret or commercial or financial information which is privileged and confidential, or (ii) which are medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy, and if the person who submitted such information objects to the inclusion of such information in the decision, the decision shall be disclosed without such information. 42 U.S.C. § 300aa-12(d)(4)(B), The decision to redact a special master’s decision is a question of law. W.C. v. Sec’y of Health & Human Servs., 100 Fed.Cl. 440, 457 (2011). And so, a special master’s decision in this regard is reviewed de novo. Andreu, 569 F.3d at 1373. D. Contracts With The United States To bring a valid contract claim against the United States in this Court, the underlying contract must be either express or implied-in-fact. Aboo v. United States, 86 Fed.Cl. 618, 626-27 (2009). In addition, the party alleging the existence of a contract 598bears the burden of proving the existence of a contract with the United States, and the party must show that there is “something more than a cloud of evidence that could be consistent with a contract to prove a contract and enforceable contract rights.” D & N Bank v. United States, 331 F.3d 1374, 1377 (Fed. Cir. 2003). To establish the existence of either an express or implied-in-fact contract with the United States, the party alleging the existence of a contract must show: “(1) mutuality of intent; (2) consideration; (3) an unambiguous offer and acceptance;!’ and (4) actual authority to bind the government in contract on the part of the government official whose conduct is relied upon. Kam-Almaz v. United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012); see also Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997). A government official’s authority to bind the United States must be express or implied. Roy v. United States, 38 Fed.Cl. 184, 188-89, dismissed, 124 F.3d 224 (Fed. Cir. 1997). And so, “the [gjovernment, unlike private parties, cannot be bound by the apparent authority of its agents.” Id. at 187. In this regard, a government official possesses express actual authority to bind the United States in contract “only when the Constitution, a statute, or a regulation grants it to that agent in unambiguous terms.” Jumah v. United States, 90 Fed.Cl. 603, 612 (2009) aff'd, 385 Fed.Appx. 987 (Fed. Cir. 2010) (internal citations omitted); see also City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990) (citation omitted). On the other hand, a government official possesses implied actual authority to bind the United States in contract-“when the employee cannot perform his assigned tasks without such authority and when the relevant agency’s regulations do not grant the authority to other agency employees.” SGS-92X003 v. United States, 74 Fed.Cl. 637, 662 (2007) (citations omitted); see also Aboo, 86 Fed.Cl. at 627 (implied actual authority “is restricted to situations where ‘such authority is considered to be an integral part of the duties assigned to a [g]ovemment employee.’ ”) (quoting H. Landau & Co. v. United States, 886 F.2d 322, 324 (Fed. Cir. 1989)). In addition, when a government agent does not possess express or implied actual authority to bind the United States in contract, the government can still be bound by contract if the contract was ratified by an official with the necessary authority. Janowsky v. United States, 133 F.3d 888, 891-92 (Fed. Cir. 1998).2 E. Attorneys’ Fees When a special master awards compensation to a petitioner, the Vaccine Act directs the special master to award “reasonable attorneys’ fees, and other costs, incurred in any proceeding on such petition.” 42 U.S.C. § 300ga-15(e)(1). If the petitioner does not prevail on his or her claim and is, thus, denied compensation, the special master “may award an amount of compensation to cover petitioner’s reasonable attorneys’ fees and other costs incurred in any proceeding on such petition if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for^ the claim for which the petition was brought.” Id.; see also Sebelius v. Cloer, 569 U.S. 369, 133 S.Ct. 1886, 1893, 185 L.Ed.2d 1003 (2013); Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir. 1993). And so, the Vaccine Act affords to the special master discretion regarding whether to award attorneys’ fees and costs when the special master denies compensation. Saxton, 3 F.3d at 1520. Within the context of a petition brought under the Vaccine Act, good faith is a subjective standard. See, e.g., Turner v. Sec’y of Health & Human Servs., No. 99-544V, 2007 599WL 5180524, at 2 (Fed. Cl. Aug. 31, 2007); Hamrick v. Sec’y of Health & Human Servs., No. 99-683V, 2007 WL 4793152, at 3 (Fed. Cl. Spec. Mstr. Nov. 19, 2007); Di Roma v. Sec’y of Health & Human Servs., No. 90-3277V, 1993 WL 496981, at 1 (Fed. Cl. Spec. Mstr. Nov. 18, 1993). And so, the Court has held that the good faith standard focuses on whether the petitioner “honestly believed he had a legitimate claim for compensation.” See Turner, 2007 WL 5180524, at 2 (citing Di Roma, 1993 WL 496981, at 1). With respect to determining whether “there was a reasonable basis for the claim,” this Court has also held that a petitioner must prove, by “something less than preponderant evidence,” that he or she had a reasonable basis for filing the claim. Chuisano v. United States, 116 Fed.Cl. 276, 289 (2014); McKellar v. Sec’y of Health & Human Servs., 101 Fed.Cl. 297, 305 (2011); see, e.g., Simmons v. Sec’y of Health & Human Servs., 128 Fed.Cl. 579, 583 (2016), appeal docketed, No. 17-1405 (Fed. Cir. Dec. 23, 2016). However, “[n]either the Federal Circuit nor this Court has had occasion to define ... ‘reasonable basis’ for purposes of fee awards under the Vaccine Act.” Woods v. Sec’y of Health & Human Servs., 105 Fed.Cl. 148, 153 (2012); see also Chuisano, 116 Fed.Cl. at 285 (holding that the reasonable basis standard is “amorphous” and “not rigidly defined”). This Court has looked to the totality of the circumstances to determine whether a petitioner’s claim had a reasonable basis at the time the petition was filed. Simmons, 128 Fed.Cl. at 583 (applying a totality of the circumstances test in reviewing reasonable basis of claim); McKellar, 101 Fed.Cl. at 303 (“The presence of a reasonable basis is an objective consideration determined by the totality of the circumstances.”) (citation omitted). The Court has also held that “[a]t the most basic level, a petitioner who submits no evidence would not be found to have reasonable basis because the petitioner could not meet the burden of proof needed to establish reasonable basis.” Chuisano, 116 Fed.Cl. at 286 (citation omitted); see also Simmons, 128 Fed.Cl. at 583. In addition, the Court has considered factors “such as ‘the factual basis, the medical support... jurisdictional issues,’ including the statute of limitations,” and the attorney’s diligence in bringing the claims, when considering whether there was a reasonable basis for a claim. Simmons, 128 Fed.Cl. at 583 (citing Chuisano, 116 Fed.Cl. at 288); cf. Rehn v. Sec’y of Health & Human Servs., 126 Fed.Cl. 86, 92-93 (2016) (finding that the attorney “has done meaningful work on this case”). IV. LEGAL ANALYSIS A. The Special Master Did Not Err In His Findings Of Fact As an initial matter, the record evidence shows that the special master properly determined that petitioner was suffering from OCD before the 2007 Td vaccination. The Court reviews the special master’s findings of fact for clear error. Andreu ex rel. Andreu v. Sec’y of Dep’t of Health & Human Servs., 569 F.3d 1367, 1373 (Fed. Cir. 2009). The record evidence supports the special master’s finding that petitioner “was suffering from obsessive-compulsive- disorder” when petitioner received the Td vaccine on June 19, 2007. Dec. at 1. Specifically, the record evidence shows that one of petitioner’s treating physicians, Dr. Berry-Kravis, reviewed petitioner’s medical history in April 2008, and she found at the time that petitioner reported episodes of repetitive touching— a symptom of OCD—during childhood. Pet’r’s Ex. 12 at 12. The record evidence also shows that Dr. Berry-Kravis found that petitioner’s mother reported that petitioner experienced another symptom of OCD—epi-sodes of stereotypic movements—prior to 2007. Id. During the proceedings before the special master, petitioner also acknowledged that his OCD preceded the 2007 Td vaccination at issue, when he changed the legal theory of this case to one of “significant aggravation of his previously dormant minor OCD” in 2013. Pet’r’s Prehr’g Br., Sept. 30, 2013, at 1. And so, the special master appropriately determined that the statements in the record by Dr. Berry-Kravis and petitioner’s own ac-knowledgement demonstrate that petitioner experienced symptoms of OCD prior to the subject vaccination. 600The record evidence also shows that the special master appropriately found that petitioner could have obtained a laboratory test to determine whether petitioner had the CPOX4 gene to support his medical theory in this case. Dec. at 28. Although petitioner alleges that he is hyper-susceptible to mercury, because he has the CPOX4 gene—and that this mercury sensitivity would have caused an adverse reaction to a single dose of thimerosal contained in the Td vaccine—the special master found that there was no evidence in the expert report provided by petitioner’s toxicology expert, or elsewhere, to show that petitioner actually has the CPOX4 gene. Dec. at 28; Pet’r’s Ex. 20, The special master also found that petitioner “could have solved this evidentiary gap by obtaining a genetic test, and [that he] was given months to pursue genetic testing and did not do so.” Id. The record evidence supports the special master’s findings. As the government observed during the proceedings before the special master, “any laboratory that per-foras genetic testing can acquire the materials necessary to perform the [CPOX4 genetic] test.” Resp’t’s Reply Br. in Supp. Mot. for Summ. J., at 4. Petitioner neither disputes that he failed to secure this genetic test, nor does he point to any evidence in the record to show that he searched for a laboratory to perform this test. See generally Pet’r’s Mot. for Review. And so, the special master appropriately concluded that although petitioner could have obtained genetic testing to support his medical theory, petitioner failed to do so. Dec. at 28-29. B. The Special Master Did Not Err By Forgoing An Evidentiary Hearing The evidentiary record also shows that the special master did not err by declining to hold an evidentiary hearing in this matter. In his motion for review, petitioner alleges that the special master violated petitioner’s due process rights by declining to hold an evidentiary hearing on petitioner’s claim and by issuing a prehearing order limiting expert testimony to the information presented in the experts’ l'espective written submissions. Pet’r’s Mot. for Review at 4-6. The Court reviews the special master’s interpretation of the Vaccine Rules with regards to evidentiary hearings de novo. Andreu, 569 F.3d at 1373. The Court reviews the special master’s instructions regarding the testimony of expert witnesses for abuse of discretion. Munn v. Sec’y of Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992). First, the special master properly interpreted the Vaccine Rules and did not err in declining to conduct an evidentiary hearing on petitioner’s claim. In general, taking evidence and hearing argument in Vaccine Act matters is governed by Vaccine Rule 8, which provides, in relevant part, that “[t]he special master will determine the format for taking evidence and hearing argument based on the specific circumstances of each case and after consultation with the parties.” RCFC App. B, Vaccine Rule 8(a). In addition, Vaccine Rule 8(d), affords the special master the discretion to decline to conduct an evidentiary hearing, and the rule provides that: The special master may decide a case on the basis of written submissions without conducting an evidentiary hearing. Submissions may include a motion for summary judgment, in which event the procedures set forth in RCFC 66 will apply. RCFC App. B, Vaccine Rule 8(d). The discretion afforded by Vaccine Rule 8(d) “is tempered by Vaccine Rule 3(b) which requires that each party have a full and fair opportunity to present its case.” Campbell ex. rel. Campbell, 69 Fed.Cl. 775, 778 (2006), (quoting Hovey v. Sec’y of Health & Human Servs., 38 Fed.Cl. 397, 400-01 (1997)); RCFC App. B, Vaccine Rule 3(b). And so, while a special master has the obligation to afford a party a full and fair opportunity to present its case, a special master has no obligation to conduct an evidentiary hearing. The record evidence in this case shows that the special master reasonably concluded that an evidentiary hearing was not warranted, given the significant evidentiary record already before the special master. Indeed, the record evidence shows that, during the proceedings before the special master, both parties submitted a substantial amount of evidence—including several expert reports and medical literature—to support their re601spective positions in this ease. In particular, petitioner submitted three expert reports authored by his neurologist, Dr. Jubelt. Dee. at 7, 9; Pet’r’s Ex. 14, 18, 19. Petitioner also submitted an expert report authored by his toxicologist, Dr. Aposhian. Dec. at 10; Pet’r’s Ex. 20. In addition, the Secretary submitted two expert reports challenging the opinions of petitioner’s experts. Dec. at 9; Resp’t’s Ex. A, C. The petitioner and the Secretary also both submitted several medical articles to either support or refute petitioner’s Vaccine Act claim. Particularly relevant here, petitioner filed three scholarly articles regarding the safety of thimerosal authored by Nick Andrews, Kathleen Stratton, and Thomas Ver-straeten, respectively. Dec. at 8; Pet’r’s Ex. 17-1, 17-2, 17-3. Petitioner’s expert, Dr. Ju-belt, also put forward another medical article, authored by S.J. James, to support his expert report. Pet’r’s Ex. 18-2. In addition, after petitioner clarified that he asserts a significant aggravation claim in this matter, the special master provided an opportunity for petitioner to provide additional evidence regarding how the progress of his OCD following the Td vaccination compares to a standard OCD progression. Dec. at 12-13 n.13. And so, in light of the extensive eviden-tiary record, the special master reasonably determined that an evidentiary hearing was not warranted. The evidentiary record also makes clear that the special master did not err by instructing the expert witnesses in this matter to limit their testimony during any evi-dentiary hearing to the matters addressed in their written submissions. Dec. at 11; Prehr’g Order, Feb. 13, 2013. The Federal Circuit has recognized that, when considering such evidence, a special master has the discretion to restrict testimony to the parties’ written submissions. See Simanski, 671 F.3d at 1382 (“The special master can order the experts to confine their testimony to the issues addressed in their reports.”).3 In this case, the special master appropriately instructed the parties’ expert witnesses to so limit their testimony, given the significant evidence already before the special master, including six expert reports. Dec. at 11; Prehr’g Order, Feb. 13, 2013. And so, under these circumstances, the special master appropriately exercised his discretion to limit the testimony of the parties’ experts.4 Plummer v. Sec’y of Health & Human Servs., 24 Cl.Ct. 304, 307 (1991) (holding the Vaccine Act does not require an evidentiary hearing). C. The Special Master Properly Granted Summary Judgment Petitioner’s objection that the special master’s decision to resolve this claim by granting the Secretary’s motion for summary judgment deprived him of a full and fair opportunity to present his claim is similarly unsubstantiated by the record evidence. See Pet’r’s Mot. for Review at 16-20. Vaccine Rule 8(d) specifically recognizes that the parties’ “Submissions may include a motion for summary judgment, in which event the procedures set forth in Rule 66 will apply.” RCFC App. B, Vaccine Rule 8. This rule also authorizes , the special master to “decide the case on the basis of written submissions without conducting an evidentiary hearing.” Id. And so, the United States Court of Appeals for the Federal Circuit has held that a special master may “decide whether the petitioner’s evidence is sufficient to allow the matter to proceed to a hearing.” Simanski, 602671 F.3d at 1382. But, the Federal Circuit has also recognized that resolving a case on summary judgment can raise due process concerns when doing so resolves aspects of the case at an arbitrary point in the litigation. Jay v. Sec’y of Health & Human Servs., 998 F.2d 979, 983 (Fed. Cir. 1993). In this case, the record evidence shows that the special master reasonably determined that petitioner’s case should be resolved on summary judgment, because petitioner’s significant aggravation claim depended upon whether thimerosal could aggravate petitioner’s tics, and the only evidence in the record connecting thimer-osal to tics were the conelusory statements by the petitioner’s experts. Dec. at 17, 29. After reviewing the petitioner’s expert reports, the special master also concluded that .the statements of petitioner’s experts were insufficient to create a genuine issue of fact warranting a hearing. Id. at 29-30. And so, the special master reasonably determined that disposition of the case on summary judgment was appropriate. Id. Given this, petitioner has not shown that he was prejudiced by the special master’s decision, or that the special master’s decision to resolve this case on summary judgment occurred at an arbitrary point in this litigation. D. The Special Master Did Not Require Scientific Certainty Petitioner’s claim that the special master erred by requiring scientific certainty to prove petitioner’s significant aggravation claim is also unsubstantiated by the eviden-tiary record. See Pet’r’s Mot. for Review at 15-16. In his motion for review, petitioner alleges that the special master required that petitioner prove his claim by a scientific certainty, because the special master found Dr. Aposhian’s expert opinion to be based upon circular reasoning. Id. Petitioner further alleges that Dr. Aposhian’s expert opinion is circumstantial evidence and the special master erred by not considering this evidence. Id. Neither of petitioner’s objections is unsupported by the record evidence. It is well-established that medical or scientific certainty is not required to prove causation in a Vaccine Act case. Moberly, 592 F.3d at 1324. But, it is also well-established that petitioner must present more than a possible causal link between a vaccine and an injury, and he must show that any causal link between a vaccine and injury is. based upon “persuasive” and “reputable” evidence. Paterek v. Sec’y of Health & Human Servs., 527 Fed.Appx. 875, 879 (Fed. Cir. 2013); Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 548 (Fed. Cir. 1994). And so, a special master should assess petitioner’s claims here for a “sound and reliable” medical or scientific explanation based on evidence that is “relevant and reliable.” Knudsen, 35 F.3d at 548; RCFC App. B, Vaccine Rule 8(b)(1). In addition, the Federal Circuit has held that a special master is “entitled to require some indicia of reliability to support the assertion of the expert witness.” Moberly, 592 F.3d at 1324. The Federal Circuit has also held that a special master must consider circumstantial evidence and that a special master should not dismiss a physician’s opinion strictly for relying upon circumstantial inferences. See Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1324 (Fed. Cir. 2006). Here, the evidentiary record shows that the special master did not require proof of petitioner’s claim with scientific certainty because the special master discounted the opinion of Dr. Aposhian. During the proceedings before the special master, the special master determined that the sequence of cause and effect advanced by Dr. Jubelt to show that the Td vaccine significantly aggravated petitioner’s OCD was not logically sound, because of the low dosage of thimerosal at issue in this case. Dec. at 22-28. To address this concern, petitioner subsequently submitted an expert report by Dr. Aposhian, which opined that petitioner likely has the CPOX4 genetic mutation, making petitioner susceptible to the small doses of mercury found in thimerosal. See Pet’r’s Ex. 20. But, as the special master noted in his decision, Dr. Aposhian reached this opinion without obtaining, or reviewing, the results of any genetic testing with regards to petitioner. Id.; Dec. at 27-29. Instead, Dr. Aposhian 603simply opined that petitioner must have the CPOX4 genetic mutation because petitioner apparently had an abnormal reaction to the Td vaccine. See Pet’r’s Ex. 20. It is also without dispute that petitioner has not received genetic testing to determine whether he has the CPOX4 genetic mutation. See Pet’r’s Mot. for Review at 10. Given this, the evidentiary record shows that the special master appropriately considered and weighed Dr. Aposhian’s expert testimony and that the special master understandably found the reasoning of Dr. Aposhian’s expert testimony to be circular and unreliable. Dodd v. Sec’y of Health & Human Servs., 114 Fed.Cl. 43, 52 (2013); Holmes v. Sec’y of Health & Human Servs., 115 Fed.Cl. 469, 490 (2014) (holding that it was not arbitrary or capricious for a special master to find an expert witness’ testimony unreliable when the testimony depended upon circular reasoning). The record evidence also shows that the special master considered Dr. Aposhian’s expert opinion and reasonably concluded that Dr. Aposhian’s expert report did not substantiate petitioner’s claim, because the participants and outcomes in the studies cited in Dr. Aposhian’s expert report differ greatly from petitioner. Dec. at 28. In this regard, the special master found that: Dr. Aposhian is relying upon a study whose participants and their outcomes differ greatly from [petitioner] .... [I]n contrast to [petitioner], the children with a CPOX4 mutation who [were harmed] in various neurobehavioral aspects were chronically exposed to ... mercury. Id. (quotation omitted). Petitioner does not dispute that the studies relied upon by Dr. Aposhian involve chronic exposure to mercury among children. See Pet’r’s Ex. 20. Nor does petitioner dispute that Dr. Aposhian’s expert report fails to explain how the single dose of thimerosal that petitioner received in adolescence, via the Td vaccine, could be comparable to the multiple doses of thimero-sal at issue in the subject studies. Pet’r’s. Ex. 20. And so, the special master reasonably found that the studies and Dr. Aposhian’s expert report did not substantiate petitioner’s claim. See Paterek, 527 Fed.Appx. at 879 (Holding that a causal link between vaccine and injury must be based upon persuasive and reputable evidence.) E. The Special Master Did Not Err In Denying-In-Part Petitioner’s Redaction Requests The special master also did not err by declining to redact the names of petitioner, petitioner’s mother, petitioner’s schools, and petitioner’s treating physicians from the special master’s September 11, 2014 decision. The special master’s decision to redact this decision is guided by the Vaccine Act, which provides, in relevant part, that: A decision of the special master or the court in a proceeding shall be disclosed, except that if the decision is to include information— (i) which is a trade secret or commercial or financial information which is privileged and confidential, or (ii) which áre medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy, and if the person who submitted such information objects to the inclusion of such information in the decision, the decision shall be disclosed without such information. 42 U.S.C. § 300aa-12(d)(4)(B). And so, the Vaccine Act, generally, encourages the public disclosure of special master decisions, unless the information contained therein is trade secret, confidential, or privileged, commercial or financial information, or medical files. Id. Congress has also mandated that Vaccine Act petitions be filed in the Federal Register. 42 U.S.C. § 300aa-12(b)(2). And so, the Vaccine Act makes clear that Congress did not intend for Vaccine Act claimants to be anonymous.5 Id.; Anderson v. Sec’y of Health & 604Human Servs., No. 08-0396V, 2014 WL 3294656, at 5 (Fed. Cl. Spec. Mstr. June 4, 2014) (citation omitted). The evidentiary record in this case shows that the special master correctly interpreted the Vaccine Act and declined to redact the names of petitioner, petitioner’s mother, petitioner’s schools, and petitioner’s treating physicians from the public version of the special master’s decision. Dec. Granting-In-Part and Denying-In-Part Mot. to Redact. While petitioner argues that the special master’s decision not to redact this information will result in an unwarranted invasion of his privacy, there is simply no requirement under the Vaccine Act that the special master make these redactions. Pet’r’s Mot, for Review of Order on Mot. to Redact Dec. at 5. In fact, the redactions that petitioner seeks are not the kind of medical, or confidential, or privileged, financial information that the Vaccine Act requires to be withheld from public view. 42 U.S.C, § 300aa-12(d)(4)(B). Permitting the redactions that petitioner seeks in this case would also run afoul of the Vaccine Act’s general requirement that special master decisions be publicly disclosed. Id. And so, the special master did not err in denying-in-part petitioner’s motion to redact, F. The Special Master Did Not Err By Declining To Enforce The Parties’ Preliminary Settlement Agreement In addition, petitioner’s claim that his unsuccessful settlement negotiations with the government resulted in a binding contract with the United States is without merit. It is undisputed that the parties in this case reached a preliminary settlement agreement to fully resolve this matter in April 2013, Joint Status Report, May 1, 2013. There is also no dispute that this preliminary agreement was reached between petitioner and an Assistant Director of the Torts Branch, Civil Division of the United States Department of Justice. Id.; Dec. at 11. The record evidence also shows that, when the parties reached a preliminary settlement agreement, they filed a joint status report stating that the settlement agreement was “ ‘tentative’ as [it] must be approved by officials at both the Department of Health and Human Services and the Department of Justice.” Joint Status Report, May 1, 2013; Pet’r’s Mot. for Review at 11. And so, there can be no genuine dispute that the preliminary settlement agreement that the parties reached was only tentative and that the government attorney who entered into that agreement did not have the authority to contractually bind the government. It is well-established that a binding settlement agreement with the government only exists if that agreement is entered into by a government representative who has actual settlement authority. City of Cincinnati v. United States, 153 F.3d 1375, 1377 (Fed, Cir. 1998). It is also well-established that the Department of Justice’s regulations assign settlement authority for Vaccine Act matters to the Director of the Civil Division, Torts Branch. 28 C.F.R. part 0, subprt Y, app. Because the record evidence here makes clear that a government official with settlement authority did not approve the preliminary settlement agreement by and between petitioner and the government, the special master had no authority to enforce such an agreement,6 See Joint Status Report, June 3, 2013. And so, the special master did not err by declining to enforce the parties’ preliminary settlement agreement. See Tompkins v. United States, 117 Fed.Cl. 713, 722 (2014) (finding that a settlement agreement lacking the signature of the authorized representa-605five of the Attorney General was not legally enforceable, and affirming that the special master lacked the authority to enforce the preliminary settlement). G. The Special Master Did Not Abuse His Discretion In Connection With Petitioner’s Motions For Attorney’s Fees And Costs The evidentiary record similarly does not substantiate petitioner’s claim that the special master attempted to intimidate petitioner by implying that petitioner’s claim lacked a reasonable basis. As petitioner correctly notes in his motion for review, the special master has not decided either of petitioner’s motions for attorney’s fees and costs, notwithstanding the passage of more than three years since petitioner’s motion for interim attorney’s fees and costs has been filed. See Pet’r’s Mot. for Expedited Payment of Interim Costs. But, petitioner’s claims that the special master attempted to intimidate petitioner by refusing to rule on petitioner’s motion for interim attorney’s fees and costs and made “repeated threats at status conferences throughout the pendency of this case” are simply not substantiated by the evidence in the record. Pet’r’s Mot. for Review at 7-8. Indeed, petitioner points to no evidence in the record to show that the special master intimidated or threatened petitioner. Id. In addition, as the Secretary notes in her response to the petitioner’s motion for review, the question of whether there was a reasonable basis for petitioner’s claim arose within the context of the Secretary’s motion for summary judgment, which had been filed before petitioner moved for interim attorney’s fees and costs. Resp’t’s Resp. to Mot. for Review at 16. And so, the special master reasonably refrained from deciding petitioner’s interim motion at the time, because the special master was weighing the merits of this case. Given this,- the evidentiary record simply does not support a finding that the special master attempted to threaten or intimidate petitioner by delaying the resolution of these motions. Lastly, while the Court does not reach the merits of petitioner’s motions for fees and costs, the Court agrees with petitioner that the evidentiary record before the Court shows that petitioner had a reasonable basis for bringing this Vaccine Act case.7 As discussed above,, the record evidence shows that petitioner submitted several expert reports and substantial medical literature to support his claim. Pet’r’s Ex. 14, 18-20. Specifically, petitioner has put forward evidence to show that his tics were noted by school officials immediately after he returned.to school following the administration of the Td vaccine. Pet’r’s Ex. 11-13. As the special master acknowledged in his decision, several of the medical articles put forward by petitioner also establish that vaccines could cause tics. Dec. at 19. In addition, the record evidence shows that petitioner filed three scholarly articles regarding the safety of thimerosal as well as findings about thimerosal dosage from the Institute for Vaccine Safety and the Illinois Department of Public Health. Dec. at 8; Pet’r’s Ex. 16, 16, 17, 17-1, 17-2, 17-3. And so, while the Court shares with the, special master’s view that petitioner has not met his burden to prove, by a preponderance of the evidence, that the Td vaccine that petitioner received on June 19, 2007, significantly aggravated his OCD, petitioner has put forward some probative evidence to support this claim.8 606H. The Court Denies Petitioner’s Motion For Leave To File New Evidence As a final matter, petitioner may not introduce new evidence to support his Vaccine Act claim at this late stage in this litigation. See RCFC 59(a)(2); RCFC App. B, Vaccine Rule 8(b). On May 11, 2017, petitioner moved to submit a 2017 medical article authored by Dr. Douglas Leslie, which addresses a potential link between thimerosal and neuropsy-ehiatric disorders, in adolescents, and a letter from Dr. Jubelt summarizing this article. Pet’r’s Mot. for Leave to File New Evidence; Ex. 63, 64. The Secretary opposes petitioner’s motion upon the ground that the government would be prejudiced if the Court allows petitioner to submit new evidence that would not have been available for review if this matter had been timely resolved under the Vaccine Act. Resp’t’s Resp. to Mot. for Leave to File New Evidence. RCFC 59(a)(2) addresses grounds for a new trial or reconsideration, and this rule provides that after a trial, “[t]he court may, on motion under this rule, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.” RCFC 59(a)(2). Vaccine Act Rule 8(b) also provides that, “[i]n receiving evidence, the special master will not be bound by common law or statutory rules of evidence but must consider all relevant and reliable evidence governed by principles of fundamental fairness to both parties.” RCFC App. B, Vaccine Rule 8(b). In light of these standards, petitioner’s reliance upon RCFC 59(a)(2) to submit new evidence is misplaced, because petitioner is not seeking a new trial or reconsideration in this matter. See Pet’r’s Mot for Review. Petitioner is, however, correct in arguing that Vaccine Rule 8(b) requires that the Court “consider all relevant and reliable evidence governed by principles of fundamental fairness to both parties” in this ease. RCFC App. B, Vaccine Rule 8(b); see Plavin v. Sec’y of Health & Human Servs., 40 Fed.Cl. 609, 621 (1998) (holding Vaccine Rule 8(b) encourages informal proceedings which do not follow standard Federal Rules of Evidence, and the Court may direct the special master to consider additional evidence, even after a hearing); Vant Erve v. Sec’y of Health & Human Servs., 39 Fed.Cl. 607, 612 (1997). But, permitting petitioner to introduce new evidence here—almost three years after the evidentiary record closed in this matter— would clearly prejudice the Secretary, As the United States Court of Appeals for the Federal Circuit has held, it is not an abuse of discretion for the Court to decline to supplement the record in a Vaccine Act case with new evidence when a case has progressed to the review stage. Stone v. Sec’y of Health & Human Servs., 676 F.3d 1373, 1386 (Fed. Cir. 2012). More importantly, while the new medical article that petitioner seeks to introduce may be helpful in addressing the lack of evidence showing that thimerosal could aggravate OCD in adolescents, this article does not address the other evidentiary weaknesses in petitioner’s claim, regarding the low dosage of thimerosal contained in petitioner’s Td vaccine and the lack of genetic testing to show whether petitioner has the CPOX4 mutation. Pet’r’s Ex. 65. And so, the Court denies petitioner’s motion for leave to file new evidence. V. CONCLUSION In sum, the record evidence in this matter shows that the special master’s decision to deny petitioner’s Vaccine Act claim is reasonable and supported by the record evidence. The record evidence similarly shows that the special master appropriately declined to redact petitioner’s name, petitioner’s mother’s name, as well as the names of petitioner’s schools and treating physicians, from the special master’s September 11, 2014, decision. In addition, as both parties have observed, the special master denied petitioner’s claim in 2014 and petitioner filed the motion for review on October 11, 2014. Given this, the introduction of new evidence at this late stage in the litigation is not warranted and could prejudice the government. The Court must also note that this Court has an obligation to ensure the just, speedy and inexpensive determination of every action. See 607RCPC 1. And so, the Court apologizes to the parties for the delay in resolving this matter. For the foregoing reasons, the Court: 1. DENIES petitioner’s motion for review of the special master’s September 11, 2014, decision and SUSTAINS the decision of the special master; 2. DENIES petitioner’s motion for review of the special master’s October 29, 2014, decision on petitioner’s motion to redact and SUSTAINS the decision of the special master; and 3. DENIES petitioner’s motion for leave to file new evidence. 4. The Court also REMANDS this matter to the special master for a period of 90 days, until October 27, 2017, for the special master to resolve petitioner’s pending motions for attorney’s fees and costs. The parties shall FILE a joint status report 30 days after the date of this Memorandum Opinion and Order, and every 30 days thereafter, regarding the status of the remand proceedings and the resolution of the petitioner’s motions. The Clerk is directed to enter judgment accordingly. Each party to bear its own costs. Some of the information contained in this Memorandum Opinion and Order may be considered privileged, confidential or sensitive personally-identifiable information that should be protected from disclosure. And so, this Memorandum Opinion and Order shall be FILED UNDER SEAL. The parties shall review the Memorandum Opinion and Order to determine whether, in their view, any information should be redacted prior to publication. The parties shall also FILE, by August 28, 2017, a joint status report identifying the information, if any, that they contend should be redacted, together with an explanation of the basis for each proposed redaction. IT IS SO ORDERED. . The Secretary filed responses to both motions, arguing that there was no reasonable basis for Mr. Spahn’s claim, and that he was, therefore, not entitled to fees and costs. Resp't’s Resp. to Pet’r's Mot. for Expedited Payment of Interim Costs. . Ratification may take place at the individual or institutional level. SGS-92-X003, 74 Fed.Cl. at 653-54. Individual ratification occurs when a supervisor: (1) possesses the actual authority to contract; (2) fully knew the material facts surrounding the unauthorized action of his or her subordinate; and (3) knowingly confirmed, adopted, or acquiesced to the unauthorized action of the subordinate. Id. at 654 (quoting Leonardo v. United States, 63 Fed.Cl. 552, 560 (2005)). In contrast, institutional ratification occurs when the government "seeks and receives the benefits from an otherwise unauthorized contract.” SGS-92-X003, 74 Fed.Cl. at 654; see also Janowsky, 133 F.3d at 891-92. . Congress has also recognized that special masters have discretion in deciding whether to convene evidentiary hearings. The Vaccine Act provides that the rules for Vaccine Act proceedings should "include the opportunity for parties to submit arguments and evidence on the record without requiring routine use of oral presentations, cross examinations, or hearings.... " 42 U.S.C. § 300aa-12(d)(2)(D). In addition, the Vaccine Act provides that a special master “may conduct such hearings as may be reasonable and necessary.” 42 U.S.C. § 300aa-12(d)(3)(B)(v). . Petitioner's reliance upon Richardson ex. rel. Richardson v. Sec’y of Health & Human Servs., 89 Fed.Cl. 657, 660 (2009), to argue that the special master's order regarding expert testimony violates the general guarantee of fairness is also misplaced. See Pet'r’s Mot. at 4. Richardson is factually distinguishable from this case because the special master in that case committed procedural violations—including conducting her own cross-examination and interrupting the proceedings—that are not present here. Richardson, 89 Fed.Cl. at 659; RCFC App. B, Vaccine Rule 8(b)(1). . The use of a minor's initials instead of the full name in Vaccine Act matters has been authorized by rules promulgated by the Supreme Court, as directed by the E-Government Act of 2002. See Fed. R. Civ. P. 5. The United States Court of Federal Claims updated its rules in 2011 to reflect those changes. See RCFC 5(2)(a). In addition, some special masters have approached the issue of redaction as suggested in Langland v. Sec’y of Health & Human Servs., No. 07-36V, *6042011 WL 802695 (Fed. Cl. Spec. Mstr. Feb. 3, 2011), which favors limited redaction based upon the text of the Vaccine Act. In other cases, special masters have followed W.C. v. Sec'y of Health & Human Servs., 100 Fed.Cl. 440 (2011), which applies a balancing test to weigh the interests for and against redaction, . Petitioner's reliance upon the Restatement (Second) of Agency, to argue that he is justified in inferring that the assigned government attorney had the authority to settle this matter based upon the attorney's position, is misplaced. Pet’r’s Mot. for Review at 10-13; See Restatement (Second) of Agency 2d„ § 49, cmt. 3. The record evidence makes clear that every representation by the government’s attorney regarding the status of settlement negotiations noted that any agreement was subject to the approval of the appropriate officials within the Department of Justice, See, e.g„ Joint Status Report, May 1, 2013. . The Court views the issues relevant to petitioner’s motions for attorney's fees and costs to fall within the scope of petitioner’s motion for review, because petitioner alleges that the special master attempted to intimidate petitioner by refusing to rule on these motions. Pet’r’s. Mot. For Review at 7-8. . The record evidence also shows that petitioner’s attorney was diligent in prosecuting this matter. See Dec. at 7-12. Counsel for petitioner filed medical records, four expert reports, several pre-hearing briefs, and supplemental briefs as required during the course of this litigation. See id.; Pet’r’s Second Supplemental Brief on Mot. for Review. Counsel for petitioner also participated in settlement negotiations in good faith and used the proper procedures to seek review of petitioner’s case. See Joint Status Report, May 1, 2013; Pet’r’s Mot. for Review.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7224436/	MEMORANDUM OPINION MADELINE HUGHES HAIKALA, District Judge. On April 18, 2014, the magistrate judge’s report and recommendation was entered and the parties were allowed therein fourteen (14) days in which to file objections to the recommendations made by the magistrate judge. No objections to the magistrate judge’s report and recommendation have been filed by plaintiff or defendants. After careful consideration of the record in this case and the magistrate judge’s report and recommendation, the court hereby ADOPTS the report of the magistrate judge. The court further ACCEPTS the recommendations of the magistrate 1303judge that the motion for summary judgment filed by defendant be granted as to Counts One (Title VII sexually hostile environment), Two (Title VII sex discrimination) and Four (Title VII retaliation), and these claims dismissed with prejudice. The courts also accepts the recommendations of the magistrate judge that the court decline to exercise supplemental jurisdiction over Counts Three (negligent hiring, training, supervision and retention), Five (invasion of privacy), Six (assault and battery) and Seven (outrage), and that these claims be dismissed without prejudice pursuant to 28 U.S.C. § 1367(c). REPORT AND RECOMMENDATION HARWELL G. DAVIS, III, United States Magistrate Judge. The above-entitled civil action is before the court on the motion for summary judgment filed by defendants. (Doc. 15). Plaintiff, Sabrina J. Flippo, has filed suit against defendants, American Power Source, Inc. (APS) and Altino Arruda. Plaintiff alleges that APS violated Title VII by requiring that she work in a sexually hostile environment (Count One), discriminated against her on the basis of her sex (Count Two), and retaliated against her when she complained about this treatment (Count Four). She also alleges that APS is guilty of the state law tort of negligent hiring, training, supervision and retention of her alleged harasser, co-defendant Altino Arruda (Count Three). Plaintiff further alleges that Arruda is guilty of invasion of her privacy (Count Five) and assault and battery (Count Six) under Alabama law. Finally, she alleges that Arru-da committed the state law tort of outrage against her and that APS subsequently ratified this conduct (Count Seven). See Doc. 1, Complaint. Defendants filed an answer denying plaintiffs claims. (Doc. 4, Answer). In addition, defendants filed a motion for summary judgment, including evidentiary submissions. (Doc. 15, Motion for Summary Judgment). Plaintiff filed a response to this motion, also containing evi-dentiary submissions. (Doc. 16, Response in Opposition). Defendants subsequently filed two replies to plaintiffs response. (Docs. 17 & 18). The matter is now ready for disposition. Standard op Review “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) (Dec. 2010). Rule 56(c) provides: (1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. (2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. (3) Materials Not Cited. The court need consider only the cited materials, but-it may consider other materials in the record. 1304(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. Fed.R.Civ.P. 56(c) (Dec. 2010). Defendants, as the parties seeking summary judgment, bear the initial responsibility of informing the district court of the basis for their motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which they believe demonstrate the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). A genuine issue of material fact is shown when the nonmoving party produces evidence so that a reasonable factfinder could return a verdict in its favor. Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir.2007). If the nonmoving party fails to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. In reviewing whether the nonmoving party has met her burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in her favor. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-99 (11th Cir.1992) (internal citations and quotations omitted). However, speculation or conjecture cannot create a genuine issue of material fact. Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir.2005). A “mere scintilla of evidence” in support of the non-moving party also cannot overcome a motion for summary judgment. Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir.2004). Factual Background Defendant APS is a business which cuts and sews clothing items in a building in Fayette, Alabama. Plaintiff, Sabrina Flip-po, worked as a bundler for APS. Her most recent employment began in 2008 and ended in March of 2011. (Flippo Depo. at 35). The role of a bundler is to sort, bundle, “shade mark,” and tag parts of fabric that have been cut so that they can be taken to the sewing department to be sewn together as garments. (Id. at 32-33, 61-87, 93, 98, 109-12, 115-17, 266; Taylor Depo. at 18-19, 21, 26-27, 32). During most of her employment with APS, Flippo was supervised by Altino Ar-ruda. Arruda was the Spreader Supervisor and the Bundler Supervisor. (Flippo Depo. at 118). The plant manager was Bonnie Taylor. Flippo believes that Taylor did a good job as manager of this APS facility. (Id. at 130-31). Flippo is also aware that APS had a sexual harassment policy in place during the time that she worked there. (Id. at 138). She testified that she has been aware of the policy ever since she began work there. (Id. at 145). She was. provided a copy of the policy in 2006. (Id. at 146). The policy states that, if an employee believes he or she is the subject of harassment, the employee is to inform the plant manager. (Id. at 147). Flippo was involved in a romantic relationship with Arruda from October 2008 until June or July 2009. (Id. at 152, 178, 247). According to Flippo, the relationship was consensual. (Id. at 176). In her deposition testimony, Flippo states that, when plant manager Bonnie Taylor found 1305out about her relationship with Arruda, Taylor discouraged it and told plaintiff she should “nip it in the butt.” (Id. at 188-89). Flippo acknowledges that she had sexual relations with Arruda. Initially, she claimed that she only had sex with Arruda on one occasion. (Id. at 167). However, she later admitted that her relationship with him was more involved. (Id. at 241-42). Flippo admitted that she stayed overnight at Arruda’s residence on about ten occasions and may have stayed over on consecutive nights on occasion. (Id. at 184-86). According to Flippo, it was her decision to spend time with Arruda and that he never threatened her job or told her that she would lose her job if she did not continue to have a relationship with him. (Id. at 179, 180, 187). Despite Taylor’s attempt to discourage plaintiffs relationship with Arruda, which occurred in January 2009, plaintiff continued with it for several more months. (Id. at 194). She told Taylor that Arruda knew how to “wine and dine” a woman. (Id. at 196-97). Eventually, Flippo ended the relationship. She testified that she told Arruda she was not going to be coming to his house any more and would be spending time tending to her sick mother. (Id. at 214). Flippo testified that Arruda offered to come over to her mother’s house and sit there with her. (Id.). She believes that he just wanted to be with her all the time. (Id. at 208-09). Flippo testified that when she declined, Arruda got mad and said that he did not understand. However, he did not yell or scream at her. (Id. at 218, 219). Flippo testified that, after she broke up with Arruda, she tried to stay friends with him. She took him to the airport on a couple of occasions. (Id. at 227). At her request, he also helped Flippo and her niece move a new set of mattresses in his truck in January 2011. (Id. at 222, 225). He also put some underpinnings on her house in 2010, again at her request. (Id. at 221, 225-26). Flippo testified that after the breakup, Arruda continued to ask her to go out with him, beginning in August 2009, right after she broke up with him. She continued to tell him “no.” (Id. at 246-47). However, in October 2009, plaintiffs pay was raised to $11.00 an hour. According to Flippo, Arruda requested that she be given the raise. (Id. at 149-50, 300-01). In addition to continuing to ask her out, Flippo testified that Arruda harassed her on the floor of the shop. She stated that, if she had to go fix something out on the floor, Arruda would come over and curse her and tell her that she had to do things his way. (Id. at 251). According to Flip-po, on one such occasion, she was called over to the sewing department by Janet Curry because some collars that they had received were cut too small and would not fit the garments to which they were being sewn. (Id. at 265-66, 268). Curry called Flippo despite the fact that Arruda was supervisor over the cutting department. (Id. at 268-69). Flippo decided that the collars would need to be re-cut. (Id. at 271). Flippo testified that she then went to the cutting department to look for the pattern that had been cut. Arruda came up to her and asked her what she was doing. She told him that the collars were “messed up.” According to Flippo, Arru-da got upset and told her to go back and tell Janet Curry that Flippo did not run his department and that, if Curry had a problem, she needed to bring it to him. (Id. at 272). After this incident and after having been asked out by Arruda, Flippo testified that she told Bonnie Taylor that Arruda had 1306asked her out and she wanted Taylor to know that her relationship with Arruda was over. Her exchange with counsel for defendants was as follows: Counsel: And at that point in time, I take it you weren’t complaining to her, you were just telling her that he had asked you out again and you wanted her to know that y’all’s relationship was over, just like she had told you to get it over with earlier in the year, correct? Flippo: Yes. (Id. at 276). The next problem that Flippo had with Arruda involved the cutting of some pockets. Not enough were cut. She told this to Arruda, and he got angry and said that she was wrong. Flippo went to Taylor and reported that she did not have enough pockets to complete the manufacturing run. Subsequently, Taylor came to the cutting department and told them that Flippo was correct. She told Arruda to cut more pockets. According to Flippo, Arruda was angry because he had to cut more pockets. (Id. at 276-78, 294). Flippo was asked what else, besides Ar-ruda asking her out, the incident involving the collars and the incident involving the pockets, did she recall in the way of harassing behavior by Arruda between August or September of 2009 and the end of 2009. According to Flippo, there were different things that happened, but they were “not right on top of [her] head” at that time. (Id. at 294-95). She recalled that there was an incident involving an employee named Rachel Watson that occurred in 2010, but she could not recall any others that occurred in 2009. (Id. at 299). Flippo testified that she received a raise in pay in October 2009 at Arruda’s request. She believes that Arruda got her the raise so that she would go out with him again. After this occurred, he asked her, “Since you got your raise now, are you going to go out with me again?” (Id. at 307). She told him, “No.” (Id. at 308). According to Flippo, Arruda asked her out more than five times but she is unsure if it was more than ten times. (Id. at 309). When they were dating, Arruda had problems with erectile dysfunction. She testified that, after she stopped going out with him, when he would ask her out, he would make comments to her that things would be “better” because he was getting Viagra. According to Flippo, Arruda made references to Viagra on several occasions after he first mentioned it near the end of 2009. (Id. at 323-24, 329, 332-33). On one occasion, Arruda made a reference to Viagra and told Flippo that he could now “make that cunt talk back to me.” (Id. at 368-69). Flippo stated she thinks that Arruda believed she would no longer have a relationship with him because of his sexual problem. (Id. at 334, 378). Flippo testified that she went to Taylor to complain about ten or fifteen times about Arruda, about work issues with Ar-ruda, and about his repeatedly asking her out. However, when asked about how many times during 2009 she went and specifically complained to Taylor about him asking her out, she stated, “I will say a couple of times I went to her and asked her for a conference with Roxanne because I had about all I could handle of it.” (Id. at 316). According to Flippo, when she refused to go out with Arruda, he made things harder for her in the workplace. (Id. at 321). Flippo also testified that there were several occasions in 2010 when she was working at a table when Arruda, who also was working in the area, would walk behind her. There was a wall close behind her, and Arruda would brush up against her when he would walk past her. According to Flippo, Arruda easily could have avoided this by walking around to the other side 1307of the table. He did it a second time on the same day that he first did this. (Id. at 336, 339, 346). Probably a month later, he did this again. According to Flippo, he did this about four more times. (Id. at 348-49). Flippo asked Arruda to walk on the other side of the table. Arruda said he could walk on either side. (Id. at 439-41). She asked him to stop brushing up against her, and he told her that he “had to get by.” (Id. at 441). Flippo also complained that Arruda stared at her a lot and gave her “hateful” looks. (Id. at 352-57). However, he never physically threatened her. (Id. at 370). He also never touched her breasts or between her legs after their breakup. (Id. at 372-73). Furthermore, although Arruda made remarks about Viagra, she never reported these remarks to Bonnie Taylor because she “felt no need to bring that up.” (Id. at 373). On another occasion, Flippo went outside to talk on her cell phone. Cell phones were not allowed in the work area. However, Flippo had Taylor’s permission to have one because her mother was sick. When she went out the back door, Arruda pushed it open, striking her with it on her left shoulder. He asked her what she was doing. Although the door struck her on the shoulder, it did not leave a bruise or injure her in any way. (Id. at 367-68). In the summer of 2010, Flippo testified that she was working on an assignment and did not have all the parts that were needed for the first couple of sizes, so she skipped to the middle sizes to keep those doing the sewing busy. Rachel Watson complained to Arruda about Flippo doing this. (Id. at 301-03). Arruda took this complaint to Bonnie Taylor. Taylor called Flippo into her office to ask her what was going on. Flippo advised her of what she had done and why, and Taylor stated that this procedure was correct. Taylor then called Arruda in and told them both that she was making Flippo the lead person in the bundling department because she knew what to do to keep the sewers going. Watson was upset by this and quit. (Id. at 304-05). According to Flippo, Taylor told Arruda and her that she was going to try to stop the problems between Flippo and Arruda and instructed Arruda that Flippo was to come directly to her (Taylor) if she had a problem, rather than taking it to Arruda. (Id. at 393). Flippo understood this to mean that, if she had an issue with the spreaders or cutters (supervised by Arruda), she was to go directly to Taylor, rather than taking it to the spreaders or cutters themselves. (Id. at 394). Flippo testified that she subsequently was terminated by Bonnie Taylor for going directly to a cutter instead of going through Arruda. (Id. at 395-96). On the day that Flippo was terminated, there was a problem with some pockets that had been cut. Flippo needed them to be re-cut. Rather than taking the problem to Arruda or directly to Taylor, Flippo went directly to the cutter, Jimmy, to get the pockets re-cut. Arruda got angry at this and complained to Taylor. Taylor called Flippo in and told her that she was being terminated for taking the re-cut directly to Jimmy without going through Arruda to do it. Taylor told her that Arruda was the cutting room supervisor and that was the way it was, so she was being terminated. (Id. at 395-96). Even though Taylor had told Flippo to go through her if she had an issue with someone in Arruda’s department, she admits she did not do so on this occasion. According to Flippo, she went directly to Jimmy because she did not have an “issue,” she just wanted something re-cut. (Id. at 396-400). Because she went directly to the cutter, rather than going through Arruda or Taylor, Flippo was terminated 1308by Taylor for insubordination. {Id. at 411-12, 414). Flippo admits that she has no evidence that Taylor terminated her because of her race, age, or sex. {Id. at 421). She acknowledges that whenever she had an issue with Arruda, Taylor would investigate it fully and, up to the last day when she was terminated, always took action favorable to her, except for not allowing her a conference with Roxanne, a customer in Massachusetts. {Id. at 437-38; see id. at 401). She testified that she never asked Taylor to fire Arruda or to transfer or reassign her or Arruda in some way. Other than being unable to talk to Roxanne, she could not state anything that Taylor failed to do that Flippo asked her to do or wanted her to do. {Id. at 438-39). Discussion Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). In evaluating Title VII claims based on circumstantial evidence, the court uses the framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and by the Eleventh Circuit in Willis v. Conopco, Inc., 108 F.3d 282, 284-85 (11th Cir.1997). Under that framework, the plaintiff has the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Burdine, 450 U.S. at 253-54 & n. 6, 101 S.Ct. at 1093-94 & n. 6. Once a prima facie case has been established, the burden shifts to the employer to produce a legitimate, non-discriminatory reason for the challenged employment action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. If a defendant carries its burden of producing legitimate, nondiscriminatory reasons for its decision, the plaintiff is accorded the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision, “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. The plaintiff at all times retains the ultimate burden of persuading the trier of fact that the employer discriminated against the plaintiff. Id. at 253, 101 S.Ct at 1093. The “factual inquiry” in a Title VII case is “whether the defendant intentionally discriminated against the plaintiff.” Burdine, supra, at 253, 101 S.Ct., at 1093. In other words, is “the employer ... treating ‘some people less favorably than others because of their race, color, religion, sex, or national origin.’ ” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978), quoting Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335, n. 15, 97 S.Ct. 1843, 1854, n. 15, 52 L.Ed.2d 396 (1977). The prima facie case method established in McDonnell Douglas was “never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco, supra, 438 U.S., at 577, 98 S.Ct., at 2949. Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the 1309plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether “the defendant intentionally discriminated against the plaintiff.” Burdine, supra, 450 U.S., at 253, 101 S.Ct., at 1093. U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). Count One — Sexually Hostile Environment In Count One, plaintiff alleges that she was forced to work in a sexually hostile work environment. The Eleventh Circuit set forth in Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir.1999) (en banc), the elements that an employee must establish to support a hostile environment claim under Title VII based on harassment. An employee must establish: (1) that he or she belongs to a protected group; (2) that the employee has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the harassment must have been based on the sex of the employee; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a dis-criminatorily abusive working environment; and (5) a basis for holding the employer liable. Id. at 1245. Requiring a plaintiff to prove that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a dis-criminatorily abusive working environment is necessary to ensure that Title VII does not become a mere “general civility code.” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 2283-84, 141 L.Ed.2d 662 (1998). This requirement is regarded “as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace — such as male-on-male horseplay or intersexual flirtation — for discriminatory ‘conditions of employment.’” Gupta v. Florida Bd. of Regents, 212 F.3d 571, 583 (11th Cir.2000) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 1003, 140 L.Ed.2d 201 (1998)). In order to establish this factor, a plaintiff must not only establish that she subjectively perceived the environment as hostile and abusive, but also that such a perception is objectively reasonable; that is, that a reasonable person would perceive the environment to be hostile and abusive. See Mendoza, 195 F.3d at 1246; Faragher, 524 U.S. at 788, 118 S.Ct. at 2284. Regarding the objective prong of this element, the statements and conduct complained of are examined collectively to determine whether they are sufficiently pervasive or severe to constitute sexual harassment. See Mendoza, 195 F.3d at 1242. In undertaking this analysis, the court will assume that the conduct and statements made by Arruda concerning Viagra were of a sexual nature.1 When the complained-of conduct or statements are of a sexual or gender-related nature, there are four factors that are considered in determining whether they are sufficiently severe and pervasive from an objective standpoint to alter an employee’s terms and conditions of employment: “(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the 1310conduct is physically threatening or humiliating, or merely an offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance.” Mendoza, 195 F.3d at 1246. Although the actions recounted by plaintiff were undoubtedly annoying and offensive, many decisions throughout the circuits have rejected sexual harassment claims based on actions that are as serious or more serious than the conduct at issue here. See Shepherd v. Comptroller of Public Accounts of Texas, 168 F.3d 871, 872-75 (5th Cir.1999) (holding that several instances over a two-year period, including the comment “your elbows are the same color as your nipples,” another comment that plaintiff had big thighs, touching plaintiffs arm, and attempts to look down the plaintiffs dress, were insufficient to support a hostile environment claim); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir.1998) (holding that statement that plaintiff had the “sleekest ass” in the office, plus a single incident of “deliberately” touching plaintiffs “breasts with some papers that he was holding in his hand” were insufficient to alter the terms or conditions of plaintiffs employment); Adusumilli v. City of Chicago, 164 F.3d 353, 357 (7th Cir.1998) (holding actions insufficient to support a hostile environment claim where co-employees teased plaintiff, made sexual jokes aimed at her, asked her what “putting one rubber band on top and another on the bottom means,” commented about her low neck tops, repeatedly stared at her breasts with attempts to make eye contact, and four incidents of touching her arm, fingers or buttocks); Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1365-66 (10th Cir.1997) (holding five sexually-oriented, offensive statements over 16 months insufficient to show hostile environment, even though one of the harasser’s statements occurred while he put his arm around plaintiff, looked down her dress and said, “well, you got to get it when you can.”); Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753-54 (4th Cir.1996) (holding evidence that the harasser “bumped into [the plaintiff], positioned a magnifying glass over [the plaintiffs] crotch, flipped his tie over to see its label, gave him a congratulatory kiss in the receiving line at [a] wedding, and stared at him in the bathroom” insufficient to establish Title VII violation); Black v. Zaring Homes, Inc., 104 F.3d 822, 823-24 (6th Cir.1997) (reversing jury verdict and finding conduct was “sex-based” but insufficiently severe or pervasive to state actionable claim, where conduct over a four-month period involved repeated sexual jokes; one occasion of looking plaintiff up and down, smiling and stating, there’s “Nothing I like more in the morning than sticky buns;” suggesting that land area be named as “Titsville” or “Twin Peaks;” asking plaintiff; “Say, weren’t you there [at biker bar] Saturday night dancing on tables?”; stating, “Just get the broad to sign it;” telling plaintiff she was “paid great money for a woman”); Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir.1993) (holding plaintiffs claims — supervisor repeatedly asked about her personal life, told her how beautiful she was, asked her on dates, called her a dumb blond, put his hand on her shoulder at least six times, placed “I love you” signs in her work area, and tried to kiss her once in a bar and twice at work — were not sufficient for actionable sexual harassment); see also Indest v. Freeman Decorating, Inc., 164 F.3d 258, 263 (5th Cir.1999), (“All of the sexual hostile environment cases decided by the Supreme Court have involved patterns or allegations of extensive, long-lasting, unredressed, and uninhibited sexual threats or conduct that permeated the 1311plaintiffs work environment.”). Furthermore, mere “sex talk,” without more, does not rise to the level of objectively severe and pervasive harassment. See, e.g., Adusumilli, 164 F.3d at 357 (holding the plaintiff failed to make out a prima facie case of sexual harassment where her coworkers teased her and made sexual jokes aimed at her); Black, 104 F.3d at 823-2 (holding male employee’s comments and jokes in female plaintiffs presence were not sufficiently severe or pervasive to constitute an objectively hostile work environment). An examination of the factors set out above reflects that Flippo did not endure conduct that was so severe or pervasive that it altered the terms or conditions of her employment and created a discrimina-torily abusive working environment. Flip-po admits that she had previously engaged in a sexual relationship with Arruda which was consensual in nature. During the relationship, Arruda suffered from problems with erectile dysfunction on several occasions. She testified that she believed Ar-ruda thought that this was one reason she would no longer go out with him. After the relationship ended, Arruda continued to ask her out. In doing so, she testified that there were occasions when he made reference to the fact that he was now using Viagra, a medicine used to treat erectile dysfunction. While he made a crude comment on one occasion that he could “make that cunt talk back to me,” Flippo testified that she did not complain to Taylor about Arruda’s comments concerning Viagra because she “felt no need to bring that up.” (Flippo Depo. at 373). Furthermore, Flip-po testified that Arruda only made a remark about Viagra between two and five times over an 18- to 20-month period that extended from the time she quit dating him to the time she was terminated. (Id. at 376). These were the only occasions when Arruda implied that he would like to have sex with Flippo again. (Id.). Plaintiff also alleges that, after they quit dating, there were a few occasions when Arruda brushed up against her when he was going behind her by squeezing between her and a wall that was behind her while she worked at a cutting table. Plaintiff stated that he was also working at the table and that he could have gone on either side of the table. Thus, she felt it was not necessary for him to squeeze by her when he could have gone around on the other side of the table. (Id. at 334-50). Plaintiff initially testified that, on these occasions, he never said anything to her and she never said anything to him. (Id. at 347). However, she later stated that she did tell him not to brush up against her and that he responded that he could walk where he wanted to. (Id. at 438-39). There is no testimony that Flippo reported these incidents to Taylor. Thus, the court concludes that the conduct by Arruda was not particularly frequent or severe. Flippo testified that Ar-ruda asked her to go out two or three times a month. While she claims that she complained to Taylor about Arruda about 10 or 15 times, she explained that a number of these complaints were about work-related issues. Furthermore, simply asking plaintiff out on a date, even repeatedly, without more, is not sexual harassment. Gross-Jones v. Mercy Medical, 874 F.Supp.2d 1319, 1333 (S.D.Ala.2012). In addition, although Flippo believed that Ar-ruda was making work difficult for her because she would not go out with him, she complained about the resulting work-related issues with Arruda rather than the fact that he was continuing to ask her out. For instance, in the situation outlined above where Flippo went to Taylor because she got in a dispute with Arruda concerning whether he had provided her 1312with enough pockets to go on a particular set of garments, she never testified that she told Taylor that Arruda’s actions were based on her refusal to date him anymore. Likewise, in the situation where Flippo testified that she decided to take some work out of order, resulting in a complaint from Rachel Watson and Arruda, plaintiff did not testify that she told Taylor that this incident was the result of her refusing to date Arruda. In addition, Flippo never testified that she told Taylor that she wanted Taylor to tell Arruda to stop asking her out or take other steps to end this conduct. She admits she never asked to be transferred and never asked Taylor to transfer Arruda somewhere else or terminate him because of his conduct toward her. (Id. at 438). Likewise, Arruda’s behavior was not physically threatening, and plaintiff has cited only one instance that would be considered embarrassing or humiliating. She testified that he never threatened her employment if she continued to refuse to go out with him. In addition, this conduct did not affect her work performance. After she quit dating Arruda, Flippo received a raise in pay, at Arruda’s suggestion, indicating that her work performance did not suffer as a result of these statements or conduct by Arruda. Further, Taylor made Flippo the lead person in the bundling department because Taylor believed that Flippo knew how to keep the work running smoothly. After considering all of the allegedly sexual remarks and actions by Ar-ruda, the undersigned concludes that this conduct was not sufficiently severe and pervasive to establish that the atmosphere at APS was either objectively or subjectively sexually hostile. Plaintiff having failed to establish a pri-ma facie case of a sexually hostile environment, defendant’s motion for summary judgment as to Count One is due to be granted.2 Count Two — Sex Discrimination In Count Two of her complaint, plaintiff alleges that she was discriminated against on the basis of her sex (female) “in regard to training, promotion, job assignments, job pay and terms and conditions of employment, in violation of Title VII.” She also states' that she has “been discriminated against and harassed because of her sex and has been subjected to unequal treatment. Further the plaintiff has been subjected to a hostile environment because of her gender.” (Doe. 1, Complaint, Count Two, at ¶ 39). However, her hostile environment claim has already been addressed with regard to Count One. With regard to the remainder of this claim, there is no evidence in the record that plaintiff was discriminated against on the basis of her sex with regard to her training, promotion, job assignments, pay or other terms and conditions of her employment. Plaintiffs brief in opposition to summary judgment states that plaintiff “was discriminated against because she was fired for complaining about harassment while Arruda’s part was ignored. At a minimum, repeated actions of Arruda asking Flippo out, touching her, cussing her and telling her he could make her cunt talk is sexual harassment” (Doc. 16, Opposition to Summary Judgment, at 23). As noted above, there is a difference between sexual harassment and gender discrimination. To the extent plaintiff is 1313complaining of sexual harassment, this claim was addressed in Count One and is, therefore, redundant. Furthermore, with regard to the harassment claim, while plaintiff alleges she complained to Taylor about Arruda asking her out, she testified that she did not tell Taylor about the Viagra-related statements, and there is no testimony that she reported to Taylor anything about being cussed at by Arruda or that he was improperly touching her in any way. In fact, in her testimony about Arruda brushing up against her, Flippo testified only that she felt his hand on her. She did not state that she felt any other body part. Furthermore, she testified that Arruda never improperly touched her on the breasts or between her legs at any time after they quit dating. This leaves only plaintiffs complaints about Arruda asking her out, which are addressed with regard to Count One. With regard to her complaint that she was fired for complaining about Arru-da’s sexual harassment while nothing happened to him, such a claim sounds more like a claim of retaliation, rather than gender discrimination. Plaintiffs retaliation claim is addressed in Count Four. Nevertheless, to establish a prima facie case of discriminatory discharge, Flippo must show that: (1) she was a member of a protected minority; (2) she was qualified for the job; (3) she suffered an adverse employment action; and (4) she was replaced by a person outside her protected class or was treated less favorably than a similarly-situated individual outside her protected class. Maynard v. Bd. of Regents of the Div. of Univs. of the Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir.2003). Plaintiff is a member of a protected class, female. It is not disputed that she was qualified for her job or that she suffered an adverse employment action. However, there is no evidence that Flippo was replaced by someone outside her protected class. Thus, she cannot establish the fourth prong based on this factor. Likewise, she cannot show that she was treated less favorably than a similarly-situated person outside her class. In order to determine “whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). “To make a comparison of [her] treatment to that of non-minority employees, [she] must show that [s]he and the employees are similarly situated in all relevant respects.” Id. Evidence that other employees were guilty of similar misconduct but were not disciplined does not establish that an individual is similarly situated when the party taking the adverse action was unaware of the employees’ misconduct. Jones v. Gerwens, 874 F.2d 1534, 1541-42 (11th Cir.1989). According to Flippo’s own testimony, she was terminated by Taylor for going directly to a cutter regarding a problem with a cut, rather than going through Ar-ruda or Taylor. (Id. at 398-400). She admits that she went directly to the cutter for a re-cut, rather than taking it to Taylor so that she could present it to Arruda. She states that she did this because she did not think asking for a re-cut was an “issue” with Arruda that had to be brought through Taylor. However, she admits that the cutting area was supervised by Arru-da. She also admits that Taylor was supposed to contact Arruda about anything that Flippo wanted done in his department. (Id. at 421). Flippo testified that Taylor terminated her for insubordination. (Id. at 414). She further testified that she has no evidence that Taylor terminated 1314her because of her sex or any other discriminatory reason. {Id. at 421). According to Flippo, whenever she spoke to Taylor about an issue she had with Arruda, Taylor was always understanding and would fully investigate to the extent it needed to be investigated. {Id. at 437). She further stated that, until the day she was terminated, except for a requested conference with Roxanne, there was nothing that Taylor failed to do that Flippo asked her to do or that she wanted her to do. {Id. at 438-39). * Consequently, plaintiff has failed to establish the fourth prong of a prima facie case of gender discrimination against Taylor or APS. Plaintiff has not shown that she was replaced by someone outside her class or that she was treated less favorably than a similarly-situated individual outside her class. Furthermore, while the McDonnell Douglas test is not the sole method of establishing a prima facie case of discrimination, see Pace v. Southern Ry. Sys., 701 F.2d 1383, 1386 (11th Cir.1983), she has failed to present any other evidence that .she was discharged because of her sex. Plaintiff also admits she went directly to the cutter, “Jimmy,” for a re-cut rather than taking the issue to Arruda or directly to Taylor. While she did not consider this to be an “issue” that of the. sort Taylor wanted brought to her, it is clear that Taylor believed it was. Thus, there is no evidence that the non-discriminatory reason given for plaintiffs discharge was a pretext for discrimination. Therefore, defendant’s motion for summary judgment as to Count Two of the complaint is due to be granted. Count Four — Retaliation Plaintiffs last claim under Title VII is her allegation that she was retaliated against for complaining about discrimination. To establish a prima facie case of retaliation under 42 U.S.C. § 2000e-3(a), a plaintiff must show that (1) she engaged in a statutorily protected expression; (2) she suffered an adverse employment action; and (3) the adverse action was causally related to the protected expression. Wideman v. Wal-Mart Stores, 141 F.3d 1453, 1454 (11th Cir.1998). As noted above, the only possible “statutorily protected expression” made by plaintiff to Taylor was her claim that she complained that Arruda continued to ask her out after she quit dating him. She admits that she did not tell Taylor about Arruda’s Viagra-related remarks. There is no evidence that she complained about Arruda allegedly staring at her, nor is there any evidence that she complained about his use of vulgar language or that Arruda used any such language outside of the one occasion set out above. Furthermore, plaintiff did not complain that Arru-da touched her improperly on the breasts or between the legs and admits that such activity did not occur. Plaintiff also never reported to Taylor that Arruda brushed up against her while walking behind her at the table. Thus, the only possible sexually-related complaint made to Taylor by Flippo is her claim that she told Taylor that Arruda was continuing to ask her out after she had ended their relationship. However, the evidence reflects that Flippo complained about Arruda making work difficult for her, which she believes was based on her refusal to go out with him. She did not testify that she related this belief to Taylor when these work-related issues arose. It is a close call as to whether such a complaint is statutorily protected expression. On the one hand, a personal feud is not sex discrimination, even if the parties previously engaged in an intimate sexual relationship. See Succar v. Dade County Sch. Bd., 229 F.3d 1343, 1345 (11th 1315Cir.2000). However, if continually asking Flippo to continue their relationship is harassment motivated by her refusal to have a sexual relationship with him, Arru-da does not get a “free pass” for such conduct simply because he once had a romantic relationship with her. See Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1188-89 (11th Cir.2001). Even assuming this conduct constitutes protected expression, there must be a casual link between the expression and the adverse employment action. To satisfy the causation requirement, Flippo has to prove “that the protected activity and the adverse action are not completely unrelated.” Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1457 (11th Cir.1998) (internal citations and quotations omitted). See also Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1233 (11th Cir.2006). “Close temporal proximity between the protected activity and the adverse action may be sufficient to show that the two were not wholly unrelated.” Bass v. Bd. of County Comm’rs, 256 F.3d 1095, 1119 (11th Cir.2001) (citation omitted). The' Supreme Court has stated that “mere temporal proximity between ... knowledge of protected activity and an adverse ... action ... must be ‘very close.’ ” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 1511, 149 L.Ed.2d 509 (2001) (citations omitted). The Court cited with approval decisions in which a three- to four-month disparity was found to be insufficient to show causal connection. See id. (citing Richmond v. ONEOK, 120 F.3d 205, 209 (10th Cir.1997) (three-month period insufficient) and Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir.1992) (four-month period insufficient)). See also Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.2007) (three- to four-month disparity between the statutorily protected expression and the adverse employment action is not enough). In response to the question, “What year was it that he mentioned Viagra to you?”, plaintiff responded, “It was at the end of the year of 2009 and then in the beginning of the year 2010.” (Flippo Depo. at 329). When asked specifically when in 2010 Ar-ruda mentioned Viagra, she responded, “I would say February.” (Id. at 332). Likewise, she described the incidents of Arruda brushing up against her as occurring in 2010, at the beginning of the year. (Id. at 336). It occurred twice the first day. (Id. at 348). Approximately a month later, she testified he did it again, testifying that “[h]e probably did that four more times and I started working on the other side of the table.” (Id. at 349). The only other incidents Flippo could recall involving Ar-ruda that occurred in 2010 were the incident set out above involving Rachel Watson, and the incident set out above when she was struck by a door as he opened it when she went outside the business to take a call on her cell phone, both of which occurred in the summer of 2010. (Id. at 334, 360). There is no testimony that Flip-po complained to Taylor about any of these specific instances of conduct on the part of Arruda. Flippo related one incident wherein she had a run-in with Arruda regarding the making of samples for a customer in Massachusetts named Roxanne. This occurred approximately a week before plaintiff was terminated. (Id. at 408). However, this incident did not involve Arruda asking plaintiff out on a date. It was a disagreement over what procedure should be followed in manufacturing these samples. (Id. at 401-08). While plaintiff complained that Arruda continued to ask her out “[m]aybe a couple of times, two or three times a month” after 1316she terminated their relationship, (Flippo Depo. at 314), she was unable to be more specific. (Id. at 313-14). Flippo testified that she went to Taylor with complaints about Arruda 10 to 15 times, including five to six times in 2009. (Id. at 315). However, most of these complaints dealt with work-related issues, not complaints about Arruda asking her out. Her testimony was as follows: Q. And during 2009, how many times did you go to Bonnie Taylor and ask about or say anything about him asking you out, other than this one occasion you have told me about? Flippo: I would say probably 10 to 15 times I went to her. Q. In 2009? Flippo: In 2009? Q. Yes. Flippo: Probably five or six times. Q. And when was that? Flippo: Every time there would be a problem in the plant and I would have to straighten out work or do something about it or — I would always have to involve Bonnie, always. Q. I am not talking about disagreements over work issues. I am talking about the asking you out part. And all I am asking is how many times during 2009 did you complain to Bonnie Taylor about him asking you out? Flippo: I will say a couple of times I went to her and asked for a conference with Roxanne because I had all I could handle of it. (Flippo Depo. at 315-16). Flippo testified that the first of these two times that she went to Taylor to complain about Arruda asking her out was in September or October of 2009. (Id. at 316). On that occasion, Arruda asked her to go gambling with him and she refused. (Id. at 317-18). However, when pressed for details regarding her complaint to Taylor, she testified that she did not go to Taylor and complain specifically about him asking her out. According to Flippo, when she refused to go out with Arruda, he “would make things hard on [her] work force.” (Id. at 318). She complained to Taylor about this, rather than the fact that Arruda asked her out. (Id. at 318, 321). According to Flippo, she went to Taylor because she did not like Arruda giving her instructions and orders “in a harassing way.” (Id. at 384). Although Flippo testified that there were several occasions when Arruda made reference to the fact that he was taking Viagra and that things would be “better” if she were to go out with him again, she further testified that she did not complain to Taylor about these remarks because she “felt no need to bring that up.” (Id. at 373). Thus, she did not complain about any of the Viagra comments made to her by Arruda, including the one when he made a reference to “cunt.” Consequently, there is virtually no evidence that Flippo complained to Taylor specifically regarding the fact that Arruda was continuing to ask her to go out on dates beyond two possible occasions in 2009. Although Flippo testified she believed that Arruda was making her work difficult because she would not go out with him, her complaints to Taylor were with regard to these work-related issues, not specifically that Arruda would not stop asking her out or that she believed the work-related issues with Arruda arose out of any anger toward her for refusing to go out with him. To the extent that she did so, there is no evidence that such complaints occurred at any time temporally close to the time of her termination. Thus, plaintiff has not demonstrated that her termination was temporally close to 1317any complaint she made about sexual harassment by Arruda to Taylor. In addition, Flippo testified that she has no evidence that Taylor terminated her because of her sex or any other discriminatory reason. (Id. at 421). According to Flippo, whenever she spoke to Taylor about an issue she had with Arruda, Taylor was always understanding and would fully investigate to the extent it needed to be investigated. (Id. at 437). She farther stated that, until the day she was terminated, except for a requested conference with Roxanne, there was nothing that Taylor failed to do that Flippo asked her to do or that she wanted her to do. (Id. at 438-39). According to Flippo’s own testimony, she was terminated for insubordination when she went directly to a cutter working under Arruda to get some material re-cut without going through Arruda or bringing the issue to Taylor so that she could take it to Arruda. (Id. at 414-418). Consequently, the temporal evidence is weak, at best, and there is no other evidence that Taylor terminated Flippo in retaliation for engaging in statutorily protected expression. Therefore, defendant’s motion for summary judgment is due to be granted as to Count Four. Counts Three, Five, Six and Seven— State Law Claims Plaintiffs only remaining claims are state law claims for negligent hiring, training, supervision and retention, invasion of privacy, assault and battery, and outrage. Plaintiff is an Alabama domiciliary, and defendant Arruda also is an Alabama domiciliary. APS is a Massachusetts corporation, but it is not clear if its principal place of business is in Alabama or elsewhere.3 Therefore, diversity does not exist on the face of the complaint as to Arruda. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). Thus, there appears to be no basis for original federal jurisdiction over plaintiffs state law claims against defendant Arruda as currently pled. The státe law claims previously were before the court properly as supplemental claims supported by plaintiffs federal question claim. See 28 U.S.C. § 1367(a). However, with the dismissal of plaintiffs federal claim, there arguably remains no independent original federal jurisdiction to support the court’s exercise of supplemental jurisdiction over the state claims against defendant Arruda. Because it is unclear if APS also may be considered a citizen of the State 'of Alabama, the court also looks to the complaint to determine whether the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332(a). In the complaint, plaintiff has not requested a specific sum as damages. Furthermore, it is not readily apparent from the face of the complaint that the amount sought is greater than $75,000. Thus, in order to continue to proceed in federal court by alleging a basis for original jurisdiction, it would be necessary for plaintiff to amend her complaint to allege a basis for diversity jurisdiction. The time for filing amendments to this case has long since passed, although such an amendment still would be allowable with leave of court pursuant to Rule 15(a)(2), Fed.R.Civ.P., if justice so requires. However, for the reasons stated below, it will be recommended that plaintiffs state law claims against Ar-ruda and APS be dismissed without prejudice. Pursuant to 28 U.S.C. § 1367(d), these claims can be refiled in state court and the period of limitations would have been tolled during the time the case was 1318pending in this court and for 30 days after dismissal without prejudice. The dismissal of plaintiffs underlying federal question claim does not deprive the court of supplemental jurisdiction over the remaining state law claims. See Palmer v. Hospital Auth. of Randolph County, 22 F.3d 1559, 1568 (11th Cir.1994); Edwards v. Okaloosa County, 5 F.3d 1431, 1433-35 (11th Cir.1993). Under 28 U.S.C. § 1367(c), the court has the discretion to decline to exercise supplemental jurisdiction over non-diverse state law claims where the court has dismissed all claims over which it had original jurisdiction, but is not required to dismiss the case. See Palmer, 22 F.3d at 1567-68. As the Eleventh Circuit made clear in Palmer, once a court decides that it has power to exercise supplemental jurisdiction under § 1367(a), then the court should exercise that jurisdiction, unless § 1367(b) or (c) applies to limit the exercise. Title 28 U.S.C. § 1367 states, in pertinent part: (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. (b) ... (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— (1)the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional . circumstances, there are other compelling reasons for declining jurisdiction. (d)The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period. In this case, § 1367(c) applies because the court “has dismissed all claims over which it has original jurisdiction,” namely, plaintiffs claim against defendant APS under Title VII. See 28 U.S.C. § 1367(c). While § 1367(c) permits a court to dismiss any state law claims where the court has dismissed all the claims over which it had original jurisdiction, the court also can consider other factors. Where § 1367(c) applies, considerations of judicial economy, convenience, fairness and comity may influence the court’s discretion to exercise supplemental jurisdiction. See Baggett v. First Nat’l Bank of Gainesville, 117 F.3d 1342, 1352-53 (11th Cir.1997); Palmer, 22 F.3d at 1569; New England Co. v. Bank of Gwinnett County, 891 F.Supp. 1569, 1578 (N.D.Ga.1995); Fallin v. Mindis Metals, Inc., 865 F.Supp. 834, 841 (N.D.Ga.1994). Resolution of plaintiffs state law claims depends on determinations of state law. Plaintiff filed this complaint on October 1, 2012. It appears that a two-year statute of limitations applies to these state law claims. See Chambless v. Louisiana-Pa1319cific Corp., 481 F.3d 1345, 1350 (11th Cir.2007) (finding that the statute of limitations for assault and battery and invasion of privacy under Ala.Code § 6 — 2—38(Z) is two years); Archie v. Enterprise Hosp. & Nursing Home, 508 So.2d 693, 695 (Ala.1987) (two-year statute of limitations applies to outrage claim); Wright v. Wright, 654 So.2d 542, 544 (Ala.1995) (indicating that statute of limitations for assault and battery claim governed by Ala.Code § 6-2-38(Z)). However, there is some debate in Alabama as to whether the two-year statute of limitations in Ala.Code § 6-2-38(Z) or the six-year statute of limitations found Ala.Code § 6-2-34 applies to claims of assault and battery. See, e.g., Burroughs v. Smurfit Stone Container Corp., L.P., 506 F.Supp.2d 1002, 1021 n. 34 (S.D.Ala.2007) (applying six-year statute of limitations and finding that it “cannot reconcile the seemingly inconsistent cite to Ala.Code § 6 — 2—38(Z) in Wright v. Wright, 654 So.2d 542, 544 (Ala.1995), for support that the statute of limitations had run on the assault and battery claim.”). See also Travis v. Ziter, 681 So.2d 1348, 1351 n. 1 (Ala.1996) (an action alleging assault and battery must be brought within six years after the accrual of the cause of action pursuant to Ala. Code § 6-2-34(1)). State courts, not federal courts, should be the final arbiters of state law. Hardy v. Birmingham Bd. of Educ., 954 F.2d 1546, 1553 (11th Cir.1992). When coupled with the court’s discretion to exercise supplemental jurisdiction under § 1367(c), this court finds that the state law claims remaining in this action are best resolved by the Alabama courts. This is especially true here where the court is dismissing plaintiffs federal law claim pri- or to trial. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966) (dismissal of state law claims strongly encouraged when federal law claims are dismissed prior to trial); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 619 n. 7, 98 L.Ed.2d 720 (1988) (“When federal law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice.”); Eubanks v. Gerwen, 40 F.3d 1157 (11th Cir.1994) (remanding case to district court to dismiss plaintiffs state law claims where court had granted summary judgment on plaintiffs federal law claims). The court finds that judicial economy, fairness, convenience, and comity dictate having these state law claims decided by the state courts. Conclusion Based on the foregoing, it is RECOMMENDED that defendants’ motion for summary judgment be GRANTED as to Counts One, Two and Four and that such claims be DISMISSED WITH PREJUDICE. It is further RECOMMENDED that the court DECLINE to exercise supplemental jurisdiction over Counts Three, Five, Six and Seven and that Counts Three, Five, Six and Seven be DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c). Notice of Right to Object The parties are DIRECTED to file any objections to this Report and Recommendation within a period of fourteen (14) days from the date of entry. Any objections filed must specifically identify the findings in the magistrate judge’s recommendation objected to. Frivolous, conclusive, or general objections will not be considered by the district court. Failure to file written objections to the proposed findings and recommendations of the magistrate judge’s report shall bar the party from a de novo determination by the 1320district court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report accepted or adopted by the district court except on grounds of plain error or manifest injustice. Nettles v. Wainvnight, 677 F.2d 404 (5th Cir. Unit B 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.1982). See also Bonner v. Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. DONE this 18th day of April, 2014. . Before they are considered in determining whether the severe or pervasive requirement is met, the statements and conduct must be of a sexual or gender-related nature. Mendoza at 1245. . Defendants also allege that plaintiff's claim of sexual harassment is untimely. Whether the last act of alleged harassment fell within 180 days prior to the plaintiff filing her EEOC charge of discrimination is unclear from the evidence presented. Because plaintiff has failed to establish a prima facie case of discrimination, it is unnecessary to reach this issue. . For purposes of diversity jurisdiction, a corporation is considered to be a citizen of the state in which it is incorporated and the state in which it has its principal place of business. 28 U.S.C. § 1332(C)(1).	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7224437/	OPINION AND ORDER MYRON H. THOMPSON, District Judge. A huge percentage of the incarcerated population in this country suffers from mental illness. See, e.g., U.S. Department of Justice, Bureau of Justice Statistics Special Report: Mental Health Problems of Prison and Jail Inmates, http://bjs.ojp. usdoj.gov/content/pub/pdfimhppji.pdf (2006) (noting that half of all inmates had a 1321mental-health problem, including 45% of federal prisoners). Judges often experience frustration at their own perceived powerlessness to effect more appropriate outcomes for the mentally ill individuals who come before them. However, federal law does provide some tools to evaluate and address mental illness among criminal defendants. This case is about one such tool that has, perhaps, been under-utilized: 18 U.S.C. § 4244. Section 4244 “allows for hospitalization rather than mere imprisonment for a defendant who requires inpatient mental-health treatment.” United States v. Hollon, 2012 WL 5498002 at 2 (M.D.Ala.2012) (Thompson, J.). Section 4244 provides that either party, or the court, may move for a “hearing on the present mental condition of the defendant if the motion is supported by substantial information indicating that the defendant may presently be suffering from a mental disease or defect for the treatment of which he is in need of custody for care or treatment in a suitable facility.” 18 U.S.C. § 4244(a). On May 8, 2014, defendant Curtis Julius pleaded guilty to four violations of his supervised release. Julius has moved the court for a psychiatric or psychological evaluation pursuant to § 4244. The government does not object. As a threshold matter, because neither Julius nor the government has challenged the applicability of § 4244 to supervised-release revocation proceedings like this one, the court need not question its applicability either. See United States v. Galione, 305 Fed.Appx. 785, 786 (2d Cir.2009) (affirming judgment hospitalizing defendant pursuant to § 4244 for violation of supervised release, but not addressing the question of whether § 4244 applies in such cases); United States v. Czubaj, 85 Fed.Appx. 477, 479 (6th Cir.2004) (rejecting defendant’s argument in revocation proceedings that he should have been hospitalized pursuant to § 4244 based on lack of evidence, but not considering applicability of section to such proceedings). Nevertheless, it worth noting that the language of the statute itself is somewhat ambiguous: It applies to “A defendant found guilty of an offense,” 18 U.S.C. § 4244(a), and the term “offense” could refer either to only new criminal offenses or also to violations of supervised release. The latter reading is a reasonable one. “It seems clear that a violation of supervised release is ... a separate ‘offense,’ ” United States v. Bermudez, 974 F.2d 12, 13 (2d Cir.1992). Moreover, in the alternative, even if § 4244 does not explicitly apply to revocation proceedings, the court could reasonably follow the same procedures set forth in that section by analogy. See United States v. Avery, 328 F.Supp.2d 1269, 1272 (M.D.Ala.2004) (Thompson, J.) (superseded by statute, Pub.L. 109-248, Title III, § 302(2), 120 Stat. 619 (2006)). The court will therefore turn to the merits under § 4244. Julius’s conduct, both underlying this case and in other incidents, suggests that he is seriously disturbed. Among the charges in the instant revocation proceeding, to which he has pleaded guilty, was a new criminal violation, namely discharging a firearm into an occupied residence. The supervised-release violation report prepared by the Probation Department in this matter indicates that Julius got into an argument with an ex-girlfriend, and, when she would not let him into her house and told him she was calling the police, he fired five rounds from a handgun, four of which entered the house. No one was harmed, but the woman’s five minor children were present at the time. This appears to fit with a pattern of prior conduct. In 2008, he was convicted of discharging a firearm into an occupied 1322residence, where three children lived. In 2007, he was convicted of robbing a woman in her home at gunpoint. His prior federal conviction, which resulted in the imposition of the term of supervised release at issue in this case, was for being a felon in possession of a firearm. He also has two sets of pending state-court charges: one related to the same conduct underlying this case, and the other for allegedly threatening a woman at gunpoint when she tried to keep Julius from bringing her son to shoot at another individual’s house. In considering this history, the probation officer indicated that Julius’s prior sentences apparently “did not have a deterrent effect” and that Julius has an “astonishing lack of ability to follow the law”. The question is whether this pattern of violence can be explained, at least in part, by mental illness and whether that mental illness can be treated. Julius was evaluated on August 1, 2012, by Kale E. Kirkland, Ph.D., a licensed psychologist and certified forensic examiner. Dr. Kirkland diagnosed Julius with posttraumatic stress disorder, as well as antisocial personality disorder. Kirkland Report, Defense Exh. 1, at 3. In particular, the report noted that Julius experienced “significant distress” as a result of “several traumatic events,” and that he reported “frequent nightmares, flashbacks, depression, social isolation, ... being easily startled, hypervigilance and both social and occupational dysfunction.” Id. at 2. Based upon Dr. Kirkland’s report as well as the presentence-investigation report and supervised-release violation report in this case, the court is “of the opinion that there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect for the treatment of which he is in need of custody for care or treatment in a suitable facility.” 18 U.S.C. § 4244(a). Therefore, the court will hold a hearing pursuant to § 4244(c). Section 4244 authorizes the court to order a psychiatric or psychological evaluation prior to the hearing, pursuant to 18 U.S.C. § 4247(b) and (c). 18 U.S.C. § 4244(b). For the purposes of that examination, the court may commit the defendant for a reasonable period, not to exceed 30 days; the director of the facility to which the defendant is committed may thereafter apply for a reasonable extension, not to exceed 15 days. 18 U.S.C. § 4247(b). The resulting report should address the matters set forth in 18 U.S.C. § 4247(c). See 18 U.S.C. § 4244(b). In addition, “if the report includes an opinion by the examiners that the defendant is presently suffering from a mental disease or defect but that it is not such as to require his custody for care or treatment in a suitable facility, the report shall also include an opinion by the examiner concerning the sentencing alternatives that could best accord the defendant the kind of treatment he does need.” Id. The court will order Julius committed to the Bureau of Prisons for an evaluation pursuant to § 4244(b). Upon the completion of the evaluation, the court will hold the hearing pursuant to § 4244(c). “[I]f the court finds by a preponderance of the evidence that the defendant is suffering from a mental disease or defect and should be committed to a facility for treatment in lieu of incarceration, then the court may commit the defendant to the custody of the Attorney General, who will hospitalize him.” Hollon, 2012 WL 5498002 at 2 (citing § 4244(d)). “Such a commitment constitutes a provisional sentence of imprisonment to the maximum term authorized by law for the offense for which the defendant was found guilty.” 18 U.S.C. § 4244(d). If he is so committed, a defendant “may be released 1323from the hospital when the director of the facility determines that he no longer requires inpatient care.” Hollon, 2012 WL 5498002 at 2 (citing 18 U.S.C. § 4244(e)). “At that time, if the provisional sentence imposed has not yet expired, then the court will proceed to sentencing and can modify the provisional sentence, according to the Sentencing Guidelines.” Id. Accordingly, it is ORDERED as follows: (1) Defendant Curtis Julius’s motion for a psychiatric or psychological evaluation pursuant to 18 U.S.C. § 4244 (Doc. No. 76) is granted. (2) The United States Marshal for this district shall immediately remove defendant Julius to the custody of the Attorney General for placement in a suitable facility where he is to be committed for the purpose of being examined for a reasonable period not to exceed 30 days by a licensed or certified psychiatrist or psychologist pursuant to the provisions of 18 U.S.C. § 4244(b) and § 4247(b) & (c). The director of the facility at which Julius is evaluated may thereafter apply for a reasonable extension, not to exceed 15 days. (3) The clerk of the court shall arrange for the evaluation report prepared in this matter by Kale E. Kirland, Ph.D., as well as the presentence-investigation report and the supervised-release violation report, to accompany defendant Julius to the Bureau of Prisons. (4) A psychiatric or psychological report shall be filed with the court pursuant to the provisions of 18 U.S.C. § 4244(b) and § 4247(b) & (c). If the report includes the opinion that defendant Julius is suffering from a mental disease or defect but that he does not require custody for care or treatment in a suitable facility, the report shall also include, pursuant to 18 U.S.C. § 4244(b), an opinion by the examiner concerning the sentencing alternatives that could best accord the defendant Julius the kind of treatment he does need.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218607/	ORDER SUSAN G. BRADEN, Chief Judge Between October 2, 2017 and October 5, 2017, Plaintiffs in thirteen cases filed Responses to the court’s September 15, 2017 Scheduling Order.1 The Responses filed in Micu (the “Micu Response”) and Jacobson (the “Jacobson Response”) suggested that the complaints fall into two distinct categories: “upstream” complaints and “downstream” complaints. Micu Response at 1; Jacobson Response at 1. Upstream complaints focus on water that accumulated within the design pools of the Addicks and Barker Reservoirs. Micu Response at 2; Jar cobson Response at 2. Downstream complaints focus on the release of water from the Addicks and Barker Reservoirs. Micu Response at 3; Jacobson Response at 2-3, On October 6, 2017, the court convened a status conference in the above-captioned cases at the United States District Court for the Southern District of Texas. During that conference, the court heard opposing views on whether the complaints should be classified as either upstream or downstream from Mr. Edwin Armistead Easterby, counsel-of-record in Jacobson, and Mr. David Harrington, counsel for the Government. At this juncture, the court would appreciate if the parties would inform the court of their respective positions on whether their complaint should be classified as either “upstream” or “downstream” on or by Friday, October 20, 2017. IT IS SO ORDERED. . See Y And J Properties, LTD v. United States, No. 17-1189; Banes, et al., v. United States, No. 17-1191; Bouzerand, et al. v. United States, No. 17-1195; Aldred, et al. v. United States, No. 17-1206; Milton, et al. v. United States, No. 17-1235; Micu, et al. v. United States, No. 17-1277; Hollis, Jr., et al. v. United States, No. 17-1300; Mousilli v. United States, No. 17-1332; Jacobson, et al. v. United States, No. 17-1374; De La Garza, et al. v. United States, No. 17-1390; Govia v. United States, No. 17-1423; Hering, et al. v. United States, No. 17-1427; Murray, et al. v. United States, No. 17-1430.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218608/	SCHEDULING ORDER Susan G. Braden, Chief Judge The December 20, 2017 hearing scheduled in the above-captioned case has been rescheduled to begin at 9:30 AM (CST) on Wednesday, December 20, 2017 in Courtroom 10-B in the United States District Court for the Southern District of Texas, 515 Rusk Street, Houston, Texas. IT IS SO ORDERED.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218609/	ORDER REGARDING JUDICIAL ASSIGNMENT SUSAN G. BRADEN, Chief Judge ' The Honorable Lydia Kay Griggsby, of the United States Court of Federal Claims, is hereby assigned to manage and adjudicate all matters in the above-captioned case. The Honorable Elaine D. Kaplan is no longer assigned to the above-captioned case. IT IS SO ORDERED.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218610/	OPINION Trial; Counterclaim; Fraud; False Claims Act; Special Plea in Fraud; Contract Disputes Act. HORN, J. Plaintiff, Oasis International Waters, Inc. (Oasis), is a contractor which performed a bottled water contract with the United States military in Iraq during the Iraq War. Oasis is a Nevada corporation for which the principal place of business is in Utah. After the end of contract performance, plaintiff filed a certified claim, which was denied in its entirety. Plaintiff. filed a complaint in the United States Court of Federal Claims, and, subsequently, defendant filed fraud counterclaims against plaintiff. A trial was held regarding plaintiffs breach of contract claims, as well as defendant’s fraud counterclaims. FINDINGS OF FACT As stipulated by the parties, “[ajfter the start of the Iraq War but prior to the award óf the contract at issue in this case, the Army procured all of its Iraq bottled water requirements from Turkey, Kuwait, and Jordan and shipped it by truck into Iraq and to the various U.S. military bases in Iraq.” United 'States Air Force Colonel Renee M. Richardson, who served as one of the contracting officers on the contract at issue in this case from May 2006 until October 2006,2 explained at trial that “[t]he previous approach was bringing bottled water in from Turkey, Jordan, and Kuwait, of course, which put soldiers on the road for the transportation.” As noted in a draft Statement of Work for the bottled water solicitation at issue in this ease: Up to the present time bottled water has been purchased from sources outside of Iraq. This practice necessitates large numbers of convoys and escorts to transport the bottled water from Kuwait, Jordan, and Turkey. There are numerous complications and delays getting trucks across the 410borders, particularly in Turkey. Producing bottled water locally would significantly reduce the number of convoys required to transport water as well as reduce the likelihood of battle related injuries.[3] The parties have stipulated that: On or about March 2, 200B, Maj. Vazquez, a contracting officer with Joint Contracting Command-Iraq (JCC-I, later Joint Contracting Command-Iraq Afghanistan— JCC-I/A), serving at Camp Victory, issued a Request for Information (RFI) “to get information on contractors capable of providing the following capabilities for construction ' of re-locatable water purifying and bottling facilities for distribution at several locations in Iraq. Locations will be identified at a later date and time. These facilities are to produce clean drinkable bottled water per all USDA and FDA standards and requirements.” The RFI generated interest from 71 vendors, and, on April 3, 2005, the government posted Solicitation No. W27P4A-05-R-0002 (the solicitation).4 Proposals were due by May 3, 2005, and the government received 22 bids in response to the solicitation, and answered 145 questions. A sample of the questions and answers reveals the bidders were uncertain about the pricing, capabilities, land in Iraq and the obligations of the government, only some of the concerns were clearly answered by the government. For example, one part of question 33 stated: “Is our offer to give the cost per liter with the personnel built in, seperate [sic] to the cost of the plant and equipment?” The government replied: “All Costs per liter are to be included.” Likewise, question 40 asked: “Start up Cost: Since the bid is predicated upon the deliverables per litre bottle of water, can we .assume that all costs (inc personnel and equipment deployment to site) incurred between contract award and water production will fall upon the successful bidder?” The government replied: “Yes. It is up to you how you determine the cost per litre taking into account all costs associated with this endeavor.” There were a number of questions regarding the obligations of the government. Question 2 asked, “[i]f projected demand falls short, what are the minimum volume requirements? Is there a required minimum quantity the Government will procure?” The government responded: “There are no minimums, The minimum is zero.” Additionally, question 35, referring to question and answer 2, asked: The answer to Question # 2 states that there are no minimum purchase quantities. This decision places an unreasonable amount of financial risk on the contractor, and will likely severely limit the competition for this RFP [Request for Proposals]. Request that the Government guarantee minimum purchase quantities base [sic] on the estimated quantities that appear in the RFP. The government responded: The levels of liters required are in the range. This is roughly the production per day. You might have a day where your levels are lower, however, the Government contract is a Firm Fixed Price not Indefinite Delivery / Indefinite Quantity. The Government is entering into a one year contract with three option years. The only thing that could prevent the basic year from occurring is a Government decision to Terminate for Convenience or default of the contractor to perform to the requirements and the Government would then Terminate for Default. One bidder questioned the potential for installment payments, asking: “Would the Government authorize progress or installment payments recognizing 1) the significant capital investment with establishing new capability and, 2) the ability to credit progress payments with actual deliveries?” to which the government responded that: “The first payment will be made once the contractor has the first plant operational and has had an 411approved first article test accepted without conditions.” In response to questions 44 and 89 regarding site conditions, the government indicated that for the land provided, “[s]ite prep should be minimal,” and would be “as flat land as possible.” In the answer to question 89, the government stated that “[t]he water source has been identified and deemed to have sufficient amounts by the government to support the operation.” The government also noted in answer to question 89, however, “[i]t is up to you what you do in order to meet the Government’s requirements and timeframe for delivery.” One of the 22 bids was submitted by American AquaSource, Inc. (American Aqua-Source), and signed by Max Wyeth, President of American AquaSource. Attached with the American AquaSource proposal was a spreadsheet showing the volumes of production and an estimate for when each site would begin water production. American AquaSource’s bid assumed a price of $3.50 per case of water, or a total of $50,225,000.00, based on the production of 14,350,000 cases.5 At trial, Mr. Wyeth explained that he calculated the $50,225 million figure “using our average forecast of demand, we came up with a case number that would be produced per year, and multiplied that by the case cost.”6 Major Vazquez contacted Mr. Wyeth to clarify the proposal and to submit a “total cost per year for all four years and the Grand total.” Mr. Wyeth provided Major Vazquez with a base year price of $50,225,000.00 and three option year prices of $186,000,000.00, totaling $608,225,000.00. Mr. Wyeth confirmed in his correspondence “that the 3.50 price is the only price, regardless of the winter/summer/surge period, for all years within the contract.” After negotiations between Mr. Wyeth and Major Vazquez, in which Major Vazquez asked Mr. Wyeth to reconsider the option year prices, on May 11, 2006, Mr. Wyeth submitted an amendment to the American AquaSource proposal, which included a revised “Summary of Pricing Schedule” with a proposed base year price of $50,225,000.00 and three option year prices of $112,000,000.00, for a total contract price of $386,225,000.00. The parties have stipulated that, “[ojther than AquaSource’s proposed price, all other offerors whose proposals were found technically acceptable offered prices in excess of $1 Billion.” 7 Major Vazquez awarded contract no. W27P4A-05-C-0002 (the contract) to American AquaSource on May 25, 2005. The contract called for base year price of $50,225,000.00 and three option year prices of $112,000,000.00, for a total contract price of $386,225,000.00.8 Major Vazquez signed the contract on behalf of the government. Mr. Wyeth signed on behalf of American AquaSource. 412After the contract was awarded to American AquaSource, Paul Morrell contacted Mr. Wyeth, and subsequently, Mr. Wyeth exchanged several emails with Phil Morrell and Dan Petsche, then the Vice President for Contracts and Compliance for Al-Morrell Development in June 2005 discussing the bottled water project.9 Paul Morrell testified that “[o]ur original intent with American AquaSource was to sell our assets to him, as it appeared that he didn’t have the resources and the funding to acquire our assets, much less build the factories. It morphed or migrated into a partnership between Max and Phil and myself.” Paul Morrell explained that, initially: Al-Morrell Development was essentially the performance arm of the operation. We built the facilities. We financed them. All the employees were employed by Al-Mor-rell Development. It was basically the part of the organizations that really did all the performance.... Max’s responsibility was to provide water bottling expertise, because Phil and I were—had never built a water bottling plant prior to this. The original arrangement changed, because as Paul Morrell testified: Initially, Mr. Wyeth told us that he had the financing lined up, and he just needed time. He didn’t have time, because the first facility had to be up—we’re talking July, and we had basically 90 days to get the first facility up. So, we really didn’t have time.... So, our understanding was he would continue to try to bring his financing option to the table, get money in the bank. In the meantime, Phil and I would self-fund this first plant so that we could meet the contractual deadlines. Over the course of the fall, it became clear that Mr. Wyeth’s options were not going to come to fruition, and AMD [Al-Morrell Development]—initially it was a parallel track. We were trying to obtain financing on behalf of AMD while we were waiting for his financing to come into place. Ultimately his financing failed, and the AMD financing did come into place late in the year or early the next year. Therefore, in July 2005, Phil Morrell, Al-Morrell Development, Mr. Wyeth, and American AquaSource entered into a joint development and pre-incorporation agreement to form a new corporation to fulfill the contract, with the agreement reflecting that the purpose of American AquaSource’s contract was to “build up to six (6)[10] water bottling plants in the country of Iraq.”11 Initially, the corporation was called Iraqua, Inc., but later changed its name, on July 15, 2005, to Oasis.12 Subsequently, in the fall of 2005, Phil Morrell, Al-Morrell Development, Mr. Wyeth, and American AquaSource signed an addendum to the joint development and pre-incorporation agreement, assigning American AquaSource’s contract to Oasis. The addendum required Mr. Wyeth, of American Aqua-Source, to execute a novation agreement. The novation agreement was to be a modification to the contract, and ultimately was modification P00005, discussed below. On December 5, 2005,13 “American Aqua Source, Inc.,” “Oasis International Water, Inc.,” and the “United States of America” “enter[ed] into this Novation Agreement ... as of August 1, 2005.”14 The modification stated that the 413purpose of this modification” was to reflect the novation agreement transferring all rights and responsibilities of the bottled water contract from American AquaSource to Oasis. The modification also stated that, i‘[a]ll other terms and conditions of the contract remain unchanged.” Paul Morrell was the Chief Executive Officer of Al-Morrell Development from August 15, 2005 through January 2006, and, thereafter, has served as President of Al-Morrell Development. Paul Morrell was also the Chief Executive Officer of Oasis from August 15, 2005 through January 2006, and, thereafter, has served as President of Oasis. Phil Morrell was Chairman of Oasis from July 2005 through December 2012. Paul Jeffries served as both the Chief Executive Officer and Chief Financial Officer of Al-Morrell Development and Oasis. Mr. Jeffries served as Chief Financial Officer of Al-Morrell Development and Oasis from June 2005 through January 2006, and, subsequently, served as Chief Executive Officer of Al-Morrell Development and Oasis from January 2006 through 2010. Mr. Jeffries was replaced as Chief Financial Officer of Al-Morrell Development and Oasis by Neil Vos, who served'as Chief Financial Officer from February 16, 2006 until June 2011. As noted above, Dan Petsche was the Vice President for Contracts and Compliance for Al-Morrell Development when initially discussing the contract with Max Wyeth, and he also was the Vice President for Contracts and Compliance for Oasis from 2005 through October 31, 2011. At all times, Paul Morrell and Phil Mon-ell15 had a controlling interest in Oasis, and after Mr. Wyeth was bought out and resigned as president, Paul Morrell and Phil Morrell controlled 100% of .Oasis. The Contract As noted above, Major Vazquez awarded contract no. W27P4A-05-C-0002 to American AquaSource on May 25, 2005. Item no. 0001 of the contract was “NON-PERSONAL SERVIOS [sic]” (capitalization in original) and indicated: The Contractor shall provide all labor, tools, supervision, personnel, equipment, transportation, materials, facilities, and other essentials necessary to perform and sustain 8 separate and independent purified bottle water plants according to the 20 Mar 05 Statement of Objectives (SOO). Period of Performance: 25 May 05 through 24 May 06. The unit price was listed as “$3.50/case” for all amounts of water produced. Following the item no. 0001 were three items for the three option years, item no. 1001, item no. 2001, and item no. 3001, changing only the period of performance.16 After item nos. 0001, 1001, 2001, and 3001, there was a summary of the pricing schedule which stated: SUMMARY OF PRICES FOR BASE YEAR AND THREE OPTION YEARS TOTAL BASE YEAR $50.225,000.00 FIRST OPTION YEAR $112.000.000.00 SECOND OPTION YEAR $112,000,000.00 THIRD OPTION YEAR $112.000.000.00 GRAND TOTAL (Base Year and Three Option Years) $386,225,000.00 (capitalization and emphasis in original). The period of performance was listed in the contract as: 414BASIC PERIOD 25 May 2005-24 May 2006 OPTION PERIOD I 25 May 2006-24 May 2007 OPTION PERIOD II 25 May 2007-24 May 2008 OPTION PERIOD III 25 May 2008-24 May 2009 (capitalization in original). The statement of objectives for the “purified bottled water services” contract explained: The purpose of this contract is to provide re-locatable purified bottled water capabilities at various locations throughout Iraq Area of Operations (AO). Contractor shall produce the amounts of bottled water as outlined in Figure 1. Contractor shall ensure bottled water capability is able to relocate upon notification by the Contracting Officer (CO) due to military operational requirements. Bottled water capabilities shall be established in the order as listed in Figure 1. Actual locations will be given to the contractor that wins award. The contractor shall provide all the mechanical equipment required to produce and prepare for shipment the required amounts of bottled water. The first bottled water site shall be operational 120 days after the contract is awarded. This includes military inspection and acceptance. After contract award, additional bottled water sites shall be established within the remainder of days from contract award. A full 365 days from contract award, all sites will be fully operational.[17] Figure 1, referenced in the statement of objectives, identified the production requirements at each of the bottled water facilities at different points in the year. [[Image here]] (capitalization in original). Figure 1 contemplated three different production requirements: winter, summer, and “surge.” Colonel Richardson testified, explaining the different requirements, as follows: [D]uring the winter, the weather was a lot more reasonable in Iraq; the highs were around the eighties, nineties. In the summer, temperatures got up to 135 degrees, requiring soldiers to drink more just to stay cool and to stay hydrated. During surge, what that’s really talking to is battle operations. Our soldiers wind up wearing 60, 70, 80 pounds’ worth of gear and then going out into .,. tanks, which causes them to sweat and causes them to need more water. The tasks section of the contract instructed, in part: “The contractor shall provide relocatable purified water bottling capability for producing and packaging required amounts of one liter bottles of water per day as outlined in Figure 1,” “Contractor shall provide, operate, maintain, and repair all the 415mechanical equipment required to accomplish the Government’s objectives,” “Contractor shall ensure bottled water meets or exceeds all US Government quality standards,” and “Contractor shall operate the purified bottled water capabilities with enough personnel to meet the Government’s requirements.” Regarding payment to the contractor, the invoicing section of the contract stated: Invoicing shall occur monthly. The contractor shall invoice to the Contracting Officer Representative (COR), by the 5th of each month, for the total of all liters in [sic] produced, per location, for the entire previous month. The CORs will prepare the DD250s and will submit them with the contractor’s invoice to the Contracting Officer (CO), no later than the 10th of each month. Bottled Water Facilities Although the original contract required eight bottled water facilities, on May 26, 2006, the day after contract award, United States Air Force Lieutenant Marion Knapp executed a no-cost modification P00001 on behalf of the government reducing the required number of water bottling facilities from eight to six, to which American Aqua-Source agreed. The six bottled water facilities were: LSA Anaconda (Anaconda), Camp Victory, Al Asad Airbase, Qayyarrah West (Q-West), Speicher, and Camp Taqaddum (TQ). Major Vazquez indicated that land would be provided to the contractor no later than 30 days after contract award. Although the answer to question number 44 regarding the solicitation indicated that “[s]ite prep should be minimal,” defendant had to provide site preparation at every location except A1 Asad.18 Anaconda, the first bottled water facility, was contractually required to be operational by September 22, 2006. Major Lopez executed modification P00004 on September IS, 2006, on behalf of the government, granting á 12-day extension of the requirement for Anaconda’s certification until October-4,'2006. Although Anaconda began producing water on October 10, 2006, Anaconda was not audited and certified operational until December 14, 2005, after producing almost 2 million liters of water. Camp Victory, the second bottled water facility, was initially required to be operational by May 24, 2006. The military authorized land for Camp Victory on September 4, 2005. Camp Victory was certified operational on April 7, 2006, and began producing bottled water on April 12, 2006. Al Asad, the third bottled water facility, was initially required to be-operational by May 24, 2006. The military authorized land for Al Asad on August 22, 2005. The contractual deadline to complete Al Asad was extended to June 30, 2006, and Al Asad was certified operational on July 24,2006. Q-West, the fourth bottled water facility, was initially required to be operational by May 24, 2006. The military authorized land for Q-West on September 11, 2005, but on December 19, 2005, directed and authorized land at a different location for the Q-West plant. The contractual deadline to complete Q-West was extended to June 30, 2006, and Q-West was certified operational on July 9, 2006. Plaintiff indicated it encountered challenges with the water source at Q-West. Alan Morrell19 testified that “we opened Q~ West and started drawing from that irrigation line, we started getting turbid water, water so turbid that it was filled with mud and sand. And at that time, it was so significant that we couldn’t purify it.” As a result, “what it did is it .., immediately fouled all of our [equipment]—we didn’t have an ultra filtration system there because it didn’t call 416for one.” Moreover, the “ROWPU [Reverse Osmosis Water Purification Unit] was immediately filled with mud, and fouled. And each set of those membranes is $26,000. And they were ruined. And we couldn’t keep them clean and operational enough to operate and make water there as a result.” In order to fix the problem, Alan Morrell testified that Oasis “purchased a Pall Aria from northern New York and we also took an additional ROWPU system that we had used at Balad and recommissioned it, repiped and re-plumbed the lines at Q-West and solved the problem.” Speicher, the fifth bottled water facility, was initially required to be operational by May 24, 2006. The military authorized land for Speicher on August 13, 2006. The contractual deadline to complete Speicher was extended twice, finally to June 30, 2006, and Speicher was certified operational on June 20, 2006, and began producing bottled water on Junp 24, 2006. Initially, Oasis believed they would receive water provided by the government via a ROWPU. Alan Morrell testified, however, that “we opened the factory, we start producing, and within 48 hours, KBR [Kellogg Brown & Root] came in and just railed on us for consuming their ROW-PU’d water. And they got—they got their KBR OOTR [contracting officer’s technical representative] or contractor officer’s representative for that site involved and they shut down our water.” As a result, Alan Morrell testified that: they’re [Oasis’ contracting officer and COSCOM (United States Corps Support Command)] beating us up for delivering quantities, but they’re refusing to give us the water they’re required to provide us. So, we’re dealing with that at Speicher, and we’re dealing with a lack of water delivery at Q-West to a level we can produce there, too, and we’re all running for a completed amount of or quantity of water, but we can’t get to it. As a solution, Oasis purchased from an American company a “BEV 9 reverse osmosis systpm, and in the spring of 2007, installed it, commissioned it, and began to draw well water.” Camp Taqaddum, or TQ, the sixth bottled water facility, was initially required to be operational by May 24, 2006. Although the military initially authorized the land for TQ on August 24, 2006, the military directed Oasis to use land at different locations twice, the second time in March 2006. The contractual deadline to complete TQ was likewise twice extended, to June 30, 2006, and then to October 16, 2006. The site preparation for TQ was completed by July 2, 2006, and on August 11, 2006, Colonel Richardson confirmed for Oasis to construct the plant at TQ. TQ was completed on October 23, 2006, and despite Oasis requesting 40.5 days of excusable delay on September 25, 2006, United States Air Force Lieutenant Colonel Joel R. Forten-berry, who served as the contracting officer on the contract from October 2006 until early 2007, executed modification P00013 on behalf of the government, granting plaintiff only eight days of excusable delay for TQ. TQ was certified operational on October 25,2006. Relevant Modifications During contract performance there were a series of relevant modifications to the contract. As noted above, after contract award, P00001 reduced the number of bottled water facilities from eight to six, and on July 15, 2005, Major Lopez executed modification P00002 on behalf of the government, which changed the dollar amount from “386,225,000 (estimated)” to “50,225,000 (NTE).” Subsequently, on August'9, 2005, Major Lopez and Mr. Wyeth executed P000Ó3, which added a “NTE,” not to exceed, limitation on the quantity of water produced at each plant, and did not require the government to purchase any minimum number of cases produced by the contractor. Pursuant to P00003, the not to exceed “case quantity was a total of 14,350,-000 cases of water,” and, as modified in P00002, the not to exceed price was $50,225,000.00. As explained above, P00004 granted a twelve day extension of the requirement for the certification of the Anaconda bottled water plant, and P00005 was the novation agreement. a. P00006 Prior to the execution of modification P00006, on March 27, 2006, United States Air 417Force Major James E. Davis, who served as the contracting officer on the contract from September 2005 until January 2006, sent Oasis a letter titled “Preliminary Notice of Government Intent to Exercise Option CLINs 1001-5, Contract W27P4A-05-C-0002 for $112M,” which stated: “The Government must withhold its intent to exercise the option,” which meant the contract would come to an end. The letter informed Oasis that “[t]he contracting office does not have assurance of adequate funding.”20 On April 3, 2006, Paul Jefferies sent Major Davis a draft proposal, which would form the basis of modification P00006, and included a way to include a base year amount of 14,350,000 cases of bottled water at $3.50 per case for a total of $50,225,000. Modification P00006, which was executed on April 14, 2006 by Major Davis and Phil Morrell, extended the base year of the contract from May 24, 2006 to August 15, 2006, and required that the bottled water capability be established at the six sites by June 30, 2006. Therefore, modification P00006 extended the contractual deadline for bottled water plants to be operational to June 30, 2006. According to P00006, the bottled water plants were to be operational in the following order: (1) Anaconda, (2) Camp Victory, (3) Speicher, (4) Q-West, (5) TQ, and (6) A1 Asad.21 P00006 also required the production of 14,35 million cases of water during the base period of the contract, and removed the “Not To Exceed” requirements established in modification P00003. Finally, the option years were realigned to match the extension of the base year, so the first option period would run from August 16, 2006 until January 15, 2007, the second option period would run from January 16, 2007 until January 15, 2008, and the third option period would run from January 16, 2008 until January 15, 2009. P00006 also added a fourth option period that would run from January 16, 2009 until August 16, 2009. The amount of water in the •base period, the first option period, and the newly added fourth option period were different than the second and third option years. After modification P00006 to the contract, the periods of performance, quantities of water, and amounts due Oasis were:22 [[Image here]] (capitalization in original). 6. P00011 As noted above, United States Air Force Colonel Richardson served as the contracting officer on the contract from May 2006 until October 2006. By June 2006, Oasis personnel, including Paul Morrell, Phil Morrell, Alan Morrell, Mr. Jeffries and Mr. Petsche and Colonel Richardson had begun negotiations to further modify the contract. Both parties had financial challenges, defendant obtaining 418the funding to exercise the first option, and plaintiff, which would be in default with its lenders if the contract was terminated for convenience.23 Internally, Oasis considered the following proposal, as noted in an August 1, 2006 email from Paul Morrell: I’ve tried a lot of complicated algorithms to try to make a solution that is equitable to both the Military and US, I’ve concluded that the most equitable approach for everyone is the following: We gat [sic] paid a flat $112,000,000/year just as the contract states or $9,333,333/month (5/6th of that until TQ comes online). We agree to deliver up to 32,000,000 cases per year in aggregate with an annual reconciliation if the actual deliveries exceed that amount. The parties discussed several options for how to proceed moving forward, and ultimately, on August 8, 2006, Oasis, at Colonel Richardson’s request, provided her a draft proposal, which was consistent with the internal Oasis proposal.24 The draft proposal indicated two options:25 Option II. Complete the construction of TQ in Oct 2006. Close Base Period [[Image here]] On August 12, 2006, Paul Morrell and Colonel Richardson executed modification P00011, which was generally consistent with the draft proposal26 and established a pay419ment structure by which Oasis would be paid $9,833,333.33 per month, independent of the amount of water delivered, moving forward in the option periods. P00011 also modified the fourth option period, ending on July 16, 2009. The modification explained: The purpose of this modification is to do the following: 1. Provide a revised CLIN structure to reflect monthly pricing based upon water production capability. 2. Replace the Contract Statement of Objectives, with Performance Work Statement, dated 12 August 2006, provided as Attachment 1 to this modification. 3. Incorporate the contractor’s Quality Assurance Plan into the contract provided as Attachment 2 to this modification. 4. Incorporate the List of Critical Equipment into the contract, provided as Attachment 3 to this modification. 6.Insert Special Clause, titled “Equipment Leased by the Government”, into the Contract. 6. Insert clause DFARS 262.232-7007, “Limitation of Government’s Obligation” (May 2006) into the Contract. 7. Replace Contract Section J, List of Documents, Exhibits and Other Attachments. 8. Decrease the contract amount by $11,604,166.45 from $886,226,000.00 to $374,620,833.55. 9. Decrease the contract funded amount by $5,604,166.35 from $100,225,000.00 to $94,620,833.65. 10.Change the end date of Option 4 from 16 August 2009 to 16 July 2009. On August 15, 2006, as part of P00011, Oasis submitted a final invoice to close out the base year in the amount of $24,542,387.00. The total amount of water produced in the base year was 8,705,992 cases, which translated to $30,470,'972.00 at $3.50 per ease. In addition, from the time the contract was awarded to the end of the base year, Oasis submitted nine invoices for payment at $3.50 per case, totaling approximately $23 million, which the government paid.27 The contract ended on July 16, 2009, and Oasis performed on the contract until that date. Subsequently, Oasis and the government entered into a separate, follow-on contract regarding bottled water in Iraq. The issues in this opinion relate solely to the base year of the original contract. Certified Claim Prior to the filing of the certified claim, Phil Morrell sent an email to- Paul Morrell and Paul Jeffries on August 4, 2006, with his thoughts on the contract, as follows: Capabilities for Time Period not Quantity • Funding was received for purchase of water, but it [sic] the contract was a capabilities contract • Should have 2 Contracts • Capabilities Contract • Product Procurement Contract • Funding was received for Contact#_ • Contract#_is a capabilities contract not a procurement contract 420• $50 million on the table is for capability not water procurement The general assumption from everybody is that the price of water in the CLIN is somehow associated with the price of capabilities. (emphasis in original). At trial, Phil Morrell explained his view of the contract: When I studied the contract, including when I talked to—told Max [Wyeth] that he could get a progress payment, which I did tell Max, way back in the early days, probably a week into the—two weeks into the contract, that he could get a progress payment. Based on all the historic contracting that I had done, and the way that I submitted my bid, the anticipation that was there would be, you know, progress payment capabilities, or—in the contract. So, looking at Max’s bid, he had put $58 million in for what appeared to be the construction capabilities, and then out of the $58 million, based on—and I read this somewhere, I think it was in the FAR firm fixed price area-^-it says that you—if it’s for equipment, then you have to deduct the salvage value of the equipment, and then you could bill for whatever that was. So, that—I didn’t actually sit down and do the numbers because that’s just not what I do, but I—I suggested that we bill against the $52.25 million or $50,225 million as capabilities. Paul Morrell stated at trial that he agreed with Phil Morrell about the contract being a capabilities contract after executing P00011 and considering Colonel Richardson correspondence, she’s commenting on the proposal ... specifically, the 9.33 million per month for capabilities going forward, and she’s saying she thinks that’s a reasonable approach, but this is one of the first times where I hear a contract officer say the same thing that Phil has been saying for most of the year, that this is a water production capability contract. And Colonel Richardson goes on, through the—post-P00011, and she’s very clear that it’s a water production capability contract and it has been all along. They’ve just been administering it as if it weren’t. On June 20, 2008, Paul Morrell signed the certified claim, and on July 4, 2008, Oasis submitted its certified claim to the government. At the beginning of the certified claim, Paul Morrell, as President of Oasis, stated: “I certify that the claims stated herein are made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the Contract adjustment for which the contractor believes the Government is liable.” During his testimony at trial, Paul Morrell reaffirmed these statements. On direct examination, Paul Mor-rell testified about the certified claim: Q. Did you read and review the entire claim and its parts before you signed the certification? A. Yes. Q. You also submitted a signed affidavit as a part of this claim, correct? A. Yes. Q. Did you have any involvement in putting together the damages claimed in the claim that was submitted? A. Yes. [[Image here]] Q, Did you review the amount of the claim before you signed the certification? A. Yes. Q. Did you believe that the amount claimed accurately reflected the amounts which the Government of the United States owed Oasis at the time you signed the claim? A. Yes. Q, Do you believe today that the amounts included in the claim are owed to Oasis? A. Yes. Q, Did anyone from the military ever inform you that he or she thought that the claim was fraudulent or false in any way? A. No. Paul Morrell also submitted a sworn affidavit in support of Oasis’ certified claim at the time he submitted the certified claim, in which he stated: During the period May 2005 to the present, I was responsible for the day-to-day 421management of Contract W27P4A-05-C-0002 (the “Contract”) and had responsibility for all aspects of Oasis’ performance of the Contract I also had overall responsibility for the cost and accounting issues involving Oasis’ performance of the Contract. This Affidavit is based on my first-hand knowledge, the collective corporate knowledge of Oasis and the corporate records of Oasis maintained in the ordinary course of business. Mr. Vos, the then-Chief Financial Officer of Oasis, also submitted a sworn affidavit in support of Oasis’ certified claim, in which he indicated: “I am responsible for all aspects of finance, bookkeeping and accounting. Along with my staff I supervised the accounting for construction, cost projections, purchase orders, purchase order approvals, accounting classification, weekly, monthly and annual reconciliations.”28 The certified claim identified eight claims for which plaintiff sought payment: Claim 129 was a “Claim for all bottled water supplied in the Contract base year, as extended to August 15, 2006, excluding bottled water supplied from Camp Anaconda through May, 2006 (5,605,020 cases of bottled water),” and plaintiff sought $19,617,570.00. Claim 2 was a “Claim for penalty wrongfully assessed for failure to open Camp TQ on time,” which plaintiff ascribed “solely as a result of Government-caused delays and disruptions,” and for which plaintiff sought $2,270,833.00. The certified claim indicated that Claim 3 was a “Claim for reduction in Contract consideration for first option period (August 15, 2006 through January 15, 2007) resulting from P00011,” and for which plaintiff sought $3,333,333,00. Claim 4 was a “Claim for water bottling capabilities services provided through extension of Contract base year,” and plaintiff valued Claim 4 at $11,175,063.00. Claim 5 sought $808,423.00 as a “Claim for cost of site improvements required,” specifically at Anaconda, Camp Victory, Al Asad, and TQ. Claim 6 was a “Claim for cost of water supply improvements at Camp Speicher and Camp Qwest,” and plaintiff sought $600,000.00,30° Claim 7 was a “Claim for other penalties assessed re: Government delays of TQ opening,” related to the “44 days of TQ AQL[31] penalties erroneously assessed to Oasis due to Government-caused delays in establishing TQ in the first Option Period” and was valued by plaintiff at $2,053,333.00. The plaintiffs certified claim reflected a total amount claimed for the first seven claims of “$39,858,556.” Below the total for the first seven claims, plaintiffs certified claim indicated: “Alternative additional claim for water supplied from Camp Anaconda during initial Contract base year ending May 2006, 3,100,972 cases of bottled water: $10,853,-402.”32 The certified claim restated the claims and the dollar figures at the end of the certified claim in the “Summary of Claims,” and also stated: As set above, the same base claim amount results from calculations based on breach of contract principles, as follows: 422a. The Contract provides for a firm, fixed-fee, Contract base-year payment to the contractor of $50,226,000. b. Oasis was entitled to the entire firm, fixed-fee, Contract base-year payment of $60,225,000, plus $3.50 per case for each case of water produced, from all sites through August 15, 2006, less, at most, the amount of water delivered from Camp Anaconda through May 24, 2006. Oasis produced 5,605,020 cases of water (excluding water produced at Camp Anaconda in the Contract base year ending May 24, 2006) at a contract price of $3.50 per case and is entitled to payment of $19,617,670. c Oasis provided water-bottling capability services for an additional 2.67 months when the Contract base year was extended to August 15, 2006, due to Government delays and breaches of contract. (internal citations omitted). The certified claim indicated the plaintiffs view that: The Contract is not a model of clarity. The amount payable in the Contract base year is a firm, fixed-price amount of $50,225,000.... However, the Contract, as written, does not require delivery of any bottled water in the Contract base year. In the Contract base year, Oasis was entitled to a firm, fixed-fee payment of $50,225,000. The Contract provides that the entire payment is for water purification and water-bottling capabilities. Under the Contract, bottled water was a separately priced commodity to be paid for by the Government at the price of $3,50 per case under a separate CLN, (internal citations omitted). The certified claim also indicated: While Oasis delivered some bottled water during the Contract base year, Oasis invoiced the Government for that water and the Government paid those invoices. The primary deliverable item in the Contract base year is water purification and water-bottling capabilities, as specified in CLN 00001, as follows: The Contractor shall provide all labor, tools, supervision, personnel, equipment transportation, materials, facilities, and other essentials necessary to perform and sustain 8 separate and independent purified bottle water plants. The Government made it very clear in the pre-award documentation that the Government was not obligated to purchase amy bottled water under the Contract. In response to a pre-award question of whether the Government would guarantee purchase of any minimum quantity of water, the Government stated emphatically that it was obligated to purchase • “zero” bottled water through the Contract. The only reasonable interpretation of the statement that the Government was not required to purchase any water is that the entire Contract base-year, fixed-fee payment of $50,225,000 was a mobilization payment for delivering water-bottling capabilities. Stated otherwise, if the Government was required to purchase “zero” water, it logically follows that “zero” water was included in the firm fixed fee of $50,225,000. The Contract price of $3.50 per case thus applies to all water delivered in the base year, (internal citations omitted; emphasis in original). The government did not issue a decision on Oasis’ certified claim for over 15 months after it was submitted, and the claim was passed between, and considered by, a number of contracting officers and personnel, including United States Navy Lieutenant Commander Klingenberg, who was the contracting officer when Oasis submitted its certified claim on July 4, 2008, United States Air Force Major Jamie Rhone, who served as the contracting officer from July 2008 until January 2009, and Dean Carsello, a Joint Contracting Command Iraq Afghanistan (JCC-I/A) policy analyst, who was involved in reviewing the claim in 2008 and 2009, Ultimately, United States Air Force Major Hobbs denied Oasis’ certified claim in its entirety when he issued the Contracting Officer’s Final Decision on October 18,2009. One year later, on October 18, 2010, plaintiff filed its complaint in the United States Court of Federal Claims. Plaintiffs complaint alleged eight counts, and the complaint mostly tracks the claims raised in the certified claim, with the same dollar amounts, albeit framed as breaches of contract in the com423plaint, The first count, “Breach of Contract, and Breach of the Duty of Good Faith and Fair Dealing, for Failure to Pay for water TakenFrom [sic] Sites other than LSA Anaconda” seeks damages in-the amount of $19,617,570.00, plus interest, (emphasis in original). The second count, “Breach of Contract For Improper Assessment of a Liquidated Damages Penalty Against Oasis for Failing to Haye All Six Facilities Open by the End of the Base Year, or Alternatively, for Reducing the Base Year Contract Price Without Consideration,” seeks damages in the amount of $2,270,833.00, plus interest, (emphasis in original). The third count, “Breach of Contract For Improper Reduction of the Option Period One Price Without Consideration” seeks damages in the amount of $3,333,333.00, plus interest, (emphasis in original). The fourth count of the complaint, “Breach of Contract Resulting from Government Acts and Omissions Impacting and Damaging Oasis During the Base Year, as Extended” seeks damages in the amount of $11,175,063.00, plus interest, (emphasis in original). The fifth count, “Breach of Contract Resulting From Government Failure to Provide Suitable Construction Sites,” seeks damages in the amount of $808,423.00, plus interest, (emphasis in original). Oasis’ sixth count, “Breach of Contract and/or Constructive Change for Failure to Provide Suitable Water at the Purification Facilities as Required by the Contract” seeks $600,000.00, plus interest, (emphasis in original). The seventh count of the complaint, “Breach of Contract For Unjustified Imposition of Penalties for Late Opening of TQ and/or Wrongful Reduction in Contract Price,” seeks $2,053,333.20 plus interest, (emphasis in original). Finally, the eighth count of the complaint, “Breach of Contract, and Breach of the Duty of Good Faith and Fair Dealing, for Failure to Pay for Water TakenFrom [sic] Site LSA Anaconda,” seeks damages in the amount of $10,853,402.00, plus interest, (emphasis in original). Defendant filed an answer to Oasis’ complaint on February 15, 2011, and, more than a year later, on April 12, 2012, filed a motion to amend the pleadings and include fraud counterclaims, In its post-trial brief plaintiff argues that “[essentially, no Government personnel who reviewed the Claim ever reported, suggested, or even mentioned that the Claim was false or fraudulent prior to the Department of Justice’s involvement in this litigation.” As discussed below, the defendant indicates that the “Department of Justice possesses sole authority to assert fraud counterclaims.” (citing 28 U.S.C. §§ 516 (2012), 2508 (2012); 31 U.S.C. § 3730(a) (2012); and Hernandez, Kroone, & Assocs. v. United States, 110 Fed.Cl. 496, 528 (2013), recons. denied, 2013 WL 3199299 (Fed. Cl. June 25, 2013)), Plaintiff is correct that none of the government personnel called at trial stated a belief that Oasis’ certified claim was fraudulent at the time they considered the claim. Oasis responded to the amended answer and counterclaims on May 10, 2012, however, on June 6, 2014, defendant moved to again amend its pleadings and filed a second amended answer and counterclaim, In the interim, during highly contested, and at times uncooperative, discovery the parties filed numerous motions related to discovery, the production of documents, how documents were maintained, how documents were to be produced, and in what format, and who would bear the costs, spoliation, whether or not various privileges applied to various documents, as well as motions to compel, motions to strike, and motions to quash. The court held numerous status conferences and hearings to try and resolve the varying disputes between the parties, issued numerous orders, including publishing one substantive, lengthy opinion on attorney-client privilege and work product. See Oasis Int’l Waters, Inc. v. United States, 110 Fed.Cl. 87 (2013). The parties also filed motions for summary judgment and motions in limine in advance of the trial, and after trial, filed lengthy post-trial briefing materials. The effect of the discovery disputes, and difficult relationships, resulted in discovery deadlines being repeatedly pushed back, and trial dates repeatedly postponed. After defendant’s motion to file a second amended answer and counterclaim was filed, a six week trial was held. Initially, this opinion addresses the fraud counterclaims raised by defendant. Next, the 424court will unscramble the issues of contract interpretation, duress, and damages, if any, raised by the case. The court also will separately address plaintiffs allegation of spoliation. DISCUSSION Fraud Counterclaims In defendant’s second amended answer and counterclaim, “[defendant asserts counterclaims pursuant to the False Claims Act, 31 U.S.C. §§ 3729-3733, the Forfeiture of Fraudulent Claims Act (also known as the Special Plea in Fraud), 28 U.S.C. § 2514, and the anti-fraud provision of the Contract Disputes Act, 41 U.S.C. § 7103.” Defendant alleges in the counterclaim that Oasis submitted a certified claim to the contracting officer, seeking an additional roughly $50 million in July 2008 and that in the certified claim: Oasis sought $44,516,868 million under a novel claim that the original contract provided for both: (1) a $50,225,000 payment for “mobilization,” even though the $50,225,000 contract grand total for the base year required the sale of 14,350,000 cases; and (2) an additional $3.50 for each case of bottled water during the base year. The certified claim also requested $600,000 for the improvements at Speicher and QW, despite the fact that the Army had already reimbursed those costs as part of the August 2006 modification (P00011). In its post-trial brief, defendant argues that “Oasis executives in Utah embarked on a plan to gouge the military for as much money as possible before war’s end,” and claims that “Oasis’s fraud took an extremely simple and classic form. Oasis would submit a certified claim seeking, among other things, payment for more than $30 million for bottled water and for $600,000 in other expenses for which it had already been paid. This attempt to get paid a second time is fraud.” The court notes that plaintiff expressed frustration about how and when the defendant’s amended the answer and the counterclaim. In its post-trial briefs plaintiff explained: In advance of trial, Defendant made a last minute request to amend its counterclaim. Defendant made this request because Defendant’s original Amended Answer was unclear as to which counts it alleged were fraudulent. Instead of clarifying the issue, Defendant further muddied the waters regarding its counterclaim (days before trial) by filing a series of pleadings between June 6, 2014 and July 7, 2014, which alleged inconsistent theories of fraud and multiple different combinations of counterclaims Defendant alleged were fraudulent. [33] (internal citations omitted). Plaintiff states that “[t]he Government advances its counterclaim under three statutory bases: the False Claims Act, the Forfeiture of Fraudulent Claims Act / Special Plea in Fraud statute, and fraudulent claims provision of the Contract Disputes Act,” and contends that “[a]lthough these statutes differ in wording and remedy, each has two primary requirements that are relevant to this action: (1) the Government must demonstrate that the claim is actually false, and (2) the Government must demonstrate that the eontrac425tor acted knowingly.” Plaintiff argues that “[t]he Government's counterclaim fails on each element. Oasis’s claim can’t be fraudulent, because it is not false. Oasis did not submit it ‘knowing’ that it was false or with intent to deceive, either,” and “Oasis’ full and honest explanation in the claim itself of the factual assertions and legal theories underpinning it belie any assertion that Oasis was trying to deceive the Government.” Plaintiff requests that the court “find that no part of Oasis’ Claim is false or otherwise fraudulent.” Plaintiff also states that “the actual evidence that goes to the merits of the case shows that Oasis’ contractual interpretation is correct ... and that there is no fraud.” (emphasis in original). Plaintiff further argues that “[t]o recover on a fraud theory, the Government must prove that Oasis’ claim is actually false. But the Government has not— and cannot—prove this, because Oasis’ claim is not false. The Court should reach this conclusion even if it ultimately disagrees with Oasis’s claim, since there is a wide gap between ‘incorrect’ and ‘fraudulent.’ ” The court initially considers the fraud counterclaims for the purposes of this opinion, as if, hypothetically, defendant, and not plaintiff, has the correct interpretation of the contract, and, the court must determine if the plaintiff, even potentially having an incorrect interpretation of the contract, intended to commit fraud in its certified claim, had actual knowledge of the falsity of the claim or acted with reckless disregard of the truth or falsity of the claim. The court notes that for the majority of the parties’ briefing, the parties do not differentiate between the various statutes and generally only discuss “fraud.” Indeed, as noted above, plaintiff contends that “[although these statutes differ in wording and remedy, each has two primary requirements that are relevant to this action .... ” By contrast, although defendant clearly identifies the standards for each of the counterclaims, after discussing fraud in considerable detail for the Special Plea in Fraud statute, it generally refers to its rationale in the Special Plea in Fraud section for support for its Fglse Claims Act and Contract Disputes Act arguments.34 a. Special Plea in Fraud In defendant’s second amended answer and counterclaim, defendant asserts that: Oasis attempted to practice fraud against the United States in the proof, statement, establishment, or allowance of the portions of the claim identified in the paragraphs above [in the defendant’s second amended answer and counterclaim]. In particular, Oasis submitted at least one certified claim with the intent to cause the Government to pay Oasis amounts to which it knows it is not entitled. According to defendant, “Oasis, therefore, is liable for the forfeiture of its certified claim for $50,711,957, in its entirety pursuant to 28 U.S.C. § 2514.” In its post-trial brief defendant contends that “Oasis’s Entire Claim Is Forfeited Under The Special Plea In Fraud.” Most directly, defendant claims that “Oasis’s intentional attempt to be paid twice for the same water constitutes fraud.” Plaintiff responds that “[a]t an absolute minimum, the frank and open nature of the claim alone negates the Government’s arguments under the Special Plea in Fraud and CDA [Contract Disputes Act] fraudulent claims provision, both of which require an intent to deceive the Government.” (emphasis in original). The Special Plea in Fraud statute provides: A claim against the United States shall be forfeited to the United States by any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, establishment, or allowance thereof. In such cases the United States Court of Federal Claims shall specifically find such fraud or attempt and render judgment of forfeiture. 28 U.S.C. § 2514; see also Kellogg Brown & Root Servs., Inc. v. United States, 728 F.3d 1348, 1365 (Fed. Cir. 2013), reh’g denied, 563 426Fed.Appx. 769 (Fed. Cir.), cert. denied, — U.S. —, 136 S.Ct. 167, 190 L.Ed.2d 60 (2014). In Kellogg Brown & Root, the United States Court of Appeals for the Federal Circuit unequivocally held that “[o]n its face, the statute is limited to those circumstances where the Government proves fraud ‘in the proof, statement, establishment or allowance’ of a claim not in the execution of a contract.” Id. at 1366 (footnote omitted). Previous decisions by Judges of the United States Court of Federal Claims have indicated that: [t]he statutory forfeiture contemplated by 28 U.S.C. § 2514 is broad. Earlier, the Court of Claims held that, upon a finding that claims are based on “a contract under which [a contractor] practiced fraud against the Government,” as defined by this statute, “all of his claims under that contract will be forfeited pursuant to 28 U.S.C. § 2614.” Little v. United States, 138 Ct. Cl. 773, [778,] 152 F.Supp. 84, 88 (1957). Veridyne Corp. v. United States, 83 Fed.Cl. 575, 586 (2008); see also Kellogg Brown & Root Servs., Inc. v. United States, 99 Fed.Cl. 488, 496 (2011), aff'd, 728 F.3d 1348 (Fed. Cir. 2013), reh’g denied, 563 Fed.Appx. 769 (Fed. Cir.), cert. denied, — U.S. —, 135 S.Ct. 167, 190 L.Ed.2d 50 (2014). In AEY, Inc. v. United States, the court noted that Little has served as the basis for decisions in this court holding that fraud in the performance of a contract leads to forfeiture of all claims arising out of the contract.” AEY, Inc. v. United States, 114 Fed.Cl. 619, 628 (2014). As articulated by a Judge of the United States Court of Federal Claims: In order to satisfy § 2614, however, the fraud alleged must be related to the contract at issue. Little v. United States, 138 Ct. Cl. 773, 152 F.Supp. 84, 87-88 (1957). Fraud in an unrelated transaction will not lead to forfeiture under this statute. However, when fraud is committed in regard to the very contract upon which the suit is brought, the court will not divide the contract and allow recovery on part of it. Id.; UMC Electronics v. United States, 43 Fed. Cl. 776, 791 (1999), aff'd, 249 F.3d [1337] at 1340 ([Fed. Cir.] 2001). In order to prevail in its defense of fraud under 28 U.S.C. § 2514, the “burden is on the government to establish by clear and -convincing evidence that the claimant has committed the fraud alleged.” Glendale [Federal Bank, FBS[FSB] v. United States], 239 F.3d at 1379; UMC Electronics, 43 Fed.Cl. at 791 (internal citation omitted). This requirement has more specifically been rendered in the following way: “in order that a misrepresentation be fraudulent ... it must be both consciously false and intended to mislead.” E. Allan Farnsworth, Farnsworth on Contracts, § 4.12 (2d Ed.1998). Thus, for the purposes of § 2514, the government must show: 1) that the plaintiff made a false statement to the government knowing that it was false; and 2) that this statement was intended to deceive the government. Glendale, 239 F.3d at 1379. Am. Heritage Bancorp v. United States, 61 Fed.Cl. 376, 385-86 (2004). In Brown Construction Trades, Inc. v. United States, 23 Cl. Ct. 214, 216 (1991), the court explained the breadth of the statutory intent in 28 U.S.C. § 2514: This statute has been held to require the forfeiture of any claim affected by fraud, whether intrinsic to the claim or in the presentment of the claim. Kamen Soap Prods. Co. v. United States, 129 Ct. Cl. 619, 641, 124 F.Supp. 608, 620 (1954) (“this statute goes further than merely banning fraudulent claims. It provides for a forfeiture of the claim if any fraud is practiced or attempted to be practiced in proving, establishing or allowing a claim.”). The Court of Claims has ruled that where fraud is committed in the course of a contract to which the suit pertains, it may not isolate the affected part and allow suit to proceed on the remainder. The practice of a fraud on part of a contract condemns the whole. The rule is set out in Little v. United States, 138 Ct. Cl. 773, 778, 152 F.Supp. 84, 87-88 (1957): It is true that the forfeiture statute [28 U.S.C. § 2514] whs not intended to forfeit an otherwise valid claim of a claimant merely because, in some other unrelated transaction, he had defrauded the 427Government. But where, as in the present case, fraud was committed in regard to the very contract upon which the suit is brought, this court does not have the right to divide the contract and allow recovery on part of it. Since plaintiffs claims are based entirely upon contract V3020V-241, a contract under which he practiced fraud against the Government, all of his claims under that contract will be forfeited pursuant to 28 U.S.C. § 2514. Thus, 28 U.S.C. § 2514 requires the forfeiture of all claims arising under a contract tainted by fraud against the Government. See also New York Mkt. Gardeners’ Ass’n v. United States, 43 Ct. Cl. 114, 136, 1907 WL 832 (1908). Brown Constr. Trades, Inc. v. United States, 23 Cl. Ct. at 216; see also Ab-Tech Constr., Inc. v. United States, 31 Fed.Cl. 429, 435-36 (1994), aff'd, 57 F.3d 1084 (Fed. Cir. 1995). But see Kellogg Brown & Root Servs., Inc. v. United States, 99 Fed.Cl. at 499.35 As noted above, in an appeal from the trial court, in Kellogg Brown & Root, the United States Court of Appeals for the Federal Circuit noted that the government had argued for “a finding of fraud, supporting forfeiture, “when fraud in the contract performance undermined the legitimacy of the contract upon which the plaintiff sought compensation,’” Kellogg Brown & Root Servs., Inc. v. United States, 728 F.3d at 1365-66. The Federal Circuit, in Kellogg Brown & Root, quoting from the trial court decision regarding the Brown Construction decision, indicated that: This is an impermissibly broad reading of the law. The Court of Federal Claims correctly limited the statute: A valid cause of action under [the Forfeiture Statute] must be tied to the submission of a claim, whether in producing false proof to support a claim, see, e.g., [Kamen Soap Prods. Co. v. United States, 124 F.Supp. 608, 622 (Ct. Cl. 1964)] (forfeiting claim because falsified documentation was submitted in presentation of claim), or in falsely establishing the claim, see, e.g., [N.Y. Mkt. Gardeners’ Ass’n v. United States, 43 Ct. Cl. 114, 136 (1908) ] (Government’s objection to claim based on contractor’s not fulfilling contract specification, i.e., “establishment” of a false claim), Kellogg Brown & Root Servs., Inc. v. United States, 728 F.3d at 1366 (quoting Kellogg Brown & Root Servs., Inc. v. United States, 99 Fed.Cl. at 501) (alterations in original); see also Liquidating Trustee Ester Du Val of KI Liquidation, Inc. v. United States, 116 Fed.Cl. 338, 379 (2014); AEY, Inc. v. United States, 114 Fed.Cl. at 628-29;36 Ulysses, Inc. v. United States, 110 Fed.Cl. 618, 649 (2013) (“[S]uch an expansive reading of the FFCA 428[Forfeiture of Fraudulent Claims Act] is not warranted by the language of the statute”). Under the Special Plea in Fraud statute, “the government must ‘establish by clear and convincing evidence that the contractor knew that its submitted claims were false, and that it intended to defraud the government by submitting those claims.’ ”37 Daewoo Eng’g & Constr. Co. v. United States, 557 F.3d 1332, 1341 (Fed. Cir.) (quoting Commercial Contractors, Inc. v. United States, 154 F.3d 1357, 1362 (Fed. Cir.), reh’g denied (Fed. Cir. 1998)), reh’g and reh’g en bancdenied (Fed. Cir.), cert. denied, 558 U.S. 990, 130 S.Ct. 490, 175 L.Ed.2d 346 (2009); see also Veridyne Corp. v. United States, 758 F.3d 1371, 1376-77 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2014); Kellogg Brown & Root Servs., Inc. v. United States, 728 F.3d at 1365 (“To prevail, the Government must prove its allegations by clear and convincing evidence.”). In Glendale Federal Bank, FSB v. United States, the United States Court of Appeals for the Federal Circuit “explained that ‘[t]o prevail under [28 U.S.C. § 2514] the government is required to establish by clear and convincing evidence that the contractor knew that its submitted claims were false, and that it intended to defraud the government by submitting those claims.’ ”38 Glendale Fed. Bank, FSB v. United States, 239 F.3d 1374, 1379 (Fed. Cir. 2001) (brackets in original) (quoting Commercial Contractors, Inc. v. United States, 154 F.3d at 1362); see also Young-Montenay, Inc. v. United States, 15 F.3d 1040, 1042 (Fed. Cir. 1994) (“Under 28 U.S.C. § 2514, the government bears the burden of proving that the claimant (1) knew the claim was false and (2) intended to deceive the government by submitting it.” (citing McCarthy v. United States, 670 F.2d 996, 1004, 229 Ct. Cl. 361, 373 (1982), abrogated on other grounds by Slattery v. United States, 635 F.3d 1298 (Fed. Cir. 2011))); Veridyne Corp. v. United States, 105 Fed.Cl. 769, 808, modified, 107 Fed.Cl. 762 (2012), aff'd in part, rev’d in part, 758 F.3d 1371 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2014);39 Daewoo Eng’g & Constr. Co. v. United States, 73 Fed.Cl. 547, 584 (2006) (“The contractor must knowingly present the false claim with the intention of being paid for it.”), aff'd, 557 F.3d 1332 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir.), cert. denied, 558 U.S. 990, 130 S.Ct. 490, 175 L.Ed.2d 346 (2009); O’Brien Gear & Mach. Co. v. United States, 219 Ct. Cl. 187, 199, 591 F.2d 666, 672 (1979); Miller v. United States, 213 Ct. Cl. 59, 68, 550 F.2d 17, 22 (1977); Kamen Soap Prods. Co. v. United States, 129 Ct. Cl. 619, 641, 124 F.Supp. 608, 620 (1954). Mere negligence, inconsistency, or discrepancies are. not actionable under the Special Plea in Fraud statute. See Daewoo Eng’g & Constr. Co. v. United States, 73 Fed.Cl. at 584; Veridyne Corp. v. United States, 105 Fed.Cl. at 801; Grand Acadian, Inc. v. United States, 105 Fed.Cl. 447, 458 (“ ‘Proof of negligence or ineptitude does not 429meet the standard of clear and convincing evidence; rather, “[a]n intent to deceive the Government must be proved.” ’ ” (quoting Alcatec, LLC v. United States, 100 Fed.Cl. 502, 517 (2011) (quoting Miller v. United States, 213 Ct. Cl. at 68, 550 F.2d at 22), aff'd, 471 Fed.Appx. 899 (Fed. Cir. 2012))), appeal dismissed (Fed. Cir. 2012). The United States Court of Appeals for the Federal Circuit has described the clear and convincing evidence standard as follows: “A requirement of proof by clear and convincing evidence imposes a heavier burden upon a litigant than that imposed by requiring proof by preponderant evidence but a somewhat lighter burden than that imposed by requiring proof beyond a reasonable doubt. Clear and convincing evidence has been described as evidence which produces in the mind of the trier of fact an abiding conviction that the truth of a factual contention is ‘highly probable.’ ” Am-Pro Prot. Agency, Inc. v. United States, 281 F.3d 1234, 1240 (Fed. Cir. 2002) (quoting Price v. Symsek, 988 F.2d 1187, 1191 (Fed. Cir. 1993)) (emphasis in original); see also Hernandez, Kroone & Assocs., Inc. v. United States, 110 Fed.Cl. at 525 (citing Am-Pro Prot. Agency, Inc. v. United States, 281 F.3d at 1239-40 (other citation omitted)). “The court may .,. consider circumstantial evidence in making its determination.” Acatec, LLC v. United States, 100 Fed.Cl. at 517 (citing Kamen Soap Prods. Co. v. United States, 129 Ct. Cl. at 642, 124 F.Supp. at 620). With respect to the court’s analysis of circumstantial evidence to demonstrate clear and convincing evidence of fraud, the United States Court of Claims explained: About the only way a just conclusion can be reached is by placing the questioned documents and statements alongside well-known and established facts. Every event in the universe is linked to every other event. One cause produces an effect, and that effect in turn becomes a cause thus all events from the beginning of time are woven into one complete pattern. It is difficult, therefore, to make up a story that is not part of this one continuous design. It is like a patch on a suit of clothes—it may be made out of the same cloth, may look the same in the middle, but will show around the edges, because it is not a part of the original garment. Likewise a made-up story will not fit into the scheme of events, because it is not a part of it. It will not, therefore, stand close examination. One made-up story calls for another and the last fabrication will not tally with the next fact. Kamen Soap Prods. Co. v. United States, 129 Ct. Cl. at 642, 124 F.Supp. at 620. Once fraud is established, “[t]he use of the word ‘shall’ [in 28 U.S.C. § 2514] makes the judgment of forfeiture obligatory on the court; the court has no discretion to turn a blind eye to an attempt, whether successful or not, to commit fraud in the statement of a claim against the United States.” Am. Heritage Bancorp v. United States, 61 Fed.Cl. at 385; see also Farkas v. United States, 57 Fed.Cl. 134, 146 (2003) (quoting Miller v. United States, 213 Ct. Cl. at 68, 550 F.2d at 22), aff'd, 95 Fed.Appx. 355 (Fed. Cir. 2004) (“Section 2514 amounts to a ‘silver bullet’ which, in the present ease, would require that [plaintiffs] claim be forfeited if it is shown by clear and convincing evidence that [plaintiff] acted or made false or misleading statements with the ‘intent to deceive the Government.’”). Forfeiture under the Special Plea in Fraud statute “carries no monetary penalties other than the forfeiture itself.” Daewoo Eng’s & Constr. Co. v. United States, 73 Fed.Cl. at 584. “The forfeiture counterclaim carries no monetary penalties other than the forfeiture itself.” Id.; see also Barren Island Marina, Inc. v. United States, 44 Fed.Cl. 252, 257 (1999) (“The plain meaning of the statute [28 U.S.C. § 2514] is that the value of the forfeiture is not restricted or even linked to the value of the loss sustained by the government. For this reason, the forfeiture is not, strictly speaking, a remedy. Additionally, because forfeiture under § 2514 requires demonstration of fraud-intentional conduct-the forfeiture is more akin to punishment.”), appeal dismissed, 54 Fed.Appx. 329 (Fed. Cir.), vacated by 57 Fed.Appx. 427 (Fed. Cir.), and appeal dismissed, 66 Fed.Appx. 878 (Fed. Cir. 2003). Athough the Special Plea in Fraud Statute does not require the court to render 430a judgment of forfeiture when a contractor practices fraud against the government “in some other unrelated transaction,” when a contractor commits fraud “in regard to the very contract upon which the suit is brought, this court does not have the right to divide the contract and allow recovery on part of it.” Little v. United States, 138 Ct. Cl. 773, 778, 152 F.Supp. 84, 88 (1957). The claims that a contractor asserts in court, therefore, may be forfeited as long as the fraudulent conduct that serves as the basis for the forfeiture is related to the contract from which the claims are derived. See Daff v. United States, 31 Fed.Cl. 682, 697 (1994) (“Although ... fraud does not have to occur in the court proceeding itself, it plainly has to be relevant to the present assertion of a claim in court, arising out of the same transaction or contract.” (citing Little v. United States, 138 Ct. Cl. at 778, 152 F.Supp. at 87-88), aff'd, 78 F.3d 1566 (Fed. Cm.), reh’g denied, reh’g an banc suggestion declined (Fed. Cir. 1996); see also Veridyne Corp. v. United States, 106 Fed.Cl. at 806 (“A plaintiffs claim will be forfeited under 28 U.S.C. § 2514 even if only part of its claims is [sic] false.” (citing Daewoo Eng'g & Constr. Co. v. United States, 557 F.3d at 1341)); Barren Island Marina, Inc. v. United States, 44 Fed.Cl. at 256 (“Based on the Little case, there is no question that all claims arising under the contract are subject to forfeiture.”). A fraudulent invoice submitted to a contracting officer during the performance of the same contract that is the subject of a contractor’s claims, therefore, may result in the forfeiture of the contractor’s claims under the Special Plea in Fraud statute. See Tyger Constr. Co. v. United States, 28 Fed.Cl. 35, 61 (1993) (“The statute does not specify where such claims must be presented in order to invoke the statute. Claims for payment before a contracting officer are as sübject to ‘proof, statement, establishment, or allowance’ as are claims before the Court of Federal Claims.”); see also Jerman v. United States, 96 Ct. Cl. 540, 552 (1942). As a starting point, for defendant’s counterclaim to be successful, defendant must demonstrate that the counterclaim is “tied to the submission of a claim, whether in producing false proof to support a claim, ... or in falsely establishing the claim.” Kellogg Brown & Boot Servs., Inc. v. United States, 728 F.3d at 1366 (citations omitted). The defendant has alleged that the Special Plea in Fraud counterclaim is related to the demand of an “additional $50 million” in Oasis’ July 2008 certified claim, which, if proven would satisfy this requirement. As indicated above, in its post-trial briefs defendant continues to pursue its counterclaims for 5 of Oasis’ claims in the certified claim: Claims 1, 2, 4, 6, and 8,40 Claim 2 The court first addresses Claim 2. Claim 2 in the certified claim was a “Claim for penalty wrongfully assessed for failure to open Camp TQ [Camp Taqaddum] on time,” which plaintiff states was “solely as a result of Government-caused delays and disruptions,” and for which plaintiff sought $2,270,833.00. [JX 549, p. 00004172] Defendant argues that “because Oasis’s contract interpretation is implausible in light of the unambiguous terms of the contract and all extrinsic evidence, count two constitutes fraud.” Defendant contends that: Count two, which seeks $2.2 million relating to TQ, stems entirely from Oasis’s attempts to invalidate P00011 through a claim of economic duress. As part of P00011, the Government paid Oasis $24 million, which included $5,5 million for TQ, a plant that Oasis still had not yet completed by August 2006. The claimed $2.2 million corresponds to one-sixth of the $50.225 million, minus the $5.6 million that the Government paid to Oasis for TQ as part of the P00011 negotiations. Even though Oasis voluntarily agreed to P00011, which closed out the base year, Oasis seeks an additional $2.2 million for TQ in its certified claim. 431(internal citations omitted). Plaintiff argues that “the Court should disregard Defendant’s ‘fraudulent duress’ interpretation,” arguing that “[w]ith regard to Defendant’s new ‘fraudulent duress’ argument related to Count 2, Defendant argues that fraudulent duress is not a new theory, but instead additional evidence to support its claim that Oasis’ contractual interpretation is frivolous.” Because the court has deferred the issues of contract interpretation and economic duress, the court likewise, at this time, defers the resolution of the counterclaim pursuant to the Special Plea in Fraud for Claim 2. Claim 1 and Claim 841 Claim 1 of the certified claim is a “Claim for all bottled water supplied in the Contract base year, as extended to August 15, 2006, excluding bottled water supplied from Camp Anaconda through May, 2006 (6,605,020 cases of bottled water),” for which plaintiff sought $19,617,570.00. Claim 8 was for “water supplied from Camp Anaconda during initial Contract base year ending May 2006, 3,100,-972 cases of bottled water: $10,853,402.” Defendant, in its post-trial brief, claims that “Oasis’s Double Billing For $30 Million In Bottled Water Is Fraudulent On Its Face,” and explains that “Oasis invoiced the Government for all bottled water delivered during the base period of the contract, and the United States paid each and every one of those invoices.” Defendant argues that “Oasis sought payment for the exact same bottled water a second time in counts one and eight of its certified claim.” Defendant insists that “Oasis devised its convoluted contractual interpretation as a fig leaf for its double-billing. It did so to sow confusion with the successor contracting officers assigned to the claim years after contract award and the underlying events.” Defendant also argues: Counts one and eight of Oasis’s certified claim demand payment of $30,470,942 for 8,705,992 cases of water, at $3.50 per case. Oasis concedes that it was paid $23,411,780 of this amount, at $3,50 per case. Oasis’s contention that it is entitled to be paid twice for the same water cannot withstand any reading of the contract or the record [[Image here]] (internal citations omitted). In its post-trial brief, plaintiff responds that regarding any allegation of double-billing, “ie. claiming for money that has already been paid to Oasis. The Court heard the evidence and measured the credibility of the Oasis witnesses and should find the Defendant’s allegations contrived, baseless, and not true.” Plaintiff argues that, from Oasis’ perspective, “Defendant [is] ignoring matters of record with the Base Year payments in order to create a ‘double billing’ counterclaim that does not actually exist and that no one but Defendant’s counsel ever thought was the ease.” Plaintiff notes that: [w]ith respect to Counts 1 and 8, the Defendant asserts these counts seek payment for $30,470,942 worth of water that the Government already paid for during contract performance. Oasis agrees with the Government that, during the base year, Oasis invoiced and was paid for some water -although the facts demonstrate that this was actually $23,411,780, not the full amount of Counts 1 and 8. In fact, Oasis said as much in its Claim. Plaintiff argues in its post-trial briefs that: In its simplest form, Oasis’ argument is that, due to the increase in scope of work directed by Defendant, Oasis is entitled to a total of $80,695,942 for the original Base Year capability and the water produced in the Base Year ($50,225,000 for capability plus $30,470,942 for water). Defendant only paid Oasis $47,954,167 for the expanded Base Year. The total amount of Counts 1,2 and 8 seek, in their entirety is $32,741,775, ie., the difference between $80,696,942 and $47,954,167. (footnote omitted). Moreover, plaintiff states: Defendant’s argument that these counts are “double billing” elevates semantics over reality, as its entire “double billing” 432allegation basically boils down to a question of whether Oasis identified correctly which pot of money each dollar paid should have been allocated to. Since it was the Defendant who paid the money, Oasis based its claim calculations on its best understanding of the facts and documents that identified what was being paid; since money is fungible, this distinction makes no difference in reality. At closing argument, counsel for plaintiff stated that: any double billing argument, Your Honor, is an exercise in semantics. Oasis’ argument is that due to the increase in scope of work directed by defendant, Oasis is entitled to a total of $80,695,942 in the original base year. For capability and water produced, it’s the $50,225,000, plus the total $30 million in water, Your Honor. That’s how much we think counts 1, 2 and 8 should add up to.42 Plaintiffs view is that: After P00011, the water payments were converted to the firm-fixed capability payment for capability that it always should have been. Prior to P0001I, Oasis invoiced for water (as directed by the Government) and was paid a total of $23,411,780. When P00011 was signed, the amount of the base year capability fee was reduced (wrongfully, Oasis contends) from $50,225,000 by $2,270,833 (Count 2) to $47,954,167. But, rather than submit an invoice for $47,954,167, Oasis submitted an invoice in the amount of $24,542,387, ie. the exact difference between the $47,954,167 (reduced) capability fee and the $23,411,780 that Oasis had already been paid. The only way that POOOll’s $47,954,167 capability fee can be considered fully paid is by converting the Government’s prior payments from being payments for “water at $3.50/ case” and into being payments of POOOll’s firm-fixed-price capability Base Year fee. Therefore, as of the Defendant’s payment of Oasis’s P00011 invoice, Oasis was paid exactly $47,954,167 for “0001 Purified Bottled Water Production Service...” and exactly $0 for “water at $3.50/case” during the base year or base year extension. Under this rubric, the amounts stated by Oasis for Count 2 ($2,270,833) and Counts 1 and 8 (collectively, $30,470,942) are correctly stated. In the aggregate, counts 1, 2, and 8 add up in to $32,741,775. (emphasis in original). Plaintiff contends, even if the government’s inteipretation is correct, “if Oasis was wrong about what happened to the pre-P00011 payments, the only effect is that approximately $23 million of Oasis’s claim gets moved from Counts 1 and 8 to Count 2.” Moreover, plaintiff argues: Absent the conversion of Government payments from “water” to “capability,” the only payment made by the Government against this firm fixed price was the $24,542,387 payment made after P00011. So, the correct amount of Count 2 would have been $25,682,613 ($50,225,000-$24,542,387). This is an increase of exactly $23,411,780—ie. a dollar-for-dollar offset of the reduction in Counts 1 and 8. (emphasis in original). Therefore, plaintiff concludes that “[u]nder no reasonable interpretation of the facts can Oasis be accused of intentionally and fraudulently double billing for money it was already paid.” Although the cases plaintiff cites for its argument that money is fungible, i.e., Mack v. Secretary of Department of Health & Human Services, No. 90-1427V, 1995 WL 507581, at 3 (Fed. Cl. 1995) (“Money is fungible.”) and United States v. Karam, 201 F.3d 320, 327 n.8 (4th Cir. 1999), are not cases on fraudulent counterclaims, or even government contract claims, the court accepts plaintiffs reasoning. Even if the rationale behind the plaintiffs theory is incorrect, the court agrees that, within the framework articulated by plaintiff in the certified claim, and as testified to at trial by Phil Morrell, and especially, Paul 433Morrell, who signed the certified claim, the certified claim was not an attempt to double bill the government; the certified claim was an attempt to recover on plaintiffs capabilities theory of the contract. The court had considerable opportunity to hear testimony, and observe, Paul Morrell, in particular, during the trial. Although there are two differing theories of contract interpretation before the court, which will be addressed in a following opinion, the court is convinced, after sitting through the trial and reviewing the evidence in the record, that the certified claim was presented in good faith and without the requisite intent to defraud. Defendant protests plaintiffs fungible argument, arguing that: Oasis is mistaken on many levels. First, it is undisputed that Oasis (1) invoiced the military for tens of millions of dollars of water at $3.50 per case, (2) was paid those invoices at $3,50 per case, and (3) asks to be paid again for those same cases of water at $3.50 per case. Oasis cannot obfuscate its clear double-billing simply by suggesting that earlier payments were “eonvert[ed]” to payment for something else and came from a different “pot of money.” Defendant further takes issue with plaintiffs characterization of the certified claim, namely that plaintiff is seeking to be paid for its capabilities, and, then, .the produced water. The defendant repeatedly cites to Veridyne Corp. v. United States, 758 F.3d 1371, for the proposition that “[a]ttempts to obtain double-payment are fraudulent.” Defendant points to language by the Federal Circuit that “Ver-idyne’s invoice could have induced the government to pay twice for the same expenses. Veridyne’s invoicing violated the statute.” Veridyne Corp. v. United States, 758 F.3d at 1381. Defendant argues that Oasis attempted to “obfuscate its double-billing by advancing a convoluted contract interpretation under which it argues that Oasis was entitled to be paid $50,225 million to produce no water.” In Veridyne, the contract at issue was a contract award by the Small Business Administration’s (SBA’s) small business set-aside program, and the Federal Circuit noted “the SBA has delegated the authority to negotiate with the SBA-qualified contractor to the Department of Transportation, and by extension, the Maritime Administration (‘MARAD’), ‘the SBA is responsible for approving the resulting contract before award,’ and the formal contract is between the SBA and the SBA-qualified contractor.” Id. at 1374. The Federal Circuit noted that “[i]n March 1995, MARAD awarded to the SBA an indefinite delivery, indefinite quantity cost-plus-award-fee contract for services related to MARAD’s logistics program. Later that month, the SBA awarded a subcontract containing the same terms as its contract with MAI^AD to Veridyne for one base year and up to four option years.” Id. Subsequently, [i]n March 1998, Veridyne submitted a proposal to MARAD for a new indefinite delivery, indefinite quantity, cost-plus-award-fee contract, Correspondence between Ver-idyne and MARAD before the submission specified that estimates for the new contract would not exceed “$3,000,000 in the aggregate.” As a result, the “proposed” cost specified in the proposal, including the five additional option years, was $2,999,949.00. Id. The new contract was awarded to Veri-dyne, but eventually, due, in part, to MAR-AD’s cost overruns, the new contract was investigated, including whether the new contract had been fraudulently awarded, and MARAD’s Chief Counsel instructed MARAD officials that MARAD was not to make payments to Veridyne on any contract. See id. “At the time of the December stop order, invoices numbered 260-264 were outstanding to MARAD and had not been paid. After the stop order, Veridyne continued to do work for MARAD and submitted three additional invoices, numbered 265-267. MARAD never paid Veridyne the amounts invoiced in 260-267.” Id. Veridyne, thereafter, submitted invoices 260-267 as certified claims. In the Court of Federal Claims, the government alleged fraud counterclaims of the Special Plea in Fraud, the False Claims Act, and under the antifraud provision of the Contract Disputes Act. The Federal Circuit determined, in part: 434In invoice 267, Veridyne had rebilled MARAD for previously unpaid expenses. But instead of making clear that the expenses were rebilled expenses, Veridyne included the rebilled lease expenses as part of overhead, making it difficult to identify these as twice-billed items. Therefore, while it is not unsupported to rebill for unpaid expenses, Veridyne’s invoice could have induced the government to pay twice for the same expenses. Veridyne’s invoicing violated the statute. Veridyne Corp. v. United States, 758 F.3d at 1381.43 Defendant contends that “[t]he same is true here, as Oasis filed a certified claim seeking to be paid for $30 million in water already paid for by the military.” Plaintiff argues that the essence of Veridyne’s fraud was its attempt to hide from the Government its plan to be paid twice, Here, by contrast, Oasis’ certified claim explicitly acknowledged that invoices were submitted for “water” during the base year, and that payments were made by Defendant on these invoices; the Claim then explains in detail why Oasis believes those payments cover only the water bottling capability and not the water actual [sic] produced, and why Oasis believes it is entitled to additional payment for water. Although plaintiff does not address, if double-billing on its face would be fraudulent, which this court believes would be the case, the court agrees with plaintiff that Oasis’ theory and position was clear in its certified claim. Oasis stated in the certified claim that, “[w]hile Oasis delivered some bottled water during the Contract base year, Oasis invoiced the Government for that water and the Government paid those invoices. The primary deliverable item in the Contract base year is water purification and water-bottling capabilities.” (emphasis in original). The certified claim made plain plaintiffs view that: Oasis provided water-bottling capability services for an additional '2,67 months when the Contract base year was extended to August 15, 2006, due to Government delays and breaches of contract. As explained in 6.0 paragraph 33, Oasis is entitled to a payment of $11,175,063 for the water-bottling capability services provided during the extended Contract base-year performance. (emphasis added). In discussing modification P00011, the certified claim stated: Through P00011, Oasis was paid $23,411,780 for the 6,689,080 cases of bottled water delivered through July 2006 and $24,642,387 for delivery of water-bottling capabilities in the Contract base year. Accordingly, Oasis submitted an invoice in the amount of $24,542,387 for delivering water-bottling capabilities to the Government on August 16, 2006, and the invoice was paid. The net effect of P00011 was: 1) to reduce the Contract consideration for delivering purified water-bottling capability by $25,682,613 from $50,225,000 to $24,542,387; 2) to provide the Government all water produced, on hold and deliverable as of August 15, 2006, without paying Oasis any consideration, thereby damaging Oasis in the amount of $7,059,192 (2,016,912 cases x $3.50); and 3) to pay nothing for water-bottling capabilities for the period May 26, 2006, through August 15, 2006, which cost Oasis $11,170,061. (internal citations omitted). In sum, the Oasis certified claim, and the affidavits of the Oasis personnel, including Paul Morrell, articulate a clear theory of plaintiffs claims. The certified claim alone is over fifty pages and provides specific calculations and details of how Oasis formed its views of the contract. This is significant, because as demonstrated at the trial and in the record before this court, defendant’s witnesses and even some of plaintiffs witnesses, did not all share plaintiffs contractual view included to the certified claim. It was, therefore, incumbent upon Oasis to clearly articulate its theory of recovery in its certified claim. The court agrees with plaintiff that “Oasis’ claim clearly and 435openly stated the basis for the claim, including the contractual interpretation that the Government now alleges to be fraudulent.” As indicated above, the court is convinced, whether correct or incorrect, plaintiff articulated its theory of its claims in the certified claim with specificity, and Paul Morrell, the certified claim signatory, convincingly testified in support of his intent in crafting and certifying the certified claim in a way that does not support a finding of fraudulent intent. The novation of the contract and the many modifications to the contract, including some after difficult negotiations, allowed for sufficient room for differing interpretations in good faith. Whichever, plaintiffs or defendant’s interpretation of the contract is found to be the prevailing one will direct whether plaintiff can recover damages, but the court rejects defendant’s allegations of fraud, as it relates to the allegation of double billing for the Special Plea in Fraud counterclaims. Claim 6 Claim 6 was a “Claim for cost of water supply improvements at Camp Speicher and Camp Qwest,” namely, “the need to purify the non-compliant source water supplied by Defendant at Speicher and Q-West,” and for which .plaintiff sought $600,000.00. Defendant contends that “Count six, like counts one and eight, also explicitly seeks to double-dip and is reason enough for forfeiture of Oasis’s entire claim,” and notes that “Count six also seeks payment of the same $600,000 a second time.” Defendant reiterates that, “[a]s with the bottled water already paid for and billed a second time in the certified claim, Oasis also sought the same $600,000 a second time in its certified claim.” Defendant further argues that “[r]ather, and despite Alan Morrell’s unequivocal representation that in his declaration accompanying the certified claim that Oasis, in fact, incurred $600,000 in costs for the improve-mente at issue, Oasis has admitted that this figure is merely an ‘estimate.’ Accordingly, count six is fraudulent and unsupported for this reason as well.” Indeed, defendant alleges that “Oasis thus certified a claim to recover $600,000 that it not only was already paid, but that it also may have never even incurred.” 44 Plaintiff argues that “Defendant’s fraud allegations with respect to Count 6 rest only on an allegation of double billing. Like its double-billing allegation on counts 1 and 8, Defendant’s fraud argument on Count 6 is a thin veneer of semantics that seeks to obscure the facte. It is also contradicted by the Defendants’ [sic] own documents and witnesses.” (emphasis in original). Plaintiff also contends that “[t]he Government’s allegation of double-billing with respect to Count 6 is also remarkably similar to the semantic trick that it attempted with respects to Counts 1 and 8. It should be rejected for the same reason; ie. it ignores fungibility of money which would result (even if the Government is right) in claim amounts merely shifting between counts.” Plaintiff notes that “[defendant cites to the fact that Oasis used part of the $24M to pay for the fixes at Speicher and Q-West as evidence that Oasis was paid for those fixes. This is a senseless argument as it ignores the fact that money is fungible and that things must be paid for when purchased,” and argues that “[t]his is [sic] should be rejected.” Finally, plaintiff argues that “[i]n order to demonstrate fraud, Defendant must prove not only that Oasis was already paid $600,000 for those fixes, but also that Oasis had the requisite intent necessary to support a finding of fraud. Defendant has proven neither.” Despite plaintiffs arguments, Claim 6 involves different issues than Claim 1 and Claim 8. Claim 6 specifically addresses water 436fixes at two of the bottled water plants, Speicher and Q-West. As noted above, according to Alan Morrell, the water source at Q-West was “filled with mud and sand. And at that time, it was so significant that we couldn’t purify it,” and the result was the “ROWPU [Reverse Osmosis Water Purification Unit] was immediately filled with mud, and fouled. And each set of those membranes is $26,000. And they were ruined. And we couldn’t keep them clean and operational enough to operate and make water there as a result.” In order to fix the problem, Alan Morrell testified that Oasis “purchased a Pall Aria from northern New York and we also took an additional ROWPU system that we had used at Balad and recommissioned it, repiped and replumbed the lines at Q-West and solved the problem.” By contrast, at Speicher, plaintiff testified that another contractor, Kellogg Brown & Root, disrupted them water source, and given the demands to produce water, plaintiff was forced to purchase a “BEV 9 reverse osmosis system, and in the spring of 2007, installed it, commissioned it, and began to draw well water.” In his affidavit that accompanied the certified claim, Alan Morrell further explained that: In Speicher (because of the Governments choice to deliver ROPU water from a KBR facility) Oasis was asked to solve the problem by re-engineering the plant for a raw water supply source that Oasis could take directly from the wells in Speicher. The cost was set at $300,000 to deliver that fix which consisted of a new ROPU skid capable of delivering purified water from the raw source. It is interesting to note that after the money was spent and the equipment placed, the KBR facility (that had limited water) then asked to deliver again as we were first in line for the raw source. We now get ROPU water in Speicher again. In Qwest, we were asked to solve the water quality problem as our water often looked like chocolate milk because it was so muddy. That fix required another $300,000 to deliver and install a Pall Aria pre-filtration system; we now use this system in advance of our ROPU units. These two “fixes” required an additional $600,000 dollars worth of concessions and cost to P00011. The steps that plaintiff took to address water fixes at Speicher and Q-West were addressed in the negotiations during the modification for P00011. Alan Morrell testified regarding the lack of water at Speicher, “on P00011, because this was such a hot issue, again, part of the negotiation was a concession that we would sort this problem out,” and “[s]o, we, again, went back to Minnetonka, Minnesota, and were forced to re-engineer that factory” and “bought another BEV 9 reverse osmosis system.” He also testified that “[p]art of the concessions that were demanded from us in P00011 were two site improvements to solve water issues. One was Speicher, and the other was Q-West.” The draft proposal requested by Colonel Richardson and submitted by Oasis indicated: Option II. Complete the construction of TQ in Oct 2006. Close Base Period 437[[Image here]] The final version of modification P00011 provided for Oasis to be paid $9,333,333.33 per month, independent of the amount of water delivered, and explained: The purpose of this modification [P00011] is to do the following: 1. Provide a revised CLIN structure to reflect monthly pricing based upon water production capability. 2. Replace the Contract Statement of Objectives, with Performance Work Statement, dated 12 August 2006, provided as Attachment 1 to this modification. 3. Incorporate the contractor’s Quality Assurance Plan into the contract provided as Attachment 2 to this modification. 4. Incorporate the List of Critical Equipment into the contract, provided as Attachment 3 to this modification. 5. Insert Special Clause, titled “Equipment Leased by the Government”, into the Contract. 6. Insert clause DPARS 262.232-7007, “Limitation of Government’s Obligation” (May 2006) into the Contract. 7. Replace Contract Section J, List of Documents, Exhibits and Other Attachments. 8. Decrease the contract amount by $11,604,166.46 from $386,226,000.00 to $374,620,833.55. 9. Decrease the contract funded amount by $5,604,166.35 from $100,225,000 00 to $94,620,833.65. 10. Change the end date of Option 4 from 16 August 2009 to 16 July 2009. Although the court referred to the draft version submitted by Oasis to Colonel Richardson above, plaintiff contends that regarding the defendant’s citation to the draft version: 45 It is telling that Defendant does not actually cite P00011 to support its argument that Oasis was paid $600,000 for the source water fixes at Speicher and Q-West. Nor can Defendant, as P00011—despite allocating responsibility for the source water fixes at Speicher and Q-West to Oasis— includes no reference to any compensation being paid to Oasis for those fixes. Similarly, Defendant does not cite to a single post-POOOll document to support its argument that Oasis was paid $600,000 for the 438source water fixes at Speicher and Q~ West. This is because Col. Richardson’s post-modification documents demonstrate that Oasis was not compensated for the source water fixes at Speicher and Q-West. (internal citations omitted). Plaintiff also correctly notes that the memorandum for record which Colonel Richardson drafted for her superiors stated that the water fixes were resolved “at no additional cost.” Defendant argues that “[t]he memorandum does not support Oasis’s position, as it states that ‘[a]s part of the.negotiations, the Contractor, at no additional cost, agreed to provide a solution to the water problems at Q-West.’ The ‘no additional cost’ language refers to ‘no additional cost’ beyond the total base year figure provided earlier in the memorandum.” (emphasis added by defendant; internal citations omitted). The entirety of the section of the memorandum of record devoted to Q-West states: A 16-mile long pipe transports water from the source to the base including supply to the bottled water facility—locals have been “tapping” into the pipe. In addition, Q-West Camp demands have outstripped the supply of “raw” water. At the time of the subject negotiations (July 2006), the water source was [sic] to the bottled water facility was inadequate and the water quality extremely poor. It required Contractor to provide twice the amount of purification equipment to produce purified water. This site condition was not anticipated when the Contractor conducted his site visit to assess the water supply. The Contractor anticipated a $300K cost to upgrade equipment to enable successful processing of the water (Tab B). As part of the negotiations, the Contractor, at no additional cost, agreed to provide a solution to the water problems at Q-West. The court believes the document could have been clearer if Colonel Richardson had intended for her superiors to understand that it meant no additional cost in the addition to the amount in the base year. Colonel Richardson testified at trial, that, in her view, Oasis seeking $300,000.00 for Q-West “constitutes fraud in my mind,” and testified “Speicher, once again, that $300,000 was what Oasis—the price tag Oasis put on what it would cost them to rectify the situation we had at Speicher, to fix it,” and claimed that seeking payment for the water fixes was the same as “[Charging us twice for the same service or supply constitutes fraud, and that was paid for under P00011. So, for them to come back and say they want to be paid for it again is a foul.” Regardless, plaintiffs view is that “Oasis was paid $47,954,167 in the base year, against a contractual firm fixed price of $50,225,000. It was paid $0 dollars as compensation for the Speicher and Q-West water fixes, which the parties agreed cost $600,000.” Alternatively, plaintiff argues that: the Court could believe the Government that Oasis was actually “paid” $600,000 for the Speicher and Q-West water fixes. Under this scenario, the correct amount of Count 6 would have been $0, But, again, what about Count 2? Count 2 seeks the difference between the contract’s firm fixed price for capability of $50,225,000 and the amount that Oasis was actually paid for capability in the base year. Oasis was paid a total of $47,954,167 in the base year. If $600,000 of that was compensation actually paid for additional work (the water fixes), then only $47,354,167 was the capability fee. The correct amount of Count 2 would have been $2,870,833 ($50,225,000— $47,354,167). In the aggregate, Counts 2 and 8 still total $2,870,833. Regarding the comparison to Claim 2, defendant argues that “Count two has nothing to do with water filtration equipment, or even Camp Speicher or Camp Q-West, the plants for which Oasis claims it purchased that equipment. Rather, count two relates to alleged ‘penalties’ as a result of Oasis’s delay in building Plant TQ,” and argues that Oasis’s double-billing’ for water filtration equipment at Camp Speicher and Camp Q-West could not have been a “reasonable misunderstanding.” The court, however, understands the calculations by plaintiff to be reasonable and defensible, as plaintiff was trying to calculate its damages in the aggregate when it certified its claim. The plaintiffs understanding of the contract as a capabilities contract which 439entitled them to the payment of approximately 50 million dollars in the base year, regardless of water production, also lead to their approach in calculating the claim submitted. Therefore, the court agrees with plaintiff that, “[a]t best, Defendant has proven that the negotiating parties had a different understanding about whether that [sic] fixes were compensated, which does not constitute fraud.” (citing Ulysses, Inc. v. United States, 110 Fed.Cl. at 645). Claim 4 Claim 4 was a “Claim for water bottling capabilities services provided through extension of Contract base year,” and plaintiff valued Claim 4 at $11,175,063.00. The certified claim for Claim 4 indicates: Oasis provided water-bottling capability services for an additional 2.67 months when the Contract base year was extended to August 15, 2006, due to Government delays and breaches of contract. As explained in 6.0 paragraph 33, Oasis is entitled to a payment of $11,175,063 for the water-bottling capability services provided during the extended Contract base-year performance. Defendant alleges that Oasis “Fraudulently Seeks Costs Never Incurred” in Claim 4. Defendant contends that: Oasis also seeks millions more stemming from its knowingly baseless interpretation of the contract. Specifically, count four further inflates Oasis’s baseless attempt to recover a $50,225 million “mobilization” fee by extrapolating from that amount to claim an additional $11 million “monthly capabilities fee” resulting from the extended base year, In addition to being fraudulent due to Oasis’ frivolous contract interpretation, Commercial Contractors, 154 F.3d at 1366, this count seeks damages for delay when Oasis admitted that it did not incur any additional mobilization costs due to the extension of the base period.[46] Defendant argues that “Paul Morrell admitted that the $11 million that Oasis seeks in count four is not for increased construction costs incurred by Oasis during the extended base period,”47 and-states, “[y]et Oasis .seeks an additional $11 million as a monthly capability fee despite this fact. In sum, there were no increased mobilization costs, yet that is exactly what Oasis seeks. Therefore, Oasis admits that it seeks to recover damages that it admits it never incurred. That is fraud.” Defendant also argues that, “[i]t is dear that Oasis knew that the contract did not provide payment of a penny more than $3.50 per case of bottled water,” and its claim was an attempt to provide plaintiff tens of millions of dollars “to which Oasis knew it was not entitled under the contract.” In response, plaintiff argues: Defendant’s new theory, that Count 4 is fraudulent because it seeks costs never incurred, is without merit, as Defendant apparently does not understand the basis of Count 4. Count 4 does not seek any specific construction or delay costs. Instead, as Oasis alleged from the very beginning, it was entitled to additional compensation because Defendant forced Oasis 440to perform the Base Year “service” of the Contract for an additional period of time without consideration or cause.... As noted above, this court can “consider circumstantial evidence in making its determination.” Alcatec, LLC v. United States, 100 Fed.Cl. at 517 (citing Kamen Soap Prods. Co. v. United States, 129 Ct. Cl. at 642, 124 F.Supp. at 620 (noting that intent can be determined “by placing the questioned documents and statements alongside well-known and established facts”)). For support of circumstantial evidence, defendant points to the “uniform” testimony of the contracting officers that “Oasis also never told any military contracting officer that it believed it was due $50,225 million to make the facilities operational, plus $3.50 per case for water delivered to the military.”48 Defendant also argues, citing Daewoo Engineering & Construction Co. v. United States, 73 Fed.Cl. 547, that “[t]he extent to which Oasis’s corporate officers disavowed Oasis’s certified claim is further evidence of an intent to defraud,” It is undisputed that some of Oasis’ officers had a different view of the contract than the Paul Morrell and.Phil Morrell. Mr. Jeffries, the Chief Financial Officer of Oasis during the period when the contract was novated to Oasis, testified that he viewed the contract as providing a cap of the $50,225 million figure in the base year. He also testified that: For my purpose, the way I operated was that we would have $50 million that we would draw down at $3.50 a case and we would submit an invoice at the end and get that money, and there was a disagreement at corporate, Phil, Paul, about the rest of the contract interpretation. So, those two dichotomies existed throughout, one of which I operationalized by drawing down the water and submitting an invoice, and one they operationalized by executing this proceeding because they and counsel believe that, you know, that it should be slightly different. Mr. Jeffries also testified, however, that “ultimately it was what Paul [Morrell] and Phil [Morrell] and legal counsel believed were the appropriate things to include in the claim.” Mr. Neil Vos, Oasis’ Chief Financial Officer, testified that it was his “understanding” for “the contract to allow only payments of $3.50 per case.” Defendant claims that “[j]ust like Mr. Jeffries’s testimony, Mr. Vos’s testimony alone is also more than sufficient to show an intent to defraud.” Furthermore, Max Wyeth, the president of American Aqua-Source when it was awarded the original contract, testified that he based the $50,225,000.00 figure in the base year by “using our average forecast of demand, we came up with a ease number that would be produced per year, and multiplied that by the case cost,” which was “[t]he number of cases times $3.50.” Mr. Wyeth further testified the $50,225,000.00 was a “gross revenue figure,” calculated on the cases to be produced and sold at $3.50 per case. As noted above, Mr. Wyeth was also briefly president of Oasis in 2005, although he admitted to being “out of the loop” after the novation agreement was executed, and was at odds with Paul Morrell and Phil Morrell when he left Oasis. Even years later, at the trial, it was apparent to the court in observing the parties that tension still existed between Mr, Wyeth and Paul Morrell and Phil Morrell. - Based on the foregoing, defendant contends that, “every Oasis witness, including its CEO (Paul Jeffries), CFO (Neil Vos), former President (Max Wyeth), as well as Paul Mor-rell, Alan Morrell, and Phil Morrell, testified that the contract did not allow for the $50 million that Oasis seeks in its certified claim, including the $30 million in water that Oasis was already paid for by the military,” Plaintiff responds that “[t]his assertion is demonstrably false. At best, some of Oasis’ witnesses (Paul Jeffries and Neil Vos) who did not have final authority on contract matters, did not agree with the interpretation underlying the Claim,” and “Neither of the Mor-rell’s [sic] testified that they did not believe in the contract interpretation underlying the Claim.” As noted’ above, plaintiff does not challenge that officers of Oasis did not agree with Paul Morrell and Phil Morrell on the type of contract Oasis was performing. Instead, 441plaintiff argues that “Oasis, like any corporation, is made up of a number of individuals, with different titles and different responsibilities. Ultimately, the decision-making authority for Oasis rested in the hands of Paul Morrell and Phil Morrell.” It was Paul Mor-rell who signed the certified claim, and it was Phil Morrell and Paul Morrell who made the business decision to, through the joint development and pre-incorporation agreement, form the entity that would ultimately perform the contract, and, then as the majority owners of Oasis, to direct Oasis to assume the contract upon novation from American AquaSource. Plaintiff correctly notes that “[mjost of the case law in the fraud arena focuses on the beliefs of the person who signed the claim,” citing to Daewoo Engineering & Construction Co. v. United States, 73 Fed.Cl. 547, as well as to two recent decisions of the undersigned.49 Paul Morrell, the signatory to the certified claim, testified at trial that he believed in the claim when he signed it and believed in the same during his testimony in this case. At trial, Paul Morrell testified as follows: Q: Did you review the amount of the claim before you signed the certification? A: Yes. Q: Did you believe that the amount claimed accurately reflected the amounts which the Government of the United States owed Oasis at the time you signed the claim? A: Yes. Q: Do you believe today that the amounts included in the claim are owed to Oasis? A: Yes. Q: Did anyone from the military ever inform you that he or she thought that the claim was fraudulent or false in any way? A: No. The court accepts plaintiffs statements that, in contrast to Daewoo’s project manager, J.W. Kim, the certifying official in Daewoo, “Paul Morrell did not certify an inflated claim for the purposes of settling lower but rather certified a claim for the correct amount he believed should be paid but he concluded he would probably recover less.” The court believes that the most relevant individual regarding a determination on whether or not fraud was committed is the signatory of the certified claim, in this case Paul Morrell. Although plaintiffs parade of horribles, i.e., “Defendant’s position would essentially require any company (no matter how large) to confirm that every influential officer (both past and present) who is in any way connected to a potential claim agrees with the claim,” is extreme, the court understands how the plaintiff can contend that “[a] contractor who does not risks a counterclaim from the oyerzealous Government attorney. Defendant’s position would also elevate a reasonable disagreement among board members to an admission of fraud.” Disagreement among non-signatories, alone, cannot be proof of fraud. As indicated above, the court found Paul Morrell to be a truthful witness, and sincere in his belief in the validity of the certified claim he signed. The court also found Phil Morrell, and his explanation for the terms of Oasis’ contract with the government, and his understanding of the type of contract Oasis was to perform, to be believable. The court is sympathetic with plaintiff that “Defendant provides nothing to contradict Paul Morrell’s sworn testimony that his opinion and understanding evolved and he changed his mind, and that the right amount was claimed.”50 Nor can the defendant rely on the testimony of Mr. Wyeth, the originally signatory for the contract, to prove the intent of the certified claim. As plaintiff contends, Mr, Wyeth “left the company more than two years before the Claim was filed, and was actively in dispute with both Morrell brothers from late 2005 until he left the company. Even assuming his understanding of the Contract is relevant to contract interpretation, it is irrelevant to the question of wheth442er Oasis submitted a fraudulent claim.”51 Furthermore, Oasis did not exist as a corporation when Mr. Wyeth was awarded the contract on behalf of American AquaSource. Mr. Wyeth testified that when he signed the American AquaSource contract he had no relationship with Al-Morrell Development or with Paul Morrell or Phil Morrell. Given the evolution of the contract, including fundamental changes to the contract, especially after modifications P00006 and P00011, the reduction from the number of bottled water plants from eight to six, and on site difficulties encountered during contract performance, the court does not afford Max Wyeth’s views as to whether or not Oasis submitted a fraudulent claim in the 2008 certified claim much weight, Plaintiff also argues that' “[t]he law does not require a contractor to hold a belief in the validity of its claim from the beginning of time,” citing to Hernandez, Kroone & Associates, Inc. v. United States, 110 Fed.Cl. at 525, and noting that in Hernandez, Kroone & Associates the court found an element “of the Plaintiffs claim was not valid, [but] it also found that it was not fraudulent.” (emphasis in original). Defendant takes issue with Oasis’ characterization of Hernandez, Kroone & Associates: “Oasis cannot twist itself into the framework of Hernandez, Kroone & Assocs., Inc. v. United States, 110 Fed.Cl. 496, 525 (2013) to escape its fraud.” (internal reference omitted). In Hernandez, Kroone & Associates, plaintiff entered into a contract with the United States Army Corps of Engineers (COE) to construct a modular building, as well as too deliver and install the building for use as a Border Patrol Station by the United States Department of Homeland Security, in Indio, California. Initially, the corporation General Modular Corporation (GMC) was to be the prime contractor and plaintiff would have been a subcontractor, however, “[i]nstead of proceeding further with GMC’s proposal, the COE informed Mr. Bennett that it had been decided that the contract for the Indio Border Patrol project would be awarded to an 8(a) contractor,” and the president and chief executive officer of GMC informed “the COE that in the process of developing GMC’s proposal he learned that HKA [Hernandez, Kroone & Associates] was in the SBA 8(a) program; accordingly, Mr. Bennett proposed that HKA become the prime contractor for the Indio project and that GMC would endeavor to serve as a subcontractor to HKA for the modular building and site fencing portions.” Hernandez, Kroone & Assocs., Inc. v. United States, 110 Fed.Cl. at 501, On January 28, 2005, COE commenced the process to initiate the award of a sole source [SBA] 8(a) contract for the Indio Border Patrol Station to plaintiff. Subsequently, the court noted that; On October 21, 2005, HKA (Anne Hernandez) addressed a letter to COE (Joseph Flynn) asserting, in part, that “I signed a contract on February 16, 2005, This contract did not include the statement of work from the January 25, 2005 proposal nor from the March 11, 2005 statement of work.” The letter also asserted that with respect to on-site lighting and security cameras from their January 25, 2005 proposal that were included in the Schedule of Values for the first invoice HKA submitted to COE, “We were required to show these items on the schedule of values in order to get paid.” Id. at 511 (internal citations omitted). After a letter from plaintiff to “the local California office of the congressman representing the 41st District,” “[t]he COE commenced internal discussions to organize a response to the congressional inquiries which resulted from HKA’s request for assistance and to schedule a meeting with HKA to discuss the applicable contractual scope of work.” Id. at 511-12. Subsequently, the COE and plaintiff met to reach an agreement, however, “[u]pon review, HKA notified the COE that they did not agree with items 1 and 2 in the proposed modification and would not sign it. The Modi-443ñcation No. R00003, dated November 14, 2005, was then issued on a unilateral basis.” Id. at 513. Thereafter, [o]n December 13, 2006, HKA submitted a certified claim to Patricia Bonilla, contracting officer, regarding Unilateral Contract Modification No. R00003, dated November 14, 2005. The claim primarily addressed HKA’s contention that the January 25, 2006 proposal cited in Modification No. R00003 was an additional scope of work added to the February 2nd solicitation and the estimated costs cited were for this future additional work. Id. (internal citation omitted). “The HKA December 13, 2005 claim purports to detail the estimated cost of adding the January 25, 2005 proposal to the scope of work HKA was to perform together with the resulting time extension.” Id. at 525. After the plaintiff in Hernandez, Kroone & Associates filed a Contract Disputes Act claim in the United States Court of Federal Claims, defendant filed an answer, and an amended answer asserting fraud counterclaims for the Special Plea in Fraud statute, the False Claims Act, and the antifraud provision on the Contract Disputes Act, As bases for its counterclaims, the defendant in Hernandez, Kroone & Associates set forth a number of asserted “falsities” in the Contract Disputes Act claims Hernandez, Kroone & Associates “submitted to the contracting officer, predominantly in the December 13, 2005 claim for an equitable adjustment based on the assertion that Modification No. R00003 comprised a change in the contract scope of work by adding HKA’s January 25, 2005 proposal.” Id. The Court of Federal Claims determined that: Defendant asserts that [plaintiff] HKA’s claim that Modification No. R00003 comprised a change in the contract scope of work was a “falsity.” As discussed previously, the rejection of HKA’s claim for an equitable adjustment based on Modification No. R00003 relies on the conduct of the parties before this dispute arose. However, the somewhat unorthodox manner in which the contract was negotiated initially with GMC and subsequently with HKA to satisfy an 8(a) award obligation, left ample room for argument as to the scope of work involved. The preponderant record evidence shows that after the review triggered by the COE’s erroneous assertion that the modular building, as built, did not conform to the contract specifications, HKA evolved to the view that its January 25, 2005 proposal was not part of the awarded contract. This view was seriously researched by COE and debated at a COE-HKA meeting on November 9, 2005, A purported settlement then failed, and unilateral Modification No. R00003 was issued. Based upon full consideration of the record evidence, including the testimony of all witnesses, it is concluded there exists no viable evidence to support defendant’s assertion that HKA did not, after October of 2005, believe that the contract, as awarded, did not include HKA’s January 25, 2005 proposal. Rather the evidence supports HKA’s sincerity in this regard, if not its validity, and HKA did not knowingly present a false or fraudulent claim on December 13,2005 or thereafter by asserting that their January 25, 2005 proposal was not part of the scope of work in the awarded contract. Id. at 625 (internal citations omitted). The facts of the above captioned case are different from those in Hernandez, Kroone & Associates, as the contract at issue in the above captioned case went through numerous and structural changes from the time that it was awarded until the end of the base year. As catalogued above, as a result of modifications to the contract in the base year, the number of bottled water facilities was reduced and a not to exceed limitation on the quantity of water produced at each plant that did not require the government to purchase any minimum number of cases produced by the contractor was added. Moreover, as a result of the contract being novated from American AquaSource to Oasis, and the deadline for the facilities and the period and obligations in the base period being altered in P00006, the nature of the base year contract was changed. Perhaps most importantly, in P00011, the contract was fundamentally altered and P00011 established a payment 444structure moving forward in the option periods by which Oasis would be paid $9,333,333.33 per month, independent of the amount of water delivered. Even if the original intent of the contract was for the payment for cases of bottled water produced, as the government has alleged, P00011 dramatically reshaped the terms of the contract. It cannot be a surprise to the government that plaintiffs views may have changed over the course of the base year regarding the contract as a whole. Plaintiff conceded that “Paul Morrell testified that during the Base Year, he operated the company as if the Contract was for the sale of water at $3.50 per case, but that over time, he became convinced that Phil Morrell’s interpretation, which underlies the claim, was correct.” As noted above, Paul Morrell offered an affidavit in support of his certified claim when he submitted it and also credibly testify at trial that he sincerely believed that the plaintiff was entitled to the monies it sought. The court suggests that same principles that guided the court’s decision in Hernandez, Kroone & Associates apply here as well. See id. Defendant also cites to Daewoo Engineering & Construction Co. v. United States, 557 F.3d at 1339, for the proposition that “the certified claim was simply a ‘negotiating ploy,’ ” and Oasis “did not honestly believe that the Government owed it the various amounts stated when it certified the claim,” because “Paul Morrell contemporaneously estimated the value of Oasis’s $50 million certified claim to be well below that amount.” The court believes the facts in Daewoo are sufficiently different from the facts in the above captioned case. In Daewoo, the United States Army Corps of Engineers solicited bids for- the construction of a road in the Republic of Palau in 1998. See Daewoo Eng’g & Constr. Co. v. United States, 73 Fed.Cl. at 550. The contract was awarded to Daewoo Engineering and Construction Co., Ltd. (Daewoo), which submitted the lowest bid. Construction began in 2000 and was scheduled to be completed within 1,080 days, but was subject to delays. See id. at 550 n.31. Daewoo subsequently submitted a certified claim for an equitable adjustment, requesting $13,348,793.07 in “additional costs as of December 31, 2001” and listed $50,629,855.88 in “costs January 1, 2002 & Forward,” for a total of approximately $64 million. Daewoo Eng’g & Constr. Co. v. United States, 557 F.3d at 1336. Daewoo also sought additional time to perform the contract, and alleged that the contract had used defective specifications, the government had breached its duties to cooperate and to disclose superior knowledge, and that it was impossible to complete the contract within the specified time period. The contracting officer denied the claim.52 See id. at 1338. Daewoo then filed a complaint with the United States Court of Federal Claims, seeking an increase in “com-pensable and non-eompensable contract performance time,” damages in the amount of $13,348,793.07 for damages suffered through December 31, 2001, and $50,629,855.88 for damages suffered from January 1, 2002 through contract completion, for a total of approximately $64 million. Id. at 1335-36. The government counterclaimed, alleging fraud and sought forfeiture of Daewoo’s claims.53 Finding that the government had demonstrated by “clear and convincing evidence” that Daewoo “knowingly presented a false claim with the intention of being paid for it,” the Court of Federal Claims dismissed plaintiffs claims, assessed a penalty of $50.6 million under the antifraud provision of the Contract Disputes Act, $10,000.00 under the False Claims Act, and forfeited Daewoo’s claims under the Special Plea in Fraud. Daewoo Eng’g & Constr. Co. v. United States, 73 Fed.Cl. at 584. The Court of Federal Claims also found that Daewoo’s certified claim was simply a “negotiating ploy.” Id. at 585. Moreover, the Court of Federal Claims noted that Daewoo had submitted an inflated claim to get the government to “pay 445attention.” Id. The Court of Federal Claims stated: The Project Manager testified at one point that Daewoo filed at least $50 million of the claim to indicate “the seriousness of the situation” and to get the Government to “pay attention” so it would agree to a cheaper method of constructing embankments. If so, this is further evidence of bad faith. It means that Daewoo submitted a certified claim as a negotiating ploy; that is, for a reason other than an attempt to recover money for which Daewoo believed the Government is liable. Id. (citations and footnote omitted). Daewoo appealed to the United States Court of Appeals for the Federal Circuit. See, generally, Daewoo Eng’g & Constr. Co. v. United States, 557 F.3d 1332. Daewoo first argued that it had not made a claim for $64 million, but, rather, that its certified claim was for $13 million and the $50.6 million requested was in the nature of future costs offered as estimates to encourage the government to adjust the contract specifications. As noted by the Court of Federal Claims: We suspect that Daewoo’s entire claim is fraudulent. However, plaintiffs apparent incompetence in putting together its claim, along with the unwillingness of its witnesses to explain the process, provides it an ironic benefit. That is, we found it difficult to locate the line between fraud and mere failure of proof in this case. It is theoretically possible that plaintiffs $13 million claim represents an. amount that it could have incurred because of defective specifications, had such a theory been applicable, but plaintiff could not prove it because it employed the wrong legal theories and its witnesses were not credible. For these reasons, we limited findings of fraud to the $50 million claim that clearly is fraudulent Daewoo Eng’g & Constr. Co. v. United States, 73 Fed.Cl. at 595-96. Therefore, the Federal Circuit noted that the Court of Federal Claims had found no support for Dae-woo’s calculation of the $50.6 million in future costs, and that at trial Daewoo, had “made no real effort to justify the accuracy of the claim for future costs or even to explain how it was prepared.” Daewoo Eng’g & Constr. Co. v. United States, 557 F.3d 1338. The Federal Circuit also noted that, even on appeal, Dae-woo did not attempt to factually dispute the Court of Federal Claims’ finding of fraud, but, rather, argued that the penalty should be set aside because it was only in the amount of $50.6 million, not $64 million. See id. at 1339. The Federal Circuit rejected this argument, and found the lower court’s finding of fraud was not erroneous and that the assessment of a penalty in the amount of $50.6 million was proper. See id. at 1341. As noted above, defendant has not demonstrated that Paul Morrell did not believe in the certified claim when he submitted it to the government, unlike the project manager in Daewoo. The court reiterates that Paul Morrell, both on direct examination, and cross-examination, steadfastly held to his view that the certified claim he signed was the one he believed in and that the government actually owed plaintiff what was claimed, both when he certified and submitted the certified claim, and, again, when he testified at trial in the above captioned case. Although not as significant as Paul Morrell, who was the signatory of the certified claim, the court notes that Phil Morrell consistently held the view that the contract was a capabilities contract, as noted by his August 2006 memorandum, reflecting his belief of a “Capabilities for Time Period not Quantity,” and that “[fjunding was received for purchase of water, but it the contract was a capabilities contract.” (emphasis in original). Before the Federal Circuit, Daewoo also argued before the Federal Circuit that a claim can only be fraudulent it if rests upon false facts, not if it rests upon a baseless calculation, the Federal Circuit rejected Dae-woo’s argument, stating: “It is well established that a baseless certified claim is a fraudulent claim.” Daewoo Eng’g & Constr. Co. v. United States, 557 F.3d at 1339. Although defendant repeatedly stresses that Oasis has submitted a “baseless” claim, the certified claim identifies and supports the capabilities theory of plaintiffs claims, with more than fifty pages of explanation and figures as well as the affidavits from a number of Oasis personnel including Paul Mor-446rell. Simply because defendant vehemently disagrees with plaintiffs theory, does not make plaintiffs claim baseless. Defendant also claims that; The fraud in this case goes well beyond the scheme in Commercial Contractors because Oasis not only did not share its contract interpretation with the Government, but repeatedly told the Government that, contrary to the representations in the certified claim, the contract only allowed for one payment of $3.50 per case of water. Yet, despite invoicing and being paid the $3.50 per case, Oasis filed a certified claim asking to be paid another $3.50 per case based on an implausible contract interpretation never shared with the military until the certified claim. In sum, Oasis’s implausible contract interpretation, in conjunction with a mountain of trial evidence defeating any “good faith belief of entitlement under the contract,” Commercial Contractors, 154 F,3d at 1364, compel only one conclusion: Oasis’s claim was fraudulent and false, (internal citation omitted). Defendant continues: “The overwhelming evidence of Oasis’s singular understanding of the contract before, during, and after the certified claim demonstrates intent to defraud under the Commercial Contractors prohibition on advancing frivolous contract constructions and the piohibition on baseless claims and gamesmanship in the certified claim process reinforced by Daewoo.” In Commercial Contractors, Inc. v. United States, 154 F.3d 1357, the United States Court of Appeals for the Federal Circuit considered the government’s counterclaims for the Special Plea in Fraud Statute, the False Claims Act, and the anti-fraud provision of the Contract Disputes Act,54 In Commercial Contractors, the Army Corps of Engineers awarded a contract to Commercial Contractors, Inc. (CCI) to construct several segments of the Telegraph Canyon Channel in Chula Vista, California, as part of a flood control project. The contract required CCI to excavate the areas in which the channel segments were to be built, to build the channel segments by setting up forms and pouring concrete into the forms, and to backfill the excavated areas surrounding the channel segments. The contract contained detailed specifications that governed all aspects of the work to be performed, including drawings indicating the lines to which CCI was required to excavate, quality control standards specifying the hardness that the poured concrete was inquired to achieve before the supporting forms could be removed, and miscellaneous other provisions specifying such factors as the proper composition and required compaction density of the backfill materials. Id. at 1361-62. CCI was obligated under the contract to excavate the channel in accordance with the contract drawings. “CCI was to be compensated for the excavation portion of the project based on the volume of earth excavated.” Id. at 1362-63. The contract also stated that “‘[a]ll excavation outside of the excavation lines shown on the drawings will be considered as being for the convenience of Contractor and will not be included in the measurement for payment.’ ” Id. The Federal Circuit explained: The Court of Fedei'al Claims found that CCI excavated less than the contract drawings inquired, but submitted cross-sections and quantity surveys indicating that it had excavated up to the contract lines, CCI does not dispute those findings. Furthermore, the court found that CCI billed the Corps for additional excavation which was not required by the contract, but which CCI did to accommodate a traveling metal form system that CCI used to speed up the project. At trial, CCI argued that its excavation claims were not false because it interpreted the contract as providing for payment based on the volume of earth computed from the contract drawings, regardless of whether CCI actually excavated up to the lines specified in those drawings. The court rejected OCI’s contract interpretation, 447principally because that interpretation directly contradicted the express terms of the contract, which provided that CCI was required to excavate “accurately to the lines, grades, and elevations shown” in the drawings. Id. at 1363. The court noted that Mr. Palla-mary, CCI’s own subcontractor, repeatedly warned CCI’s project manager that “he did not believe that the contract permitted CCI to excavate -less than the contract drawings called for, or to submit cross-sections that did not reflect the actual amounts excavated.” Id. The Federal Circuit determined that the testimony of CCI’s project manager, who supervised the project for CCI, was uncorroborated and was contradicted by testimony from the Corps’ contracting officials, whom the court found to be credible witnesses. Based on those credibility determinations, we uphold the court’s rejection of CCI’s contention that Mr. Barron [the Corps’ original project engineer] interpreted and modified the contract so as to permit CCI to ignore the minimum excavation specifications for all but payment purposes. In light of the clear and unambiguous contract language, we also uphold the court’s ruling that CCI’s interpretation of the contract was so unreasonable as to defeat CCI’s assertion that it pressed its claims based on a good faith belief of entitlement under the contract. Id. Moreover, the Federal Circuit reasoned that: when a contractor adopts a contract interpretation that is implausible in light of the unambiguous terns of the contract and other evidence (such as repeated warnings from a subcontractor or the fact that the interpretation is contrary to well-established industry practice), the contractor may be liable under the FCA [False Claims Act] or the CDA even in the absence of any deliberate concealment or misstatement of facts. Under such circumstances, when the contractor’s purported interpretation of the contract borders , on the frivolous, the contractor must either raise' the interpretation issue with the government contracting officials or risk liability under the FCA or the CDA. Commercial Contractors, Inc. v. United States, 154 F.3d at 1367. Although defendant believes the above captioned case fits the parameters of Commercial Contractors perfectly, the court disagrees. Even if Oasis has an incorrect interpretation of the contract, this alone does not demonstrate fraud by Oasis. Nor would the wrong interpretation rise to the level of frivolous. Given the shifting nature of . the contract, indeed a contract that was performed and was compensated and managed completely differently midway through the base year of the contract, it was possible and reasonable for Oasis to recalibrate its views of the contract. It certainly would have been preferable if there had been better communication between the government and the contractor, however, because plaintiffs interpretation's not frivolous, it does not risk liability under the fraud counterclaims pursuant to Commercial Contractors. Although the government witnesses did not share his recollection, Phil Morrell testified that he explained his view of the contract to multiple Army officials. He was most specific about his communications, including with a government officer, Colonel Hay, who did not testify and was not called to testify by either party at trial.55 Phil Morrell testified that the Army “understood [my] position on getting paid the $50 million, that didn’t require a production to do that, didn’t require product to get paid the $50 million,” a statement which remained uncontroverted after trial.' Although the court does not agree with plaintiff that “Oasis did everything correctly,” the court concludes that defendant has failed to prove the requisite intent to establish fraud for Claims 1, 4, 6, and 8. Therefore, Oasis is not found to have practiced, or attempted to practice, a fraud against the United States with respect to the Special Plea in Fraud statute for Claims 1, 4, 6, and 8. Plaintiffs claims for Claims 1, 4, 6, 448and 8, are not forfeited as a result.56 As noted above, Claim 2 regarding the Special Plea in Fraud counterclaim is deferred. b. False Claims Act In defendant’s second amended answer and counterclaim, defendant argues that “Oasis’s 2008 certified claim to the contracting officer violated the False Claims Act by claiming $44,516,868, pursuant to a fraudulent contractual construction that it was entitled to a ‘mobilization’ payment of $50,225,000, plus $3.50 per ease for bottled water delivered during the base period, as well as for claiming $600,000 in costs that the Government had already reimbursed.” Defendant argues that “Oasis had actual knowledge of the falsity of the claim or it acted in deliberate ignorance or reckless disregard of the truth or falsity of the claim,” and, therefore, plaintiff “is liable pursuant to the False Claims Act, 31 U.S.C. § 3729 et seq., for at least one false claim, which carries a civil penalty of not less than $5,500 and not more than $11,000 for each claim presented.” In its post-trial brief, defendant reiterates that “Oasis also violated the False Claims Act and is liable for an $11,000 penalty plus the Government’s costs,” and “Oasis is liable under the False Claims Act for the same reasons that its claim must be rejected under the Special Plea in Fraud.” In response, Oasis contends that “the Government must prove that Oasis’ claim is actually false. But the Government has not—and cannot—prove this, because Oasis’ claim is not false. The Court should reach this conclusion even if it ultimately disagrees with Oasis’s claim, since there is a wide gap between ‘incorrect’ and ‘fraudulent.’ ” As indicated by the United States Supreme Court, “ ‘[t]he False Claims Act was adopted in 1863 and signed into law by President Abraham Lincoln in order to combat rampant fraud in Civil War defense contracts.’ ” Kellogg Brown & Root Servs., Inc. v. U.S., ex rel. Carter, — U.S. —, 135 S.Ct. 1970, 1973, 191 L.Ed.2d 899 (2015) (quoting S. Rep. No. 99-345, at 8 (1986), 1986 U.S.C.C.A.N. 5266, 5273). The False Claims Act, 31 U.S.C. § 3729,57 provides: (a) Liability for certain acts.— (1) In general.—Subject to paragraph (2), any person who— (A) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; (B) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim; (C) conspires to commit a violation of subparagraph (A), (B), (D), (E), (F), or (G); (D) has possession, custody, or control of property or money used, or to be used, by the Government and knowingly delivers, or causes to be delivered, less than all of that money or property; (E) is authorized to make or deliver a document certifying receipt of property used, or to be used, by the Government and, intending to defraud the Government, makes or delivers the receipt without completely knowing that the information on the receipt is trae; (F) knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the Government, or a member of the 449Armed Forces, who lawfully may not sell or pledge property; or (G) knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government, is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000,[58] as adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note; Public Law 104-410), plus 3 times the amount of damages which the Government sustains because of the act of that person. [[Image here]] (b) Definitions.—For purposes of this section— (1) the terms “knowing” and “knowingly”1— (A) mean that a person, with respect to information— (i) has actual knowledge of the information; (ii) acts in deliberate ignorance of the truth or falsity of the information; or (iii) acts in reckless disregard of the truth or falsity of the information; and (B) require no proof of specific intent to defraud; (2) the term “claim”— (A) means any request or demand, whether under a contract or otherwise, for money or property and whether or not the United States has title to the money or property, that— (i) is presented to an officer, employee, or agent of the United States; or (ii) is made to a contractor, grantee, or other recipient, if the money or property is to be spent or used on the Government’s behalf or to advance a Government program or interest, and if the United States Government— (I) provides or has provided any portion of the money or property requested or demanded; or (II) will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded .... 31 U.S.C. § 3729 (2012) (emphasis in original); see also Kellogg Brown & Root Servs., Inc. v. U.S., ex rel. Carter, 135 S.Ct. at 1973;59 U.S. ex rel. Heath v. AT & T, Inc., 791 F.3d 112, 115 (D.C. Cir. 2015) (“The False Claims Act, 31 U.S.C. §§ 3729 et seq., broadly proscribes the knowing or reckless submission of false claims for payment to the federal government or within a federally funded program”). 450The term “claim” is defined in the False Claims Act as: (A) means any request or demand, whether under a contract or otherwise, for money or property and whether or not the United States has title to the money or property, that— (i) is presented to an officer, employee, or agent of the United States; or (ii) is made to a contractor, grantee, or other recipient, if the money or property is to be spent or used on the Government’s behalf or to advance a Government program or interest, and if the United States Government— (I) provides or has provided any portion of the money or property requested or demanded; or (II) will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded; and (B) does not include requests' or demands for money or property that the Government has paid to an individual as compensation for Federal employment or as an income subsidy with no restrictions on that individual’s use of the money or property; 31 U.S.C. § 3729(e) (2012).60 The False Claims Act also states: (1) the terms “knowing” and “knowingly”— (A) mean that a person, with respect to information— (i) has actual knowledge of the information; (ii) acts in deliberate ignorance of the truth or falsity of the information; or (iii) acts in reckless disregard of the truth or falsity of the information; and (B) require no proof of specific intent to defraud; 31 U.S.C. § 3729(b) (2012). Congress rejected requiring a specific intent to defraud under the False Claims Act. See 31 U.S.C. § 3729(b). Instead, Congress adopted a knowing standard, defined as “actual knowledge” of the falsity, acting in “deliberate ignorance of the truth or falsity,” or acting in “reckless disregard of the truth or falsity.” Id.; see also Ulysses, Inc. v. United States, 110 Fed.Cl. at 642. The standard was designed to address “the problem of the ‘ostrich-like’ refusal to learn of 451information which an individual, in the exercise of prudent judgment, had reason to know.” See S. Rep. No. 99-345, at 21 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5286. Thus, the False Claims Act covers not just those who set out to defraud the government, but also those who ignore obvious deficiencies in a claim. Therefore, the critical issue in the case currently before the court is whether plaintiff had “knowledge,” as defined by the False Claims Act, to include reckless disregard, that the claims plaintiff submitted to the government were false or fraudulent. To prove a violation of the False Claims Act, the government can, but need not, prove that a party intended to deceive the government. See United States v. TDC Mgmt. Corp., 24 F.3d 292, 298 (D.C. Cir. 1994); see also Daewoo Eng’g & Constr. Co. v. United States, 557 F.3d at 1340 (“no proof of specific intent to defraud is required.” (quoting 31 U.S.C. § 3729(b))); Hernandez, Kroone & Assocs., Inc. v. United States, 110 Fed.Cl. at 524. The False Claims Act requires only that the government prove that a party knowingly,- as defined under the False Claims Act, submitted a claim with reckless disregard to the truth or falsity of the information. See 31 U.S.C. § 3729(b); United States v. TDC Mgmt. Corp., 24 F.3d at 298; see also Ulysses Inc. v. United States, 117 Fed.Cl. 772, 781 (2014); Liquidating Trustee Ester Du Val of KI Liquidation, Inc. v. United States, 116 Fed.Cl. at 379 (quoting 31 U.S.C. § 3729(b)) (“while the FCA does not require proof of specific intent to defraud, it does require that the person or entity acted with knowledge. The statute defines ‘knowing’ or ‘knowingly’ to ‘mean that a person’ “with actual knowledge of the information’ either ‘acts in deliberate ignorance of the truth or falsity of the information’ or ‘acts in reckless disregard of the truth or falsity of the information,’ ”); Allison Engine Co. v. United States ex rel. Sanders, 663 U.S. 662, 672 n.2, 128 S.Ct. 2123, 170 L.Ed.2d 1030 (2008) (“Section 3729(b) provides that the terms ‘knowing’ and ‘knowingly1 ‘mean that a person, with respect to information—1) has actual knowledge of the information; (2) acts in deliberate ignorance of the truth or falsity of the information; or (3) acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required.’ ”), superseded in unrelated part by statute, Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, § 4, 123 Stat. 1617, 1621. The United States Court of Appeals for the Federal Circuit has noted that, “[f\|or purposes of the FCA [False Claims Act], a contractor is deemed to have known that a claim it submitted was false if it had actual knowledge of the falsity of the claim or if it acted in deliberate ignorance or reckless disregard of the truth or falsity of the claim.” Commercial Contractors, Inc. v. United States, 154 F.3d at 1362. As indicated in Ulysses, Inc. v. United States, 110 Fed.Cl. 618, “‘[t]he False Claims Act seeks to redress fraudulent activity which attempts to or actually causes economic loss to the United States government .... It was not intended to impose liability for every false statement made to the government.’ ” Id. at 641 (quoting Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d 176, 184 (3d Cir. 2001) (omission in original). Reckless disregard has been characterized as “‘an extreme version of ordinary negligence,’” United States ex rel. K & R Ltd. P’ship v. Mass. Hous. Fin. Agency, 530 F.3d 980, 983 (D.C. Cir.) (quoting United States v. Krizek, 111 F.3d 934, 942 (D.C. Cir. 1997)), reh’g en banc denied (D.C. Cir. 2008), or “aggravated gross negligence” such as when the party “deliberately avoided learning the truth.” United States v. Sci. Applications Int’l Corp., 626 F.3d 1257, 1274-75 (D.C. Cir. 2010); see also United States ex rel. Burlbaw v. Orenduff, 548 F.3d 931, 945 n.12 (10th Cir. 2008); Trafalgar House Constr., Inc. v. United States, 77 Fed.Cl. 48, 53 (2007) (“‘Reckless disregard’ has been defined as an ‘ “aggravated form of gross negligence.” ’ (quoting UMC Elecs. Co. v. United States, 43 Fed.Cl. at 792 n.15 (quoting United States ex rel. Aakhus v. Dyncorp, Inc., 136 F.3d 676, 682 (10th Cir. 1998)))), aff'd, 274 Fed. Appx. 898 (Fed. Cir. 2008); Riley Constr. Co. v. United States, 65 Fed.Cl. 264, 270 (2005) (“The legal standard that may apply is ‘reckless disregard.’ This has been defined in 452the case law as something more than gross negligence, or ‘gross negligence plus.’ ”).61 A failure to make a minimal examination of records can constitute deliberate ignorance or reckless disregard, and a contractor that deliberately ignores false information submitted as part of a claim can be found liable under the False Claims Act. See United States v. TDC Mgmt. Corp., 24 F.3d at 298; see also Miller v. United States, 213 Ct. Cl. at 70, 550 F.2d at 23 (An applicant who submitted estimates of the quantities of the materials billed to the government prepared by his workmen, but substantially ov-erbilled due to misrepresentation, resulted in a finding of “extreme negligence” for which he was found liable under the False Claims Act.). The court in Miller v. United States noted that a contractor cannot be saved by relying on local government officials in preparing its claims. See Miller v. United States, 213 Ct. Cl. at 70, 550 F.2d at 23. The court found the applicant in Miller had the responsibility to ensure the claims were accurate, and the contractor had in fact signed the claims, “evidencing his agreement to the figures it contained.” Id.; see also Riley Constr. Co. v. United States, 65 Fed.Cl. at 268-69 (The Senate Committee Report on the False Claims Act states that “ ‘those doing business with the Government have an obligation to make a limited inquiry to ensure that the claims they submit are accurate.’” (citation omitted)). When the claims are prepared in a “sloppy or unsupervised fashion” and it results in overcharging the government, there is reckless disregard. See 132 Cong. Rec. H9, 382-03 (1986) (statement of Rep. Berman, as sponsor of the 1986 amendment to the False Claims Act). Although a person must make at least a minimal examination of the records, the examination need be only “reasonable and prudent under the circumstances.” United States v. Bourseau, 531 F.3d 1159, 1168 (9th Cir. 2008) (quoting S. Rep. No. 99-345, at 21), cert. denied, 555 U.S. 1212, 129 S.Ct. 1524, 173 L.Ed.2d 656 (2009). Courts have found reckless disregard when a plaintiff failed to review claims that either he or another person prepared before submitting them. See Miller v. United States, 213 Ct. Cl. at 70, 550 F.2d at 23; United States v. Krizek, 111 F.3d at 942. In Krizek, the United States Court of Appeals for the D.C. Circuit upheld the district court’s conclusion that plaintiff acted with reckless disregard in failing “utterly” to review the false submissions made on his behalf in violation of the False Claims Act when, plaintiff doctor let his wife complete the submission of claims to the local Medicare carrier; the wife did not attempt to establish how much time was actually spent with each patient; and the doctor did not review the submission. See United States v. Krizek, 111 F.3d at 942. Indeed, a person generally cannot escape liability by claiming to have relied on others in preparing the claim. See id.; see also Miller v. United States, 213 Ct. Cl. at 70, 550 F.2d at 23. But see Riley Constr. Co. v. United States, 65 Fed.Cl. at 270 (“Mr. Riley would have had reason to rely on Douglas, the former Navy ROIC, as an expert in submitting claims. Such reliance, if it exists, may be relevant in considering the various counterclaims.”). In Daewoo, the Federal Circuit rejected the plaintiffs argument that a claim can only be fraudulent it if rests upon false facts, not if it rests upon a baseless calculation, stating: “It is well established that a baseless certified claim is a fraudulent 453claim.” Daewoo Eng'g & Constr. Co. v. United States, 557 F.3d at 1339. “ ‘[T]he statute attaches liability, not to the underlying fraudulent activity or to the government’s wrongful payment, but to the “claim for payment.” ’ ” See Ulysses, Inc. v. United States, 110 Fed.Cl. at 642 (quoting United States v. Rivera, 55 F.3d 703, 709 (1st Cir. 1995)) (alteration in original). “[I]n deciding whether a given false statement is a claim or demand for payment, a court should look to see if, within the payment scheme, the statement has the practical purpose and effect, and poses the attendant risk, of inducing wrongful payment.” United States v. Rivera, 55 F.3d at 709. In order to determine the number of false claims a contractor submitted to the government, the United States Supreme Court has stated: “A correct application of the statutory language requires ... that the focus in each case be upon the specific conduct of the person from whom the Government seeks to collect the statutory forfeitures.” United States v. Bornstein, 423 U.S. 303, 312, 96 S.Ct. 523, 46 L.Ed.2d 514 (1976).62 The Supreme Court’s guidance in United States v. Bomstein has been interpreted to require courts to ask: “ With what act did the defendant submit his demand or request and how many such acts were there?’ ” United States v. Krizek, 111 F.3d at 939. When a fraudulent claim consists of multiple components, the submission of an aggregate claim, rather than its individual components, is the act that creates liability under the False Claims Act. See Miller v. United States, 213 Ct. Cl. at 71-72, 550 F.2d at 23-24 (rejecting an argument that a contractor had asserted sixteen false claims under an earlier version of the False Claims Act, “eleven based on invoices used in calculating the monthly billings plus five, one for each of the monthly consolidated billings,” because “the invoices are like tally sheets used in calculating a final figure to present to the Government; they are not the claim itself’); see also United States v. Woodbury, 359 F.2d 370, 378 (9th Cir. 1966) (rejecting the argument that a penalty could be assessed under an earlier version of the False Claims Act for each document that was attached to fraudulent applications for payment). An innocent mistake or mere negligence, such as a math error or flawed reasoning, may be excused. See United States v. Sci. Applications Int’l Corp., 626 F.3d at 1274 (citing S. Rep. No. 99-345, at 7); United States ex rel. Fowler v. Caremark RX, L.L.C., 496 F.3d 730, 742 (7th Cir.) (citations omitted), reh’g and suggestion for reh’g en banc denied (7th Cir. 2007), cert. denied, 552 U.S. 1183, 128 S.Ct. 1246, 170 L.Ed.2d 66 (2008), overruled on other grounds by Glaser v. Wound Care Consultants, Inc., 570 F.3d 907 (7th Cir. 2009); Riley Constr. Co. v. United States, 65 Fed.Cl. at 269 (noting that the False Claims Act was not intended to punish honest mistakes and mere negligence (citing S. Rep. No, 99-345 at 7)); see also United States ex rel. Lamers v. City of Green Bay. 168 F.3d 1013, 1018 (7th Cir. 1999). Thus, under the False Claims Act, there must be a showing of more than an innocent mistake or mere negligence. See Ulysses, Inc. v. United States, 117 Fed.Cl. at 780 (quoting UMC Elec. Co. v. United States, 43 Fed.Cl. at 795 (“ ‘Under the False Claims Act there must be a showing by the government of more than innocent mistake or mere negligence.’ ”)); Liquidating Trustee Ester Du Val of KI Liquidation, Inc. v. United States, 116 Fed,Cl. at 379; Riley Constr. Co. v. United States, 65 Fed.Cl. at 269. The government is required to show the knowing presentation by the contractor of information known to be “false or fraudulent.” See Young-Montenay, Inc. v. United States, 15 F.3d at 1043. The government has “the burden to allege and prove that the statements were false under any reasonable interpretation.” United States v. Adler, 623 F.2d 1287, 1289 (8th Cir. 1980). The burden of proof on the government in this regard is by a preponderance of the evidence. See Daewoo Eng’g & Constr. Co. v. United States, 557 F.3d at 1340 (citing 31 U.S.C. § 3731(c); 454Commercial Contractors, Inc. v. United States, 154 F.3d at 1362). As indicated in Liquidating Trustee Ester Du Val of KI Liquidation, Inc. v. United States: To establish [plaintiffs] liability under the FCA, the government must prove by a preponderance of the evidence, Daewoo, 557 F.3d at 1340, that “(1) the contractor presented or caused to be presented to an agent of the United States a claim for payment; (2) the claim was false or fraudulent; [and] (3) the contractor knew the claim was false or fraudulent.” Young-Montenay, Inc. v. United States, 15 F.3d 1040, 1043 (Fed. Cir. 1994). The government has “the burden to allege and prove that the statements were false under any reasonable interpretation,” United States v. Adler, 623 F.2d 1287, 1289 (8th Cir. 1980). Liquidating Trustee Ester Du Val of KI Liquidation, Inc. v. United States, 116 Fed.Cl. at 379 (footnote omitted); see also Ulysses, Inc. v. United States, 110 Fed.Cl. at 641 (“The Government must prove the elements of an FCA claim by a preponderance of the evidence.”). “To bring [a] FCA [False Claims Act] claim, the Government is not tasked to show that it incurred damages, although a showing of damages as a result of the fraudulent claim is required if the Government seeks to recover damages.” Veridyne Corp. v. United States, 105 Fed.Cl. at 808; see also Daewoo Eng’g & Constr. Co. v. United States, 557 F.3d at 1341 (“The Court of Federal Claims did not err in concluding that Daewoo violated the False Claims Act. Because the 'court did not find that the government incurred damages from Daewoo’s false claim, the court properly assessed only the statutory. penalty.”); see also Commercial Contractors, Inc. v. United States, 154 F.3d at 1371-72 (“[A] contractor can be held liable for submitting a false claim even if the goods it delivered are of the same quality as the goods specified in the contract, provided that the contractor acted with the requisite knowledge that the corresponding claim was false. But while the contractor may be liable in that situation, it is liable only for FCA penalties, not damages.... In order to recover FCA damages, the government must prove that it sustained an actual loss as a result of the contractor's false or fraudulent claim.” (citations omitted)); Alcatec, LLC v. United States, 100 Fed.Cl. at 526 (“To bring an FCA claim, the Government does not have to show that it incurred damages, although a showing of damages as a result of the fraudulent claim is required if the Government seeks to recover damages.” (citing Daewoo Eng’g & Constr. Co. v. United States, 557 F.3d at 1341; Young-Montenay, Inc. v. United States, 15 F.3d at 1043 (absent proof of harm, the government can recover penalties, but not damages))); AEY, Inc. v. United States, 114 Fed.Cl. at 633 n.17 (“In essence, Section 3729 imposes a penalty on a person who knowingly presents a false claim wholly apart from proof of any specific damages.”). In Rex Trailer Co. v. United States, the United States Supreme Court stated, “there is no requirement, statutory or judicial, that specific damages be shown, and this was recognized by the Court in Marcus.” Rex Trailer Co. v. United States, 350 U.S. 148, 152-53, 76 S.Ct. 219, 100 L.Ed. 149 (1956). In Rex Trailer, the United States Supreme Court summarized United States ex. rel. Marcus v. Hess, 41 F.Supp. 197, 218 (W.D. Pa. 1941), rev’d on other grounds, 127 F.2d 233 (3d Cir.), cert. granted, 317 U.S. 613, 63 S.Ct. 40, 87 L.Ed. 498 (1942), and rev’d on other grounds, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443, and reh’g denied, 318 U.S. 799, 63 S.Ct. 756, 87 L.Ed. 1163 (1943), superseded by statute on other grounds as recognized in Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S, 280, 130 S.Ct. 1396, 176 L.Ed.2d 225, reh’g denied, 560 U.S. 936, 130 S.Ct. 3351, 176 L.Ed.2d 1241 (2010), by noting that, in the 1940s, the United States District Court for the Western District of Pennsylvania concluded that plaintiff was liable for the statutory penalty for submission of a false claim, but not damages, as damages were not proven. See Rex Trailer Co. v. United States, 350 U.S. at 152-53, 76 S.Ct. 219. Although the Supreme Court’s discussion in Rex Trailer focused on the Surplus Property Act, the Supreme Court referred to Marcus, which 455involved the False Claims Act, in determining that proof of damages was not necessarily required in the assessment of a civil remedy or statutory penalty. See id. at 153 n.5,.76 S.Ct. 219 (“On several of the projects involved in the Marcus case, fraud was discovered by the Government in time for payments to be withheld. At trial [on the False Claims Act] in the District Court defendants urged that there could be no recovery of a penalty or forfeiture in these instances in which no actual damages could be shown. The District Court held that failure to show actual damages in these instances would not preclude recovery under the statute. United States ex rel. Marcus v. Hess, 41 F.Supp. 197, 218. The judgment of the District Court [in Marcus] was affirmed here. See United States v. Rohleder, 157 F.2d 126, 129 [ (3d Cir. 1946) ].”). As indicated above, defendant initially argues: “Oasis is liable under the False Claims Act for the same reasons that its claim must be rejected under the Special Plea in Fraud.”63 As determined above, Oasis did not violate the Special Plea in Fraud statute. Defendant also asserts that, “[a]t a minimum, Oasis’s own documents, witness testimony, and representations to third parties demonstrate that it acted with reckless disregard to the falsity of its certified claim, which is sufficient for liability under the False Claims Act.” In response, plaintiff agrees with defendant only insofar as “[w]ith respect to the False Claims Act only, knowledge may be demonstrated by proof of reckless disregard for the truth.” The court also agrees that regarding the False Claims Act counterclaim alleged by defendant in this case, the False Claims Act, unlike the Special Plea in Fraud, does not require specific intent to defraud, merely “actual knowledge” of the falsity, acting “in deliberate ignorance of the truth or falsity,” or acting “in reckless disregard of the truth or falsity,” are sufficient to trigger liability. See 31 U.S.C. § 3729(b). Furthermore, as noted above, the preponderance of the evidence standard which applies to proof under the False Claims Act is a less rigorous standard than the clear and convincing standard of proof applied under the Special Plea in Fraud statute. See UMC Elecs. Co. v. United States, 249 F.3d at 1338-39. As indicated in Ulysses, Inc. v. United States, 110 Fed.Cl. 618, “[i]n the classic FCA [False Claims Act] scenario, a contractor asks the Government for a payment which it is not entitled to receive.” Ulysses, Inc. v. United States, 110 Fed.Cl. at 642, As determined above, the court concluded that Oasis did not violate the Special Plea in Fraud statute, because the plaintiff did not have the requisite intent to “double-bill” the government or seek payment for services it did not provide. The crux of the court’s conclusion for why the certified claim was not a violation of the Special Plea in Fraud was, even if Oasis had an incorrect view of the contract, which the court has not yet determined, Oasis’ interpretation of the contract was sincere and was reasonable given the multiple modifications, and, therefore, the changing nature of the terms of the contract. Consequently, the court has already determined that the statements were not false “under any reasonable interpretation.” Nor does the lower standard of proof for the False Claims Act, a preponderance of the evidence, change the court’s conclusion. In a previous decision regarding the False Claims Act, the undersigned discussed at length a plaintiffs view that its certified claim represented a series of legal theories, and, therefore, could not be a false claim. The undersigned noted that: Plaintiff is correct that statements of legal theories do not constitute “false claims.” As noted by the court in Tyger Construction Co. v. United States, 28 Fed.Cl. 34 [sic], 66 (1993), “[attaching FCA liability 456to expressions of legal opinion would have an impermissibly stifling effect on the legitimate presentation of claims. Indication is absent that Congress intended to penalize good faith disputes over contract liability.” Id. Moreover, as the Court of Federal Claims noted in Ulysses, Inc. v. United States, 110 Fed.Cl. 618, the government’s False Claims Act counterclaim failed because the defendant failed to prove that plaintiffs underlying CDA claim was factually false. See id. at 645. The Ulysses court explained: “Rather, Plaintiff asserted a different interpretation of the requirements of the First Purchase Order than the Government. So too, Ulysses argued in its claim that by accepting its 112 Parts as components of its 100 Parts, the Government had waived the approved source requirement in the past—a legal position not a factual representation,” with the Ulysses court determining that “Plaintiffs interpretation was in essence a legal call about what would meet the requirements of the Purchase Orders Plaintiff informed the Government of its legal position in writing several times.” Id. Despite the foregoing, and even though the undersigned stated in UMC Electronics Co. v. United States, 43 Fed.Cl. at 794, “[a] contractor, upon submission of a claim, who is aware of and takes advantage of a disputed legal issue does not knowingly eomipit fraud,” the undersigned recognized in UMC Electronics that “ ‘[contractors in a False Claims Act case, such as UMC in the instant action, not infrequently contend that their claims were not false because an interpretation of relevant regulations permits their claims,” and it “is a matter of law for the court to interpret a relevant statutory or regulatory requirement.” Id. Therefore, it is insufficient for plaintiff merely to suggest that its entire claim is a' legal theory and, therefore, impossible to be a false claim. Indeed, although as noted above, plaintiff believes that the “Government’s FCA counterclaims are an attempt to expand dangerously the FCA from its regular and intended context to apply also to good-faith statements of legal theories by parties aggrieved by the Government’s breach of its contractual obligations,” it would be a dangerous precedent to allow a contractor to present its certified claim under the guise of a “legal theory,” and, thereafter, not to be subject to a False Claims Act counterclaim by the govemment in all circumstances. It would have been absurd, for example, for the project manager in Daewoo, Mr. Kim, who had specifically disavowed the truth of the claim during his trial testimony to have been able to argue that the baseless claim was, instead, a legal theory his company was pursing. See Daewoo Eng’s & Constr. Co. v. United States, 73 Fed.Cl. at 585. Therefore, although recognizing plaintiffs argument that the claim was a legal theory, the court looks to the substance of plaintiffs certified claim to see if plaintiff violated the False Claims Act. Horn & Assocs., Inc. v. United States, 123 Fed.Cl. 728, 769-770 (2015). Although the undersigned concluded that there was no per se rule that would bar legal theories from being false claims, neither this court, nor any other court with binding authority on this court, has concluded that a reasonable interpretation or legal theory could not be a defense to a counterclaim under the False Claims Act. Just as the court determined Oasis’ theory was a reasonable one, even if a potentially incorrect one, and, therefore, that Oasis’ interpretation of the contract did not violate the Special Plea in Fraud statute, the court similarly concludes plaintiffs differing interpretation of the contract from that of the defendant, was not evidence that Oasis acted with reckless disregard to the truth of its certified claim and did not violate the False Claims Act. Nor can the court determine that the decision to submit the certified claim as filed was reckless, as the court agrees with the plaintiff that “Phil and Paul Morrell believed in the contract theory of the claim from well before it was ever submitted.” As discussed above, listening to and observing both Phil Morrell and Paul Morrell during the trial as they offered in person testimony, the court found the evidence they offered creditable on the issues of their understanding and intent when they developed plaintiffs theory of the certified claim, and, 457specifically, Paul Morrell’s testimony regarding the certification of the claim.64 The government has not demonstrated that the plaintiffs interpretation should be considered “false statements,” nor has the government demonstrated that Oasis had “actual knowledge” of the falsity, was acting “in deliberate ignorance of the truth or falsity,” or was acting “in reckless disregard of the truth or falsity.” See 31 U.S.C. § 3729(b). Because the court finds that defendant has not demonstrated that plaintiff had knowledge that its claims were false or fraudulent, and had no intention to induce “wrongful payment,” United States v. Rivera, 55 F.3d at 709, Oasis is not liable under the False Claims Act. As indicated above, the court believes that the testimony of the Paul Mor-rell and Phil Morrell was sincere. There was no indication in their testimony at trial of any intention or steps taken to defraud the government. As the parties do not raise standalone arguments related solely to the False Claims Act, the court determines, for the reasons articulated above, the government has not proven a violation of the False Claims Act, even under the preponderance of the evidence standard. The court has determined, based on plaintiffs articulation of its theory in its certified claim, that plaintiff did not attempt to “double bill” the government for allegedly $30,000,000.00 in Claims 1 and 8, nor did plaintiff attempt to be paid a second time the $600,000.00 for the water fixes in Claim 6. Furthermore, plaintiff did not seek costs they believed had not been incurred in Claim 4. As indicated above, the court has deferred Claim 2 for Special Plea in Fraud purposes, and does the same for Claim 2 as it relates to the False Claims Act. Defendant offers no new arguments specific to the False Claims Act that have not been addressed above. Therefore, with the exception of the counterclaim for Claim 2, based on defendant’s theory of contract interpretation and economic duress, defendant’s False Claims Act counterclaims are dismissed. a. Contract Disputes Act Finally, as recently often has been the case in fraud counterclaims urged by the United States in contract cases, defendant includes fraud counterclaims under all three statutes. Here too, defendant argues in its second amended answer and counterclaim, regarding the anti-fraud provision of the Contract Disputes Act, that Oasis “is liable to the United States pursuant to the Contract Disputes Act, 41 U.S.C. § 7103, for the amount of such unsupported claims, $44,516,868, plus the Government’s costs attributable to reviewing such claims,” because Oasis’s claims for payment of both a “mobilization” payment of $50,225,000, plus $3.50 per case for bottled water sold during the contract’s base period, as well as its claim for $600,000 for which the Government had already reimbursed it, were knowingly baseless. In particular, Oasis submitted at least one certified claim in an attempt to obtain payment from the Government by means of a false statement of fact concerning its right to payment of $44,516,868. As it argued above, plaintiff contends that, “[a]t an absolute minimum, the frank and open nature of the claim alone negates the Government’s arguments under the Special Plea in Fraud and CDA fraudulent claims 458provision, both of which require an intent to deceive the Government.” (emphasis in original), The anti-fraud provision of the Contract Disputes Act, 41 U.S.C. § 604 (now 41 U.S.C, § 7103(c)(2) (2012)) provides: If a contractor is unable to support any part of his claim and it is determined that such inability is attributable to misrepresentation of fact or fraud on the part of the contractor, he shall be liable to the Government for an amount equal to such .unsupported part of the claim in addition to all costs to the Government attributable to the cost of reviewing said part of his claim. 41 U.S.C. § 604.65 The Contract Disputes Act at 41 U.S.C. § 606(c)(1) (2006) (now 41 U.S.C. § 7103(b)(1) (2012)), requires' for a certification of a claim in excess, of $100,000.00, the contractor shall certify that the claim is made in good faith, that the supporting data are' accurate and complete to the best of his knowledge and belief, that the amount requested accurately reflects the contract ádjustment for which the contractor believes the government is liable, and that the certifier is duly authorized to certify the claim on behalf of the contractor. 41 U.S.C. § 606(c)(1); see Trafalgar House Constr., Inc. v. United States, 73 Fed.Cl. 675, 693 (2006) (“The primary purpose of this certification is to prevent the submission of fraudulent claims.”), aff'd, 274 Fed.Appx. 898 (Fed. Cir. 2008). The Contract Disputes Act at 41 U.S.C. § 606(c)(7), requires that “[t]he certification required by paragraph (1) may be executed by any person duly authorized to bind the contractor with respect to the claim.” 41 U.S.C. § 606(c)(7) (now 41 U.S.C. § 7103(b)(2) (2012)). As noted by the United States Court of Appeals for the Federal Circuit, “[t]he Contract Disputes Act requires that an authorized corporate official certify that ‘the claim is made in good faith, that the supporting data are accurate and complete to the best of his knowledge and belief, [and] that the amount requested accurately' reflects the contract adjustment for which the contractor believes the government is liable,’ ” Veridyne Corp. v. United States, 758 F.3d at 1380 (quoting 41 U.S.C. § 606(c)(1) (recodified at 41 U.S.C. § 7103(b)(1)(A)-(D) (2012)). As noted by the trial court in Veridyne, “[a]l-though the antifraud provision contains no express requirement that the costs must be ‘reasonable,’ it presumes that defendant actually has incurred the claimed costs of review.” Veridyne Corp. v. United States, 107 Fed.Cl. at 767 (citing 41 U.S.C, § 7103(c)(2)). “Congress enacted the fraud provision of the CDA ‘out of concern that the submission of baseless claims contributes to the so-called horsetrading theory where an amount beyond that which can be legitimate459ly claimed is submitted merely as a negotiating tactic.’ ” Veridyne Corp. v. United States, 758 F.3d at 1381 (quoting Daewoo Eng’g & Constr. Co. v. United States, 557 F.3d at 1340); see also Daewoo Eng’g & Constr. Co. v. United States, 73 Fed.Cl. at 584 (quoting Sen. Report No. 95-1118, 1978 U.S.C.C.A.N. 6235, 6254) (“This subsection [41 U.S.C. § 604] is included out of concern that the submission of baseless claims contribute to the so-called horsetrading theory where an amount beyond that which can be legitimately claimed is submitted merely as a negotiating tactic. Hence, payment of such a claim by the Government would constitute a windfall to the contractor.”). As the trial court in Daewoo indicated, “[u]sing a claim to gain leverage against the United States violates the principle on which Congress enacted the Contract Disputes Act, including its effort to prevent contractors from using the claims process to obtain higher profits. Congress called it ‘horse trading,’ ” Daewoo Eng’g & Constr. Co. v. United States, 73 Fed.Cl. at 570. “A contractor is liable under the an-tifraud provision of the CDA when the ‘ “contractor is unable to support any part of his claim and it is determined that such inability is attributable to misrepresentation of fact or fraud on the part of the contractor. Ulysses, Inc. v. United States, 110 Fed.Cl. at 647 (quoting Daewoo Eng’g & Constr. Co. v. United States, 557 F.3d at 1335 (quoting 41 U.S.C. § 604)). A “misrepresentation of fact” is defined as “ ‘a false statement of substantive fact, or any conduct which leads to a belief of a substantive fact material to proper understanding of the matter in hand, made with intent to deceive or mislead.’ ” Veridyne Corp. v. United States, 758 F.3d at 1381; see also Daewoo Eng’g & Constr. Co. v. United States, 557 F.3d at 1335 (quoting 41 U.S.C. § 601(9) (now 41 U.S.C. § 7101(9) (2012))); Hernandez, Kroone & Assocs., Inc. v. United States, 110 Fed.Cl. at 524. “The government must establish this falsity and intent by a preponderance of the evidence.” Daewoo Eng’g & Constr. Co. v. United States, 557 F.3d at 1335; see also Veridyne Corp. v. United States, 758 F.3d at 1381; UMC Elecs. Co. v. United States, 249 F.3d at 1338 (citing Commercial Contractors, Inc. v. United States, 154 F.3d at 1362) (“The government must prove a violation of the Contract Disputes Act and False Claims Act by a preponderance of the evidence.”); Ulysses, Inc. v. United States, 110 Fed.Cl. at 647 (citing Commercial Contractors, Inc. v. United States, 154 F.3d at 1362) (“While the CDA does not provide a standard of proof, the Federal Circuit has applied the ‘preponderance of the evidence’ standard to claims brought under the CDA’s fraud provision.”); Hernandez, Kroone & Assocs., Inc. v. United States, 110 Fed.Cl. at 524 (“The government must establish this falsity and intent by a preponderance of the evidence,”).66 “To recover under the CDA, the government is required to establish that the contractor made false or fraudulent statements in its submitted claim with an intent to deceive or mislead the government.” Commercial Contractors, Inc. v. United States, 154 F.3d at 1362 (citing 41 U.S.C. § 601(7) (now 41 U.S.C. § 7101(7) (2012))); see also Daewoo Eng’g & Constr. Co. v. United States, 73 Fed.Cl. at 684; Chemray Coatings Corp. v. United States, 29 Fed.Cl. 278, 285 (1993) (“In order to obtain reimbursement for a paid claim, defendant must prove that a part of plaintiffs claim is unsupported and that this lack of support is due to fraud or misrepresentation intended by plaintiff to deceive the government.” (citing Tyger Constr. Co. v. United States. 28 Fed.Cl. at 58)). Defendant argues that “[i]n addition to forfeiting its claim under the Special Plea in Fraud, because Oasis submitted a fraudulent certified claim under the Contract Disputes Act, it owes the United States damages equal to the unsupported amount of its claim.” Defendant claims that “Oasis has selected its 460own penalty, as Contract Disputes Act fraud damages are self-defining. Oasis itself selected the magnitude of its fraud and must reap the consequences.” As noted above, defendant argues in its second amended answer and counterclaim, regarding the anti-fraud provision of the Contract Disputes Act, Oasis “is liable to the United States pursuant to the Contract Disputes Act, 41 U.S.C. § 7103, for the amount of such unsupported claims, $44,516,868, plus the Government’s costs attributable to reviewing such claims.” In its post-trial briefs, defendant submits the following chart for the amount of penalties allegedly owed by plaintiff under the Contract Disputes Act: [[Image here]] For support, defendant claims that: As demonstrated above, counts one, two, four, six, and eight, are unsupported in their entirety. Counts one and eight attempt to compel payment of more than $80 million dollars for bottled water for which the military had already paid. Count six also seeks payment of the same $600,000 a second time. Counts [sic] four seeks costs never incurred, and count two stems from Oasis’s baseless economic duress claim and its frivolous contract interpretation. As discussed above, the court has found that Claims 1, 4, 6, and 8 were not unsupported in the certified claim, and not fraudulent, both in the context of the Special Plea in Fraud Statute and the False Claims Act. As indicated above, the court deferred Claim 2 for Special Plea in Fraud and False Claims Act purposes, and does the same for Claim 2 as it relates to the antifraud provision of the Contract Disputes Act. Defendant offers no new arguments specific to the antifraud provision of the Contract Disputes Act that have not been addressed above, except for the chart for the amount of penalties. Although addressed in part in the Special Plea in Fraud analysis, plaintiff correctly notes that “[t]he Contract Disputes Act requires certification of claims by ‘an individual authorized to bind the contractor with respect to the claim,”’ and that “[djefendant has cited no cases in which the individual who certified the claim believed in it, all corporate owners believed in it, but the claim was still found to be fraudulent because some other employees did not.” (emphasis in original). As noted above, Mr. Jeffries, Mr. Vos, and Max Wyeth held differing views on the contract from those of Phil Morrell and Paul Morrell at trial. Mr. Jeffries, however, tésth fied that “ultimately it was what Paul [Mor-rell] and Phil [Morrell] and legal counsel believed were the appropriate things to include in the claim,” while Mr. Vos testified that it was his “understanding” for “the contract to allow only payments of $3.50 per case.” As discussed above, Max Wyeth, the original signatory to the contract, who exited from the contract long before the certified claim was submitted, testified he based the $50,225,000.00 figure in the base year by “using our average forecast of demand, we came up with a case number that would be produced per year, and multiplied that by the case cost,” which was “[t]he number of cases times $3.50.” The individual, however, who was authorized to bind Oasis with respect to the claim was Paul Morrell. Paul Morrell signed the certified claim and plaintiffs position that “[defendant provides nothing to contradict Paul Morrell’s sworn testimony that his opinion and understanding evolved and he changed his mind, and that the right amount was claimed” remains true. Just as the differing views among officers of a corpo461ration alone, cannot be proof of fraud, nor can differing views alone demonstrate a violation of the antifraud provision of the Contract Disputes Act. Although discussed at length above, the court notes that the basis of the counterclaims in Commercial Contractors, Inc. v. United States were the False Claims Act and the Contract Disputes Act. As noted by the Federal Circuit: [W]hen a contractor adopts a contract interpretation that is implausible in light of the unambiguous terms of the contract and other evidence (such as repeated warnings from a subcontractor or the fact that the interpretation is contrary to well-established industry practice), the contractor may be liable under the FCA or the CDA even in the absence of any deliberate concealment or misstatement of facts. Under such circumstances, when the contractor’s purported interpretation of the contract borders on the frivolous, the contractor must either raise the interpretation issue with the government contracting officials or risk liability under the FCA or the CDA. Commercial Contractors, Inc. v. United States, 154 F.3d at 1367. The court reiterates its analysis from above, which does not change in the context of the Contract Disputes Act fraud counterclaim, that even a potentially incorrect interpretation by Oasis does not demonstrate fraud and does not make its claim frivolous. The fundamental changes in manner in which plaintiff performed the contract for the government in the base year, including how it was compensated for the water produced, and continued to perform after the base year was complete, allows for plaintiffs certified claim to be a bona fide one, and not fraudulent either under the plaintiffs or defendant’s interpretation of the contract. Defendant has failed to prove fraud. As demonstrated above, plaintiffs intent was not to make a claim that was intended to deceive or mislead the government. Therefore, the court concludes that defendant has failed to demonstrate a violation of the anti-fraud provision of the Contract Disputes Act. As noted above, “Congress enacted the fraud provision of the CDA ‘out of concern that the submission of baseless claims contributes to the so-called horsetrading theory where an amount beyond that which can be legitimately claimed is submitted merely as a negotiating tactic.’ ” Veridyne Corp. v. United States, 758 F.3d at 1381 (quoting Daewoo Eng’g & Constr. Co. v. United States, 557 F.3d at 1340). Defendant claims that Oasis overstated its claim pointing to an email from Paul Morrell to Phil Morrell in June 2008, in which he stated only days before certifying Oasis’s claim, stating: “I’m expecting between 10m [million]-20m but it could be as high as $35m,” regarding the certified claim. Defendant argues that it is fraud to “submit an inflated claim in the hope that the contracting officer will award some lesser amount to which the contractor feels entitled.” 67 Defendant’s allegation, however, does not demonstrate that plaintiff filed the claim in the hopes of negotiating a settlement of the $50,225,000.00 claim, it merely proves that plaintiff was not confident that the government would agree with its theory of the confusing contract which had undergone numerous changes from the time the contract was executed. Paul Morrell’s skepticism was well founded. The government denied the claim in full. Moreover, as plaintiff notes, defendant bears the burden of proof for its counterclaims and did not ask Paul Morrell about the email, despite the multiple days he testified in this case. Defendant also cites to both the Court of Federal Claims decision and the Federal Circuit decision in Daewoo for support that plaintiffs certified claim was a negotiating tactic (citing Daewoo Eng’g & Constr. Co. v. United States, 557 F.3d at 1341; Daewoo Eng’g & Constr. Co. v. United States, 73 Fed.Cl. at 570). As the trial court in Daewoo indicated, however, “[u]sing a claim to gain leverage against the United States violates the principle on which Congress enacted the 462Contract Disputes Act, including its effort to prevent contractors from using the claims process to obtain higher profits.” Daewoo Eng’g & Constr. Co. v. United States, 73 Fed.Cl. at 570. As demonstrated throughout this opinion, the court does not believe the intention of Oasis, and particularly of Paul Morrell when filing the certified claim, was to gain leverage over the United States or to simply obtain higher profits. Plaintiff appears to have held a valid belief that it was entitled to the money claimed. Whether plaintiff firmly believed it would recover all of the money it felt entitled to, does not change that plaintiff, and Paul Morrell, as the signatory, believed in the merits of the certified claim. The court, therefore, concludes that defendant has failed to prove that Oasis knowingly submitted a baseless claim for Claims 1, 4, 6, or 8. Therefore, Oasis is not liable under the antifraud provision of the Contract Disputes Act for Claims 1, 4, 6, and 8. As noted above, Claim 2 is deferred, CONCLUSION For the reasons explained above, even if plaintiffs interpretation of the contract turns out to be incorrect, it does not follow that plaintiffs intended to perpetrate a fraud on the government when it submitted its certified claims, Rather, as established above, Paul Morrell, as signatory to the certified claim, did not have the intention to commit fraud and genuinely believed in his interpretation of the contract regarding what payments Oasis was entitled to recover under the contract. Nor did plaintiff act recklessly when submitting its claims. Defendant’s counterclaims, with the exception of counterclaims regarding Claim 2, which are deferred, are DENIED, IT IS SO ORDERED. . In 2006, Colonel Richardson was a Lieutenant Colonel, When she testified at trial, Colonel Richardson was a full Colonel. The court refers to Colonel Richardson as a Colonel in this opinion. . The final version of the Statement of Work included in the awarded contract was the same as the draft Statement of Work, except the final version removed the following sentence: "There are numerous complications and delays getting trucks across the borders, particularly in Turkey.” . The government issued 11 amendments to the solicitation. . The court notes, however, for the basis of estimate in the American AquaSource proposal, American AquaSource assumed annual production of 384 million bottles or 32 million cases of water. . Counsel for defendant emphasized during Mr. Wyeth’s testimony: Q: So, just so the record is clear, the $50,225 [million] in your proposal is based upon $3.50 per case? A: Yes. . The military's own Independent Government Cost Estimate, estimated a total base year cost of $149,145,842.23, or almost three times American AquaSource’s proposal for the base year, to construct and operate eight water bottling facilities in Iraq. Morrell International, Inc,, a corporation whose Chief Executive Officer was Phil Morrell, also submitted a proposal which provided for a base year price of $899,725,000.00, option year prices of $831,287,500,00 per year, for a contract total of $3,393,587,500.00. Phil Morrell testified at trial, however, that was a “bad bid,’’ and he had intended to bid at $5,50 per case of bottled water. Phil Morrell indicated that the request "needed to be right around $5,50 per case,’’ for "somewhere around the 32 million cases per year.” .The cover page to the contract stated the estimated dollar amount as "$386,225,000.00.” At trial, Major Vazquez testified that this amount was in error and that the amount should have been $50,225,000. Subsequently, on July 15, 2005, United States Air Force Major Marc A. Lopez, who served as the contracting officer on the contract from June 2005 until September 2005, executed modification PQ0002 on behalf of the government, which changed the dollar amount from “$386,225,000.00” to "$50,225,-000.00 (NTE),” because ”[o]nly the base year award should have been documented in the contract.” . Mr. Wyeth testified that at the time he “signed this contract” he had no relationship with Al-Morrell Development, Paul Morrell, Phil Morrell, or Paul Jeffries. . As explained below, although the contract, as executed, required 8 water bottling plants, the contract was modified by modification P00001 to require only 6 water bottling plants. . Paul Morrell testified that "Phil [Morrell] and Max [Wyeth] were owners in Oasis, and Phil and I were owners in Al-Morrell Development, but we made a very—Phil and I made a very practical decision that if we were going to invest our funds into the business, that our company was going to own the assets.” . Paul Morrell testified that "Oasis was originally called Iraqua. Everybody loved that name except the bankers. The bankers wouldn’t allow us [to] own a bank account with that name Iraqua on it, literally, so we changed the name to Oasis.” . Mr. Wyeth, then-president of Oasis and American AquaSource, signed the modification on behalf of Oasis on December 2, 2005. Major Mont-ler signed for the military on December 5, 2005. . At the time of the novation, Mr. Wyeth testified he was "out of the loop” and his interest in Oasis was eventually bought out by the Phil Mor-rell and Paul Morrell. Mr. Wyeth also was not involved in the completion of the bottled water 413plants. Oasis accepted Mr. Wyeth’s resignation as president of Oasis on January 5, 2006. . Phil Morrell and Paul Morrell are brothers. . The identical nature of the three options is reflected in the typographic error of "NON-PERSONAL SERVIOS” in each of the three option years, (capitalization in original). . The objectives to the contract further indicated that ”[t]he contractor shall ensure purified bottled water capability is able to relocate upon notification by the CO,” . In the case of Al Asad, plaintiff claims that; "Defendant refused to provide site prep at A1 Asad, Oasis was forced in December 2005 to hire its own subcontractor to prep the site, which included filling borrow pits dug by the military, at a cost of $224,100,” and further spent "$ 158,-110 to abate the flooding and repair the damage caused to the site," as a result of the work done by another contractor, Kellogg, Brown and Root, at an adjacent site. . Alan Morrell "was an Oasis consultant' from late June 2005 through October 2005. He was the Oasis Contract and Compliance Administrator from October 2005 through March 2007. He was Director of Contracts and Compliance from March 2007 through November 2008. He was Project Management Director from November '2008 through December 2009.” .Phil Morrell testified that “I told them [the government] that would be a really bad thing to get a letter like that, because that letter would put us in default with our banker. And that letter did put us in default with our banker, and it cost us $3 million to pull our—our contract out of default.” Phil Morrell also testified that Oasis had “already been told that by Colonel Hay, that they [the government] didn’t have the funding to continue on this." . At the time modification P00006 was executed, Anaconda and Camp Victory were already operational. . Colonel Richardson testified, the modifications “changed the end date of option four from 16 August 2009 to 16 July 2009. So, it actually decreased the period of performance for the contractor.” . As indicated in plaintiff's post-trial brief, "[d]uring the P00011 discussions, Oasis had an outstanding debt of over $70 million." . Paul Jefferies testified at trial that "we were still being asked for significant concessions, beyond what was outlined that I’ve tried to outline here.... I mean to the tune of $30 million of concessions yet beyond what’s on this page.” Mr. Jefferies also indicated that: We didn’t really make an offer, the negotiations began with Paul [Morrell] and i sitting in a room with [colonel] Renee [Richardson], and i believe her assistant was there, and they told us that they were being pushed a particular direction, that she would need concessions from us to pay out the balance of the funds owed or she would have to move in this other direction. . The first option contemplated modifying the contract to not build TQ, but the parties decided to build the TQ plant. , Alan Morrell who earlier had testified about the water issues at the various plants indicated that regarding the lack of water at Speicher, "on P00011, because this was such a hot issue, again, part of the negotiation was a concession that we would sort this problem out,” and Oasis “bought another BEV 9 reverse osmosis system,” Alan Morrell also testified that "[p]art of the concessions that were demanded from us in P00011 were two site improvements to solve water issues. One was Speicher, and the other was Q-West.” , As reflected in the joint stipulations, and as agreed to by the parties regarding invoices for the base year of the contract: On December 31, 2005, Oasis submitted an invoice to the Government for 293,160 cases of water from Anaconda at 3.50 per case, for a total of $1,026,060. On January 31, 2006, Oasis submitted an invoice for 356,400 cases of water from Anaconda at $3,50 per case for a total of $1,247,400.00, and on February 28, 2006, Oasis submitted an invoice for 508,680 cases of water from Anaconda at $3.50 a case, for a total of $1,780,380.00. On March 31, 2006, Oasis submitted an invoice for 664,320 cases of water from Anaconda at $3.50 per case, for a total of $2,325,120.00. One month later, on April 30, 2006, Oasis submitted an invoice for 910,020 cases of water from Anaconda and Camp Victory at $3.50 a case, for a total of $3:185,070,00. On May 31, 2006, Oasis submitted an invoice for 1,126,920 cases of water from Anaconda and Camp Victory at $3.50 a case, for a total of $3,944,220.00. On June 15, 2006, Oasis submitted an invoice for 1,381,140 cases of water from Anaconda and Camp Victory at $3.50 a case, for a total of $4,833,990,00. On July 1, 2006, Oasis submitted an invoice for 297,540 cases of water from Anaconda and Speicher at $3.50 a case, for a total of $1,041,390.00. Finally, on July 31, 2006, Oasis submitted an invoice for 1,150,900 cases of water from Anaconda, Q-West, Speicher, and Camp Victory, for a total of $4,028,150,00, . In addition to Paul Morrell and Mr. Vos, Lawrence Schwartz, a certified public accountant, and Alan Morrell also submitted a sworn affidavit in support of the certified claim. . Although plaintiff and defendant typically refer to the claims in the certified claims as ''counts,” unless quoting from the parties, the court refers to the claims as claims, and the counts filed in plaintiff’s complaint in this court as counts. . In Claim 6, the water supply improvements, as alleged by plaintiff, refer to “the need to purify the non-compliant source water supplied by Defendant at Speicher and Q-West." . The parties have stipulated that "AQL” is an acronym for Acceptable Quality Level. .As referenced below, the defendant refers to Claim 1 and Claim 8 together under its claim for "Fraudulent Double Billing For $30 Million In Bottled Water.” In summarizing its certified claim in this court, plaintiff also referred to the Claim 1 and Claim 8 together, stating: "Counts 1 and 8—Recovery of $30,470,972 for the cost of the cases of water that was offset against the Base Year firm-fixed price, as well as the non-invoiced water Defendant also took at the time of P00011." The figure of $30,470,972.00 reflects the combined value of Claims 1 and 8 in the certified claim. The court notes that the parties consider the "Alternative additional claim for water supplied from Camp Anaconda" as "count 8.” The court refers to the alternative additional claim as Claim 8. . As plaintiff correctly cites, in the June 6, 2014 motion to amend, defendant requested: We respectfully request that the Court allow us to change the phrase "counts 1, 3, 4, and 8 of Oasis’s complaint," to "counts 1, 2, 4, and 8 of Oasis’s complaint" at paragraphs 318 and 139 of the amended counterclaim because "we are seeking fraud penalties with respect to those counts of the complaint in regard to Oasis’s contention that it is entitled to a lump-sum base period annual payment of $50,225,000, plus $3.50 per case for any water delivered duripg the base period. But in defendant's July 2, 2014, pre-trial brief, defendant argued that "Counts 1, 3, 4, 6, 7, and 8, of the complaint all hinge on Oasis's novel theory concocted solely for its certified claim that Oasis is entitled to payment of a flat fee of $50,225,000 plus $3.50 per case of water delivered during the contract base period." Defendant, by contrast, notes that "Oasis now complains that this was a ‘last-minute’ request, but fails to mention that it did not oppose the Government’s motion to amend,” and argues ”[i]n-stead of responding to the substance of several of the Government's fraud arguments, Oasis attempts to re-litigate the Court’s grant of our motion to amend the fraud counterclaim for a clerical error.” It appears, therefore, that defendant is now only pursuing fraud counterclaims for claims 1, 2, 4, 6, and 8. . For example, as noted below, in its post-trial brief regarding the False Claims Act defendant states: “Oasis is liable under the False Claims Act for the same reasons that its claim must be rejected under the Special Plea in Fraud.” . In Kellogg Brown & Root Services, Inc. v. United States, the Court of Federal Claims questioned the holding in Brown: Several decisions have seized upon this language as justification that all claims must be forfeited by a contract that is "tainted” by fraud, without regard to the alleged fraud's connection to a submitted claim. See, e.g., Brown Constr. Trades, Inc. v. United States, 23 Cl. Ct. 214, 216 (1991). In doing so, these cases overlook Little’s predicate factual finding that false proof had been submitted in a related claim under the contract. [[Image here]] In analyzing the applicability of the forfeiture statute, the Brown Construction court expanded the scope of the targeted conduct under the statute, while somehow relying on Little, 152 F.Supp. at 87-88, Kamen Soap, 124 F.Supp. at 620, and New York Market, 43 Ct. Cl. at 114, by stating that "28 U.S.C. § 2514 requires the forfeiture of all claims arising under a contract tainted by fraud against the Government.” Id. (emphasis added). As a consequence, the court effectively read out of the law the requirement that the fraud relate to the "proof, statement, establishment, or allowance” of claim, a hallmark of every precedential Court of Claims case analyzing claims under the forfeiture statute. See also Ab-Tech Constr., Inc. v. United States, 31 Fed.Cl. 429, 435-36 (1994) (repeating that forfeiture statute requires forfeiture of all claims tainted by fraud without requiring such fraud relate to "proof, statement, establishment, or allowance” of a claim), aff'd, 57 F.3d 1084 (Fed. Cir. 1995) (unpublished table decision) (per curiam). Kellogg Brown & Root Servs., Inc. v. United States, 99 Fed.Cl. at 500. . As noted in AEY, ”[i]n upholding the trial court's decision in KBR I, the Federal Circuit did not address that court's interpretation of the continuing validity of Little. The Federal Circuit only confirmed the invalidity of much of its progeny.” AEY, Inc. v. United States, 114 Fed.Cl. at 629. . Defendant argues "[a]lthough the prevailing standard in the Federal Circuit is clear and convincing evidence, the United States respectfully submits that the proper standard is preponderance of the evidence,” arguing that the United States Supreme Court has " '[d]eclined to depart from the preponderance-of-the-evidence standard generally applicable in civil actions.'" (quoting Herman & MacLean v. Huddleston, 459 U.S. 375, 390, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983)). Even if the court were to agree with defendant, the Federal Circuit’s binding precedent has made it clear that this court is to apply the "clear and convincing” standard of proof under the Special Plea in Fraud statute. See Daewoo Eng’g & Constr. Co. v. United States, 557 F.3d at 1341; Kellogg Brown & Root Servs., Inc. v. United States, 728 F.3d at 1365. . The "clear and convincing” standard applies to proof under the Special Plea in Fraud statute, 28 U.S.C. § 2514, as opposed to the preponderance of the evidence standard applicable to the False Claims Act, 31 U.S.C. § 3729, and the Contract Disputes Act, 41 U.S.C. § 604. See UMC Elees. Co, v. United States, 249 F.3d 1337, 1338-39 (Fed. Cir. 2001) ("The government must prove a violation of the Contract Disputes Act and False Claims Act by a preponderance of the evidence. Under the Special Plea in Fraud, the government must prove its allegations by clear and convincing evidence,” (citing Commercial Contractors, Inc, v. United States, 154 F.3d at 1362)). .The trial court in Veridyne also indicated that, regarding 28 U.S.C. § 2514, "[a] predicate for forfeiture under this statute is the establishment of fraud, although the statute itself does not articulate the elements of fraud.” Veridyne Corp, v. United States, 105 Fed.Cl. at 801. . As noted above, although defendant’s positions changed shortly before trial regarding which claims the government believed were fraudulent, in its post-trial briefs, defendant stated that "in June 2014, the Government moved to amend its fraud counterclaim to make clear that our counterclaims addressed counts one, two, four, six, and eight of Oasis's counterclaim, and not count three.” . As indicated above, the defendant refers to Claim 1 and Claim 8 together under its claim for its theory of "Fraudulent Double Billing For $30 Million In Bottled Water.” Plaintiff responds to defendant's allegations in a similar way, and, - therefore, the court considers Claim 1 and Claim 8 together. . Plaintiff's counsel elaborated that: Counts 1, 2 and 8 seek the difference between capability and water and what the government actually paid us in the base year, which is $47,954,167. We tried to allocate the difference, which is $32 million and change, amongst counts 1, 2 and 8, which are the things that we believe were taken from us. Counts 1 and 8 seek water payments. Count 2 seeks the difference between $50 million and $47 million. We thought the $47 million was capability, which is why count 2 is $2 million and counts 1 and 8 are $30 million. . On appeal, the Federal Circuit noted that the United States Court of Federal Claims had decided that the plaintiff in Veridyne forfeited its claims against the United States pursuant to the Special Plea in Fraud Statute and plaintiff did not appeal that forfeiture finding. The Federal Circuit affirmed the lower court's finding that Veridyne violated the Contract Disputes Act. See Veridyne Corp. v. United States, 758 F.3d at 1376, 1381. . Whether plaintiff actually incurred the costs was not fully addressed at trial, although plaintiff contends in its post-trial briefs that it did incur the costs. In its post-trial briefs, plaintiff points to the contracting officer's final decision which addressed the Speicher and Q-West fixes: The contractor and the USG mutually agreed as part of P00011 that Oasis would cover the costs of water supply improvements. Oasis had the right to request for equitable adjustment for the cost to improve the water supply at Camp Speicher and Camp Qwest and chose not to do so. Not requesting this equitable adjustment is an indication that P00011 was agreed to by both parties in good faith. This claim element is denied. Defendant argues that the final decision is not relevant because "Oasis was already paid $600,000 for those improvements as part of P00011." (emphasis in original). . Paul Jefferies testified regarding the draft version, "there were a number of other items that weren’t here and this draft doesn’t reflect our final agreement, which is we provided that Pall Aria and that RO [reverse osmosis] for free and installed them accordingly.” . Regarding defendant’s argument that plaintiff's claims are for costs it did not incur, plaintiff argues that ”[t]his is the new theory that Oasis objects to Defendant advancing. Defendant’s only response—that it is additional evidence in support of its argument that Count 4 is fraudulent— is unavailing, because that would mean it was entitled to add, after trial, any new basis for fraud because it had alleged fraud generally.” In response, defendant argues that "Oasis takes issue with the fact that the Government supported its fraud claims with trial evidence that Oasis apparently did not anticipate. This action by the Government is not only appropriate, but also necessary to ensure that the fraud counterclaims conform with the trial evidence.” (internal citation omitted). . On cross-examination, defendant's counsel asked Paul Morrell: Q: Let’s turn to Count (d), which is also Count 4 of the complaint, and that’s entitled "Claim for extension of base year period.” So, you contend that the base year performance involved the Government paying the contractor $50,225,000 in a mobilization payment for the construction of the sites, right? A: That’s correct. Q: And the contractor would own the sites after they were completed. A: That’s correct. Q: And this $ 11 million claim, just to be clear, is not for increased construction costs incurred by Oasis during the extended base period, correct? A. That’s correct. . As discussed below, the court notes that Phil Morrell testified that he explained his view of the contract to multiple Army officials, most specifically, Colonel Hay. . Plaintiff cites to the undersigned’s decisions in Gulf Group General Enterprises Co. W.L.L. v. United States, 114 Fed.Cl. 258 (2013) and Chapman Law Firm, LPA v. United tates, 113 Fed.Cl. 555 (2013), aff'd, 583 Fed.Appx. 915 (Fed. Cir. 2014). . Plaintiff concedes that "Paul Morrell testified that during the Base Year, he operated the company as if the Contract was for the sale of water at $3.50 per case, but that over time, he became convinced that Phil Morrell's interpretation, which underlies the claim, was correct.” . Plaintiff also argues that: the absurdity of the Defendant's position is highlighted by its reliance on the beliefs of Max Wyeth. Mr. Wyeth ceased to have any involvement in Oasis as of early 2006 at the latest; and in fact, was locked in a payment dispute with the Morrell brothers for much of that time. Yet Defendant would have the court believe that "Oasis” does not believe in its 2008 claim because Mr. Wyeth says it is wrong. . In a footnote, the Court of Federal Claims also indicated that the revised claim amount that was discussed at trial in Daewoo was never certified and submitted to a contracting officer. Daewoo Eng'g & Constr. Co. v. United States, 73 Fed.Cl. at 560 n.19; id. at 573. . As in the above captioned case, defendant also sought penalties under the False Claims Act and under the antifraud provision of the Contract Disputes Act. . In Commercial Contractors, the Federal Circuit refers to the Special Plea in Fraud as the "the Forfeiture of Fraudulent Claims Act." Commercial Contractors. Inc. v. United States, 154 F.3d at 1362. . Oasis states that "[d]efendant did not call Col. Hay for his understanding of the Contract, despite the fact that he was a COR [contracting officer representative] and the customer (COS-COM), and was heavily involved in the Base Year.” . The court, however, agrees with defendant, that Oasis’ argument that it "is improper for the Government to file a fraud counterclaim if contracting officers—who did not have access to any of Oasis's internal documents—did not report the claim as fraudulent" is incorrect. Defendant correctly notes that the "Department of Justice possesses sole authority to assert fraud counterclaims” in this court (citing 28 U.S.C. §§ 516, 2508; 31 U.S.C. § 3730(a) and Hernandez, Kroone, & Assocs. v. United States, 110 Fed.Cl. at 528). . The False Claims Act was amended in 2009. See Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, § 4(a), 123 Stat. 1617, 1621. The amendments are treated "as if enacted on June 7, 2008, and apply to all claims under the False Claims Act (31 U.S.C. § 3729 et seq,) that are pending on or after that date.” § 4(f), 123 Stat. at 1625. See AEY, Inc. v. United States, 114 Fed.Cl. at 633 ("The amended provision, 31 U.S.C. § 3729(a)(1)(B), took effect as if enacted on June 7, 2008 and applies to all claims under the False Claims Act that were pending on or after that date.”). As noted above, Oasis submitted its certified claim on July 4, 2008, and Lieutenant Colonel Hobbs denied Oasis’ certified claim in its entirety on October 18, 2009, . The Department of Justice, by regulation, has increased the penalties for FCA [False Claims Act] violations to a minimum of $5,500.00 and a maximum of $11,000.00.” Alcatec, LLC v. United States, 100 Fed.Cl. at 526 n.13 (citing 28 C.F.R. § 85.3(a)(9)); see also Veridyne Corp. v. United States, 105 Fed.Cl. at 808 n.30; Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. No. 101-410, 104 Stat. 890; Civil Monetary Penalties Inflation Adjustment, 64 Fed. Reg. 47,-099-01, 47,104 (Aug. 30, 1999). The regulation at 28 C.F.R. § 85.3 states: The civil monetary penalties provided by law within the jurisdiction of the respective components of the Department, as set forth in paragraphs (a) through (d) of this section, are adjusted in accordance with the inflation adjustment procedures prescribed in section 5 of the Federal Civil Monetary Penalties Inflation Adjustment Act of 1990, Pub. L. 101-410, effective on or after September 29, 1999, as follows: (a) Civil Division. [[Image here]] (9) 31 U.S.C. § 3729(a), False Claims Act, violations: minimum from $5,000 to $5,500; maximum from $10,000 to $11,000. 28 C.F.R. § 85.3 (2016). The court has the discretion to impose penalties within the statutory range. See Morse Diesel Int'l, Inc. v. United States, 79 Fed.Cl. 116, 125 (2007), recons. denied, 81 Fed.Cl. 311 (2008). . Although the United States Supreme Court in Kellogg Brown & Root addressed the False Claims Act, because the case was brought as a civil qui tarn action, "filed by private parties, called relators, 'in the name of the Government,' ” Kellogg Brown & Root Servs,, Inc, v. U.S., ex rel. Carter, 135 S.Ct. at 1973, the holding by the Supreme Court does not impact this case. In addition, the Supreme Court also addressed the Wartime Suspension of Limitations Act, which is not at issue in the above captioned case. . The prior version of the False Claims Act was substantively similar to the current version, but is organized slightly differently, and stated: (1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval; (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government; (3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid; (4) has possession, custody, or control of property or money used, or to be used, by die Government and, intending to defraud the Government or willfully to conceal the property, delivers, or causes to be delivered, less property than the amount for which the person receives a certificate or receipt; (5) authorized to make or deliver a document certifying receipt of property used, or to be used, by the Government and, intending to defraud the Government, makes or delivers the receipt without completely knowing diat the information on the receipt is true; (6) knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the Government, or a member of the Armed Forces, who lawfully may not sell or pledge the property; or (7) knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government, is liable to tire United States Government for a civil penalty of not less than $5,000 and not more than $10,000 plus 3 times the amount of damages which the Government sustains because of the act of that person .... 31 U.S.C. § 3729 (2006). The term "claim" was previously defined in the False Claims Act as: Includ[ing] any request or demand, whether under a contract or otherwise, for money or property which is made to a contractor, grantee, or other recipient if the United States Government provides any portion of the money or property which is requested or demanded, or if the Government will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded, 31 U.S.C. § 3729(c) (2006). . Black's Law Dictionary defines gross negligence as: A lack of even slight diligence or care. The difference between gross negligence and ordinary negligence is traditionally said to be the omission of even such diligence as habitually careless and inattentive people do actually exercise in avoiding danger to their own person or property.... A conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party, who may typically recover exemplary damages.— Also termed reckless negligence; wanton negligence; willful negligence; willful and wanton negligence; hazardous negligence; magna ne-glegentia. "Negligence is gross if the precautions to be taken against harm are very simple, such as persons who are but poorly endowed with physical and mental capacities can easily take.... As it originally appeared, this was very great negligence, or the want of even slight or scant care. It has been described as a failure to exercise even that care which a careless person would use.” Black’s Law Dictionary 1197 (10th ed. 2014) (emphasis in original) (citations omitted). . United States v. Bornstein analyzed an earlier version of the False Claims Act, but the guidance of the United State Supreme Court remains relevant to the court's interpretation of amended versions of the False Claims Act. See United States v. Krizek, 111 F,3d at 939 n.1. . As noted above, both plaintiff and defendant combined many of their fraud arguments together, Both parties seem to believe that if fraud was proven, or disproven, it would apply equally to each of the counterclaims, and merely give lip service to the differing standard of proof for the False Claims Act and the antifraud provision of the Contract Disputes Act. In its principal post-trial brief, plaintiff posits "[ajlthough these statutes differ in wording and remedy, each has two primary requirements that are relevant to this action: (1) the Government must demonstrate that the claim is actually false, and (2) the Government must demonstrate that the contractor acted knowingly.” . The court notes that in plaintiff’s post-trial briefs plaintiff also argues that for False Claims Act purposes, "in the context of an open legal question (i.e. the initial interpretation of a law or contract), the subjective intent of a party who adopts a reasonable interpretation is irrelevant, and the Court should not even consider it.” As the court has determined that there is no violation of the False Claims Act, the court does not reach a distinction between an objective and subjective interpretation of the contract. The court, however, notes plaintiff only cites to a footnote in a non-precedential decision for support. See U.S. ex rel. Hixson v. Health Mgmt. Svs., Inc., 657 F.Supp.2d 1039, 1057 (S.D. Idwa 2009), aff'd, 613 F.3d 1186 (8th Cir. 2010). The court further notes that the plaintiff and the United States District Court for the Southern District of Iowa both also cite to the United States Supreme Court decision of Safeco Insurance Co. of America v. Burr for the proposition that "[t]o the extent that they argue that evidence of subjective bad faith can support a willfulness finding even when the company’s reading of the statute is objectively reasonable, their argument is unsound.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 70, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007). The statute at issue in Safeco addressed the Fair Credit Reporting Act, and, therefore, was not in the context of the False Claims Act, and, moreover, did not address interpretation of a contract. . The language of the anti-fraud provision of the Contraqt Disputes Act was slightly altered when it was recodified in 2011 at 41 U.S.C, § 7103(c)(2). See Veridyne Corp. v. United States, 758 F.3d at 1380. The current language of tire provision now states: If a contractor is unable to support any part of the contractor's claim and it is determined that the inability is attributable to a misrepresentation of fact or fraud by the contractor, tiren the contractor is liable to the Federal Government for an amount equal to the unsupported part of the claim plus all of tire Federal Government's costs attributable to reviewing the unsupported part of the claim. 41 U.S.C. § 7103(c)(2); see also Hernandez, Kroone & Assocs., Inc. v. United States, 110 Fed.Cl. at 525 ("By the Act of January 4, 2011, Pub. L. No. 111-350, 124 Stat. 3677, the CDA [Contract Disputes Act] was amended and enacted into positive law. The CDA provisions were relocated from 41 U.S.C. §§ 601-13 (2006) to 41 U.S.C. §§ 7101-09. Comparing 41 U.S.C. § 7103(c)(2) with its source, 41 U.S.C, § 604 (2006), confirms the absence of any substantive change.”). Although the minor differences in the revisions to the current versions do not change the court’s analysis, the court refers to the anti-fraud provision of the Contract Disputes Act in effect at the time of the events in the above-captioned case. The court notes that in ABY, Inc. v. United States, the plaintiff argued that under the current version of the anti-fraud provision of the Contract Disputes Act, "the antifraud provisions of the CDA supersede the Forfeiture Statute [28 U.S.C. § 2514],’’ AEY, Inc. v. United States, 114 Fed.Cl. at 627. Plaintiff has not raised a similar argument in the above captioned case. In ABY, Inc. v. United States, the court declined to address the ABY plaintiff’s contention that the 28 U.S.C. § 2514 is superseded by the anti-fraud provision of the Contract Disputes Act, because the court concluded the government had waived its rights under 28 U.S.C. § 2514. See AEY, Inc. v. United States, 114 Fed.Cl. at 632. . As discussed above in the False Claims Act analysis, the preponderance of the evidence standard applied to proof under the Contract Disputes Act and the False Claims Act is a less rigorous standard than the clear and convincing standard of proof applied under the Special Plea in Fraud statute. See UMC Elecs. Co. v. United States, 249 F.3d at 1338-39 ("Under the Special Plea in Fraud, the government must prove its allegations by clear and convincing evidence." (citing Commercial Contractors, Inc. v. United States, 154 F.3d at 1362)). . Plaintiff argues that "[ejxpecting to recover less than 100 cents on the dollar on a certified claim is simply a wise business practice,” however, the court does not see how that argument can establish that the claim which was certified and submitted necessarily was properly submitted and certified by Paul Morrell.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218611/	ORDER SUSAN G. BRADEN, Chief Judge Between September 5, 2017 and October 5, 2017, forty-six complaints were filed in the United States Court of Federal Claims alleging Takings Clause claims in violation of the Fifth Amendment to the United States Constitution. Ten of those forty-six complaints are putative class action lawsuits. See Y And J Properties, LTD v. United States, No. 17-1189; Banes, et al., v. United States, No. 17-1191; Salo, et al. v. United States, No. 17-1194; Bouzerand, et al. v. United States, No. 17-1195; Aldred, et al. v. United States, No. 17-1206; Milton, et al. v. United States, No. 17-1235; Micu, et al. v. United States, No. 17-1277; Hollis, Jr., et al. v. United States, No. 17-1300; Cutler, et al. v. United States, No. 17-1459; Tita, et al. v. United States, No. 17-1461. The remaining complaints were filed either by individuals or groups of individuals. On October 6, 2017, the court convened a status conference at the United States District Court for the Southern District of Texas. During that conference, the court stated that it would seek the assistance of Chief Judge Lee H. Rosenthal of the United States District Court for the Southern District of Texas. in the selection of class counsel(s) and/or lead class eounsel(s) in the above-captioned putative class action lawsuits. Chief Judge Rosenthal agreed to assist the court in this matter. Therefore, on or before COB on Friday, October 20, 2017, all counsel of record that wish to be considered as class counsel(s) and/or lead class counsel(s) should file on their docket a Statement of Interest, pursuant to Rule of the United States Court of Federal Claims (“RCFC”) 23(g)(1), that states: (1) the work counsel has done in identifying or investigating potential claims in the action; (2) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; and (3) counsel’s knowledge of the applicable law; (4) the resources that counsel will commit to representing the class; and (5) any other information relevant to this assignment. Counsel representing individual plaintiffs and/or a group of individual plaintiffs who do not plan to elect to “opt-in” one of the above-captioned class action cases should advise the court of that decision and whether any or all of the individual plaintiff or group(s) of individual plaintiff cases should be consolidated, and if so, whether a lead counsel(s) in one or more of those cases should be appointed. In addition, if consolidation is sought, interested counsel should provide a Statement of Interest, in the same manner and a time, as set forth above for class action counsel(s) and/or lead class action counsel(s). On November 1, 2017, Chief Judge Rosen-thal will conduct a hearing regarding any Statement(s) of Interest requested herein at 10:00 AM (CST) in Courtroom 11-D in the United States District Court for the Southern District of Texas, 515 Rusk Street, Houston, Texas. The court will issue a separate order addressing class action certification. Appointment of class action counsel will be made at the same time certification is determined, pursuant to RCFC 23(c)(1), (g)(1). IT IS SO ORDERED.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218612/	ORDER REGARDING CLASS CERTIFICATION SUSAN G. BRADEN, Chief Judge Between September 5, 2017 and October 5, 2017, forty-six complaints were filed in the United States Court of Federal Claims alleging Takings Clause claims in violation of the Fifth Amendment to the United States Constitution. Ten of those forty-six complaints are putative class action lawsuits. See Y And J Properties, LTD v. United States, No. 17-1189; Banes, et al., v. United States, No. 17-1191; Salo, et al. v. United States, No. 17-1194; Bouzerand, et al. v. United States, No. 17-1195; Aldred, et al. v. United States, No. 17-1206; Milton, et al. v. United States, No. 17-1235; Micu, et al. v. United States, No. 17-1277; Hollis, Jr., et al. v. United States, No. 17-1300; Cutler, et al. v. United States, No. 17-1459; Tita, et al. v. United States, No. 17-1461. The remaining complaints were filed either by individuals or groups of individuals. Under the Rules of the United States Court of Federal Claims (“RCFC”), putative class members must establish both the “prerequisite” elements of RCFC 23(a) and the “maintainable” elements of RCFC 23(b). RCFC 23(a) provides that one or more members of a class may sue as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. If the “prerequisites” of RCFC 23(a) are met, the putative members of the class also must establish under RCFC 23(b) that: (1) the United States has acted or refused to act on grounds generally applicable to the class; (2) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members; and (3) that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. RCFC 23(b) states that the matters pertinent to these findings include: (A) the class members’ interests in individually controlling the prosecution of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by class members; and (C) the likely difficulties in managing a class action. The elements of RCFC 23(a) and (b) can be grouped into five categories: (i) numerosity—a class so large that joinder is impracticable; (ii) commonality-in terms of the presence of common questions of law or fact, the predominance of those questions, and the treatment received by the class members at the hands of the United States; (in) typicality—that the named parties’ claims are typical of the class; (iv) adequacy—relating to fair representation; and (v) superiority—that a class action is the fairest and most efficient way to resolve a given set of controversies. See Barnes v. United States, 68 Fed.Cl. 492, 494 (Fed. Cl. 2005) (citing Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1279 (11th Cir. 2000) (“Rule 23(a) provides that a class may be certified if the following requirements are met: (1) numerosity ...; (2) commonality ...; (3) typicality ...; and (4) adequacy[.]”)). Each of these elements must be met for class certification. See Testwuide v. United States, 56 Fed.Cl. 755, 761 (2003) (“failure to satisfy one of the ... requirements is fatal to a motion for class certification”); see also Gen. Tele. Co. of the Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (making this observation as to Fed. R. Civ. P. 23). The commonality element must be outcome determinative. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (the commonality element of Rule 23(a)(2) of the Federal Rules of Civil Procedure requires that: “the common contention ... must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”). The commonality element does not require the representative Plaintiffs’ claims to be identical to those of the putative class members. See Barnes, 68 Fed.Cl. at 496 (A finding of commonality does not require that the claims be identical; “[rjather, to meet RCFC 23(a)(2), the questions underlying the claims of the class merely must share essential characteristics, so that their resolution will advance the overall ease.”). In addition, anecdotal evidence of the general conditions of the class is not sufficient to establish the commonality element. Id. at 354-55, 131 S.Ct. 2541 (holding that anecdotal evidence was neither sufficient nor reliable to establish that appellant “operated under a general policy of discrimination,” since no evidence was introduced demonstrating that all the company managers conducted themselves in a common manner such that each class member suffered a common injury) (emphasis added). The key to the typicality element is whether all class members are challenging the same conduct and relying on the same legal theories. See In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 311 (3d Cir. 1998) (“Commentators have noted that cases challenging the same unlawful conduct which affects both the named plaintiffs and the putative class usually satisfy the typicality element irrespective of the varying fact patterns underlying the individual claims.”) (internal quotation marks and citations omitted). Like the commonality element, “the typicality [element] does not require the representative Plaintiffs’ claims to' be identical to those of the putative class members.” See Barnes, 68 Fed.Cl. at 498. The adequacy element requires class counsel to be “qualified, experienced[,] and generally able to conduct the litigation.” See Barnes, 68 Fed.Cl. at 499 (quoting In re Drexel Burnham Lambert, 960 F.2d 285, 291 (2d Cir. 1992) (internal quotation marks omitted). In addition, “the class members must not have interests that are ‘antagonistic’ to one another.” Id. (quoting In re Drexel, 960 F.2d at 291) (internal quotation marks omitted). The superiority element is met where “a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Fed. R. Civ. P. 23 advisory committee’s note (1966 amendment, subdivision (b)(3)); see also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (The basic objective of Rule 23 is the “economies of time, effort, and expense.”). Therefore, on or before 5:00 PM (EST) on Thursday, November 9, 2017, all Plaintiffs seeking class certification should file a Motion For Certification with the court evidencing that they have met the required elements of both RCFC 23(a) and (b) for class certification. IT IS SO ORDERED.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218613/	ORDER Susan G. Braden, Chief Judge On January 2, 2018, the court issued an Order directing the parties to file a Joint Status Report on January 5, 2018. EOF No. 122. On January 4, 2018, the parties met in Houston, Texas to identify test eases and discuss “whether those test eases, once adjudicated, will have a preclusive effect on all directly or indirectly related cases. On January 5, 2018, Plaintiffs filed a Status Report, stating, inter alia, that “[t]he United States will give to Plaintiffs by January 8, 2018 a list of requested information it believes relevant to test property selection.” EOF No. 125 at 2. On that same day, the Government filed a Status Report, informing the court that “[t]he,United States will give to Plaintiffst,] by January 8, 2018[,] a list of requested information it believes relevant to test property selection.” EOF No. 126 at 2. Accordingly, the Government is directed to provide the aforementioned information to Plaintiffs today, January 8, 2018, by 5:00 PM (EST). IT IS SO ORDERED.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218614/	Vaccine Act; HPV Vaccine; Special Master; Althen v. Secretary of Health and Human Services; Due Process; Expert Testimony; Vaccine Rule 3; Vaccine Rule 8. OPINION HORN, J. On May 11, 2012 petitioner K.L.2 filed a timely petition for compensation with the National Vaccine Injury Compensation Program, under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-l to - 34 (2012) (Vaccine Act). On March 17, 2017, Special Master Brian H. Corcoran3 of the United States Court of Federal Claims denied petitioner’s claim for an award of compensation, finding that the weight of evidence was insufficient to support petitioner’s causation theory. See K.L. v. Sec’y of Health & Human Servs., No. 12-0312V, 2017 WL 1713110, at 17 (Fed. Cl. Spec. Mstr. March 17, 2017). Subsequently, on April 16, 2017, petitioner moved this court to review the Special Master’s decision to deny her claim, pursuant to Rule 23 of the Vaccine Rules of the United States Court of Federal Claims (RCFC) Appendix B (2017). This case comes to the court upon that motion. FINDINGS OF FACT Petitioner K.L. was born on March 25, 1993. Petitioner alleges that she was healthy prior to receiving a third dose of the human papillomavirus (HPV) vaccine Gardasil on February 9, 2010. The record before the court indicates that K.L. was healthy during her childhood, with the exceptions of recurring otitis media,4 anxiety disorder, reading difficulties, and one instance of vasovagal attack with syncope.5 Regarding KL.’s family history, according to notes in K.L.’s medical records taken on March 22, 2010 by K.L.’s physician, Dr, Melissa Volansky, and reconfirmed in notes taken on June'2, 2010 by Dr. Annapurna Poduri, another of K.L.’s treating physicians, K.L. has some family history of seizures, including three paternal cousins, one of whom had a formal epilepsy diagnosis. Dr. Volansky’s March 22, 2010 notes further indicate that KL.’s father once had a seizure after sleep deprivation. K.L. received doses of Gardasil on May 18, 2009, August 18, 2009, and February 9, 2010. K.L. does not allege any injury or adverse effects from either of the first two doses. On February 11, 2010, two days after she received the third dose of Gardasil, K.L. was hospitalized after suffering a seizure. According to petitioner’s hospital record, before the seizure, K.L’s mother witnessed K.L.’s right hand twitching, and then, within minutes, K.L. slumped against a cabinet and hit her head on a door handle. Her mother then helped her to the floor where K.L. “had foaming at the mouth, was biting her tongue, and was somewhat blue around the mouth” for approximately four minutes, after which she was conscious, but disoriented. K.L. was 584taken via ambulance to the Emergency Room (ER) of Copley Hospital in Morrisville, Vermont. K.L. complained of headaches at the ER, but according to ER records, testing indicated she had no fever, respiratory distress, or other underlying or concurrent symptoms. K.L.’s head and neck computed tomography (CT) scan, complete blood count (CBC), and electrocardiogram (EKG) tests also were normal. K.L.’s hospital records show her mother told ER physicians that before the seizure, K.L. had been experiencing ear pain and had taken Benadryl and Sudafed for a recent cold. On the same day, K.L. was transferred to the Fletcher Allen Health Care facility at the Vermont Children’s Hospital (FAHC), where she was admitted to the Pediatric Intensive Care Unit (PICU), sedated and intubated. At FAHC, K.L. had a lumbar puncture to test her cerebrospinal fluid (CSF) for indications of a central nervous system infection, which was negative. K.L. also had a magnetic resonance imaging test (MRI), which was normal, and an electroencephalogram (EEG),6 which indicated an impaired arousal mechanism, but no epileptiform features.7 On February 13, 2010, K.L. had her intu-bation tube removed and regained consciousness, apd was then transferred out of the PICU and discharged from Vermont Children’s Hospital. Upon discharge, K.L. was given a diagnosis of “Single Seizure—right body onset, mild [Tjodd’s paralysis of right face.” Notes in her patient record indicate that “[a]t transfer the cause of her seizure was thought to be multifaetorial with potential contributors including a mild URI [upper respiratory infection], OTC [over the counter] pharmacotherapy with benadryl and su-dafed, and recent HPV vaccine administration.” On February 15, 2010, K.L. had a followup appointment with Dr. Volansky who noted K.L. complained of headaches, vomiting, nausea, and dizziness. Dr. Volansky also noted that K.L.’s recent seizure was caused by an “unclear etiology, may have been new onset epilepsy, may have been effect of recent Gar-dasil and/or decongestants.” She confirmed K.L.’s prior imaging test results showed no sign of infection or brain trauma. On February 27, 2010, K.L. exhibited pre-seizure symptoms of twitching, arm jerking and leg buckling, and she was admitted to FAHC, where she experienced a seizure that was treated with 1000 mg of Keppra8 and lorazepam.9 Notes from this visit indicate this was her first seizure since the February 11, 2010 hospitalization, and that she had a stomach illness a few days before. On February 28, 2010, K.L. was discharged and instructed to take 500 mg doses of Keppra and to consult a pediatric neurologist. On March 22, 2010, Dr. Louisa Kalsner, a pediatric neurologist in Burlington, Vermont, evaluated K.L.’s condition. In her report, Dr. Kalsner noted that K.L. had experienced no seizures since February 27, 2010, was having some difficulty using her right hand and recalling words, and complained she had been having headaches since her third dose of Gardasil. Dr. Kalsner prescribed K.L. Ati-van10 and recommended that she increase her Keppra dosage to 750 mg twice daily. On June 1, 2010, K.L. had an appointment with Dr. Poduri, a neurologist and epileptologist11 at the Boston Children’s Hospital, who 585reviewed KL.’s medical records and symptoms, and who noted that K.L. had complained of a stomach illness and had received a Gardasil vaccination two days prior to her first seizure. At this visit, K.L. informed Dr. Poduri that she had experienced a dead feeling in her right arm after throwing a baseball or while after writing before her third Gardasil vaccination. Dr. Poduri also noted that based on anecdotes K.L. related during them appointment, K.L. may have had episodes of hand-twitching similar to her February 11, 2010 seizure “in the past,” as well as other seizure symptoms, and Dr. Poduri wrote “there is certainly the possibility that she has had some sensory only seizures as well.” Based on her examination, KL.’s family history, and the association between epilepsy and a certain brain abnormality and reading difficulties at KL.’s age, Dr. Poduri determined that K.L. had a juvenile onset form of idiopathic partial onset epilepsy.12 She noted this was “the most likely diagnosis given her otherwise normal developmental history and her normal examination.” Dr. Poduri’s notes do not indicate a diagnostic connection between the seizures and Garda-sil. She also recommended that K.L. have a more detailed MRI for additional evaluation. On June 22, 2010, K.L. had a follow-up appointment with Dr. Kalsner, who noted that K.L. was responding well to the Keppra and had experienced no seizures since February, Dr. Kalsner noted that “[tjhere was some concern about having Gardasil vaccination, third dose, 2 days prior to having her first seizure onset and maybe that indicates seizures should improve; however, would continue antiseizure medication for a total duration of 2 years and then gradually try to taper it off.” Her notes gave no indication as to whether she agreed or disagreed with a Gardasil-related theory. She recommended a follow-up visit at the neurology clinic in six months. Dr. Kalsner was aware of KL.’s prior evaluation by an epileptologist, but had not received a record of Dr. Poduri’s evaluation. On June 30, 2010, Dr. Poduri performed and reviewed the results of the more detailed MRI she had recommended and found no brain abnormalities. Thereafter, she diagnosed K.L. with “partial-onset epilepsy that appears to be truly idiopathic.” In the following months, records from KL.’s visits with her physicians on July 27, 2011, August 11, 2011, and January 19, 2012 indicate that although K.L. did not have any additional seizures, she suffered from frequent headaches and vomiting, which was controlled by migraine medication, and from functional dyspepsia13 and gastroparesis,14 which improved after she eliminated dairy from her diet. On January 9, 2012, K.L. had a comprehensive educational evaluation because of difficulties she was having in college, and was diagnosed with a language-based disorder of written expression. She was advised to obtain a tutor and reduce her course load, and also began to see a psychiatrist and take antidepressants to reduce her anxiety. On May 4,2012, Dr. Kalsner recommended that K.L. reduce her Keppra medication to 500 mg twice a day, because she thought it “might help with her symptoms of anxiety and difficulty with sleep.” The record indicates that K.L. informed Dr. Katherine A, Wayman, a physician who evaluated K.L. at FAHC on January 29, 2013, that she had reduced her Keppra dosage to 500 mg “around September.” K.L. reported to Dr. Wayman that “about [one] week ago” she had started having partial seizures every few minutes, in the form of twitching in various places on her body. To control them, Dr. Wayman prescribed her Ativan for five days and advised K.L. to return to the higher dose of Keppra, 750 mg twice a day, which controlled her seizures. 586On May 11, 2012, petitioner filed her timely petition for compensation under the Vaccine Act in the United States Court of Federal Claims, Office of Special Masters, and her case was assigned to Special Master Christian J. Moran. Because the petition was filed without all the statutorily required supporting medical records, see 42 U.S.C. § 300aa-11(c), petitioner twice requested, and Special Master Moran granted, extensions of time for petitioner to file all the necessary medical records. On October 26, 2012, petitioner filed some of the missing records and a statement of completion. On November 26, 2012, respondent submitted a status report regarding the lack of completeness of petitioner’s medical records filed to date, and noted a number of remaining deficiencies. The parties had a status conference on December 11, 2012. On the same date, Special Master Moran issued an Order for petitioner to file the remaining required medical records- and an amended petition “clearly stating the alleged injury or injuries caused by her ... vaccinations.” On January 25, 2013, petitioner filed notice of her intent to continue her petition because the statutory 240-day time period for the Special Master’s issuance of a decision had lapsed. See Vaccine Rulé 10(b). Pursuant to the December 11, 2012 Order and an April 12, 2013 Order, petitioner filed an amended petition and additional medical records. On June 10, 2013, respondent filed a Report pursuant to Vaccine Rule 4(c), the due date for which had been suspended up to this point pending petitioner’s filing of complete medical records. Respondent argued that compensation was not appropriate under the terms of the Vaccine Act, since petitioner had not met her burden of proof. Respondent argued that, because petitioner was alleging non-Table injuries from the Gardasil vaccination, she was required to demonstrate, by a preponderance of the evidence, that her injuries were caused-in-fact by the vaccine. Respondent further argued that no compensation should be awarded because (1) petitioner had failed to offer a reputable scientific or medical theory that Gardasil could or did cause epilepsy or migraines, (2) that a merely “possible” causal link between the vaccination and injury is insufficient to meet petitioner’s burden under the Vaccine Act, and (3) that temporal proximity alone is insufficient to prove causation. On December 23, 2013, Special Master Moran issued a draft Order regarding the parties’ proposed expert witnesses, instructing the parties that “the expectation is that the expert’s written report will constitute the expert’s direct testimony,” in lieu of offering direct testimony at trial, and allowing the parties until January 10, 2014 to file any response. Neither party filed an objection. The draft Order was discussed further at a status conference held on January 15, 2014, at which Special Master Moran “reminded the parties” that after the expert reports were filed, “further direct testimony from their experts should not be expected at hearing.” At the January 15, 2014 conference, once again, neither party objected. Also on January 15, 2014, Special Master Moran issued a final version of the draft Order and an “Order Regarding Expert Reports,” which described “the minimum information necessary from the expert,” along with an Order directing that the parties’ “expert’s report will constitute that expert’s direct testimony.” Finally, given the multiple extensions already given to petitioner and her counsel, Special Master Moran’s January 15, 2014 Order instructed petitioner to file her expert report by March 21, 2014. It was not until January 24, 2014 that petitioner’s counsel moved for reconsideration, arguing that petitioner had a right to have her expert give direct testimony at trial. In a January 29, 2014 Order denying the Motion for Reconsideration, Special Master Moran explained that the January 15, 2014 Order was intended to expedite the proceedings, and that the “practice of submitting direct testimony in writing as part of a non-jury case has been used in a variety of contexts,” as it gives the parties “flexibility in presenting the expert’s opinions and basis for those opinions” through a “more developed and more thoroughly presented report.” As noted above, on April 2, 2014, petitioner’s case was reassigned to Special Master Brian H. Corcoran. Petitioner finally filed her expei^t report on June 20, 2014, followed by a supplemental expert report on December 31, 2014, Petitioner produced Dr. Bea587trice C. Engstrand as her medical expert. Dr, Engstrand is board-certified in neurology and has completed three residencies, one in medicine and two in neurology. Regarding Dr. Engstrand’s credentials, Special Master Corcoran noted in his decision, “[a]s she acknowledged at hearing, however, Dr. Engst-rand lacks specialized expertise in the condition of epilepsy (whether in her education, or through research or study), other than from what she has learned from those patients she has seen with it.” K.L. v. Sec’y of Health & Human Servs., 2017 WL 1713110, at 4. In her expert report submitted to the Special Master on June 20, 2014, Dr. Engstrand offered her opinion that “[Seizure is confirmed as an adverse event following HPV Gardasil vaccine” and that “[K.L,’s] persistent neurological sequelae, poor concentration, migraines, learning disorder and seizure disorder were caused by a postvaccinal reaction to her HPV/Gardasil vaccine of February 9, 2010.” Dr, Engstrand’s report indicated that “[t]he most likely mechanism(s) of injury and it’s [sic] biological basis in this case, is that the release of the cytokine[15] interleukin-1 beta in the course of the immune response to a [sic] infectious agent such as a vaccine, could in turn trigger a cluster of afebrile convulsions or seizures.” Dr. Engstrand’s report placed significant weight on the temporal proximity of the Gar-dasil vaccination and KL.’s first seizure. Dr. Engstrand offered three scientific articles to support her opinion, the first of which reported on two patients who had experienced seizures (one of whom had a prior epilepsy diagnosis) out of approximately 700,000 Gar-dasil vaccinations,16 the second of which did not mention Gardasil,17 and the last of which described autoimmune reactions to HPV without reference to epilepsy or seizures.18 Respondent produced Dr. Shlomo Shinnar as an expert witness, who is board certified in neurology with special competence in child neurology, and who has additional qualifications in clinical neurophysiology and epilepsy. Dr. Shinnar produced his expert report, along with twenty pieces of supporting medical literature on August 25, 2014. Dr. Shin-nar’s report maintained that there neither was any evidence persuasively linking HPV with epilepsy, nor any indication that K.L. had experienced an autoimmune reaction from Gardasil. Consistent with Dr. Poduri, referred to by Dr. Shinnar as a “renowned epilepsy expert,” but in contrast with K.L.’s other treating physicians, who Dr. Shinnar referred to as “general neurologists,” after a review of K.L.’s medical history, Dr. Shinnar concluded that the most likely explanation for K.L.’s seizures was idiopathic epilepsy. Dr. Shinnar specifically contrasted KL.’s condition with autoimmune epilepsy, which he identified as a rare condition that is characterized by intractable seizures and a markedly abnormal EEG with epileptiform activity, none of which were symptoms K.L, demonstrated. Furthermore, Dr. Shinnar explained that K.L.’s normal MRI and lumbar puncture, lack of fever, and lack of epileptiform features in her EEG after the first seizure all showed no evidence of autoinflammation. Regarding Dr, Engstrand’s theory identifying the cytokine interleukin-1 beta as the mechanism for injury, Dr. Shinnar stressed that scientific evidence strongly supports that interleukin-1 beta is the chief cytokine that mediates fever, and, thus, it has been associated with febrile seizures,19 but not afebrile seizures like the one K.L. experienced. Among the articles Dr. Shinnar included in his expert report was Lisen Arnheim-Dahlst-588rom et al., Autoimmune, Neurological and Venous Thromboembolic Adverse Events After Immunization of Adolescent Girls with Quadrivalent Human Papillomavirus Vaccine in Denmark and Sweden: Cohort Study, 347 BMJ (2013), filed as respondent’s Exhibit S20 (the Arnheim-Dahlstrom study), which was a population-based study that compared seizure rates of girls who did and did not receive the Gardasil vaccine. This study found that the seizure rate was higher for girls who did not receive the vaccine, which Dr. Shin-nar explained meant that it is unlikely the vaccine causes seizures, and that the data was reliable because it analyzed actual observed cases, not self-reported events. Dr. Shinnar also pointed out that K.L.’s January 2013 seizure was explainable by her doctor’s failed attempt to reduce her dosage of the Keppra medication, as opposed to showing that the medication was ineffective against her condition. On December 30, 2014, petitioner filed Dr. Engstrand’s first supplemental expert report, in which Dr. Engstrand asserted that K.L. had evidenced no seizure symptoms before petitioner’s February 11, 2010 seizure and offered answers to questions, as ordered by Special Master Corcoran in an October 9, 2014 Order. Dr. Engstrand’s report also cited to an article from a Spanish medical journal, M.A. Rodriguez-Galan, et al., Adverse Reactions to the Human Papillomavirus Vaccine in the Valencian Community (2007-2011), 81 Anales Pediatría 303 (2014), filed as petitioner’s Exhibit 29 (the Valencian study), which analyzed self-reported adverse events following vaccination; out of 194 events analyzed in the article, six were seizures, and four of these were related to syncope. Dr. Engst-rand’s second supplemental report was filed on May 18, 2015. In it, she sought to rebut Dr. Shinnar’s expert report by asserting that autoimmune-related epilepsy was more common than Dr. Shinnar had suggested, and that a patient could have it even without an abnormal EEG or prior or concurrent fever. Dr. Engstrand then asserted that K.L.’s observed symptoms could be associated with autoimmune epilepsy, and denied the importance of the absence of autoimmune inflammation indicated in K.L.’s tests. Dr. Engst-rand attached literature that described risks associated with Gardasil generally,21 and articles about epilepsy that did not mention Gar-dasil.22 On July 22, 2016 and August 19, 2016, respectively, the parties filed their prehear-ing submissions. Petitioner argued that she would be able to meet her burden of proof under the test laid out by the United States Court of Appeals for the Federal Circuit in Althen v. Secretary of Health and Human Services, 418 F.3d 1274 (Fed. Cir. 2005), to prove a causal connection between the vaccine and her alleged injuries by a preponderance of the evidence, Petitioner emphasized that she was not required to prove a scientifically certain theory of causation, but only “a plausible medical theory causally connecting the vaccination and the injury” by a preponderance of the evidence. Respondent argued petitioner had failed to meet her burden of proof under the Althen standard to establish that Gardasil had more likely than not caused KL.’s alleged injuries because (1) her causation theory was not supported by reliable scientific evidence, (2) there was not a sufficient logical relationship between the vaccine and alleged injury, and (3) petitioner did not establish that her condition began within a medically appropriate timeframe. Respondent also emphasized that the Special Master has authority to weigh the credibility of expert testimony and sup589porting evidence offered, including their scientific validity. An entitlement hearing was held before Special Master Corcoran on September 27, 2016. Although both Special Masters had indicated earlier that the expert reports would operate as the experts’ direct testimony, and that the experts would only appear at the hearing for cross examination, at the hearing, Special Master Corcoran did allow both parties’ experts to give brief direct testimony. At the opening of the hearing, Special Master Corcoran stated, What I am going to allow each side to do is to very briefly, in less than five minutes, if not quicker, allow the expert to provide the essence of what their testimony is going to be or what their report says, and then we will go into cross examination and then we’ll have redirect, and then, at that time, counsel will have the opportunity to follow up with their expert. That’s the process that I’m going to follow today. It is noteworthy that in her direct testimony, petitioner’s expert witness, Dr. Engstrand, abandoned the theory she had proposed in her first submitted report, which specified the interleukin-1 beta cytokine as the mechanism of K.L.’s injury, and instead suggested that K.L.’s brain had been irritated and become hyper-excitable from “an immune-mediated response, like an interleukin or any other cytokine, not knowing which one in particular,” triggered by the vaccine. In response to questioning at the hearing by Special Master Corcoran, Dr. Engstrand said she had modified her theory because she realized that K.L.’s cytokines had never been tested, so there was no way to be certain that interleukin-1 beta had been the specific trigger. When Special Master Corcoran asked Dr. Engstrand to elaborate on her modified theory of causation, Dr. Engstrand admitted that she was relying heavily on the fact of the seizure, and not on direct evidence of cytokines, inflammation or indicia in K.L.’s MRI. Dr. Engstrand contended that even though K.L.’s tests were normal, her lumbar puncture did not include testing for cyto-kines, and stated, “But I don’t fault them because that’s not routinely done.” She also testified that the temporal association between the February 9, 2010 vaccination and K.L. s seizure two days later was medically appropriate. During cross examination, counsel for the respondent asked Dr. Engstrand questions about the evidence in the record regarding K.L.’s learning, literacy, and social difficulties which predated her HPV vaccination, which Dr. Engstrand maintained had worsened after K.L. received the vaccine. On redirect examination, petitioner’s counsel asked questions about petitioner’s Exhibit 17, KL.’s comprehensive learning evaluation, and Dr. Engstrand responded that K.L. had experienced a decline in her cognitive abilities post-seizure. On re-cross, however, Dr. Engstrand admitted that K.L. may have had a cognitive problem well before her seizure, as indicated in notes about learning difficulties early in K.L.’s education in the comprehensive learning evaluation. In response to questioning regarding the fact that K.L.’s seizure was afebrile, Dr. Engstrand was unable to point to anything in the literature she had cited in her expert reports that showed a connection between the HPV vaccination and afebrile seizures. Dr. Engstrand referenced data reported in the Valencian study to support her theory that there was a logical relationship between K.L.’s vaccination and seizures. Dr. Engst-rand remarked that the fact that the Valen-cian study made no mention of whether the seizures were febrile meant that they must have been afebrile, because “if they were febrile seizures, [the authors] would have to comment on it and they didn’t comment on it.” Regarding K.L.’s consultation with Dr. Poduri, Dr. Engstrand noted Dr. Poduri had included in her records that K.L. “notably had her Gardasil vaccination two days prior to the first seizure,” but on re-cross examination admitted that even with this knowledge, Dr. Poduri had diagnosed K.L.’s epilepsy as idiopathic. In his testimony, Dr. Shinnar stated that interleukin-1 beta was irrelevant in this case because patients cannot have interleukin-1 beta-mediated reactions without fever, and K.L. did not have a fever with her seizure. Dr. Shinnar indicated that K.L. had idiopathic epilepsy, likely caused by her genetic predisposition and not by Gardasil, based on his 590review of her medical records, including her normal test results, family history of epilepsy, response to treatment, and other co-mor-bidities. Dr. Shinnar also noted that KL.’s learning deficits predated and were not exacerbated by her vaccine, based on notes about K.L.’s cognitive abilities over time in the comprehensive learning evaluation and supported in his report by relevant medical literature. Dr. Shinnar noted that the literature Dr. Engstrand relied on that cited seizures associated with syncope was irrelevant to K,L.’s case because such seizures are “very different than an epileptic seizure.” Dr. Shin-nar also noted that, while K,L.’s normal EEG was not inconsistent with an epileptic seizure, it was inconsistent with autoimmune epilepsy and made Dr. Engstrand’s theory “extremely unlikely.” He also pointed out that cytokine testing is not even available in a lumbar puncture, as Dr. Engstrand had suggested. On cross examination, Dr. Shinnar stated that “[temporal relationship is one of the factors used” in a causation analysis, “but does not stand by itself,” especially when analyzing a common type of seizure experienced by adolescents. Dr. Shinnar also explained that “there is no evidence in this case that the prolonged seizure is a cause of her epilepsy; it is the onset of her epilepsy.” When questioned about the large “population-based study” he cited in his expert report (the Arnheim-Dahlstrom study), Dr. Shinnar noted that the study’s finding that the seizure rate was higher in patients who never received the Gardasil vaccine indicated that it was unlikely the vaccine caused an increased risk of seizures. By comparison, Dr. Shinnar testified that the Valencian study was not reliable evidence for petitioner’s theory because its journal of publication was “an obscure journal” and the study relied on self-reported adverse events, compared to studies like Arnheim-Dahlstrom, which analyzed actual diagnosed and observed vaccination cases, and was published in a “highly regarded peer-reviewed journal,” Dr. Shinnar also pointed to the publication by the Institute of Medicine23 he had cited in his expert report, which, pursuant to a contract, was charged by the Health Resources and Services Administration (HRSA)24 with reviewing the available data on adverse events or complications resulting from vaccines, including neurological events like seizures.25 See Institute of Medicine, National Academies of Science, Adverse Effects of Vaccines: Evidence and Causality (2012). This report did not list epilepsy among the possible complications of Gardasil, and noted that there was insufficient data connecting it with other neurologic complications. See id. The parties filed post-hearing briefs on November 14, 2016. Respondent’s post-hearing brief reiterated its arguments from its Vaccine Rule 4(c) report that petitioner’s claim should fail because she did not meet her burden of proof under Althen to demonstrate by a preponderance of the evidence that the vaccine was more likely than not the cause of her alleged injuries. Respondent further argued, as Dr. Shinnar had explained at the hearing, that petitioner’s expert’s theory of KL.’s condition was unsupported by scientific evidence or by K,L.’s clinical symptoms, whereas K.L.’s symptoms were consistent with other known causes of epileptic seizures, as her treating physician’s diagnosis had indicated. Petitioner’s post-hearing mem591orandum relied on Dr. Engstrand’s expert report and testimony regarding the cause of KL.’s medical condition, and argued that Dr. Poduri’s diagnosis should not be considered in evaluating KL.’s right to compensation because “a diagnosis of an idiopathic disease or injury cannot be used to deny a petitioner compensation [under the Vaccine Act] because it is of an unknown cause.” The Special Master subsequently granted petitioner’s request to file an additional post-hearing affidavit from Dr. Engstrand with additional exhibits. On September 6, 2016, petitioner’s expert filed the affidavit, attaching three more scientific studies and the introduction to a book discussing adverse effects of many types of vaccines, Committee to Review Adverse Effects of Vaccines: Institute of Medicine 27, Adverse Effects of Vaccines: Evidence and Causality, (Kathleen Stratton et al., eds., 2011), filed as petitioner’s Exhibit 44. Dr. Engstrand stated in her affidavit that one of the scientific studies supported the possibility of afebrile seizures following an HPV vaccine, Nigel W. Crawford et al., Syncope and Seizures Following Human Papillomavirus Vaccination: A Retrospective Case Series, 194 Med. J. Austl. 16 (2011), filed as petitioner’s Exhibit 41 (the Crawford study), which was a retrospective study of passive surveillance reporting adverse vaccine events. The affidavit also referenced a report that studied the involvement of cytokines in epilepsy, Gang Li et al., Cytokines and Epilepsy, 20 Seizure 249 (2011), filed as petitioner’s Exhibit 42 (the Li study). The third study, Sarah von Spiczak et al., A Retrospective Population-Based Study on Seizures Related to Childhood Vaccination, 62 Epilepsia 1606 (2011), filed as petitioner’s Exhibit 43 (the Spiczak study), referenced afebrile seizures experienced by children under six years old, none of whom had been vaccinated with Gardasil, After reviewing the administrative record, on March 17, 2017, Special Master Corcoran denied petitioner’s claim seeking compensation for her alleged injuries, which petitioner argued were the result of her Gardasil vaccination, finding that petitioner had failed to carry her burden of proof to show by a preponderance of the evidence that the vaccine had caused her injuries under the three-pronged Althen test. See K.L. v. Sec’y of Health & Human Servs., 2017 WL 1713110, at 14. Specifically, Special Master Corcoran found: Beyond the close temporal relationship between K.L.’s receipt of the third dose of Gardasil and onset of her first diagnosed seizure, the medical record does not support the conclusion that her epilepsy was vaccine-caused. More fundamentally, she has not established a reliable scientific theory that the HPV vaccine could cause epilepsy of the kind experienced by Petitioner. Id. Special Master Corcoran was not persuaded by petitioner’s expert witness or the literature submitted by petitioner, finding also that petitioner’s theory of causation “exceeded] the expertise of Dr. Engstrand to espouse,” because the crux of her theory required expertise in immunology and Dr. Engstrand had not demonstrated any competence or skill as an immunologist. See id. With regard to the first prong of the Al-then test, whereby petitioner must show a reliable medical theory causally connecting the vaccination and injury, the Special Master found overall that petitioner’s causation theory was not supported by reliable and reasonable scientific evidence. See id. The Special Master determined that “[w]hile the individual articles offered proved reasonable and reliable individually, taken as a whole they do not assist Petitioner’s case,” because “much of the literature offered either involved autoimmune forms of epilepsy (which are irrelevant under the facts of the case), different vaccines, or involved the relationship between the HPV vaccine and febrile seizures, which K.L. unquestionably never experienced.” Id. The Special Master further wrote: The epidemiologic evidence, such as the Valencian Article, Crawford [study], and Spiczak [study], offered to suggest that afebrile seizures are also possible not only involved VAERS [Vaccine Adverse Event Reporting System]-like passive surveillance (which is inherently less trustworthy than a retrospective study observing actual diagnosed instances of illness or conditions like epilepsy following vaccination) but was 592commonly distinguishable when examined closely. See id. Special Master Corcoran noted that while petitioner need not prove scientific causation to a certainty, the court is permitted to scrutinize the evidence a claimant offers in support of her theory, including its scientific validity. The Special Master found that the authority cited by petitioner’s expert in support of her theory “was insufficiently related to vaccines, or did not even facially support the concept.” See id. The Special Master highlighted how Dr. Shinnar had refuted Dr. Engstrand’s original theory of causation in her first expert report of interleukin-1 beta as the primary cytokine involved in causing K.L.’s symptoms when “[i]n response, Dr. Shinnar noted that this cytokine was associated with fever—but K.L. unquestionably had experienced an afebrile seizure, making it impossible for that particular cytokine to have been involved in the alleged process by which the HPV vaccine caused KL.’s seizure.” Id. at 15. The Special Master noted that Dr. Engstrand subsequently had modified her theory of causation at the hearing and in a post-hearing affidavit. See id. The Special Master also analyzed the literature Dr. Engstrand attached to her reports and affidavit and found the studies “largely unpersuasive.” See id. For example, the Valeneian study “[made] no mention of whether the few reported instances of seizure were afebrile.” Id. At the hearing, during cross examination by petitioner’s counsel, Dr. Engstrand made the following assertion: Q: So, you’re assuming that they did not have fevers; it doesn’t say they did not have fevers. You’re not quoting the article. A: If they were febrile seizures, they would have to comment on it and they didn’t comment on it. They would have said seizures with fever and there’s no mention of a fever with the seizures. The Special Master noted in his decision that this assumption was “a somewhat unreasonable inference.” Id. Regarding the Li study, the Special Master found that the study showed an association between the effect seizures have on cyto-kine upregulation and not “the other way around,” i.e., upregulation of cytokines causing seizures per Dr. Engstrand’s theory. See id. The Special Master went on to closely analyze and explain how other studies provided by petitioner following the hearing were similarly unhelpful to her case. See id. The Special Master found that the evidence respondent cited in support of its theory of the causes of KL.’s medical condition by respondent was supported by more reliable and more persuasive evidence, including studies that tended to show that Gardasil was not a likely cause of injuries of the kind K.L. experienced, because those studies had analyzed observed cases rather than self-reported reactions. See id. Because the Special Master found that petitioner had failed to carry her burden of proof under the first Althen prong, he noted that it was “unnecessary to discuss Petitioner’s showings under the other two Althen prongs,” but, nevertheless, considered and addressed each. See id. at 16. Regarding the second Althen prong, whereby petitioner must show by a preponderance of the evidence that there is a logical sequence of cause and effect between the vaccine and her alleged injury, the Special Master found that petitioner “had not successfully demonstrated with preponderant evidence that the HPV vaccine did cause her initial seizure as alleged.” See id. The Special Master considered the testimony of respondent’s expert more convincing, and found: KL.’s medical records indicated no signs of an autoimmune process occurring contemporaneous with her initial hospitalization, or the kind of biologic markers that would reflect the cytokine upregulation that Dr. Engstrand opined was happening herein. Rather, her test results throughout treatment were normal, including an MRI and multiple EEGs. Dr. Shinnar also effectively distinguished K.L.’s presentation with that of a patient with autoimmune epilepsy .... In addition, particularly trustworthy treaters with significant epilepsy expertise, like Dr. Poduri, were aware of the vaccine’s administration but concluded, based on their review of the developing medical record, that more likely than not K.L.’s epilepsy was idiopathic. Id, As to the third Althen prong, whereby petitioner must show that there is a proxi593mate temporal relationship between vaccination and the injury, the Special Master noted that temporal proximity would not alone support a claim for compensation under the Vaccine Act. See id. Moreover, the Special Master determined petitioner’s expert had “offered little authority to support Petitioner’s conclusion that [the timeframe between her vaccination and the alleged injury was] medically appropriate.” See id. The Special Master “acknowledge[d] that a two-day period between vaccination and seizure has been deemed medically acceptable in other [Vaccine Injury] Program cases involving epilepsy.” See id. Regarding the third Athen prong, the Special Master emphasized that “even were [he] to find that the balance of evidence on this matter barely favored K.L., that determination would not alter” his decision denying entitlement, because he had already found that petitioner’s causation theory was “too deficient” and “unsupported by the actual medical history,” and, thus, failed to meet the first Athen prong. See id. at 17. Moreover, the Special Master noted that defining a “medically appropriate” time-frame necessarily refers to a theory of causation. See id. Therefore, given that petitioner’s claim alleged a non-Table injury, and finding that the weight of evidence did not support her claim, Special Master Corcoran denied compensation. See id. On April 16, 2017, petitioner filed a Motion for Review of the Special Master’s decision, and the case was assigned to the undersigned. In her motion, petitioner alleges that the Special Master violated due process, that he impermissibly increased petitioner’s burden of proof, and that the Special Master’s ruling was arbitrary and capricious. On May 17, 2017, the Secretary of Health and Human Services’ filed a Memorandum in Response to Petitioner’s Motion for Review asserts that the Vaccine Rules expressly confer discretionary authority on the Special Master to decide the best manner in which to proceed, including to allow direct testimony by the experts or to take into evidence the experts’ written reports as the direct testimony. Regarding petitioner’s argument that the Special Master increased petitioner’s burden of proof, respondent argues that the Special Master correctly applied the Athen test to petitioner’s ease. Respondent also argues that, as the factfinder, the Special Master’s weighing and evaluation of evidence is entitled to substantial deference by this court. According to respondent, because Special Master Corcoran carefully considered the relevant evidence, his decision was not arbitrary or capricious and this court should affirm his decision. DISCUSSION Athough petitioner’s Motion for Review is confusingly structured and the filings are repetitive and poorly articulated, petitioner appears to assert three main grounds to argue why the Special Master’s decision should be reversed. First, petitioner alleges that the procedures followed by the Special Master during the September 27, 2016 entitlement hearing violated due process. Specifically, petitioner alleges that the Order by the Special Master previously assigned to this case, that the parties’ expert reports would constitute their direct testimony, violated petitioner’s “fundamental right to a full and fair hearing,” as guaranteed by Vaccine Rules 3(b)(2) and 8. Second, petitioner alleges that the Special Master erred by applying the incorrect legal standard to analyze whether petitioner met her burden of proof for compensation under the Vaccine Act. Third, petitioner alleges that the Special Master’s decision was arbitrary and capricious because it did not address alleged flaws in the testimony of respondent’s expert, while, simultaneously, unfairly criticizing petitioner’s expert, it improperly discounted the medical literature presented by petitioner, and it misinterpreted or failed to review “numerous exhibits” included in the record. The government, however, argues that the Special Master did not violate due process because the Special Master has the discretion to have the experts’ written reports serve as direct testimony, that the Special Master properly considered the credibility of the expert witnesses and evidence presented, and that the Special Master’s decision was not arbitrary or capricious because it was based on a thorough review of the evidence in the record, including the expert testimony presented. 594When reviewing a Special Master's decision, the assigned Judge of the United States Court of Federal Claims shall: (A) uphold the findings of fact and conclusions of law of the special master and sustain the special master’s decision, (B) set aside any findings of fact or conclusions of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law, or (C) remand the petition to the special master for further action in accordance with the court’s direction. 42 U.S.C. § 300aar-12(e)(2). The legislative history of the Vaccine Act states: “The conferees have provided for a limited standard for appeal from the [special] master’s decision and do not intend that this procedure be used frequently,- but rather in those cases in which a truly arbitrary decision has been made.” H.R. Rep. No. 101-386, at 617 (1989) (Conf. Rep.), reprinted in 1989 U.S.C.C.A.N. 3018, 3120. In order to recover under the Vaccine Act, petitioners must prove that the vaccine caused the purported injury. See W.C. v. Sec’y of Health & Human Servs., 704 F.3d 1352, 1355-56 (Fed. Cir. 2013) (“The Vaccine Act created the National Vaccine Injury Compensation Program, which allows certain petitioners to be compensated upon showing, among other things, that a person ‘sustained, or had significantly aggravated’ a vaccine-related ‘illness, disability, injury, or condition.’” (quoting 42 U.S.C. § 300aar-11(c)(1)(C))); Lombardi v. Sec’y of Health & Human Servs., 656 F.3d 1343, 1350 (Fed. Cir. 2011) (“A. petitioner seeking compensation under the Vaccine Act must prove by a preponderance of the evidence that the injury or death at issue was caused by a vaccine.”); see also Shapiro v. Sec’y of Health & Human Servs., 105 Fed.Cl. 353, 358 (2012), aff'd, 503 Fed.Appx. 952 (Fed. Cir. 2013); Jarvis v. Sec’y of Health & Human Servs., 99 Fed.Cl. 47, 54 (2011). Regarding the standard of review, articulated in Markovich v. Secretary of Health and Human Services, the United States Court of Appeals for the Federal Circuit wrote, “[u]nder the Vaccine Act, the Court of Federal Claims reviews the Chief Special Master’s decision to determine if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.’ 42 U.S.C. § 300aa-12(e)(2)(B).” Markovich v. Sec’y of Health & Human Servs., 477 F.3d 1353, 1355-56 (Fed. Cir.), cert. denied, 552 U.S. 816, 128 S.Ct. 92, 169 L.Ed.2d 21 (2007); see also Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., 717 F.3d 1363, 1366 (Fed. Cir.) (The United States Court of Appeals for the Federal Circuit stated that “we ‘perform[ ] the same task as the Court of Federal Claims and determine[ ] anew whether the special master’s findings were arbitrary or capricious.’ ” (quoting Lampe v. Sec’y of Health & Human Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000))) (brackets in original), reh’g and reh’g en banc denied (Fed. Cir. 2013); W.C. v. Sec’y of Health & Human Servs., 704 F.3d at 1355; Hibbard v. Sec’y of Health & Human Servs., 698 F.3d 1355, 1363 (Fed. Cir. 2012); Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347 (Fed. Cir.) (“Under the Vaccine Act, we review a decision of the special master under the same standard as the Court of Federal Claims and determine if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” (quoting 42 U.S.C. § 300aa-12(e)(2)(B))), reh’g and reh’g en banc denied (Fed. Cir. 2008); de Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1350 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2008); Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1277; Dodd v. Sec’y of Health & Human Servs., 114 Fed.Cl. 43, 47 (2013); Taylor v. Sec’y of Health & Human Servs., 108 Fed.Cl. 807, 817 (2013). The arbitrary and capricious standard is “well understood to be the most deferential possible.” Munn v. Sec’y of Health & Human Servs., 970 F.2d 863, 870 (Fed. Cir. 1992). Therefore, this court may set aside a Special Master’s decision only if the court determines that the “findings of fact or conclusion of law of the special master ... [are] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law .... ” 42 U.S.C. § 300aa~12(e)(2)(B); see also Lombardi v. Sec’y of Health & Human Servs., 656 F.3d at 1350 (“We uphold the special master’s findings of fact unless they are arbi595trary or capricious.”) (internal citations omitted); Moberly ex rel. Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1321 (Fed. Cir. 2010); Markovich v. Sec’y of Health & Human Servs., 477 F.3d at 1356-67; Lampe v. Sec’y of Health & Human Servs., 219 F.3d at 1360. The United States Court of Appeals for the Federal Circuit has indicated that: These standards vary in application as well as degree of deference. Each standard applies to a different aspect of the judgment. Fact findings are reviewed by us, as by the Claims Court judge, under the arbitrary and capricious standard; legal questions under the “not in accordance with law” standard ...; and discretionary rulings under the abuse of discretion standard. The latter will rarely come into play except where the special master excludes evidence. Munn v. Sec’y of Dep’t of Health & Human Servs., 970 F.2d at 871 n.10; see also Carson ex rel. Carson v. Sec’y of Health & Human Servs., 727 F.3d 1365, 1369 (Fed. Cir. 2013); Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., 717 F.3d at 1366; W.C. v. Sec’y of Health & Human Servs., 704 F.3d at 1355; Griglock v. Sec’y of Health & Human Servs., 687 F.3d 1371, 1374 (Fed. Cir. 2012); Porter v. Sec’y of Health & Human Servs., 663 F.3d 1242, 1249 (Fed. Cir. 2011) (citing Broekelschen v. Sec’y of Health & Human Servs., 618 F,3d 1339, 1345 (Fed. Cir. 2010)) (explaining that the reviewing court “do[es] not reweigh the factual evidence,.assess whether the special master correctly evaluated the evidence, or examine the probative value of the evidence or the credibility of the witnesses—these are all matters within the purview of the fact finder”); Dodd v. Sec’y of Health & Human Servs., 114 Fed.Cl. at 56. “With regard to both fact-findings and fact-based conclusions, the key decision maker in the first instance is the special master. The Claims Court owes these findings and conclusions by the special master great deference—no change may be made absent first a determination that the special master was ‘arbitrary and capricious.’ ” Munn v. Sec’y of Health & Human Servs., 970 F.2d at 870; see also 42 U.S.C. § 300aa-12(e)(2)(B). Generally, “if the special master ‘has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision, reversible error will be extremely difficult to demonstrate.’ ” Hibbard v. Sec’y of Health & Human Servs., 698 F.3d at 1363 (quoting Hines on Behalf of Sevier v. Sec’y of Dep’t of Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991)); see also Porter v. Sec’y of Health & Human Servs., 663 F.3d at 1253-54; Lampe v. Sec’y of Health & Human Servs., 219 F.3d at 1360; Avila ex rel. Avila v. Sec’y of Health & Human Servs., 90 Fed. Cl. 590, 594 (2009); Dixon v. Sec’y of Health & Human Servs., 61 Fed.Cl. 1, 8 (2004) (“The court’s inquiry in this regard must therefore focus on whether the special master examined the ‘relevant data’ and articulated a ‘satisfactory explanation for its action including a “rational connection between the facts found and the choice made.” (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)))). As noted by the United States Court of Appeals for the Federal Circuit: Congress assigned to a group of specialists, the special masters within the Court of Federal Claims, the unenviable job of sorting through these painful eases and, based upon their accumulated expertise in the field, judging the merits of the individual claims. The statute makes clear that, on review, the Court of Federal Claims is not to second guess the special masters [sic] fact-intensive conclusions; the standard of review is uniquely deferential for what is essentially a judicial process. Our cases make clear that, on our review ... we remain equally deferential. That level of deference is especially apt in a case in which the medical evidence of causation is in dispute. Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., 717 F.3d at 1366 (quoting Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993)) (modification in original); Hibbard v. Sec’y of Health & Human Servs., 698 F.3d at 1363; Locane v. Sec’y of Health & Human Servs., 596685 F.3d 1375, 1380 (Fed. Cir. 2012). The Court of Appeals for the Federal Circuit has further explained that the reviewing courts “ ‘do not sit to reweigh the evidence. [If] the special master’s conclusion [is] based on evidence in the record that [is] not wholly implausible, we are compelled to uphold that finding as not being arbitrary and capricious.’ ” See Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., 717 F.3d at 1367 (quoting Lampe v. Sec’y of Health & Human Servs., 219 F.3d at 1363) (modification in original); see also Hibbard v. Sec’y of Health & Human Servs., 698 F.3d at 1363 (citing Cedillo v. Sec’y of Health & Human Servs., 617 F.3d 1328, 1338 (Fed. Cir. 2010)). The Special Master has discretion to determine the relative weight of evidence presented, including contemporaneous medical records and oral testimony. See Burns v. Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (finding that the Special Master had thoroughly considered evidence in record, had discretion not to hold an additional evidentiary hearing); Hibbard v. Sec’y of Health & Human Servs., 698 F.3d at 1368 (finding it was not arbitrary or capricious for the Special Master to weigh diagnoses of different treating physicians against one another, including when their opinions conflict). “ ‘Clearly it is not then the role of this court to reweigh the factual evidence, or to assess whether the special master correctly evaluated the evidence. And of course we do not examine the probative value of the evidence or the credibility of the witnesses. These are all matters within the purview of the fact finder.’ ” Dodd v. Sec’y of Health & Human Servs., 114 Fed.Cl. at 56 (quoting Munn v. Sec’y of Dept. of Health & Human Servs., 970 F.2d at 870 n.10); see also Rich v. Sec’y of Health & Human Servs., 129 Fed.Cl. 642, 655 (2016); Paluck v. Sec’y of Health & Human Servs., 104 Fed.Cl. 457, 467 (2012) (“A special master’s findings regarding the probative value of the evidence and the credibility of witnesses will not be disturbed so long as they are ‘supported by substantial evidence.’ ” (quoting Doe v. Sec’y of Health & Human Servs., 601 F.3d 1349, 1355 (Fed. Cir.), cert. denied, 562 U.S. 1029, 131 S.Ct. 573, 178 L.Ed.2d 414 (2010))). Additionally, as instructed ’by the United States Court of Appeals for the Federal Circuit, “[u]nder the Vaccine Act, Special Masters are accorded great deference in determining the credibility and reliability of expert witnesses. Indeed, we have held that a Special Master’s ‘credibility determinations are virtually unreviewable.’ ” Cedillo v. Sec’y of Health & Human Servs., 617 F.3d at 1347 (quoting Hanlon v. Sec’y of Health & Human Servs., 191 F.3d 1344, 1349 (Fed. Cir. 1999) (quotation omitted)); see also Porter v. Sec’y of Health & Human Servs., 663 F.3d at 1253-54 (“ ‘Reversible error will be extremely difficult to demonstrate’ where the Special Master ‘has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision.’ ”) (quoting Hines on Behalf of Sevier v. Sec’y of Health & Human Servs., 940 F.2d at 1528); Lombardi v. Sec’y of Health & Human Servs., 656 F.3d at 1353; Anderson v. Sec’y of Health & Human Servs., 131 Fed.Cl. 735, 752 (2017); Holt v. Sec’y of Health & Human Servs., 132 Fed.Cl. 194, 199 (2017). Additionally, a Special Master is “not required to discuss every piece of evidence or testimony in [his or] her decision.” Snyder ex rel. Snyder v. Sec’y of Health & Human Servs., 88 Fed.Cl. 706, 728 (2009); see also Paluck ex rel. Paluck v. Sec’y of Health & Human Servs., 104 Fed.Cl. at 467 (“[W]hile the special master need not address every snippet of evidence adduced in the case, see id. [Doe v. Sec’y of Health & Human Servs., 601 F.3d at 1355], he cannot dismiss so much contrary evidence that it appears that he ‘simply failed to consider genuinely the evidentiary record before him.’ ” (quoting Campbell v. Sec’y of Health & Human Servs., 97 Fed.Cl. 650, 668 (2011))). Regarding the causation analysis, as indicated by the United States Court of Appeals for the Federal Circuit in Althen v. Secretary of Health and Human Services: The ¡Vaccine] Act provides for the establishment of causation in one of two ways: through a statutorily-prescribed presumption of causation upon a showing that the injury falls under the Vaccine Injury Table (“Table injury”), see 42 U.S.C. § 300aa-14(a); or where the complained-of injury is not listed in the Vaccine Injury Table (“off-Table injury”), by proving causation in 597fact, see 42 U.S.C. §§ 300aa-13(a)(l), - ll(c)(l)(C)(ii)(I). Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1278; W.C. v. Sec’y of Health & Human Servs., 704 F.3d at 1356; Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d at 1346; Pafford v. Sec’y of Health & Human Servs., 451 F.3d 1352, 1356 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2006), cert. denied, 551 U.S. 1102, 127 S.Ct. 2909, 168 L.Ed.2d 242 (2007); Dodd v. Sec’y of Health & Human Servs., 114 Fed.Cl. at 50; Paluck v. Sec’y of Health & Human Servs., 104 Fed.Cl. at 467-68; Fesanco v. Sec’y of Health & Human Servs., 99 Fed.Cl. 28, 31 (2011). The United States Supreme Court has explained that: Claimants who show that a listed injury first manifested itself at the appropriate time are prima facie entitled to compensation. No showing of causation is necessary; the Secretary bears the burden of disproving causation. A claimant may also recover for unlisted side effects, and for listed side effects that occur at times other than those specified in the Table, but for those the claimant must prove causation. Bruesewitz v. Wyeth LLC, 562 U.S. 223, 131 S.Ct. 1068, 1073-74, 179 L.Ed.2d 1 (2011) (footnotes omitted); Kennedy v. Sec’y of Health & Human Servs., 99 Fed.Cl. 535, 539 (2011), aff'd, 485 Fed.Appx, 435 (Fed. Cir. 2012). As both parties recognize, the injuries petitioner alleges she suffered as a result of the Gardasil vaccination are not included on the Vaccine Injury Table. See 42 U.S.C. § 300aa-14. Petitioner, therefore, must proceed under an off-Table theory of recovery. Under the off-Table theory of recovery, a petitioner is entitled to compensation if he or she can demonstrate, by a preponderance of the evidence, see 42 U.S.C. § 300aa-13(a)(1)(A), that the recipient of the vaccine sustained, or had significantly aggravated, an illness, disability, injury, or condition not set forth in the Vaccine Injury Table, but which was caused by a vaccine that is listed on the Vaccine Injury Table. See 42 U.S.C. § 300aa-11(c)(l)(C)(ii)(I); see also LaLonde v. Sec’y of Health & Human Servs., 746 F.3d 1334, 1339 (Fed. Cir. 2014); W.C. v. Sec’y of Health & Human Servs., 704 F.3d at 1356 (“Nonetheless, the petitioner must do more than demonstrate a ‘plausible’ or ‘possible’ causal link between the vaccination and the injury; he must prove his case by a preponderance of the evidence.” (quoting Moberly ex rel. Moberly v. Sec’y of Health & Human Servs., 592 F.3d at 1322)); Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1278; Hines on Behalf of Sevier v. Sec’y of Dep’t of Health & Human Servs., 940 F.2d at 1525. While scientific certainty is not required, the Special Master “is entitled to require some indicia of reliability to support the assertion of the expert witness.” Moberly ex rel. Moberly ex rel. v. Sec’y of Health & Human Servs., 592 F.3d at 1324; see also Hazlehurst v. Sec’y of Health & Human Servs., 88 Fed. Cl. 473, 479 (2009), aff'd, 604 F.3d 1343 (Fed. Cir. 2010) (quoting Andreu ex rel. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009)). Additionally, petitioner must prove causation-in-fact. See Grant v. Sec’y of Health & Human Servs., 956 F.2d 1144, 1147-48 (Fed. Cir. 1992). The United States Court of Appeals for the Federal Circuit has held that causation-in-faet in the Vaccine Act context is the same as the “legal cause” in the general torts context. See Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344, 1352 (Fed. Cir. 1999). Therefore, drawing from the Restatement (Second) of Torts, the vaccine is a cause-in-fact when it is “a substantial factor in bringing about the harm.” de Bazan v. Sec’y of Health & Human Servs., 539 F.3d at 1351 (quoting the Restatement (Second) of Torts § 431(a)); see also Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., 717 F.3d at 1367 (“To prove causation, a petitioner must show that the vaccine was ‘not only a but-for cause of the injury but also a substantial factor in bringing about the injury.’ ” (quoting Shyface v. Sec’y of Health & Human Servs., 165 F.3d at 1352-53)). A “ ‘substantial factor5 standard requires a greater showing than ‘but for’ causation.” de Bazan v. Sec’y of Health & Human Servs., 539 F.3d at 1351 (quoting Shyface v. Sec’y of Health & Human Servs., 165 F.3d at 1352). “However, the petitioner need not show that the vaccine was the sole or predominant cause of her injury, just that it was a substantial factor.” Id. (citing Walther v. Sec’y of Health & Human Servs., 485 598F.3d 1146, 1150 (Fed. Cir. 2007)). A Judge of the United States Court of Federal Claims has explained the relationship between “but-for” causation and “substantial factor” causation in our court’s decision in Deribeaux ex rel. Deribeaux v. Secretary of Health and Human Services: The de Bazan court defined but-for causation as requiring that “the harm be attributable to the vaccine to some nonnegligible degree,” and noted that, although substantial is somewhere beyond the low threshold of but-for causation, it does not mean that a certain factor must be found to have definitively caused the injury. Id. [de Bazan v. Sec’y of Health & Human Servs., 639 F.3d at 1361] Accordingly, a factor deemed to be substantial is one that falls somewhere between causing the injury to a non-negligible degree and being the “sole or predominant cause.” Id. This definition of substantial—somewhere between non-negligible and predominant— is applicable to respondent’s burden to prove a sole substantial factor unrelated to the vaccine. Accordingly, a respondent’s burden is to prove that a certain factor is the only substantial factor—one somewhere between non-negligible and predominant—that caused the injury. Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., 105 Fed.Cl. 583, 595 (2012), aff'd, 717 F.3d 1363 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2013) (emphasis in original). A petitioner must prove his or her case by a preponderance of the evidence. See 42 U.S.C. § 300aar-13(a)(l)(A). According to the United States Court of Appeals for the Federal Circuit, the preponderance of evidence standard is “one. of proof by a simple preponderance, of ‘more probable than not causation.’ ” Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1279-80 (citing concurrence in Hellebrand v. Sec’y of Dep’t of Health & Human Servs., 999 F.2d 1565, 1572-78 (Fed. Cir. 1993)); see also W.C. v. Sec’y of Health & Human Servs., 704 F.3d at 1356 (“In this off-table case, the petitioner must show that it is ‘more probable than not’ that the vaccine caused the injury.” (quoting Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1279-80)). A petitioner who meets this burden is then entitled to recovery under the Vaccine Act, unless the respondent proves by preponderant evidence that the injury was caused by factors unrelated to the vaccine. See Stone v. Sec’y of Health & Human Servs., 676 F.3d 1373, 1379-80 (Fed. Cir. 2012); see also Rus v. Sec’y of Health & Human Servs., 129 Fed.Cl. 672, 680 (2016) (citing 42 U.S.C. § 300aa-13(a)(1)(B); Shalala v. Whitecotton, 514 U.S. 268, 270-71, 115 S.Ct. 1477, 131 L.Ed.2d 374 (1995)); Walther v. Sec’y of Health & Human Servs., 485 F.3d at 1151. “But, regardless of whether the burden of proof ever shifts to the respondent, the special master may consider the evidence presented by the respondent in determining whether the petitioner has established a prima facie case.” Rus v. Sec’y of Health & Human Servs., 129 Fed.Cl. at 680 (citing Stone v. Sec’y of Health & Human Servs., 676 F,3d at 1379; de Bazan v. Sec’y of Health & Human Servs., 539 F.3d at 1353). For petitioner to establish a prima facie case, decisions of the Federal Circuit permit the use of circumstantial evidence, which the court described as “envisioned by the preponderance standard” and by the vaccine system created by Congress, in which “close calls regarding causation are resolved in favor of injured claimants” without the need for medical certainty. See Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1280; see also Cloer v. Sec’y of Health & Human Servs., 654 F.3d 1322, 1332 n.4 (Fed. Cir. 2011), cert. denied. 566 U.S. 956, 132 S.Ct. 1908, 182 L.Ed.2d 807 (2012); Andreu ex rel. Andreu v. Sec’y of Health & Human Servs., 569 F.3d at 1379 (“In Althen, however, we expressly rejected the Stevens [v. Sec’y of Health & Human Servs., 2001 WL 387418 (Fed. Cl. Spec. Mstr. Mar. 30, 2001)] test, concluding that requiring ‘objective confirmation’ in the medical literature prevents ‘the use of circumstantial evidence ... and negates the system created by Congress’ through the Vaccine Act.”) (modification in original); La Londe v. Sec’y of Health & Human Servs., 110 Fed.Cl. 184, 198 (2013) (“Causation-in-fact can be established with circumstantial evidence, i.e., medical records or medical opinion.”), aff'd, 746 F.3d 1334 (Fed. Cir. 2014). The Althen court further noted that “the purpose of the Vaccine Act’s 599preponderance standard is to allow the finding of causation in a field bereft of complete and direct proof of how vaccines affect the human body.” Id. (citing Knudsen ex rel Knudsen v. Sec’y of Health & Human Servs., 35 F.3d 543, 549 (Fed. Cir. 1994)); see also W.C. v. Sec’y of Health & Human Servs., 704 F.3d at 1356. When proving eligibility for compensation for an off-Table injury under the Vaccine Act, however, petitioner may not rely on her testimony alone. According to the Vaccine Act, “[t]he special master or court may not make such a finding based on the claims of a petitioner alone, unsubstantiated by medical records or by medical opinion.” 42 U.S.C. § 300aa-13(a)(1). The Federal Circuit in Althen defined a three-prong test which a petitioner must meet to establish causation in an off-Table injury case: To meet the preponderance standard, [petitioner] must “show a medical theory causally connecting the vaccination and the injury.” Grant v. Sec’y of Health & Humans Servs., 956 F.2d 1144, 1148 (Fed. Oil’. 1992) (citations omitted). A persuasive medical theory is demonstrated by “proof of a logical sequence of cause and effect showing that the vaccination was the reason for the injury[,]” the logical sequence being supported by “reputable medical or scientific explanation[,]” i.e., “evidence in the form of scientific studies or expert medical testimony[.]” Grant, 956 F.2d at 1148. [Petitioner] may recover if she shows “that the vaccine was not only a but-for cause of the injury but also a substantial factor in bringing about the injury.” Shyface, 165 F.3d at 1352-53. Although probative, neither a mere showing of a proximate temporal relationship between vaccination and injury, nor a simplistic elimination of other potential causes of the injury suffices, without more, to meet the burden of showing actual causation. See Grant, 956 F.2d at 1149. Concisely stated, [petitioner’s] burden is to show by preponderant evidence that the vaccination brought about [the] injury by providing: (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury. Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1278 (brackets in original); see also Deribeaux ex rel. Deribeaux v. Sec’y of Health & Human Servs., 717 F.3d at 1367; Porter v. Sec’y of Health & Human Servs., 663 F.3d at 1249; Moberly ex rel. Moberly v. Sec’y of Health & Human Servs., 592 F.3d at 1322; Pafford v. Sec’y of Health & Human Servs., 451 F.3d at 1355; Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1324 (Fed. Cir. 2006); C.K. v. Sec’y of Health & Human Servs., 113 Fed.Cl. 767, 766 (2013). With regal’d to the first Althen prong, “a medical theory causally connecting the vaccination and the injury,” Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1278, the Federal Circuit in Althen analyzed the preponderance of evidence requirement as allowing medical opinion as proof, even without scientific studies in medical literature that provide “objective confirmation” of medical plausibility. Id. at 1278,1279-80; see also Shapiro v. Sec’y of Health & Human Servs., 105 Fed.Cl. at 358. In rejecting a requirement that a claimant under the Vaccine Act prove confirmation of medical plausibility from the medical community and medical literature, the Althen court turned to the analysis undertaken in Knudsen ex rel. Knudsen v. Secretary of Health and Human Services, 35 F.3d at 549. See Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1279-80. In Knudsen ex rel. Knudsen v. Secretary of Health and Human Services, the United States Court of Appeals for the Federal Circuit wrote, “to require identification and proof of specific biological mechanisms would be inconsistent with the purpose and nature of the vaccine compensation program. The Vaccine Act does not contemplate full blown tort litigation in the Court of Federal Claims,” Knudsen ex rel. Knudsen v. Sec’y of Health & Human Servs., 35 F.3d at 549. The Federal Circuit stated further: [t]he Court of Federal Claims is therefore not to be seen as a vehicle for ascertaining precisely how and why DTP .and other vaccines sometimes destroy the health and lives of certain children while safely immunizing most others. This research is for 600scientists, engineers,-and doctors working in hospitals, laboratories, medical institutes, pharmaceutical companies, and government agencies. The special masters are not “diagnosing” vaccine-related injuries. The sole issues for the special master are, básed on the record evidence as a whole and the totality of the case, whether it has been shown by a preponderance of the evidence that a vaccine caused the [petitioner’s] injury or that the [petitioner’s] injury is a table injury, and whether it has not been shown by a preponderance of the evidence that a factor unrelated to the vaecine caused the child’s injury. See 42 U.S.C. § 300aa-13(a)(l), (b)(1). Id. (brackets added). The Federal Circuit has also indicated that: Although a finding of causation “must be supported by a sound and reliable medical or scientific explanation,” causation “can be found in vaccine cases,. .without detailed medical and scientific exposition on the biological mechanisms.” Knudsen v. Sec’y of the Dep’t of Health & Human Servs., 35 F.3d 543, 548-49 (Fed. Cir. 1994). It is not necessary for a petitioner to point to conclusive evidence in the medical literature linking a vaccine to the petitioner’s injury, as long as the petitioner can show by a preponderance of the evidence that there is a causal relationship between the vaccine and the injury, whatever the details of the mechanism may be. Simanski v. Sec’y of Health & Human Servs., 671 F.3d 1368, 1384 (Fed. Cir. 2012) (omission in original). The second prong of the Althen test requires the petitioner to demonstrate “a logical sequence of cause and effect, showing that the vaccination was the reason for . the injury” by a preponderance of the evidénce. Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1278; see also Pafford v. Sec’y of Health & Human Servs., 451 F.3d at 1355. In order tp prevail, the petitioner must show “that the vaccine was not only a but-for cause of the injury but also a substantial factor in bringing about the injury.” Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1278 (quoting Shyface v. Sec’y of Health & Human Servs., 165 F.3d at 1352). In Capizzano v. Secretary of Health and Human Services, 440 F.3d at 1326, the Federal Circuit stated, “‘[a] logical sequence of cause and effect’ means what it sounds like—the claimant’s theory of cause and effect must be logical. Congress required that, to recover under the Vaccine Act, a claimant must prove by a preponderance of the evidence that the vaccine caused his or her injury.” Capizzano v. Sec’y of Health & Human Servs., 440 F.3d at 1326 (quoting 42 U.S.C. §§ 300aa-11(c)(1)-13(a)(1) (2006)); see also Cozart v. Sec’y of Health & Human Servs., 126 Fed.Cl. 488, 498 (2016) (quoting Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1278). The third prong of the Althen test requires the petitioner to demonstrate, by a preponderance of evidence, “a proximate temporal relationship between vaccination and injury.” Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1278. The United States Court of Appeals for the Federal Circuit emphasized the importance of a temporal relationship in Pafford v. Secretary of Health and Human Services, when it noted that, “without some evidence of temporal linkage, the vaccination might receive blame for events that occur weeks, months, or years outside of the time in which scientific or epidemiological evidence would expect an onset of harm.” Pafford v. Sec’y of Health & Human Servs., 451 F.3d at 1358. Requiring evidence of strong temporal linkage is consistent with the third requirement articulated in Althen because “[e]vidence demonstrating petitioner’s injury occurred within a medically acceptable time frame bolsters a link between the injury alleged and the vaccination at issue under the ‘but-foP prong of the causation analysis.” Id. (citing Capizzano v. Sec’y of Health & Human Servs., 440 F.3d at 1326). The Capizzano court further explained, [i]f, for example, symptoms normally first occur ten days after inoculation but petitioner’s symptoms first occur several weeks after inoculation, then it is doubtful the vaccination is to blame. In contrast, if symptoms normally first occur ten days after inoculation and petitioner’s symptoms do, in fact, occur within this period, then the likelihood increases that the vaccination is at least a factor. Strong temporal evidence is even more important in cases involving contemporaneous events other than the vaccination, because the presence 601of multiple potential causative agents makes it difficult to attribute “but-for” causation to the vaccination. After all, credible medical expertise may postulate that any of the other contemporaneous events may have been the sole cause of the injury. Id. at 1358. A petitioner must offer “preponderant proof that the onset of symptoms occurred within a timeframe which, given the medical understanding of the disorder’s etiology, it is medically acceptable to infer causation.” de Bazan v. Sec’y of Health & Human Servs., 539 F.3d at 1352. Determining what constitutes a medically appropriate time-frame, thus, is linked to the petitioner’s theory of how the vaccine can cause petitioner’s injury. See id.; see also K.T. v. Sec’y of Health & Human Servs., 132 Fed.Cl. 175, 186 (2017); Shapiro v. Sec’y of Health & Human Servs., 101 Fed.Cl. at 542. According to the court in Capizzano v. Secretary of Health and Human Services, evidence used to satisfy one of the Althen prongs may overlap with and be used to satisfy another prong. Capizzano v. Sec’y of Health & Human Servs., 440 F.3d at 1326 (“We see no reason why evidence used to satisfy one of the Althen III prongs cannot overlap to satisfy another prong.”). If a petitioner satisfies the Althen burden and meets all three prongs of the test, the petitioner prevails, “unless the [government] shows, also by a preponderance of the evidence, that the injury was in fact caused by factors unrelated to the vaccine.” Knudsen ex rel. Knudsen v. Sec’y of Health & Human Servs., 35 F.3d at 547 (brackets in original; citation omitted). In cases in which a petitioner relies upon expert testimony to prove causation, the expert testimony must rest upon an objective and reliable scientific basis and must prove causation to a degree of legal certainty, but not to a medical or scientific certainty. See Moberly ex rel. Moberly v. Sec’y of Health & Human Servs., 592 F.3d at 1322 (“A petitioner must provide a reputable medical or scientific explanation that pertains specifically to the petitioner’s case, although the explanation need only be “legally probable, not medically or scientifically certain.’ ”); see also Cedillo v. Sec’y of Health & Human Servs., 617 F.3d at 1339; Terran ex rel. Terran v. Sec’y of Health & Human Servs., 195 F.3d 1302, 1316 (Fed. Cir. 1999), cert. denied, 531 U.S. 812, 121 S.Ct. 45, 148 L.Ed.2d 15 (2000). While a petitioner may rely solely on expert testimony, “[a]n expert opinion is no better than the soundness of the reasons supporting it.” Perreira v. Sec’y of Health & Human Servs., 33 F.3d 1375, 1377 n.6 (Fed. Cir. 1994). Therefore, a Special Master does not need to credit “expert opinion testimony that is connected to the existing data or methodology ‘only by the ipse dixitl26] of the expert,’ or where ‘there is simply too great an analytical gap between the data and the opinion proffered.’ ” Jarvis v. Sec’y of Health & Human Servs., 99 Fed. Cl. at 61 (quoting Cedillo v. Sec’y of Health & Human Servs., 617 F.3d at 1339). The Special Master may conduct an inquiry into the scientific reliability of expert testimony as may be reasonable and necessary, and may consider the experts’ credentials when determining the relative weight to afford opinion testimony. See Terran v. Sec’y of Health & Human Servs., 195 F.3d at 1316; see also Copenhaver v. Sec’y of Health & Human Servs., 129 Fed.Cl. 176, 183 (2016); Tompkins v. United States, 117 Fed.Cl. 713, 719 (2014); Holmes v. See’y of Health & Human Servs., 115 Fed.Cl. 469, 490 (2014); Locane v. Sec’y of Health & Human Servs., 99 Fed.Cl. 715, 727 (2011), aff'd, 685 F.3d 1375, 1380 (Fed. Cir. 2012). I. The Manner in Which the Special Master Conducted the September 27, 2016 Hearing Did Not Violate Vaccine Rule 3(b)(2) or Vaccine Rule 8. Petitioner argues in her Motion for Review that this court should reverse the Special Master’s Decision Denying Entitlement because the Special Master violated Vaccine Rules 3(b)(2) and 8, which she alleges resulted in a “fundamental abuse of petitioner’s right to a full and fair opportunity to present her case.” Petitioner initially argues that Special Master Corcoran, to whom the 602case had been reassigned, erred when, regarding the September 27, 2016 entitlement hearing, he indicated he intended to follow the January 16, 2014 Order issued by Special Master Moran that the parties’ expert witness reports would be entered into the record, without the need for oral, direct expert testimony. Although Special Master Corcor-an, in fact, allowed limited, direct, expert testimony at the September 27, 2016 hearing, petitioner alleges that the limitations were inappropriate and that the restrictions imposed on the direct testimony by the experts were “not uniformly enforced” by Special Master Corcoran. Petitioner asserts that respondent’s expert, Dr. Shinnar, was' allowed to give more direct testimony than petitioner’s expert, Dr. Engstrand. Petitioner claims that because Dr. Engstrand was not allowed to give full direct testimony at the hearing, it “set up the petitioner to fail by preventing [Dr. Engstrand] from fully explaining her opinions,” i.e., “her medical theory, the logical sequence of cause and effect, or the appropriate time period for reactions to the vaccination to comply with the Althen prongs.” Petitioner argues that the Special Master’s actions violated Vaccine Rule 3(b)(2) because, pursuant to this rule, “[p]etitioner’s position is that she has a right to present her expert witness testimony at the hearing in-eluding direct testimony,” and that Dr. Engstrand had insufficient time to “fully elucidate her opinions.” According to petitioner, it was “unreasonable” for the Special Master to expect petitioner’s expert to fully explain her theory in written format.27 Petitioner also argues in her Motion for Review that the Special Master violated Vaccine Rule 8, on the grounds that, after the Special Master had elected to hold a hearing, petitioner had the right to fully examine her witness and petitioner was allegedly denied this right by the procedures employed by the Special Master. During oral argument, held on May 31, 2017, this court asked petitioner’s counsel to identify legal authority in support of this alleged absolute right, and counsel was unable to do so. Petitioner’s counsel stated: “[The Special Master] can take written testimony if there is no hearing. If there is a hearing, the rules don’t address that,” and cited Vaccine Rule 8. The only case law petitioner cites in his brief is Richardson v. Secretary of Health and Human Services, 89 Fed.Cl. 657 (2009), which, although not helpful to petitioner, is a case in which a Judge of this court found that a Special Master at a hearing had “failed to satisfy ... fundamental due process requirements.”28 Richardson v. Sec’y of Health & Human Servs., 89 Fed. Cl. at 660.29 603In its Memorandum in Response to Petitioner’s Motion for Review, the government argues that the Special Master is authorized by 42 U.S.C. § 300aa-12(d)(2)(D) and by Vaccine Rules 8(d) and (e) to direct that written expert reports can serve as direct testimony, and that the procedures the Special Master followed provided both parties with a full and fair opportunity to present their cases in furtherance of the goals in Vaccine Rule 3(b)(2). The government additionally asserts that petitioner’s Motion for Review is deficient because it fails to specify how her case has been prejudiced by the procedures the Special Master followed. First, Vaccine Rule 3(b) sets forth the Special Master’s “Duties” regarding the manner in which to conduct the proceedings, emphasizing that proceedings should be “expeditious, flexible, and less adversarial, while at the same time affording each party a full and fair opportunity to present its case and creat[e] a record sufficient to allow review of the special master’s decision,” Vaccine Rule 3(b)(2); see also Campbell ex rel. Campbell v. Sec’y of Health & Human Servs., 69 Fed. Cl. 775, 778 (2006) (finding that the concept of “fundamental fairness” incorporated into Vaccine Rule 3(b) “surely entails notice and an effective opportunity to be heard at a meaningful time and in a meaningful manner.”); Plavin v. Sec’y of Health & Human Servs., 40 Fed.Cl. 609, 622 (1998) (“The Vaccine Act contemplates evidentiary flexibility and informality in proceedings.... In addition, ‘[i]n conducting a proceeding on a petition a special master ... may require the testimony of any person ... as may be reasonable and necessary.’ ” (quoting 42 U.S.C. § 300aa-12(d)(3)(B)(iii))). Contrary to petitioner’s argument, the procedures followed by the Special Masters in the present case complied with the discretionary responsibilities outlined in Vaccine Rule 3(b)(2). Special Master Moran issued his draft Order on December 23, 2013, which gave advance notice that the expectation is that the expert’s written report will constitute the expert’s direct testimony.” The draft Order further explained: The puipose of this requirement is twofold. First, because everyone understands that the expert report constitutes the direct testimony, the report will be complete. A complete report is likely to present the considered views of the expert. Thus, the expert’s opinion will not be based upon an oral presentation, during which the expert may not express her (or his) opinions as clearly as the expert could have presented them in written format. Second, the amount of time spent at hearing will decrease because the expert will not need to repeat the content of the report. This language suggests that Special Master Moran was attempting to fulfill his duty to “endeavor[ ] to make the proceedings expeditious, flexible, and less adversarial.” Vaccine Rule 3(b)(2). Special Master Moran subsequently followed up his draft Order with a final Order, issued on January 15, 2014, to the same effect. The Special Master, thus, gave notice to the parties of how the case would proceed well in advance of the filing by both parties of their expert reports.30 Further, prior to issuing the final Order, Special Master Moran offered both parties over two weeks to file objections. Petitioner failed, during these two weeks, to object to the draft or final Orders, but instead waited until January 24, 2014 to ask that the January 15, 2014 final Order be reconsidered, a request Special Master Moran denied in an Order issued on January 29,2014. At the September 27, 2016 entitlement hearing, however, Special Master Corcoran ultimately allowed each expert a roughly equal opportunity to briefly, orally summarize his or her expert report in truncated, direct testimony, in addition permitted each counsel to cross-examine the othér party’s 604expert, and to re-direct their own experts. Further, Special Master Corcoran questioned both witnesses himself to be sure he understood their theories of causation. Petitioner, nonetheless, alleges that petitioner’s expert neurologist Dr. Beatrice Engstrand, could not discuss the detailed meaning of the medical articles she filed because she was not afforded the opportunity to testify directly at the hearing, neither could she fully explain her medical theory, the logical sequence of cause and effect, or the appropriate time period for reactions to the vaccination to comply with the Althen prongs. Contrary to petitioner’s allegations, in Dr. Engstrand’s first expert report, two subsequent, supplemental expert reports, and her post-hearing affidavit, as well as during her brief direct testimony,31 in her much more extensive cross examinations, and in her redirect testimony, Dr. Engstrand was given more than sufficient opportunities to address her reasons and explanation for her theory of causation. To the extent petitioner argues that more time for direct testimony would have given Dr. Engstrand “the opportunity to more fully expound upon her cytokine induced seizure medical theory,” petitioner’s argument is not supported by the facts of this case. During the course of the hearing before Special Master Corcoran, he permitted Dr, Engstrand multiple opportunities to discuss her theory. Moreover, he asked Dr. Engstrand several times to elaborate on the details of her modified cytokine theory and particularly why she had changed her theory of causation from the theory included in her first expert report. Further, not only did Special Master Corcor-an permit Dr. Engstrand, prior to the hearing, to file two supplemental reports in addition to her initial, filed expert report, but, even after the hearing, Special Master Cor-coran permitted Dr. Engstrand to file a supplementary post-hearing affidavit to “more fully expound upon” her theory, which she had, by her own admission, modified by the time of the hearing. The record before this court indicates that the Special Master gave petitioner multiple opportunities to fully present Dr. Engstrand’s view of causation. Furthermore, Special Master Corcoran offered a detailed discussion in his final opinion which addressed the evidence upon which Dr. Engstrand relied to offer her expert opinion. See K.L. v. Sec’y of Health & Human Servs., 2017 WL 1713110, at 4-6. Finally, contrary to petitioner’s allegations, the record before this court contains no evidence that the procedures followed “were not uniformly enforced” on both parties. The Special Master does not appear to have given Dr. Shinnar a significantly greater opportunity at the hearing to summarize his report in the brief direct testimony than he gave to Dr. Engstrand. In the hearing transcript, Dr. Shinnaris direct testimony takes up four pages, each of twenty-five lines, plus ten lines, and Dr. Engstrand’s covers three pages, each of twenty-five lines, plus eight lines. The method of conducting the proceedings in K.L.’s case complied with the responsibilities of a Special Master included as specified in Vaccine Rule 3(b)(2), to “endeav- or[] to make the proceedings expeditious, flexible, and less adversarial,” including by avoiding repetition, “while at the same time affording each party a full and fair opportunity to present its case.” The Special Master was not arbitrary and capricious, and did not prevent K.L. from fully explaining her theory of causation. Next, petitioner argues that, under Vaccine Rule 8, “she has a right to present her expert witness testimony at the hearing including direct testimony.” Vaccine Rule 8 provides the Special Master with broad discretionary authority to “determine the format for taking evidence and hearing argument based on the specific circumstances of each case and after consultation with the parties.” Vaccine Rule 8(a). In doing so, the Special Master “will not be bound by common law or statutory rules of evidence, but must consider all relevant and reliable evidence governed by principles of fundamental fairness to both parties.” Vaccine Rule 8(b)(1). According to Rule 8, the Special Master “may conduct an evidentiary hearing to provide for the questioning of witnesses either by the special master or by counsel, or 605for the submission of sworn testimony in written form.” Vaccine Rule 8(c)(1) (emphasis added).32 The plain language of the Vaccine Act and the Vaccine Rules allows broad discretion to the Special Master, including the choice of whether or not to schedule a hearing, and, if so, which witnesses, including the experts, should testify on direct and/or only on cross examination, in addition to submitting expert reports and affidavits. Indeed, the Federal Circuit, explicitly, has approved of a Special Master’s decision to forego any expert testimony and decide a case solely on the written record. See Burns v. Sec’y of Health & Human Servs., 3 F.3d at 416-17 (finding it was proper for the Special Master not to hear oral expert medical testimony, after holding an evidentiary hearing and reviewing the expert reports); see also D’Tiole v. Sec’y of Health & Human Servs., 132 Fed.01. 421, 434-35 at 433-34 (2017) (finding that the Special Master did not violate Vaccine Rule 3(b) when he or she decided not to hold an evidentiary hearing on an otherwise fully developed record); Murphy v. Sec’y of Health & Human Servs., 23 Cl.Ct. 726, 730 (1991) (finding that, if the Special Master finds that the written record is fully developed, the Special Master may decide the case without an evidentiary hearing, notwithstanding the desires of one or both of the parties). In the case before this court, Special Master Corcoran’s instructions to the parties at the beginning of the September 27, 2016 hearing were: [T]he expert testimony, the direct portion of their testimony will be considered to have been provided in the form of their expert report or reports. What I am going to allow each side to do is to very briefly, in less than five minutes, if not quicker, allow the expert to provide the essence of what their testimony is going to be or what their report says, and then we will go into cross examination and then we’ll have redirect, and then, at that time, counsel will have the opportunity to follow up with their expert. That’s the process that I’m going to follow today. Although in advance of the hearing, Special Master Corcoran stated he would follow Special Master Moran’s Order excluding direct, expert, oral testimony, he ultimately allowed brief, direct, expert oral testimony. The Special Master also allowed cross examination, as well as, re-direct examination of both expert witnesses. Moreover, at the hearing, the Special Master asked each witness multiple, clarifying questions, to better understand the testimony and the expert reports, which had been submitted for the record. Finally, the Special Master allowed Dr. Engstrand to file her original expert report and multiple supplements thereto, including one following the hearing. The Vaccine Rules give the Special Master broad discretion to establish the manner in which evidence will be taken into the record, including the power to “determine the format for taking evidence and hearing argument based on the specific circumstances of each ease and after consultation with the parties.” Vaccine Rule 8(a). Special Master Corcoran did not abuse his broad discretion when he permitted only abbreviated direct oral testimony by the expert witnesses at the September 27, 2016 hearing and by accepting the experts’ reports and supplemental reports as their primary direct testimony. As prescribed by Vaccine Rule 8, the previous Special Master “eonsult[ed] with the parties” regarding the format for taking evidence at the January 16, 2014 status conference and through issuance of draft and final Orders. See Vaccine Rule 8(a). Petitioner’s argument that she had an absolute right to full direct examination of her expert witness at the hearing and that the failure of the Special Master to do so “set up the petitioner to fail” because it 606“prevented] her expert from fully explaining her opinions” is meritless. The court is satisfied that petitioner had a “full and fair opportunity to present [her] case.” Vaccine Rule 3(b)(2). Contrary to petitioner’s argument, the Special Master acted within the discretionary authority afforded him by Vaccine Rules 3 and 8. Additionally, because the Special Master offered both sides essentially equal opportunities, and his decision considered the evidentiary record in its entirety, his actions were not arbitrary or capricious, and the procedures he followed did not subject petitioner to any unfair prejudice. Petitioner, therefore, has failed to demonstrate that the Special Master’s decision should be reversed as arbitrary and capricious because it failed to provide fundamental due process to the petitioner. II. The Special Master Correctly Applied the Althen Standard to Petitioner's Case. Petitioner’s Motion for Review also alleges that the Special Master erred in finding that K.L. had not carried her burden of proof to meet all three Althen prongs. Petitioner claims that the Special Master improperly applied a heightened burden of proof, effectively requiring petitioner to prove her case with scientific certainty, rather than applying the preponderance of the evidence standard for causation, as required by the Vaccine Act and Athen v. Secretary of Health and Human Services, 418 F.3d at 1278. Petitioner further argues that, in any event, petitioner met her burden of proof satisfying all three prongs of the Athen standard. As noted above, for a non-Table injury such as petitioner alleges, petitioner carries the burden to satisfy all three elements established by the Federal Circuit in Athen, namely: “(1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of proximate temporal relationship between vaccination and injury.” Id. The court notes that, at the oral argument before this court on May 81, 2017, counsel for petitioner admitted that the Special Master correctly had applied Athen when petitioner’s counsel stated'that “the three prongs were appropriately applied.” Petitioner states that the Special Master improperly raised petitioner’s burden of proof because he allegedly “reviewed] the evidence ‘through the lens of the laboratori-an,’ ” quoting Andreu ex rel. Andreu v. Secretary of Health and Human Services, 569 F.3d at 1378-79, instead of applying the preponderance of the evidence standard prescribed in Athen. Athough petitioner’s brief acknowledges that the Special Master “cit[ed] numerous precedents saying the special masters must be careful not to increase petitioners [sic] burden of proof,” petitioner’s counsel argues, however, that the Special Master’s analysis of the evidence effectively required the petitioner to prove her causation theory with scientific certainty, Petitioner alleges that the Special Master “disallowed [petitioner’s] claim because of its novelty and the fact that no specific scientific study conforms to the specific facts of this case” in violation of the Athen test, arguing in a footnote that the fact that petitioner’s causation theory is scientifically unproven should not preclude her from compensation under the Vaccine Act. Athough petitioner is correct that the Special Master may not raise a petitioner’s burden of proof to one of “scientific certainty,” this does not lessen petitioner’s burden to prove a plausible theory of causation supported by reliable scientific evidence. See Andreu ex rel. Andreu v. Sec’y of Health & Human Servs., 569 F.3d at 1379 (‘Although ... a claimant need not produce medical literature or epidemiological evidence to establish causation under the Vaccine Act, where such evidence is submitted, the special master can consider it in reaching an informed judgment as to whether a particular vaccination likely caused a particular injury.” (citations omitted)); Capizzano v. Sec’y of Health & Human Servs., 440 F.3d at 1327 (“The proper inquiry is whether a petitioner in an off-Table injury ease establishes a logical sequence of cause and effect ... by a preponderance of the evidence.”(citations omitted)); Knudsen ex rel. Knudsen v. Sec’y of Health & Human Servs., 35 F.3d at 548-49 (“The determination of causation in fact under the Vaccine Act involves ascertaining whether a sequence of cause and effect is ‘logical’ and legally probable, not medically 607or scientifically certain.” (citations omitted)), The Federal Circuit has found that it is not error for a Special Master to consider the medical literature offered by an expert witness in the context of a petitioner’s alleged injury and after review find it does not support the petitioner’s theory of causation, so long as the Special Master provides logical reasoning for finding certain articles unreliable. See Cedillo v. Sec’y of Health & Human Servs., 617 F.3d at 1345-46; see also K.T. v. Sec’y of Health & Human Servs., 132 Fed.Cl. 175, 186 (2017) (finding that the Special Master was not arbitrary or capricious when he considered the reliability and persuasiveness of scientific literature on which the experts relied “in evaluating the reliability of the expert’s testimony,” and that the literature petitioner cited did not persuasively support petitioner’s theory of causation, nor did his analysis constitute a “heightened legal standard”). In the present case, Special Master Corcoran neither required petitioner to prove her case with scientific certainty, nor did .he require petitioner to produce a scientific study that directly conformed to petitioner’s causation theory. Special Master Corcoran’s decision does not mention the “novelty”,of petitioner’s theory of causation, nor does it state that his decision was in any way related to the fact that no scientific study conforms to the facts of petitioner’s ease. Rather, the Special Master concluded that the literature petitioner cited “did not assist [her] case,” because “much of the literature [Dr. Engst-rand] offered either involved autoimmune forms of epilepsy (which are irrelevant under the facts of the case), different vaccines, or involved the relationship between the HPV vaccine and febrile seizures, which K.L. unquestionably never experienced,” and, thus, were distinguishable from KL.’s ease. K.L. v. Sec’y Health & Human Servs., 2017 WL 1713110, at 14. Special Master Corcoran concluded that petitioner had failed to carry her burden of proof because “the weight of evidence does not support Petitioner’s causation theory and there is insufficient evidence to support an award of compensation,” not because petitioner’s causation theory lacked scientific certainty. Id. at 17. Special Master Corcoran also correctly applied the Althen standard to the facts of petitioner’s case. The Special Master began his opinion by noting that he was applying Althen to petitioner’s case, and acknowledging that, “[i]n attempting to establish an entitlement to a Vaccine Program award of compensation for a Non-Table claim, a petitioner must satisfy all three of the elements established by the Federal Circuit in Althen.” K.L. v. Sec’y of Health & Human Servs., 2017 WL 1713110, at 10. The Special Master’s opinion went on to explain and apply each prong of Althen to petitioner’s case, specifically quoting the same language as petitioner did from' Andreu ex rel. Andreu v. Secretary of Health and Human Services, 569 F.3d at 1377, and further noting that a Special Master “must take care not to increase the burden placed on petitioners in offering a scientific theory linking’vaccine to injury.” M. at 13-14 (citation omitted). Specifically, at the end of this section of his opinion, which Special Master Corcoran titled “Althen Prong One,” id. at 13, he concluded: Vaccine Act claimants are not required to prove a causation theory to a scientific certainty, but the theory must be based on ‘sound and reliable medical or scientific explanation.’ Knudsen [v. Sec’y of Health & Human Servs.], 35 F.3d at 548. I do not find that Petitioner has satisfied this standard. Id. at 16. Furthermore, in the next section of his opinion, titled “Althen Prongs Two and Three,” the Special Master analyzed K.L.’s medical records and doctors’ visits, and determined that “K.L. has not successfully demonstrated with preponderant evidence that the HPV vaccine did cause her initial seizure as alleged, and thus has not satisfied the- second Althen prong.” Id. With respect to the third Althen prong, the Special Master noted that its “[r]esolution ,.. [is] less easily accomplished,” but determined that the evidence petitioner had presented on this prong did not “constitute particularly robust support for Petitioner’s proposed timeframe,” and, even “were [the Special Master] to find that the balance of evidence on this matter barely favored K.L., that determination would not alter [the Special Master’s] ultimate decision about causation, because Petitioner’s causation theory itself is too deficient, and unsupported by the actual medical 608history.” Id. at 17. The record before the court establishes that the Special Master analyzed petitioner’s case under the correct legal standard. Petitioner’s Motion for Review also asserts that the Special Master “failed to considered [sic] the relevant evidence of [sic] record, failed to draw plausible inferences from such evidence or failed to articulated [sic] a rational basis for the decision.” Petitioner argues that the Special Master’s reading of the record was arbitrary and capricious because he improperly “discounted,” “misinterpreted,” and/or did not discuss several of the studies cited by petitioner’s expert, which allegedly supported her theory. At oral argument, petitioner’s counsel again asserted that the Special Master’s decision was arbitrary and capricious “primarily because of the way he reviewed some of the medical articles.” In response, the government argues that “[finding petitioner’s evidence unpersuasive does not mean that the Special Master misread the evidence or imposed a higher burden on petitioner than the law requires.” With respect to petitioner’s argument that Special Master Corcoran “discounted” certain evidence, this court finds that the Special Master was not arbitrary or capricious because, based on his final opinion, he appears to have considered the relevant evidence in the record, and made reasonable determinations regarding the scientific reliability of the evidence offered by both parties. According to the relevant statute, the Special Master is required to weigh and consider “all ... relevant medical and scientific evidence contained in the record,” including evidence related to the petitioner’s medical condition. 42 U.S.C. § 300aa-13(b)(l). The Vaccine Act further specifies that the evidence the Special Master must consider, “in addition to all other medical and scientific evidence contained in the record,” includes “any diagnosis, conclusion, [or] medical judgment, ... which is contained in the record regarding the nature, causation, and aggravation of the petitioner’s illness, disability, injury, condition, or death ... and the results of any diagnostic or evaluative test which are contained in the record and the summaries and conclusions.” 42 U.S.C. § 300aa-13(b)(l)(A)-(B). After considering the relevant medical and scientific evidence in the record, the Special Master has discretion to determine the relative weight to give to evidence in the record, provided he or she offers a rational basis. See Andreu ex rel Andreu v. Sec’y of Health & Human Servs., 569 F.3d at 1379 (finding that the Special Master may make a determination of witness credibility to determine the weight oral testimony should be afforded in relation to contemporaneous medical records); Capizzano v. Sec’y of Health & Human Servs., 440 F.3d at 1326 (finding the Special Master erred when he did not consider the diagnosis of the treating physician, although the treating physician had affirmatively concluded the vaccine caused petitioner’s injury); Burns v. Sec’y of Health & Human Servs., 3 F.3d at 417 (finding that the Special Master has discretion to determine whether to afford greater weight to contemporaneous medical records than to other evidence, so long as the decision is based on a rational basis); Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528-29 (Fed. Cir. 1993) (finding that when contemporaneous medical records conflict with later oral testimony, the Special Master was not arbitrary or capricious when he relied on the medical records to find that petitioner failed to satisfy her burden of proof). Petitioner’s motion specifically alleges that the Special Master “apparently did not review numerous exhibits, including Exhibit 31, Exhibit 33, and Exhibit 37.” Dr. Engstrand’s third expert report, Exhibit'31, however, was explicitly discussed in the Special Master’s decision, which states, “[i]n the Spring of 2015, Dr. Engstrand filed her third report, which mainly sought to rebut points made by Respondent’s expert, Dr. Shinnar, in his report. She maintained that autoimmune-related epilepsy was more common than Dr. Shinnar allowed, and that it could manifest without evidence on an EEG and without a prior or concurrent fever.” K.L. v. Sec’y of Health & Human Servs., 2017 WL 1713110, at 5. The Special Master goes on to describe the literature cited by Dr. Engstrand in her third report, which included Exhibits 33 and 37. Thus, petitioner’s argument that the Special Master failed to consider these exhibits is incorrect. 609Petitioner also objects to the Special Master’s treatment of the Li study, attached to Dr. Engstrand’s affidavit filed on November 4, 2016 after the September 27, 2016 hearing, arguing that the Li study “specifically support[s]” and “eonfirm[s]” Dr. Engstrand’s theory, “despite the special master misinterpreting it.” Petitioner alleges in a separate section of the brief that “the special master simply emphasized a eonclusory statement in the article discussing cytokine activation by seizures, without reviewing the details of the article which clearly shows that cytokines can indeed cause seizures.” It remains unclear whether petitioner argues that the Special Master failed to consider the Li study entirely, or that the Special Master failed to give the article sufficient weight. Both of these allegations are specious, because Special Master Corcoran, in fact, referenced and analyzed the Li study two separate times in his opinion, including an in-depth analysis that quoted directly from the article. See id. at 6, 14. In the first instance, the Special Master’s decision stated: The authors of [the] Li [study] reviewed studies involving cytokines’s role in epilepsy. Li concluded that an array of different cytokines were involved—but more importantly (for present purposes), that the cy-tokines were activated only after the patient had suffered a seizure, as opposed to causing them, and it could not be fully ascertained in any event whether post-seizure cytokines exacerbated seizure activity. Li at 256 (“[cytokines] are activated by seizures, but their precise role in epilepsy is not yet clear”), (emphasis in original). Id. at 6. In the second instance, the Special Master determined that the Li study “speaks more of the causative effect seizures have on the upregulation of cytokines than the other way around, thus further undermining Dr. Engstrand’s efforts to restore credibility to her theory.” Id. at 14. Moreover, a Special Master need not discuss in his or her final decision every piece of medical literature a petitioner files or references, and failing to discuss every piece of evidence will not alter the presumption that a Special Master has considered the entire record in his or her decision to grant or deny compensation. See Moriarty v. Sec’y of Health & Human Servs., 844 F.3d 1322, 1328 (Fed. Cir. 2016) (“We generally presume that a special master considered the relevant record evidence even though he does not explicitly reference such evidence in his decision.”), Therefore, the fact that Special Master Corcoran did not discuss every piece of evidence submitted into the record in his decision does not, in and of itself, constitute reversible error. In addition, petitioner has not identified a relevant, critical item of evidence in the record which was not addressed by the Special Master. Furthermore, the level of scrutiny with which the Special Master reviewed the scientific studies the parties produced was appropriate. The Special Master is required to “consider all relevant and reliable evidence,” Vaccine Rule 8(a), specifically, any medical records or reports “contained in the record regarding the nature, causation, and aggravation of the petitioner’s ... injury” and “all other relevant medical and scientific evidence contained in the record.” 42 U.S.C. § 300aa-13(l). Moreover, if the Special Master considers certain items of medical evidence, but ultimately deems them unreliable, that does not constitute reversible error. See Cedillo v. Sec’y of Health & Human Servs., 617 F.3d at 1345-46 (no error found when the Special Master found one study petitioner cited unreliable because it was inconclusive, and found another insufficiently detailed in methodology and explanation of findings); see also Hines v. Sec’y of Health & Human Servs., 940 F.2d at 1527 (finding no error when the Special Master considered the entire record, although he did not give certain evidence “the controlling weight [the petitioner] urge[d] he should have”). As the fact-finder, the Special Master has discretion to make determinations regarding the credibility of all tjie information provided orally and in writing by fact and expert witnesses, whether they testify in person at a hearing or submit reports or affidavits for the record. This discretion includes review of the medical literature submitted in support of a party’s causation theories. See LaLonde v. Sec’y of Health & Human Servs., 746 F.3d at 1340-41 (finding no error when petitioner’s expert posited a number of theories, but the Special Master found them unpersuasive because the 610theories were not supported by peer-reviewed medical literature). In the present case, the Special Master considered and discussed each of Dr. Engst-rand’s four filed reports, Dr. Shinnar’s reports, the experts’ testimony at the hearing and the parties’ arguments. In his opinion, the Special Master found the support for Dr. Engstrand’s theory limited, stating: “[b]e-yond Dr. Engstrand’s qualifications, there is the issue of the reliability of the scientific basis for Petitioner’s theory. While the individual articles offered proved reasonable and reliable individually, taken as a whole they do not assist Petitioner’s case.” K.L. v. Sec’y of Health & Human Servs., 2017 WL 1713110, at 14. By contrast, Special Master Corcoran found the literature Dr. Shinnar produced more persuasive. The Special Master stated in his decision: Respondent, by contrast, offered far more reliable and credible medical and scientific articles suggesting the HPV vaccine would not likely cause injuries of the kind experienced by K.L. Studies like Arnheim-Dahlstrom were more scientifically reliable (both given the larger population groups studied, as well as the fact that they involved observed cases rather than simply reported reactions) and more persuasively demonstrated no link between a number of neurological events, including epilepsy, and receipt of the HPV vaccine. Id. at 15. From the opinion he issued, it is deal’ that the Special Master reviewed the medical literature submitted by both Dr, Engstrand and Dr. Shinnar, and the Special Master explained why he found that the studies Dr. Engstrand cited were either in-suffidently related to petitioner’s case or less scientifically reliable than those Dr. Shinnar cited. Contrary to petitioner’s allegation that Special Master Corcoran “discounted” or “ignored” certain evidence, the Special Master stated in his decision that he had reviewed all evidence in the record in making his- decision. See id. at 1 (“After considering the record as a whole, and for the reasons explained below, I find that Petitioner has failed to carry her burden in establishing causation, and therefore is not entitled to compensation under the Vaccine Program.”). In the decision he laid out a thorough discussion and analysis of the evidence and the reasoning for his conclusions. The court finds that the Special Master did not act arbitrarily or capriciously and properly exercised his discretion.33 Regarding petitioner’s argument that the Special Master “misinterpreted” certain evidence, petitioner appears specifically to highlight and object to the limited weight the Special Master gave to the Li article. At oral argument before this court, petitioner’s counsel asserted that the Special Master had not “read the Li article thoroughly” because “there’s a specific part of the Li article that addresses IL-1 beta,” The thoroughness of the Special Master’s decision and the fact that Dr. Engstrand herself abandoned the interleukin-1 beta theory during her testimony both demonstrate that petitioner’s allegation is not supported by the record. Likewise, although counsel asserted that “the [Li] article says that the balance of the studies they looked at showed an increase in seizure activity,” the Li study actually concludes: A growing body of evidence suggests that there is an array of cytokines involved in epilepsy. These substances are activated by seizures, but their precise role in epilepsy is not yet clear .... Levels of these substances increase quickly after either generalized tonic-clonic or complex partial seizures ... Seizures not only induce the expression of cytokines in the brain but also change peripheral cytokine levels. See Gang Li et al., Cytokines and Epilepsy, 20 Seizure 249, 253 (emphasis added). Special 611Master Corcoran provided a rational basis for the lower evidentiary weight he gave the Li study, based on the study itself and the evidence in the record, when he stated that the Li study “speaks more of the causative effect seizures have on the upregulation of cytokines than the other way around, thus further undermining Dr. Engstrand’s efforts to restore credibility to her theory after abandoning the opinion she initially offered in her first submitted expert report about the role of the IL-beta [sic] cytokine.” K.L. v. Sec’y of Health & Human Servs.. 2017 WL 1713110, at 14. Petitioner additionally alleges that the Special Master acted arbitrarily and capriciously when, according to petitioner, he gave “little weight” to the fact that “numerous treating physicians considered the HPV vaccine to be a possible causative agent in them differential diagnosis.” Petitioner’s argument lacks merit on multiple grounds. First, by statute, the Special Master is not bound by “[a]ny such diagnosis, conclusion, judgment, test result, report, or summary” that is “contained in the record regarding the nature, causation, and aggravation of the petitioner’s illness,” but rather has the discretion to “evaluatfe] the weight to be afforded to any such diagnosis” in the record, in light of “the entire record and the course of the injury, disability, illness, or condition.” 42 U.S.C. § 300aa-13(l). Thus, Special Master Corcor-an was not required to conclude that the Gardasil vaccination caused petitioner’s epilepsy simply because it was noted in physicians’ notes in the records, and in petitioner’s case, only as a possible cause. Rather, the Special Master’s decision reflects that he considered the entire record, including the medical records which recorded the progression of K.L.’s symptoms and illness over time, the opinions and the diagnoses of her treating physicians, including of Dr. Poduri, who was also ah epilepsy specialist, as well as the opinions of the parties’ expert witnesses. Second, petitioner’s brief asserts, “[t]he diagnosis of treating physicians is entitled to some weight,” citing to Andreu ex rel. Andreu v. Secretary of Health and Human Services, 569 F.3d at 1367, and Capizzano v. Secretary of Health and Human Services, 440 F.3d at 1326. While petitioner’s statement of the law is correct, the cases petitioner cites do not assist petitioner. In both Andreu and Capizzano, the treating physician unequivocally stated that the vaccine was the cause of petitioner’s injury and the treating physician’s conclusion was undisputed by the government’s witness. See Andreu ex rel. Andreu v. Sec’y of Health & Human Servs., 569 F.3d at 1376; Capizzano v. Sec’y of Health & Human Servs., 440 F.3d at 1326. In the current case, in contrast to the facts in Andreu and Capizzano, the record before the court does not contain any conclusive statements by any of the petitioner’s treating physicians that indicate that the Gardasil vaccination was the cause of petitioner’s epilepsy. Instead, none of K.L.’s treating physicians concluded with any certainty that the vaccine was the causative agent. The record before the court demonstrates that petitioner’s treating physicians simply made note of K.L’s recent HPV vaccine in KL.’s medical history, and when any relationship between Gardasil and her seizures was indicated, it was in purely speculative terms. For example, at the time of K.L.’s first emergency room visit, her medical records noted that her recent HPV vaccine was one among several “potential contributors” for her first seizure. Similarly, the medical record from her February 12, 2010 treatment at FAHC states: “At transfer the cause of her seizure was thought to be multifactorial with potential contributors including a mild URI, OTC pharmacotherapy with benadryl and sudafed, and recent HPV vaccine administration.” Dr. Volansk/s notes from February 15, 2010 state: “Assessment: seizures, unclear etiology, may be new onset epilepsy, may have been effect of recent Gardasil and/or decongestants.” Dr. Kalsner’s notes from March 22, 2010 state: “Of note, she did receive the Gardasil vaccine two days prior to the first seizure. It was her third in a series of vaccinations.” Dr. Poduri’s notes from June 6, 2010 state: “She had also notably had her Gardasil vaccination two days prior to the first seizure.” Dr. Volansky’s notes from June 22, 2010, state: “There was some concern about having Gardasil vaccination, third dose, 2 days prior to having her first seizure onset and maybe that indicates the seizures should improve; however, would continue an-tiseizure medication for a total duration of 2 612years and then gradually try to taper it off.” As the Federal Circuit determined in Moberly v. Secretary of Health and Human Services, if contemporaneous physician’s notes are “all speculative,”, the Special Master is permitted to find that such evidence is not dispositive. See Moberly ex rel. Moberly v. Sec’y of Health & Human Servs., 592 F.3d at 1323-25 (finding that speculative notations by treating physicians were properly not dispos-itive on causation because “[while] several of petitioner’s treating physicians noted the temporal relationship between [petitioner’s] vaccination and petitioner’s initial brief seizures, none ever offered a solid statement that ... [the] vaccination caused probably petitioner’s condition”); see also Cedillo v. Sec’y of Health & Human Servs., 617 F.3d at 1348 (“The Special Master clearly articulated why he declined to afford significant weight to the notations made by [petitioner’s] treating physicians, and we see no error in his treatment of that evidence.”). Finally, petitioner’s arguments overlook the fact that Dr. Poduri was one of KL.’s treating physicians, who had multiple appointments with petitioner, conducted a review of a detailed MRI study, and conducted a careful analysis of her medical history. Dr. Poduri diagnosed K.L. with idiopathic epilepsy and did not attribute her seizures to Gar-dasil. The Special Master did not err when he gave greater weight to Dr. Poduri and to the expert report of Dr. Shinnar. Petitioner also argues in her brief, with little elaboration, that the Special Master erred because he did not address the “flaws” in the testimony of respondent’s expert, Dr. Shinnar, but did so for petitioner’s expert, Dr. Engstrand. According to petitioner, “[n]umerous critical comments of Dr. Engst-rand appear in the Decision, without corresponding critical analysis of Dr. Shinnar.” Petitioner alleges that Dr. ShinnaFs testimony and report were unreliable because they contained “many errors,” although petitioner fails to specify any particular errors in her filings before this court.34 Petitioner also argues that the Special Master erred when he “questioned the ability of Dr. Engstrand to even testify concerning her medical theory because she did not have ‘specialized expertise in the condition of epilepsy’ even though she is a highly qualified and experienced neurologist.” Contrary to petitioner’s allegations, Special Master Corcoran did not treat the parties’ experts disparately. Special Master Corcoran permitted both expert witnesses the opportunity to make clarifications in their testimonies at the September 27, 2016 hearing, and he directed clarifying questions to each witness. Additionally, after Dr. Engstrand abandoned her first theory of causation and offered a modified theory at the September 27, 2016 entitlement healing, Special Master Corcoran permitted her to file a post-hearing affidavit to support her new theory, which he specifically discussed in his opinion. See K.L. v. Sec’y of Health & Human Servs., 2017 WL 1713110, at 6. In addition, Special’Master Corcoran separately analyzed the articles cited by both experts in similar terms. See, e.g., id. at 6 (“Dr. Engstrand offered an article that she represented further supported the possibility of afebrile seizures following the HPV vaccine .... [The] Crawford [study], like the Valencian Article, involved a retrospective study of passive surveillance reporting of alleged vaccine adverse events, here based on the HPV vaccine’s administration in Australia to young females.”); id. at 8 (“Dr. Shinnar opined that the HPV vaccine could not affirmatively be linked to epilepsy. In support, he cited a large population study of young girls in Denmark and Sweden .... That study found no increased risk for autoimmune or neurological events among the nearly 300,000 patients who received multiple doses of the HPV vaccine.”). Petitioner’s argument that the Special Master erred by questioning Dr. Engstrand’s qualifications, but not Dr. Shinnar’s, fails for several reasons. Petitioner has the burden of proof to establish causation. See 42 U.S.C § 300aa-13(a). Petitioner’s expert, Dr. Engstrand, ultimately offered a causation 613theory that relied on an immunological mechanism and, logically, the Special Master compared it to the evidence Dr. Shinnar offered, in part, based on their relative expertise in immunology. See Milik v. Sec’y of Health & Human Servs., 822 F.3d 1367, 1381-82 (Fed. Cir. 2016) (finding that the Special Master did not act arbitrarily and capriciously when determining that the government expert’s specific medical qualifications made his testimony more reliable than that of petitioner’s expert); Porter v. Sec’y of Health & Human Servs., 663 F.3d at 1250 (“[T]his court has unambiguously explained that special masters are expected to consider the credibility of expert witnesses in evaluating petitions for compensation under the Vaccine Act.”). In doing so, Special Master Corcoran acted within his proper discretion. The credibility of an expert witness is an appropriate matter for the Special Master to consider, given the importance of expert testimony in a petitioner’s ability to carry his’ or her burden of proof when alleging a non-Table injury. See, e.g., Cedillo v. Sec’y of Health & Human Servs., 617 F.3d at 1347 (finding no error when the Special Master determined an expert witness lacked credibility when the Special Master explained his reason for so determining); Hazlehurst v. Sec’y of Health & Human Servs., 604 F.3d at 1349-50 (finding it was within the Special Master’s discretion to admit and assess the reliability of expert testimony); H.L., on Behalf of A.I., v. Sec’y of Health & Human Servs., 129 Fed.Cl. 165, 175 (2016) (finding no error for the Special Master to find the government’s witness more credible than petitioner’s after he “thoroughly reviewed the record, expert testimony, and the articles each expert cited”). Because a Special Master acts within his discretion when he or she makes determinations regarding the credibility of any witness, including an expert witness, it was proper for Special Master Corcoran to consider the credentials of the expert witnesses in relation to the causation theories they posited and in relation to each other’s expertise. So long as the Special Master provides a reasonable explanation in his opinion to show how he reached his conclusions regarding an experts’ credibility, such credibility determinations will survive review. See, e.g., Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d at 1347 (finding no error when the Special Master assessed the credibility of experts and found the government’s more persuasive, and included a reasoned explanation in the opinion). Special Master Corcoran’s decision noted that Dr. Engstrand is a general neurologist, not an immunologist or epileptologist, and that Dr. Engstrand relied on an immunological mechanism which linked the Gardasil vaccine to petitioner’s injury and a rare form of epilepsy based on an immunological mechanism, but that she did not have the relevant specialized expertise. See K.L. v. Sec’y of Health & Human Servs., 2017 WL 1713110, at 14. Special Master Corcoran stated: Dr. Engstrand is not an immunologist— although neither is Dr. Shinnar, for that matter. However, this lack of specific expertise on a matter relevant to the resolution of the case cuts more against Petitioner than Respondent, since Petitioner bears the initial, and ultimate, burden of proof. Id. at 4 n.12. Special Master Corcoran found that the experts’ respective areas of expertise cut against Dr. Engstrand, because her causation theory incorporated and required specialized knowledge of immunology, and in favor of Dr. Shinnar, whose alternative theory of causation was narrowly focused on epilepsy. Id. at 15. Contrary to what petitioner argues, the Special Master did not question Dr. Engstrand’s qualifications as a neurologist, but rather her lack of qualifications as an immunologist. The Special Master expressed doubt as to the credibility of her expertise, specifically as it related to her theory of causation in KL.’s case, which linked the Gardasil vaccine to petitioner’s injuries, based on an immunological mechanism, and on her selection and discussion of relevant medical literature. Id. at 14-16. A Special Master may compare the evidence offered by each side’s expert and make a decision “based on the credibility of the experts and the relative persuasiveness of their competing theories.” Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d at 1347 (quoting Lampe v. Sec’y of Health & Human Servs., 219 F.3d at 1362); see also Milik v. Sec’y of Health & Human Servs., 822 F.3d at 1381-82 (finding that the Special Master was 614not arbitrary and capricious when he determined that the government’s expert’s specific medical qualifications made his testimony more reliable than testimony of petitioner’s expert); Porter v. Sec’y of Health & Human Servs., 663 F.3d at 1250 (“[Sjpecial masters are expected to consider the credibility of expert witnesses in evaluating petitions for compensation under the Vaccine Act.”); Moberly ex rel Moberly v. Sec’y of Health & Human Servs., 692 F.3d at 1325-26 (“[assessments as to the reliability of expert testimony often turn on credibility determinations,” and the Special Master may analyze the credibility of experts); Copenhaver v. Sec’y of Health & Human Servs., 129 Fed.Cl. at 183 (finding that Special Masters may consider the expert’s credentials when determining ttie relative weight to afford opinion testimony). Moreover, a Special Master’s credibility findings are “virtually unchallengeable on appeal.” Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d at 1347 (quoting Lampe v. Sec’y of Health & Human Servs., 219 F.3d at 1362); see ateo Cedillo v. Sec’y of Health & Human Servs., 617 F.3d at 1347 (“Under the Vaccine Act, Special Masters are accorded great deference in determining the credibility and reliability of expert witnesses,”). This court, therefore, finds that Special Master Corcoran acted reasonably and within his discretion when he com sidered Dr. Engstrand’s relative qualifications and the literature she included as part of her submissions in support of petitioner’s theoi-y, in comparison to the relative weight he gave to Dr. ShinnaPs qualifications, expert report, and testimony, which were offered as a rebuttal to petitioner’s theory. Petitioner also argues that, based on the record before the Special Master, including Dr. Engstrand’s expert opinion and the literature offered by petitioner’s expert, she met her burden of proof under the Althen test and that the Special Master’s failure to so find was in error. She asserts, again, as part of this argument, that the Special Master raised her burden of proof and that she should not be denied compensation merely because her theory is novel and “no specific scientific study conforms to the specific facts of this case.” The government disagrees, arguing that petitioner failed to meet her burden of proof under Althen and did not prove, by a preponderance of the evidence, that the Gardasil vaccination caused her injuries. Respondent asserts that “the Special Master’s conclusion was based on a thorough review of the evidence and is supported by both plausible inferences and a rational basis,” so it should not be overturned. Petitioner first argues that she satisfied her burden under prong one of the Althen test by showing a plausible theory of causation. Unfortunately for petitioner, her assertion that she has met Althen prong one with “clear plausibility” by showing a mechanism of causation that is “supported by credible medical studies” is based on a theory of causation that petitioner’s own expert abandoned when' pressed at the September 27, 2016 hearing, Even during oral argument before this court on May 31, 2017, petitioner’s counsel asserted that the interleukin-1 beta theory was “Dr. Engstrand’s entire theory.” Moreover, the brief submitted by petitioner’s counsel argues: Dr. Engstrand has stated that ’K.L. suffered from an autoimmune reaction stimulated by the HPV vaccine which caused release of cytokine interleukin 1 beta in the course of the immune response to the vaccine (the infectious agent), which in turn triggered a cluster of afebrile convulsions or seizures .... As noted above, at the September 27, 2016 hearing before the Special Master, however, when asked about her interleukin-1 beta theory, Dr. Engstrand responded: “I’m not sure it’s Interleukin-1 beta ... the more I read about it and reread all the papers again, it is the cytokine—I’m not certain which cyto-kine—that sets up an inflammatory reaction in K.L.” Not only did petitioner’s own expert abandon the original theory of causation that petitioner’s. counsel on behalf of petitioner asserts in the Motion for Review, the Special Master also found that the theory was unsupported by K,L,’s medical records or by any of the scientific literature petitioner eited, and that it was convincingly debunked by Dr. Shinnaris report and testimony. See K.L. v. Sec’y of Health & Human Servs., 2017 WL 1713110, at 16. The Special Master found Dr. Shinnar’s explanation more credible because Dr. Shinnar supported his opinion with 615articles that were “more scientifically reliable (both given the larger population groups studied, as well as the fact that they involved observed cases rather than simply reported reactions) and more persuasively demonstrated no link between a number of neurological events, including epilepsy, and receipt of the HPV vaccine.” Id. at 16. In support of her argument, petitioner cites language from the United States Court of Federal Claims decision in Contreras v. Secretary of Health and Human Services that “[plausibility ... in many cases may be enough to satisfy Althen prong one” (emphasis in original), suggesting that petitioner had a lowered burden of proof with respect to this prong. Contreras v. Sec’y of Health & Human Servs., 121 Fed.Cl. 230, 245 (2015). The United States Court of Federal Claims’ Contreras decision petitioner cited, however, was ultimately vacated and remanded by the United States Court of Appeals for the Federal Circuit on January 3, 2017, three months before petitioner’s counsel filed the Motion for Review on petitioner’s behalf. See Contreras v. Sec’y of Health & Human Servs., 844 F.3d 1363 (Fed. Cir. 2017). Petitioner’s counsel fails to note the Federal Circuit’s decision to vacate and remand the case in the briefs he filed. Furthermore, petitioner’s understanding of the Contreras decision in the Court of Federal Claims is also incomplete, because the Court of Federal Claims’ Contreras decision separated a petitioner’s burden with respect to Althen prong one from a petitioner’s overall burden of proof, noting that even if plausibility may be sufficient for Althen prong one, this does not alter petitioner’s overall burden to establish causation-in-fact by more than plausibility alone, stating, “while plausibility is not enough to show that a particular vaccine caused a particular injury, this is a separate question from the inquiry required by Althen prong one.” 121 Fed.Cl. at 245 (citing Veryzer v. Sec’y of Health & Human Servs., 100 Fed.Cl. 344, 352 (2011)). In the present case, because the Special Master determined that petitioner had not produced sufficient evidence to meet her burden of proof to show a plausible theory of causation demonstrating that the vaccine caused her injury, and the Special Master supported this determination with a reasonable and thorough analysis of the evidence in his decision, the Special Master did not act arbitrarily or capriciously with respect to his conclusions on the Althen prong one. In addition, petitioner argues in her Motion for Review that the Special Master erred when he found petitioner had failed to satisfy her burden to prove Althen prong two by a preponderance of the evidence. Specifically, petitioner alleges that Dr. Engstrand’s explanation of the biological events in K.L.’s illness was sufficient to show a logical sequence of causation, that her medical records support this explanation, and that respondent’s alternative theory of causation should be excluded. Under Athen prong two, a petitioner must show a logical sequence of cause and effect between the vaccine and petitioner’s injuries, usually supported by evidence from petitioner’s medical records, See Athen v. Sec’y of Health & Human Servs., 418 F.3d at 1278. In the present case, the Special Master found that petitioner did not sufficiently show that Gardasil caused her initial seizures, as alleged, because KL.’s medical records showed no signs that K.L. had an autoimmune response contemporaneous with her initial seizure after the vaccination or an upregulation of cytokines, upon which Dr. Engstrand’s causation theory relied. See K.L. v. Sec’y of Health & Human Servs., 2017 WL 1713110, at 16. The Special Master also found that the evidence presented by the treating physicians and the government’s expert provided a more persuasive alternative explanation for K.L.’s illness. Id. In particular, the Special Master found that Dr. Shin-nar had “effectively distinguished K.L.’s medical presentation with that of a patient with autoimmune epilepsy, who would likely have displayed abnormal EEG results demonstrating the presence of a neurologic injury, while at the same time being resistant to treatment.” Id. Similarly, the Special Master found treating physician Dr. Poduri’s diagnosis of idiopathic epilepsy to be persuasive because Dr. Poduri was KL.’s continuing, treating physician, she reviewed numerous medical tests performed on K.L., and she had expertise in epilepsy. The Special Master stated in his opinion: “[i]n addition, particularly trustworthy treaters with significant epilepsy expertise, like Dr. Poduri, were aware 616of the vaccine’s administration [to K.L.] but concluded, based on their review of the developing medical record, that more likely than not K.L.’s epilepsy was idiopathic.” Id. (citations omitted). Provided the Special Master does so in a reasonable manner and “consider[s] the relevant evidence of record, drawing] plausible inferences and articulating] a rational basis for the decision,” it is within a Special Master’s discretion to weigh the reliability and credibility of the evidence a petitioner provides to support his or her theory of causation. Broekelschen v. Sec’y of Health & Human Servs., 618 F.3d at 1348 (quoting Hines v. Sec’y of Health & Human Servs., 940 F.2d at 1528). Special Master Corcoran acted reasonably and did not err when he found the evidence from Drs. Shin-nar and Poduri explaining K.L.’s medical records “more persuasive than Dr. Engstrand’s statements to the contrary.” K.L. v. Sec’y of Health & Human Servs., 2017 WL 1713110, at 16; see also Burns v. Sec’y of Health & Human Servs., 3 F.3d at 417 (finding no error when the Special Master found contemporaneous medical records more persuasive than later oral testimony, because “such a determination of credibility is uniquely within the purview of the special master”). Moreover, the government is permitted to present an alternative theory of causation to explain the petitioner’s injury, which the Special Master may then consider in making his or her determination of whether the petitioner has met her burden of proof demonstrating that the vaccine caused petitioner’s injury. See de Bazan v. Sec’y of Health & Human Servs., 539 F.3d at 1353 (“The government, like any defendant, is permitted to offer evidence to demonstrate the inadequacy of the petitionei'’s evidence on a requisite element of the petitioner’s ease[-]in-chief.”); see also Rus v. Sec’y of Health & Human Servs., 129 Fed.Cl. 672, 680 (2016) (“[R]egardless of whether the burden of proof ever shifts to the respondent, the special master may consider the evidence presented by the respondent in determining whether the petitioner has established a prima facie case.” (citations omitted)). Therefore, it was proper for Special Master Corcoran to consider both Dr, Engstrand’s causation theory and Dr. Shin-nar’s alternative causation theory in the context of KL.’s medical records. The United States Court of Appeals for the Federal Circuit has interpreted 42 U.S.C § 300a-13(2)(b) to mean that a Special Master is expected to consider the record as a whole in making his or her decision regarding entitlement to compensation, which includes all relevant evidence cited by both parties throughout the proceedings. See Moriarty v. Sec’y of Health & Human Servs., 844 F.3d at 1327-28 (“Thus, this statutory language indicates that a special master, reviewing the entire record of the ease before him, must consider all relevant medical and scientific evidence contained in the record, which includes any relevant medical records or reports. It also instructs that the special master ‘shall’ consider the entire record, which includes this relevant evidence, when assigning the weight given to particular evidence.” (emphasis in original)); see also Stone v. Sec’y of Health & Human Servs., 676 F.3d 1373, 1379 (Fed. Cir. 2012) (“Evidence of other possible sources of injury can be relevant not only to the ‘factors unrelated’ defense, but also to whether a prima facie showing has been made that the vaccine was a substantial factor in causing the injury in question,”). Petitioner also argues that K.L.’s diagnosis of idiopathic epilepsy by Drs. Shinnar and Poduri should be discounted because evidence of idiopathic illnesses cannot be used to deny her recovery. In support of this argument, petitioner cites 42 U.S.C, § 300aa-13(a)(2)(A) and Wagner v. Secretary of Health and Human Services, 37 Fed.Cl. 134 (1997). Petitioner’s argument misconstrues 42 U.S.C. § 300aa-13(a)(2)(A) and Wagner. The section of the statute petitioner relies on is only applied when the burden of proof is on the government to show that a petitioner’s injuries were caused by a factor “unrelated to the administration of the vaccine,” 42 U.S.C. § 300aa-13(2) either after causation is presumed because the injury is on-Table or after petitioner has proven eau-sation-in-fact. See Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1281; see also Rus v. Sec’y of Health & Human Servs., 129 Fed.Cl. at 680 (“[I]f a petitioner establishes a prima facie case, the burden shifts to the respondent to show, by a preponderance of 617the evidence, that the injury was caused by a factor unrelated to the vaccine.” (citations omitted)); Koston v. Sec’y of Health & Human Servs., 974 F.2d 157, 158 (Fed. Cir. 1992) (finding that because the petitioner had an on-Table injury, causation was presumed, so per the statute an idiopathic illness could not defeat recovery); Doe ex rel. Estate of Doe v. Sec’y of Health & Human Servs., 83 Fed.Cl. 157, 169 (2008) (finding that the Special Master misalloeated the burden of proof by failing to shift burden to government after petitioner proved a prima facie case per the statute). In KL.’s case, 42 U.S.C. § 300aa-13(a)(2)(A) does not apply because the petitioner’s alleged injury is an off-Table injury and she has failed to prove causation-in-fact. Therefore, the burden of proof has not shifted to the government to show that petitioner’s injuries were caused by a factor unrelated to the vaccine. The Wagner case also is not applicable to petitioner’s claim because in Wagner, the Special Master determined that the petitioner had proven that her injuries were caused-in-fact by the vaccine by a preponderance of the evidence, and, therefore, that the burden had shifted to the government to prove that “factors unrelated to the administration of the vaccine” caused her injury. Wagner v. Sec’y of Health & Human Servs., 37 Fed.Cl. at 139. The court in Wagner held that an unknown cause could not be used to deny compensation after a determination that petitioner had proven eausation-in-fact by a preponderance of the evidence. See id. at 138-39. In K.L.’s case, the Special Master determined that the petitioner has not met her burden of proof, and, thus, the burden of showing an alternative cause by “factors unrelated to the administration of the vaccine” by a preponderance of the evidence did not shift to the government. 42 U.S.C. § 300aa-13(2). Therefore, the Special Master did not act arbitrarily or capriciously with respect to Althen prong two because he appropriately considered the relevant evidence in the record regarding the causation of petitioner’s alleged injury, including Dr. Shinnar’s opinion that KL.’s epilepsy was idiopathic and Dr. Poduri’s diagnosis reflecting the same. This court should not re-weigh the evidence the Special Master reasonably reviewed and evaluated. See Moberly ex rel. Moberly v. See’y of Health & Human Servs., 592 F.3d at 1326. Petitioner also alleges that she “clearly proved Prong 3” of the Althen test, arguing that she produced sufficient evidence to show a proximate temporal relationship between the vaccine and her injury, listing several of the articles Dr. Engstrand cited in her reports. Petitioner’s motion additionally asserts that the Special Master made a “grudging admission that petitioner had a strong showing of proof’ of Althen prong three. In support of this assertion, petitioner cites to the portion of the Special Master’s opinion which reads: “At the same time, however, I acknowledge that a two-day period between vaccination and seizure has been deemed medically acceptable in other [Vaccine Injury] Program cases involving epilepsy.” See K.L. v. Sec’y of Health & Human Servs., 2017 WL 1713110, at 15. Petitioner, therefore, argues, that the Special Master indicated Althen prong three favored the petitioner, quoting the following language from the decision: ‘Yet even were I to find that the balance of evidence on this matter barely favored K.L., that determination would not alter my ultimate decision about causation.” Id. at 16 (emphasis added by petitioner). Under Althen prong three, a petitioner must show a “proximate temporal relationship” between the vaccine and injury alleged that is “medically acceptable.” Althen v. Sec’y of Health & Human Servs., 418 F.3d at 1281, To meet this standard, a petitioner must show by a preponderance of the evidence that “the onset of symptoms occurred within a timeframe for which, given the medical understanding of the disorder’s etiology, it is medically acceptable to infer causation,” which also corresponds with petitioner’s theory of how the vaccine caused her injury, de Bazan v. Sec’y of Health & Human Servs., 539 F.3d at 1352; see also Pafford v. Sec’y of Health & Human Servs., 451 F.3d at 1358-59 (finding that a temporal relationship is a required element of petitioner’s claim under Althen). A petitioner, however, cannot rely on a temporal association between her vaccine and alleged injury alone to show causation. See Moberly ex rel Moberly v. Sec’y of Health & Human Servs., 592 F.3d at 1323 618(“[A] proximate temporal association alone does not suffice to show a causal link between the vaccination and the injury.”) (quoting Grant v. Sec’y of Health & Human Servs., 956 F.2d at 1148); de Bazan v. Sec’y of Health & Human Servs., 539 F.3d at 1352 (“[T]he proximate temporal relationship prong requires preponderant proof that the onset of symptoms occurred within a time-frame for which, given the medical understanding of the disorder’s etiology, it is medically acceptable to infer causation-in-fact.”); Pafford v. Sec’y of Health & Human Servs., 451 F.3d at 1358 (finding that the Special Master properly required evidence of a temporal relationship between the vaccine and petitioner’s injury); see also K.T. v. Sec’y of Health & Human Servs., 132 Fed.Cl. at 186. Moreover, because a proximate temporal association alone cannot prove causation, consistency in the timing of the onset of symptoms with a theory that is itself scientifically unreliable will not cure the theory’s unreliability or overcome petitioner’s failure to satisfy her burden of proof. See, ag., Moberly ex rel. Moberly v. Sec’y of Health & Human Servs., 692 F.3d at 1323; see also K.T. v. Sec’y of Health & Human Servs., 132 Fed.Cl. at 186; Shapiro v. Sec’y of Health & Human Servs., 101 Fed.Cl. 532, 542 (2011). Regarding petitioner’s argument that the Special Master “made a grudging admission that petitioner made a strong showing of proof’ regarding Althen prong three, petitioner misses the critical word “were” in the sentence cited fi’om the Special Master’s decision. The sentence35 indicates that the Special Master was addressing the issue hypothetically, essentially thinking through the issues, not that he was ruling in petitioner’s favor on prong three of Althen because of the absence of a provable theory of causation. Petitioner’s counsel overstates the Special Master’s findings regarding Althen prong three. The Special Master did not make a “grudging admission that petitioner made a strong showing of proof’ on prong three, as petitioner alleges, but rather found that resolution of this prong was “less easily accomplished” because “Dr. Engstrand’s theory proposed that cytokine upregulation would occur in the two-day timeframe at issue herein.” K.L. v. Sec’y of Health & Human Servs., 2017 WL 1713110, at 16. Special Master Corcoran ultimately determined that petitioner had not proven prong three of Althen, and finding that, “[a]t bottom, Petitioner’s theory is itself too unreliable to put stock in the fact that timing as evidenced by the facts herein is consistent with that theory.” Id. at 17. As the factfinder, the Special Master had discretion to weigh the evidence presented, and it was not an abuse of that discretion for him to determine that petitioner also had not clearly met prong three because the medical literature Dr. Engstrand offered to show that the timeframe was “medically appropriate” was insufficient in K.L.’s case. Id. at 16. The Special Master provided the requisite “rational basis” for his determination. See, e.g., Hibbard v. Sec’y of Health & Human Servs., 698 F.3d at 1363. The Special Master pointed out in his opinion that the Crawford study Dr. Engstrand offered for the record related to patients with previously diagnosed epilepsy, and the Spiczak study Dr. Engstrand offered related to vaccines other than HPV. K.L. v. Sec’y of Health & Human Servs., 2017 WL 1713110, at 16. Thus, this court finds that the Special Master was, not arbitrary or capricious in finding that the petitioner failed to meet her burden to prove Althen prong three. CONCLUSION Upon review of the record before this court, including testimony taken at the hearing before Special Master Corcoran, the medical records, exhibits, conflicting expert reports, and Special Master Corcoran’s decision, this court finds that Special Master Corcoran employed the proper standards of proof and that his final decision, which concluded that petitioner failed to prove, by a preponderance of the evidence, a medical theory of causation between the Gardasil vaccination and petitioner’s medical condition was not arbitrary or capricious. The Special 619Master’s ruling on entitlement denying compensation to petitioner is AFFIRMED. IT IS SO ORDERED. . Pursuant to an August 10, 2016 Order filed by Special Master Brian' H. Corcoran, petitioner’s name was redacted at her request in order to protect her privacy. . The case originally was assigned to' Special Master Christian J. Moran and transferred to Special Master Corcoran on April 2, 2014. . Otitis media is defined as "inflammation of the middle ear.” Dorland's Illustrated Medical Dictionary 1351 (32nd ed. 2012). .Vasovagal syncope is defined as "a transient vascular and neurogenic reaction marked by pallor, nausea, sweating, bradycardia, and rapid fall in arterial blood pressure which, when below a critical level, results in loss of consciousness and characteristic electroencephalographic changes.” Dorland’s Illustrated Medical Dictionary 1818. . An electroencephalogram is defined as "a recording of the potentials on the skull generated by currents emanating spontaneously from nerve cells in the brain .... Fluctuations in potential are seen in the form of waves, which correlate well with different neurologic conditions and so are used as diagnostic criteria.” Dorland's Illustrated Medical Dictionary 600. . Epileptiform is defined as "resembling epilepsy or its manifestations.” Dorland's Illustrated Medical Dictionary 633. . Keppra is defined as a "trademark for a preparation of levetiracetam,” which is "an anticon-vulsant administered orally as an adjunct in the treatment of partial and myoclonic seizures and idiopathic generalized epilepsy.” Dorland's Illustrated Medical Dictionary 979, 1031. . Lorazepam is defined as "a benzodiazepine with anxiolytic and sedative effects, administered orally in the treatment of anxiety disorders and short-term relief of anxiety symptoms.” Dorland's Illustrated Medical Dictionary 1074. . Ativan is defined as "a trademark for preparations of lorazepam,” defined in the preceding footnote. Dorland's Illustrated Medical Dictionary 173. . Epileptologist is defined as "a specialist in the study, diagnosis, and treatment of epilepsy.” Dorland's Illustrated Medical Dictionary 634. . Idiopathic epilepsy is defined as "epilepsy of unknown origin, possibly associated with some inherited predisposition for seizures.” Dorland's Illustrated Medical Dictionary 633. . Functional dyspepsia is defined as "dyspepsia with no physical cause, usually resulting from nervousness or anxiety; it can have serious manifestations, resembling the symptoms of peptic ulcer, although no ulcer is detectable.” Dorland's Illustrated Medical Dictionary 579. .Gastroparesis is defined as "paralysis of the stomach, usually from damage to its nerve supply, so that food empties out much more slowly, if at all. Symptoms include early satiety, nausea, and vomiting.” Dorland's Illustrated Medical Dictionary 765. . A cytokine is defined as "a generic term for nonantibody proteins released by one cell population (e.g„ primed T lymphocytes) on contact with specific antigen, which act as intercellular mediators, as in the generation of an immune response.” Dorland's Illustrated Medical Dictionary 466. . Tara Harris, et al., Adverse Events Following Immunization in Ontario’s Female School-Based HPV Program. 32 Vaccine 1061 (2014), filed as petitioner's Exhibit 25. . David C. Wraith, et al., Vaccination and Autoimmune Disease, 362 The Lancet 1659 (2003), filed as petitioner’s Exhibit 26. . Paolo Pellegrino, et al., On the Relationship Between Human Papilloma Virus Vaccine and Autoimmune Diseases, 13 Autoimmunity Revs., 736 (2014), filed as petitioner’s Exhibit 27. . A febrile seizure is one associated with high fever; an afebrile seizure occurs without a fever. Dorland's Illustrated Medical Dictionary 411. . Petitioner filed exhibits using numerical designations, and respondent filed exhibits using alphabetical designations. . Charlotte Haug, The Risks and Benefits of HPV Vaccination, 302 JAMA 795 (2009), filed as petitioner's Exhibit 34; Lucija Topmlijenovic, et al., Too Fast or Not Too Fast: the FDA's Approval of Merck's HPV Vaccine Gardasil, J.L. Med. & Ethics 673 (2012), filed as petitioner's Exhibit 36; and Gardasil Prescribing Information, Merck & Co., Inc. (2015), filed as petitioner’s Exhibit 37. .Ignacio Valencia, Epilepsy in Systemic Autoimmune Disorders, 21 Seminars in Pediatric Neurology 226 (2014), filed as petitioner's Exhibit 32; Jehan Suleiman, et al. Autoimmune Epilepsy in Children: Case Series and Proposed Guidelines for Identification, 54 Epilepsia 1036 (2013), filed as petitioner's Exhibit 33; and Barbara A. Slade, et al. Post Licensure Safety Surveillance for Quadrivalent Human Papillomavirus Recombinant Vaccine, 302 JAMA 750 (2009), filed as petitioner’s Exhibit 35. . The Institute of Medicine is now affiliated with the Health and Medicine Division of the National Academies of Sciences, Engineering and Medicine. See http://www.national academies.org/hmd/. . The HRSA is an agency of the United States Department of Health arid Human Services that administers the Vaccine Injury Compensation Program (VICP) under the Vaccine Act. See www.hrsa.gov. . The Report Brief explains, Under the National Childhood Vaccine Injury Act of 1986, Congress established the'National Vaccine Injury Compensation Program (VICP) to provide compensation to people injured by vaccines .... The Health Resources and Services Administration (HRSA), the agency within the Department of Health and Human Services that administers VICP, can use evidence that demonstrates a causal link between an adverse event and a vaccine to streamline the claims process, As such, HRSA asked the Institute of Medicine (IOM) to review a list of adverse events associated with vaccines covered by VICP and to evaluate the scientific evidence about the event-vaccine relationship. Adverse Events of Vaccines: Evidence and Causality, Report Brief, Chapter 9, Human Papillomavirus Vaccine, 505-524, Institutes of Medicine, National Academies Press, 2012. . Ipse dixit is Latin for “he himself said it.” Black's Law Dictionary 956 (10th ed. 2014). The term is defined as "[s]omething asserted but not proved.... The phrase is commonly used in court decisions analyzing the admissibility of expert testimony. A court may reject expert-opinion evidence that is connected to existing data only by the expert’s 'ipse dixit.' ” Id. . Petitioner also alleges that "this new rule developed by the special masters, further puts additional financial burdens on petitioner" because "[t]he rule requires petitioner's experts to devote much more time into preparing and drafting their reports then [sic] would take them to orally explain their opinions at -hearing,, consequently increasing their retainer requirements,” In this argument, petitioner and petitioner’s counsel seem to suggest that a petitioner should prepare a less complete expert report and save a more complete theory of causation to be presented by the expert on direct examination at the hearing. The court roundly rejects this theory of-how to prepare a case, To proceed in this manner would automatically place respondent at a disadvantage, with the inability to review petitioner’s theory of causation in order to be prepared for a response and for the hearing. . At oral argument, counsel for petitioner also attempted to assert the Foirrth Amendment of the United States Constitution as a source of petitioner’s alleged denied right to due process of law, but was unable to articulate the basis for this position and was unable to cite any case law in support of his baseless Fourth Amendment due process argument. .In. Richardson, a Judge of this court "conclude[d] that the procedures used by the Special Master ... failed to satisfy these fundamental ' due process requirements," referring to Vaccine Rules 3(b)(2) and 8(b)(1). Richardson v. Sec’y of Health & Human Servs., 89 Fed.Cl. at 660 The Richardson court so found because the Special Master had "precluded any coherent direct examination" and effectively "functioned as a third adversary to the proceedings, rather than as a judicial officer" when he repeatedly, and disproportionately (e.g„ 113 interruptions by the Special Master, compared to petitioner's counsel’s 25 questions during direct testimony), interrupted the proceedings such that "the [petitioner's] witness essentially had to endure two cross-examinations instead of one,” which the court found "eviscerate[d] the fairness of the proceedings." Id. at 659. In Richardson, the Special Master also rejected the testimony of all fact witnesses, malting his decision solely on the written record and "applied every conceivable inference against Petitioners.” Id at 659-60, The Richardson court wrote, "[Vaccine Rule 8(ckl)] permit[s] a Special Master to propound questions to a witness ... but not in a way that eviscerates the fairness of the proceedings." Id at 660, By 603contrast, here. Special Master Corcoran gave both expert witnesses significant and relatively equal opportunity to summarize their reports, albeit with shortened expert direct testimony, and allowed each counsel to cross-examine and re-direct both witnesses. The only time Special Master Corcoran interrupted a witness was at the beginning of Dr. Shinnar's testimony when he instructed respondent's expert, not petitioner’s, not to give more direct testimony than a brief summary of his report. . Petitioner’s brief acknowledges that when the case was transferred to the present Special Master, petitioner was informed that Special Master Moran’s Order curtailing direct testimony at the hearing would be followed. . At the September 27, 2016 hearing, petitioner's counsel directly examined his expert, Dr. Engstrand, albeit briefly, about her opinions regarding all three of the Althen prongs. . The relevant underlying statute states: (B) In conducting a proceeding on a petition the special master— (i) may require such evidence as may be reasonable and necessary, (ii) may require the submission of such information as may be reasonable and necessary, (iii) may require the testimony of any person and the production of any documents as may be'reasonable and necessary, (iv) shall afford all interested persons an opportunity to submit relevant written information ..., and (v) may conduct such hearings as may be reasonable and necessary. 42 U.S.C. § 300aa-13(12)(B). . Petitioner’s reliance on Moriarty v. Secretary of Health and Human Services, 844 F.3d 1322, cited to support her assertion that a Special Master committed reversible error when he allegedly failed to consider the entirety of the record is misplaced. In Moriarty, the Federal Circuit determined that "[t]here is thus no indication that the special master considered [petitioner’s expert’s] written testimony in his second report and the articles cited therein, and there is, in fact, an affirmative indication that he did not do so,” Whereas the Special Master in Moriarty explicitly stated in his decision that he had not included certain of the expert’s evidence in his analysis of petitioner’s claim for compensation, Special Master Corcoran plainly considered Dr. Engstrand’s oral and written testimony, as well as the articles she provided to the court. See K.L. v. Sec'y of Health & Human Servs., 2017 WL 1713110, at 14-15. . K.L.’s Motion for Review simply referenced Petitioner's post-hearing brief, previously filed with Special Master Corcoran on November 14, 2016. During oral argument before this court on May 31, 2017, when prompted by the court, petitioner's counsel conceded that of the four alleged "flaws,” one was "minor” and he was unable to find support in the record for the others. . "Yet even were I to find that the balance of evidence on this matter barely favored K.L., that determination would not alter my ultimate decision about causation, because Petitioner’s causation theory itself is too deficient, and unsupported by the actual medical history.” K.L. v. Sec'y of Health & Human Servs., 2017 WL 1713110, at 17 (emphasis added).	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7842502/	The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 161, is denied.	01-04-2023	09-08-2022
https://www.courtlistener.com/api/rest/v3/opinions/7842503/	The petitioner mother’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 247, is denied.	01-04-2023	09-08-2022
https://www.courtlistener.com/api/rest/v3/opinions/7842504/	The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 231, is denied.	01-04-2023	09-08-2022
https://www.courtlistener.com/api/rest/v3/opinions/7842505/	The named defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 256, is granted, limited to the following issue: “When the actions of a zoning enforcement officer are reviewed by a zoning board of appeal, is the proper focus for subsequent judicial review the decision of the zoning enforcement officer or the decision of the zoning board of appeal?”	01-04-2023	09-08-2022
https://www.courtlistener.com/api/rest/v3/opinions/7842506/	The plaintiffs petition for certification for appeal from the Appellate Court, 28 Conn. App. 270, is denied.	01-04-2023	09-08-2022
https://www.courtlistener.com/api/rest/v3/opinions/7923981/	Denied. Unpublished	01-04-2023	09-08-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218616/	JONES, Chief Judge. This is a personal injury action brought under favor of the Jones Act, 46 U.S.C.A. § 688. Defendant has moved that this Court order the plaintiff to furnish defendant with the names and addresses of witnesses to the condition of the place of the accident or, in the alternative, the names and addresses of persons making statements as to the condition of the place of accident. This motion is made under favor of Rule 33, Federal Rules of Civil Procedure, 28 U.S. C.A. Rule 37 sets forth the situations and conditions that must exist before an order compelling the discovery of information can be granted, and it is the only rule under which the order requested by the motion may be granted. Rule 33 confers no authority on the Court to make the order requested. One of the situations where an order may be granted occurs when service of an interrogatory is made on the other party and such party without good cause refuses to answer. An order to answer then may be made, but the service of the interrogatory and the refusal to answer must have taken place before the Court can compel the answer. In this case no interrogatory requesting the information desired was served on plaintiff and the Court, therefore, cannot compel the discovery of the information by an order pursuant to Rule 37. Plaintiff is said to be syphilitic and moves for a jury selected from an all male panel, because information concerning his disease will be given to the jury and he feels his rights, if women serve on the jury, will be prejudiced and he will not therefore have a fair hearing. The Court is not impressed with plaintiff’s claim of possible prejudice. It does feel, however, that if the fact of plaintiff’s venereal disease is to be introduced, the discussion of that fact and its relation to the case will be potentially embarrassing to a mixed jury. On this ground plaintiff’s motion for an all male jury will be granted.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218617/	IRVING R. KAUFMAN, District Judge. Application to vacate plaintiffs’ notice of depositions, dated January 7, 1950, is denied and examinations may proceed at a place in New York City to be mutually agreed upon, and in the absence of such agreement the Court will fix the place in the order to -be submitted in accordance with this decision. The depositions are to be taken as follows: They shall commence on January 31, 1950, and shall be had in the order listed in the notice of depositions, dated January 7, 1950, and shall continue until completed. The deposition of each defendant shall be completed before the deposition of the defendant following in said notice is commenced. *44No objection has been made to the taking of these depositions on the ground that they do not relate to the claim of the plaintiffs. Rule 26, Federal Rules Civil Procedure, 28 U.S.C.A. The only objection raised is that they are being taken to be used solely in a proceeding before the Securities and Exchange Commission, which claim is denied by plaintiff, Randolph Phillips. It is further urged that the taking of these depositions will conflict with the Securities and Exchange Commission hearings, now scheduled to commence on January 24th. The commencement of the taking of these depositions has accordingly been fixed to commence on January 31st, and if the testimony of any defendant to be examined in accordance with this order is scheduled to be taken on a date when such defendant is required to testify before the Securities and Exchange Commission, a reasonable adjournment shall be granted until after the witness has so testified. Settle order on two days’ notice.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218619/	JONES, Chief Judge. In these two cases plaintiffs move the court for an order under Rule 34, Federal Rules of Civil Procedure, 28 U.S.C.A., requiring defendant to permit the plaintiffs to inspect and copy the following documents : 1. Statements of the plaintiff, whether signed or unsigned. 2. Statement of the employee witnesses and of all employees of the defendant from whom statements were taken by the defendant relative to the accident and injuries sustained by the plaintiff, etc. The motions further state: “The defendant has the possession, custody and control of each of the foregoing documents and each of them constitutes or contains evidence relevant to the matter involved in this action as more fully set .forth in Exhibits ‘A’, ‘B’ and ‘C’ hereto attached.” I think the motions must and will be sustained. The statements sought are not the “work product of the lawyer” and hence privileged from discovery under the Federal Rules of Civil Procedure. Hickman v. Taylor, 329 U.S. 495, 500, 67 S.Ct. 385, 388, 91 L.Ed. 451. Defendant contends that the plaintiffs have not made a showing of “good cause” as required by Rule 34; and that “there is no claim made that plaintiff does-not know who the members of the crew are with whom he was working at the time of the accident.” But the plaintiffs say “that said employees are forbidden by the Rules of the defendant from giving statements or information regarding accidents to the plaintiff or a representative of the plaintiff by reason of the following Rules promulgated by the defendant: “1. Personal injuries occurring on or about Trains or Engines must be immediately reported by wire to Superintendent of Transportation, Claim Department and Train Master, giving brief but full particulars, name of party injured, residence, etc. Form 2121 J must be made in triplicate, original sent to the Claim Department and copies to Superintendent of Transportation and Trainmaster.” “2. When an accident occurs involving personal injury or damage to property, a prompt report must be made to proper authority and no' information to be given by employees concerning the accident, except to duly authorized officers or representatives of the Company.” (Italics added.) (Affidavit, Exhibit “B”, attached to motions.) The language of Mr. Justice Jackson in Hickman v. Taylor, supra, seems pertinent here. “The question remains as to signed statements or those written by witnesses. Such statements are not evidence for the defendant. * * * Nor should I think they ordinarily could be evidence for the plaintiff. But such a statement might be useful for impeachment of the witness who signed it, if he is called and if he departs from the statement. There might be circumstances, too, where impossibility or difficulty of access to the witness or his refusal to respond to requests for information or other facts would show that the interests of justice require that such statements be made available. Production of such statements are (sic) governed by Rule 34 and on ‘Showing good cause therefor the court may order their inspection, copying or photographing. No such applica47tion has here been made; the demand is made on the basis of right, not on showing of cause.” 329 U.S. page 519, 67 S.Ct. page 397. Under this view of the matter, the requisite necessity and justification for granting the orders sought in these two cases have been shown. For holdings in this court under Rule 34, see Lindsay v. Prince, D.C.N.D.Ohio 1948, 8 F.R.D. 233, Western Division, Kloeb, J. In this case there was a motion by the defendant for production of statements taken by the plaintiff under Rule 34, which was granted. Hayman v. Pullman Co., D.C.N.D.Ohio 1948, 8 F.R.D. 238, 240, Freed, J. True, in this case the statements were sought to be obtained under Rule 33, but in overruling the objection to the interrogatory the court said: “The final objection to the effect that the plaintiff should resort to a motion under Rule 34 to obtain the desired information rather than to have it divulged under Rule 33, if sustained, would circumvent the very aim and purpose of the rule. Admittedly plaintiff could first ask in the interrogatory whether the statements requested are in defendant’s possession and then proceed to file a motion to produce them. That method, however, would only serve to delay the ultimate result.” The defendant points out that in the cases cited by the plaintiffs, the names and whereabouts of the witnesses from whom statements were taken, were peculiarly within the knowledge of the party taking the statements and that such is not the situation in the instant cases. But here, as I think, the rule of the company forbidding the giving of statements or information to any one except authorized officers or representatives of the Company creates a comparable difficulty. In Berger v. Central Vermont Ry., Inc., D.C., 8 F.R.D. 419, cited by defendant, the statements in question were not taken in the usual course of business, nor as the result of a railroad rule, but were taken at the instigation of general counsel for defendant. In the cases at bar it would appear that the statements in question were taken in the usual course of business, see Sec. 1 of the Rule, supra, and as the result of a railroad rule. In Reeves v. Pennsylvania R. Co., D.C., 8 F.R.D. 616, 619, cited by defendant, the statements obtained were prepared in relation to an intended action, with a bona fide intention of laying them before the solicitor for the purpose of taking his advice, and were held to be privileged by the decisional law of Delaware. There is no claim that the statements in the cases at bar are privileged under any state law. Reeves v. Pennsylvania R. Co. was a “diversity of citizenship” case; the cases at bar were filed in this court. Mulligan v. Eastern S. S. Lines, D.C., 6 F.R.D. 601, 604, syl. 3, cited by defendant, would seem to support its contention. But in the opinion, Judge Caffey says: (4) “The production of reports and statements made in the regular course of business by officers of a vessel may be compelled. See Murphy v. New York & Porto Rico S. S. Co., D.C.S.D.N.Y., 27 F.Supp. 878 (Hurlburt, J.) See also The Dalzellace, D. C.S.D.N.Y., 10 F.Supp. 434, where Judge Hurlburt made a similar ruling in interpreting and applying Admiralty Rule 32 * * citing The President Polk, D.C. E. D.N.Y., 37 F.2d 102, where Judge Campbell compelled the production of a report to the respondent made by the engineer of the vessel about the time of the accident in the regular course of his duty, but excluded reports and statements of other officers, apparently made in preparation for trial. No reason is apparent why statements of members of the crew made in the course of their duties should not also be produced.” > Excerpts from various holdings have been set out more extensively than ordinarily is my practice, for the reason that these questions are somewhat difficult, as well as burdensome to resolve. The Rules of Civil Procedure designed to simplify practice and procedure in the Federal District Courts have been the subject of more interpretive legal literature than almost any branch of the law during my judicial tenure; and more particularly did the 'case of Hickman v. Taylor account for a large part of it, — a veritable Pandora’s Box!	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218621/	JONES, Chief Judge. This action was brought by plaintiff under the Declaratory Judgments Act, 28 U. S.C.A. §§ 2201, 2202, to test the validity of defendant’s patent. Plaintiff has served 18 interrogatories on the defendant and defendant objects to Nos. 1 to 7, inclusive, 10, 11, and 14 to 17, inclusive. All objections go to the relevancy of the interrogatories which request information about defendant’s relationship with the France Manufacturing Company and information about the issuing, reissuing and licensing of the patent in question. Defendant claims that since the validity of the patent is the only issue, all of the above information is irrelevant. Plaintiff claims that the patent is invalid because the chief engineer of the France Company and not the defendant developed the subject matter which formed the basis of defendant’s patent. The information relating to defendant’s connection with the France Company and the issuing and licensing of the patent would, if produced, at least tend to support plaintiff’s claim that the chief engineer and not the defendant developed the patented subject, and it might prove that fact conclusively. Since the information seems relevant or calculated to lead to the discovery of admissible evidence, the objections will be overrul-c-d.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218622/	BRENNAN, Chief Judge. This is a equity action in which injunc-tive relief is the principal prayer of the complaint. Plaintiff has applied for a temporary injunction, and upon the return of the order to show cause issued upon that application the defendants, Kriss and Fiorillo (other named defendants were not served), appeared through their attorneys, raised the question of the jurisdiction of this Court, and moved to dismiss the complaint. The questions raised and the motions made were taken under advisement and should be determined prior to any action on the part of this Court with reference to, the application for a temporary injunction. In order to determine same, it is necessary to explore the nature of the action and the status of the parties thereto. This action is one of a series of actions now being maintained both in state and federal courts throughout the country, and the background is furnished by the expulsion of the United Electrical, Radio & Machine Workers of America (UE), hereinafter referred to as “UE”, from the Congress of Industrial Organizations at its national convention a few months ago. UE is a national labor organization made of many area units called “Locals”, the members of which are engaged primarily in the manufacture of electrical and radio equipment and supplies. The plaintiff, Albert J. Fitzgerald, is a citizen of the State of Massachusetts, and president of UE, above referred to. Local 301, hereinafter referred to as the “Old Union”, is one of the units of UE, above referred to, with its headquarters at Schenectady, New York, and its membership is composed primarily of employees of the General Electric Company in that city, who for the most part are residents of that area and citizens of the State of New York. It is affiliated with the national organization (UE) and received its charter therefrom about 1936. Its affiliation is accomplished through the charter, the UE constitution, its own constitution which, together with the appropriate by-laws, make up the contract between the UE and the local organization. On or about November 18, 1949, it is alleged that a new organization known as “Local 301, International Union of Electrical, Radio & Machine Workers” hereinafter referred to as the “New Union”, was established at Schenectady, New York; that its purpose was similar to that of the existing local, and that its membership was drawn from the same class of employees. In other words, it is a competing labor organization with the apparent ultimate object of representing the employees of the General Electric Company at Schenectady, New York, and promoting their welfare insofar as labor conditions are concerned. The pleadings, arguments and briefs unduly complicate what should be a rather simple litigation. The action is brought to restrain the New Union from the use of its present name, which it is claimed conflicts with the name of the existing Old Union, with resulting confusion and deception. The action is based in tort and it not unlike an action brought to restrain the use of a trade name which conflicts with a trade name already in active use. The defendants move first to strike from the complaint all of the allegations contained therein which allege or refer to violations regarding the use of the name “United Electrical, Radio & Machine Workers of America” or the designation “UE”, upon the ground that in a prior action pending in the United States District Court for the Eastern District of Pennsylvania, entitled, Fitzgerald v. Block, D.C., 87 F. Supp. 350, a decision was rendered in the matter of an application for a temporary 54injunction which in substance decided that the use of the name “International Union of Electrical and Radio Machine Workers”' did not conflict with the name “United Electrical, Radio & Machine Workers of America (UE)”. While it would be unfortunate if several different courts arrived at different conclusions in the matter of the use of the name, the motion to strike will be denied since, if the merits are to be determined, the full name must be considered for the reason that confusion in the similarity of names may arise in the consideration of the names as a whole, and not necessarily by the consideration of the terms making up its component parts. The defendants next move to dismiss the action upon the ground that Albert J. Fitzgerald, or the UE which he represents, is not the real party in interest; that he does not fairly or properly represent the class of persons he assumes to represent herein ; and consequently the necessary diversity of citizenship does not exist to support this Court’s jurisdiction. Such grounds for dismissal are entwined with -the additional grounds that the Old Union and the New Union are indispensable parties, are not named as parties herein, and that the amount in controversy is not in excess of $3000, as required by law as a basis of this Court’s jurisdiction. The grounds above referred to raise serious questions which have been briefed at length by counsel and have been the subject of research and examination by the Court. That the action be brought by the real party in interest has its basis in the requirement of Rule 17(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. The requirement of the rule may be variously described, but in substance it requires that the action be prosecuted in the name of the person who by the substantive law has the right sought to be enforced. 3 Moore’s Federal Practice 1305. See also D. L. Stern Agency v. Mutual Benefit Health and Accident Ass’n, D.C., 43 F. Supp. 167; McWhirter v. Otis Elevator Co., D.C., 40 F.Supp. 11; Price & Pierce v. Jacka Great Lakes Corp., D.C., 37 F. Supp. 939. A liberal construction of the requirement must be given, and no question is raised as to the existence of the right sought to be protected or enforced herein. The inquiry is then directed to the. determination of the nature and extent of the rights in the name of the Old Union which are owned by the UE or in which it has a substantial interest. The problem is discussed by Judge Nevin in the action of Fitzgerald, etc. v. Eisner,1 decided November 9, 1949, in the Western Division of the District Court for the Southern District of Ohio. Fitzgerald, as president and representative of UE, brought that action, which apparently involved the moneys, property and assets of a local which occupied the same position as that occupied by the Old Union in the present litigation. The Judge held in that case that the action could not be maintained by Fitzgerald since the interest of the organization which he represented was not such as to bring it within the provisions of the rule. A similar conclusion would seem to be more clearly required in the instant case, insofar as the plaintiff’s right to maintain the action as the representative of the UE is concerned. Here, only the right to the use of the name of the Old Union is involved, or one so similar as to cause confusion. The control or ownership of the physical property is not in issue. Without doubt the national organization has interests in the Old Union which is one of its affiliates. Examples of same are indicated in the constitution and are referred to in Judge Nevin’s decision. They need not be repeated here. It is sufficient to say that such excerpts referred to do not deal with the name of the local which is the sole issue in this controversy. It may be true that any confusion resulting in the use by the two Schenactady organizations of names claimed to be similar and confusing will eventually be felt by the national organization ; the primary impact, however, is upon the Old Union. It would appear that the designation “Local 301” was made by the terms of the charter issued by UE in 1936. The interest of the UE in the des55ignation was entirely granted by the charter to the Old Union; the UE only retained the right to revoke the charter under the conditions set forth in the constitution. It is noted that the constitution of the Old Union, which is attached to and made part of the complaint, in Article 1, Section A, provides “This organization shall be known as the “United Electrical, Radio & Machine Workers of America, (UE) Local 301”. Article XXVI of the same constitution provides for amendments thereto by the action of the local membership, subject to the approval of the national organization. It is, therefore, apparent that the ownership of and primary power to control the name of the local is vested in its membership rather than in the national organization. It would seem to follow that injury to that name warranting injunctive relief is the primary concern of the local membership. The power to revoke and the power to veto confer at the most only contingent rights of ownership. The conclusion is reached that the United Electrical, Radio & Machine Workers of America, (UE), is not the real party in interest in the subject matter of this litigation and, therefore, its representative, Albert J. Fitzgerald, is not such a real party in interest as would warrant the maintenance of this action. There remains to be considered the status of the plaintiff as representative of the members of the Old Union. It is the Court’s opinion that the real controversy here over the use of the name is actually between the Old Union and the New Union. They are the real parties in interest here. They are both unincorporated associations. They may sue and be sued under the provisions of Sections 12 and 13 of the General Associations Law of the State of New York. McKinney’s Consol. Laws, c. 29. In this action, however, Fitzgerald seeks to maintain same as a representative of the Old Union in a class suit under the provisions of Rule 23 of the Federal Rules of Civil Procedure. One of the primary requirements of a class suit is that the representative maintaining the action be a member of the class which he seeks to represent. Rule 23 (a), supra; Clark v. Chase Nat. Bank of City of New York, D.C., 45 F.Supp. 820; Molina v. Sovereign Camp W. O. W., D.C., 6 F.R.D. 385; Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22, 132 A.L.R. 741. Concededly Fitzgerald is not a member of the Old Union at Schenectady. His rights to a voice in its affairs are based entirely upon his membership in the UE and the office held by him therein. The law contemplates that the interest of a representative in a class action must be similar to that of the class he represents. Here, the class have the ownership of the name of the local and are entitled to its use and benefit. The matter involved in the litigation concerns the use of that name. Nowhere is there pointed out, nor is the Court able to find, any evidence in the pleadings or affidavits before the Court that Fitzgerald is in such a position as to make him a representative of the Old Union’s membership and he, therefore, may not maintain this class action. Since there is no contention that Fitzgerald as an individual may maintain this action, this decision might end with the above conclusions since in substance they amount to a holding that the plaintiff is not entitled to maintain this action in any of the capacities in which he sues. It is deemed advisable, however, to refer briefly to the remaining contentions raised by the moving parties. No extended discussion is necessary to come to the conclusion that both the Old and the New Unions are indispensable parties to this action. It is their names that are affected, and any possible confusion resulting from the present use thereof reacts directly upon them. Any relief afforded directly involves their action in the conduct of their affairs. The rights then of the parties can not be completely adjudicated without the presence of each of the locals as parties to this litigation. The Court has already found that the Old Union is not a party to this litigation by reason of the fact that Fitzgerald is not a member thereof, and his representation is not legally effective. *56The New Union is not named as a party in this action either as an unincorporated association or through its representative in a class suit. The allegations of the complaint indicate (especially ■ Paragraph “5”) that it was intended to make the New Union, through Kriss as its representative, a party defendant. The title of the action as it appears in the summons and pleadings, however, is indicative of an attempted action against a national organization as distinguished from a local unit. There is no allegation or proof that Kriss is a member of either organization. He, •therefore, is not such a representative as would give this Court jurisdiction over either. That Kriss is a former member of the Old Union adds nothing to his status as a representative of the New Union; in fact, it shows a circumstance which would adversely affect his representation of its new rival. Such a situation lends itself readily to a collusive arrangement whereby a member of one organization could withdraw therefrom and by a prearrangement become the representative of a class against which an action is contemplated. From a practical standpoint there seems to be no reason why these two unincorpo--rated associations should not litigate their dispute in their own names as authorized by the laws of the State of New York. The motion to dismiss the complaint is granted, and the application for a temporary injunction falls. . No opinion for publication.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218623/	MEANEY, District Judge. This is an action under sections 205 and 206 of the Housing and Rent Act of 1947, as amended, 50 U.S.C.A.Appendix, § 1891 et seq., seeking to restrain defendant from demanding rent in excess of the maximum legal rent, to require defendant to make restitution of overcharges, and to recover treble damages as provided for in the Act. Pursuant to Rule 36 of the Federal Rules of Civil Procedure, 28 U.S.C.A., plaintiff requested defendant to make certain admissions. Defendant filed written objections thereto claiming that the privilege against self-incrimination excused answering some requested admissions, that one involved a conclusion of law, and that as to another, defendant had no knowledge. Rule 36, under which the admissions are sought, specifically prohibits their use in any other proceeding. The privilege then cannot be invoked on the ground the admissions might be made the basis of a criminal prosecution. Nor is this proceeding criminal in nature so as to require application of the privilege against self-incrimination. Although the Act provides for treble damages, and this action is brought for the purpose of recovering treble damages, actions of this nature have been classified as remedial in character involving only civil sanctions imposed as a deterrent rather than as a punishment. Woods v. Robb, 5 Cir., 1948, 171 F.2d 539; Crary v. Porter, 8 Cir., 1946, 157 F.2d 410; Amato v. Porter, 10 Cir., 1946, 157 F.2d 719. Defendant’s objections, based on the privilege against self-incrimination, will be overruled. Request number 3 is objected to as improper on the ground that it calls for a conclusion of law. The request reads, “3. The Maximum Legal Rent of the second floor apartment in the premises in the period July 1, 1947 to June 1, 1948 was $80 per month.” Appended to the request for admissions was a copy of an order of Michael Pécora, the Area Rent Director, issued January 26, 1949, decreasing the maximum legal rent on the premises in question from $100 per month to $80- per month effective July 1, 1947. Plaintiff agrees defendant cannot be required to admit a conclusion of law — see Fidelity Trust Co. v. Village of Stickney, 7 Cir., 1942, 129 F.2d 506 — but maintains that the question of the maximum legal rent is one of fact. The process of the rent control authorities in arriving at the maximum legal rent unquestionably would involve the application of law to facts. Once that maximum has been finally established according to law and pursuant to regulations, the question of the maximum legal rent would seem to be one of fact at least so far as a proceeding of this kind is concerned. The Rent Director’s orders cannot be attacked here. Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892; Woods v. Mikelberg, D.C.E.D.Pa. 1948, 80 F.Supp. 222; Woods v. Mahoney, D.C.E.D.Pa.1948, 81 F.Supp. 214. Therefore, unless defendant can show that the order was subsequently revoked or modified by competent authority, it remains conclusive. Defendant would, of course, know whether an administrative appeal was taken from the order. If none has been *58taken, the rent established by the order remains an unassailable determination of fact. If, on the other hand, an appeal has been taken and the rent has been changed, defendant can of course deny that the maximum legal rent is as suggested by the question. It seems reasonable, therefore, for the purpose of this proceeding, to treat the matter of the maximum legal rent as a question of fact and as such a proper subject of a request for admissions under Rule 36. Defendant’s objection to request number 3 accordingly will be over-ruledj' The remaining objection is “That request number 8 is improper in that defendant has no information nor. any reason to know of its truthfulness and further that the means of obtaining such information are beyond the power of defendant.” Request number 8 asks defendant to admit that the tenants have not instituted a separate action for the alleged overcharges. Defendant should not be required to ascertain the truth of the requested admission through a third party. The plaintiff cannot cast the burden of its proof on defendant. Booth Fisheries Corporation v. General Foods Corp., D.C.Del.1939, 27 F. Supp. 268. However, at the present stage of thé case it is not known whether defendant has personal knowledge of whether the tenant has instituted an action. If defendant does have personal knowledge, an appropriate answer should be given. If defendant lacks personal knowledge, then an answer that defendant neither admits nor denies the requested admission, because of the lack of personal knowledge, will suffice. Hopsdal v. Loewenstein, D.C.N.D. Ill.1945, 7 F.R.D. 263. “If there is reason why plaintiff is unable to deny or admit the fact in question, the remedy is via a sworn statement to that effect as prescribed in the rule.” Thomas French & Sons, Ltd. v. Carleton Venetian Blind Co., Inc., D. C.E.D.N. Y. 1940, 1 F.R.D. 178: 179; see contra: Wilson v. Gas Service Co., D.C.W.D.Mo.1949, 9 F.R.D. 101. An order may be submitted in conformity with this opinion.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218624/	REEVES, Chief Judge. The defendant has filed its motion for a more definite statement as authorized by paragraph (e) of Rule 12, Federal Rules of Civil Procedure, 28 U.S.C.A. This rule provides that: “If a pleading to which a responsive pleading is permitted is so vague or ambiguous (Emphasis mine) that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading.” By its motion the defendant seeks information as to “exactly in what manner and by whom the box or parcel was caused or permitted to fall”, as to “the exact location of the box or parcel before its alleged fall, its path of fall, location after the fall, and what employees of defendant, either by name or by class, other than plaintiff had exclusive control and management of said box or parcel.” 1. It will be observed from the foregoing that the defendant does not seek a more definite statement because the averments are vague or ambiguous, but the defendant seeks information by its motion which is in the nature of a motion for a bill of particulars. The motion for a bill of particulars has been deleted from the Rules. This was done for the reason that such rule impinged upon Rule 8 which enjoined conciseness in pleadings rather than verbose pleadings. 2. The motion for a more definite statement has been much discussed in the cases. And long before the promulgation of our new rules it was held in all the opinions, as well as stated in the texts, that it “will not lie where the allegations of the pleading against which it is directed are adjudged sufficiently definite, certain, or specific to inform the opposing party of the nature of the cause of action or defense(Emphasis mine.) 49 C.J. par. 6, Section 1036, p. 737. The meaning of the rule was ably discussed by the late Judge J. T. Blair in Walsh v. Pulitzer Publishing Co., Mo.Sup., 183 S.W. 587, loc. cit. 588, 589. The several discovery rules are designed to afford a litigant information sought in this way. 3. Our local rules require that counsel, in filing the motions, always support same with the citation of authorities. This was not done in the instant case. The motion for a more definite statement should be and will be overruled.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218625/	IRVING R. KAUFMAN, District Judge. There are two motions before the Court: (1) A motion by Thome, Neale & Co., Inc., hereinafter known as the plaintiff, for summary judgment against Atlantic Gulf Export Corporation, hereinafter known as the defendant, in Civil Action No. 49-^30. (2) A motion by defendant to consolidate Civil Action No. 49-430 with' Civil Action No. 50-556, an action brought by de^ fendant against plaintiff for damages for breach of warranty. The facts are as follows: Plaintiff agreed to purchase nineteen cars of coal from defendant and this agreement was confirmed by invoices transmitted to the plaintiff by the defendant dated December 10, 1947. The coal was paid for by the plaintiff and defendant acknowledges receipt of payment. However, defendant only delivered ten cars of coal to the plaintiff, and resold the other nine cars. Two weeks later in another transaction plaintiff sold defendant some 18,000 tons of coal, which were shipped abroad and resold by defendant. Plaintiff brought suit for the sum paid for the nine cars of coal which were not delivered. Defendant subsequently brought suit against the plaintiff for damages resulting from a breach of warranty in regard to the 18,000 tons of coal. Plaintiff now moves for summary judgment on its claim and defendant moves to consolidate the two actions. In regard to plaintiff’s cause of action, there is no genuine issue as to any material fact. At first defendant contended that the nineteen cars of coal were part of the 18,-000 tons, but subsequently retracted that assertion. In its answer defendant offered but bare denials to the allegations in plaintiff’s complaint. As to these denials, defendant has offered nothing to support them and has apparently withdrawn them in subsequent affidavits and admissions. Defendant also offered the defense of' breach of warranty. However, the breach of warranty, claimed by defendant as a defense is that which is the subject matter of defendant’s independent action and completely unrelated to the -plaintiff’s claim. Defendant in effect admits liability to plaintiff on plaintiff’s cause of action; in any event, defendant offers nothing that controverts plaintiff’s conclusive proof. It merely asks that its cause of action for breach of warranty on an entirely unrelated transaction and the subject matter of another suit be considered as a defense to plaintiff’s cause of action. Defendant did not assert its -claim for breach of warranty as a counterclaim -in the action brought by plaintiff; it specifically refused to do so (See affidavit of defendant’s attorney, p. 2) and preferred to bring its own suit later on for breach of warranty. Mention is made by defendant in its affidavit opposing the motion for summary judgment that certain other “documentary evidence”, which plaintiff admits having possession of but does not present, -should be presented -and considered and that the *61trial is the proper time and place. However, the evidence which plaintiff has, and has offered to submit now or at any other time desired by the Court relates to defendant’s contention that the nineteen cars of coal were originally purchased from the plaintiff. Whether defendant purchased the coal from the plaintiff or from someone else is immaterial, especially in view of the fact that no claim of defectiveness has been made as to this coal; therefore a trial on this issue is unnecessary and the alleged documentary evidence need not be presented. Since there is no genuine issue as to any material fact relating to plaintiff’s cause of action, plaintiff’s motion for summary judgment must be granted. Accordingly, defendant’s motion to consolidate the two actions must be denied. Wholly apart from any consideration with respect to the motion for summary judgment, the motion for consolidation would have to be denied. Rule 42(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides that actions may be consolidated when they involve common questions of law or fact. There are no common questions in the two actions in question; they involve two completely separate transactions; only the parties are the same. The decision of this Court is that: (1) Motion by plaintiff, Thorne, Neale & Co., Inc. for summary judgment is hereby granted. (2) Motion by defendant Atlantic Gulf Export Corporation to consolidate two actions is denied.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218626/	REEVES, Chief Judge. The plaintiff has moved for a consolidation of the above causes. The case numbered 5999 is, as its title implies, an action for the death of the driver of a motor truck owned by the plaintiff in cause numbered 5181. The plaintiff in said cause No. 5181 has sued for damages arising from the identical collision which it is claimed in case numbered 5999 caused the death of the decedent. It is obvious, therefore, that a common question of law and of fact is involved. The defendant objects on the sole ground that one action is for death and the other for damages to property, and, moreover, that the defendant in cause No. 5181 has interposed a counterclaim upon the ground that the deceased driver was negligent in the operation of his truck. These several contentions show that the cases should be consolidated as the identical evidence would be used in each case. When the question of liability has been determined by a jury it would not be confused by the .respective contentions of the parties on the measure of damages, though life as well as property is involved. Under Rule 42(a), Federal Rules of Civil Procedure, 28 U.S.C.A., the cases should be consolidated, and such an order will be made. Interrogatories are authorized by Rule 33, Federal Rules of Civil Procedure. The interrogatories propounded by defendant are 13 in number and seek information relating to the position of the train and the motor vehicle operated by the decedent driver approximately at the time the collision occurred. In the objections to the interrogatories the plaintiff shows that the •driver- of the motor vehicle was killed or ■died shortly after the collision and that, therefore, no information concerning the relative positions of the train and the motor vehicle -could be given save solely on hearsay. Moreover, it is contended that agents and employees of the defendant were present and that they are entirely familiar with the relative positions of the two moving instrumentalities.. Interrogatories 12 and 13 seek the names of witnesses to the accident or collision and whose names are known to the plaintiff. Under the law the defendant is entitled to this information. Rule 26(b), Federal Rules of Civil Procedure. Accordingly, it will be ordered that the plaintiff Pacific Intermountain Express Company supply the names of witnesses as requested by the defendant. The objections of plaintiff to the first 11 interrogatories will be sustained.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218627/	KIRKPATRICK, Chief Judge. The cause of action stated in the complaint is, in substance, conspiring for the purpose of causing a third person (the Cooperative) not to perform its contract with the plaintiff as well as other contracts with other of its members, and the doing of certain acts in furtherance of the purpose of the conspiracy. The alleged wrongful conduct described is actionable (See Restatement, Torts, 766, et seq.) and the complaint cannot be dismissed for failure to state a cause of action. The plaintiff sues on behalf of himself and, in a representative capacity, on behalf of other similarly situated members of the Cooperative holding similar contracts. The action is maintainable as a spurious class suit under Federal Rules of Civil Procedure, rule 23(a) (3), 28 U.S. C.A. See Independence Shares Corporation v. Deckert, 3 Cir., 108 F.2d 51, 55. The plaintiff is a nonresident and the asserted fact that only a few of the other 181 members of the Cooperative are nonresidents does not deprive the Court of jurisdiction, if the plaintiff’s claim is for the jurisdictional amount. “The ability of other persons similarly situated to intervene without regard to jurisdictional limitations applicable to original parties is the raison d'etre of the spurious class suit * * Moore’s Federal Practice, Paragraph 23.10. Steele v. Guaranty Trust Co. of New York, 2 Cir., 164 F.2d 387, is not inconsistent with the foregoing. That suit was not dismissed because any members of the represented class lacked diversity but because, of the plaintiffs who sued as representatives of the class, the only one who could show the jurisdictional amount did not have diversity. As to four of the five plaintiffs, the amount in controversy was less than the jurisdictional amount. As to the fifth, the requisite amount was present, but this fifth plaintiff really consisted of several plaintiffs, being a number of persons and corporations grouped in an unincorporated association, of whom several were residents. Where an unincorporated association sues as a party, the actual citizenship of its individual members is determinative. Levering & Garrigues Co. v. Morrin, 2 Cir., 61 F.2d 115. Consequently the principle that there must be diversity as to all parties rules the fifth plaintiff out. The result was that there was no one before the Court, suing in a representative 64capacity, who could show the jurisdictional requirements. There remains’the question of amount in controversy in the present case. The subject matter of the plaintiff’s cause of action is his contract with the Cooperative, to preserve which the action was brought and an injunction asked for. The Cooperative “was organized * * for the purpose of building permanent, attractive homes on a large scale contract basis for between $8,000.00 and $9,000.00 per home and to lease the same to veterans on a low rental basis * * * on a 99-year renewable lease' basis.” It is also averred that the plaintiff, on the payment of the sum of $300.00, “obtained the contractual undertaking ‘of the Cooperative to construct a dwelling * * * and, when constructed, to lease the same to plaintiff.” This, I think, sufficiently avers that the plaintiff’s contract entitled him to a ninety-nine year lease at a low rental of a desirable home. If I thought more explicit language was necessary I would permit the complaint to be amended. The plaintiff also asks for punitive damages, which are allowable in an action for a malicious act such as is here charged. Even under the Pennsylvania rule which requires that punitive damages shall not be disproportionate to the compensatory damages, I am of the opinion that the threatened loss of a contract right to a ninety-nine year lease of a good home a i a fair rental, with or without punitive damages, states an amount in controversy which is within federal jurisdiction. The motion to dismiss is denied.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218628/	IRVING R. KAUFMAN, District Judge. The defendants have moved to dismiss the action on the following grounds: (1) that the complaint does not contain any allegation of jurisdiction; (2) that the action is brought in the wrong district because of residence requirements ; (3) that the action has been brought in an inconvenient forum. Plaintiff herein is an Italian corporation. Defendant Vanguard Films, Inc., is a California corporation which has qualified to do business in the State of New York, as appears from the affidavit submitted by plaintiff’s counsel. Defendant David 0. Selznick apparently is a resident of the State of California, — in any event he is not a resident of the State of New York. These facts are alleged in plaintiff’s complaint, and there also appears an allegation that the amount in controversy exceeds the sum of $3000, exclusive of interest and costs. Hence the complaint does satisfy the diversity of citizenship jurisdictional requirements and there is no merit to defendants’ first ground for dismissal. The second ground for dismissal requires more serious consideration. The action is for breach of a contract entered into between the plaintiff and the defendant Vanguard Films, Inc., on February 9, 1946. David O. Selznick was made a party defendant because Vanguard Films, Inc., it is alleged, made .the agreement on its own behalf and on behalf of Selznick. Section 1391(a) of Title 28 of the United States Code requires that “A civ- ’ il action wherein jurisdiction is founded only on diversity of citizenship may * * * be brought only in the judicial district where all plaintiffs or all defendants reside.” Neither plaintiff nor defendant Selznick resides in this district. However, defendant Vanguard Films, Inc., does reside here since it has qualified to do business in New York State as a foreign corporation, has designated the Secretary of State as its agent to be served with process, and is in fact doing business in the Southern District of New York. Section 1391(c), Title 28 U.S.C.A. Therefore venue is improper as to Selznick and proper as to Vanguard Films, Inc., and if both are retained as parties defendant the action must be dismissed pursuant to Section 1391(a), supra, or otherwise disposed of pursuant to Section 1406 (a), 28 U.S.C.A., as amended.1 Defendant Selznick is not an indispensable party to this action. He was not a party to the agreement and any determination of the rights of plaintiff and defendant Vanguard Films, Inc., under the contract will not affect the legal rights of Selznick. An indispensable party must be distinguished from a necessary party, who is a person having such an interest in the controversy that he ought to be made a party in order to finally determine the entire controversy, but whose interest is separable. Shields v. Barrow, 1854, 17 How. 130, 58 U.S. 130, 139. At best the defendants’ interests are joint and several, and in that event the joinder of all the parties as indispensable is not required, 3 Moore’s Federal Practice, 2d Ed., p. 2164. In the opinion of this Court, defendant David O. Selznick is not an indispensable party to this action but only a necessary party, and the action may be continued without him. *67The Court may drop or add parties of its own initiative at any stage of the action on such terms as are just. Rule 21, Federal Rules of Civil Procedure, 28 U. S.C.A. Furthermore, plaintiff’s counsel requested at the hearing that defendant Selznick be dropped, thereby curing the jurisdictional defect. The Court feels that in the exercise of its discretion the interests of justice would best be served by permitting the dropping of the defendant Selznick. See 3 Moore’s Federal Practice, 2d Ed., pp. 2119, 2145; Weaver v. Marcus, 4 Cir., 1948, 165 F.2d 862, 175 A.L.R. 1305; cf. Camp v. Gress, 1919, 250 U.S. 308, 39 S. Ct. 478, 63 L.Ed. 997. The last ground for dismissal put forth by the defendants is that this district is an inconvenient forum, for the following reasons: (a) that plaintiff is a foreign corporation not doing business in New York; (b) that all of the defendants reside in California; (c) that the contract is by its terms governed by California law, and the law of California would have to be proved upon the trial; (d) that the defendants would have to call as witnesses officers and employees employed in California; (e) that there are courts available in California ; (f) that it is not in the interests of justice to try the case in this district. The defendants’ counsel in requesting dismissal seeks to disregard the recently enacted provisions of Section 1404(a) of Title 28 U.S.C.A., which provides for transfer of actions on essentially forum non conveniens grounds, rather than the dismissal previously required. The Court will therefore treat this part of his motion as one to transfer the action to the Southern District of California rather than for dismissal. As to the aforementioned contentions of defendants, (a) (c) and (e) are irrelevant. Section 1404(a) provides for the transfer of an action for the convenience of parties and witnesses, not for the convenience of the Court. Contention (f) is a bare conclusion and meaningless as such. The second contention has been partly cured by dropping defendant Selznick. Vanguard Films, Inc., is present in New York and has an office for the transaction of its business here; hence, it will not be inconvenienced by being required to appear. The only contention of the defendants that has any merit is (d), and this is but a vague statement that some witnesses for the defendant are employed in California. Plaintiff refutes this argument by stating that no books and records of any kind will be required in this action which is a contract action. The negotiations for this contract were held in Italy, hence it is not an action local to California. Plaintiff alleges that the person who negotiated the contract for Vanguard Films, Inc., is frequently in New York. On the other hand, the principals and witnesses for the plaintiff would have to come from Italy to testify in New York and it would impose a tremendous burden and expense to require them to travel some 3000 additional miles to California. Defendant Vanguard Films, Inc., has not shown any real justification for transfer of this action to California, much less the showing of a strong balance of convenience in its favor required by Section 1404(a). See Ferguson v. Ford Motor Co,, D.C.S.D.N.Y., 1950, 89 F.Supp. 45. It is therefore the decision of this Court that the defendant David O.Selznick shall be dropped as a party defendant and that the motion to dismiss this action (or transfer it to another district) be denied. Defendants’ request for twenty days in which to answer the complaint (instead of ten days as provided by Rule 12(a) of the Federal Rules of Civil Procedure) is denied. Settle order on notice. . “The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or, if it be in the interest of justice, transfer sucb. case to any district or division in which it could have been brought.”	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218629/	KNIGHT, Chief Judge. This action was commenced in Supreme Court: Erie County, New York, 'but was removed to this court. The original complaint, demanding $500,-000 damages, alleges three causes of action. The first, based on breach of express warranty, alleges that, between June 14 and December 1, 1946, plaintiff purchased from defendant two 5-gallon drums and 15 barrels or drums containing about 50 gallons each of synthetic glue to be used in plaintiff’s business for manufacture of chairs and other furniture, and particularly for gluing certain joints in chairs made by plaintiff and known as the “Bank of England”; that plaintiff, before purchasing, expressly made known to,defendant the particular purpose for which the glue was needed and defendant warranted that the glue was reasonably fit and plaintiff relied on defendant’s skill and judgment; that the glue was not fit for the purpose for which it was purchased; that a large number of plaintiff’s “Bank of England Chairs”, glued with defendant’s glue, were returned to plaintiff because of defects and it has and will suffer great business losses. The second cause of -action, apparently based on breach of express contract, contains substantially the same factual allegations as the first. The third cause of action, based on the same facts, stresses plaintiff’s resulting loss of business. Sikes Co., Inc., v. Swift & Co., D.C.1949, 9 F.R.D. 19. Plaintiff now moves to amend its complaint by adding a fourth cause of action which alleges in substance in paragraph 22nd that, at various times between June 14 and December 1, 1946, it purchased from defendant synthetic glue to be used in manufacture of its furniture, expressly made known to defendant the particular purpose for which the glue was to be used; that defendant through its advertising and its duly authorized agents and employees, carelessly and recklessly represented to plaintiff that the glue was reasonably fit and suitable 69for the purpose for which it was sold; that defendants through its advertising, agents and employees further carelessly, recklessly and negligently represented that the glue “was such that the various parts of the furniture manufactured by the plaintiff with said glue would be strong and would hold * ; that the said glue was in all respects equal to animal glue which the plaintiff had previously used in the manufacture of its furniture and would do everything that animal glue would do * * that the glue which it proposed to sell to the plaintiff, and which it did sell * * , was in all respects suitable, proper and adequate for use by the plaintiff in th.e manufacture of its furniture”; that said statements and representations were made with intent to have plaintiff rely upon them and “without adequate, proper or sufficient knowledge of the suitability of the said synthetic glue for use by the plaintiff in the manufacture of its furniture, and were made with the express purpose of having th -plaintiff rely upon (them)”; that plaintiff, in purchasing the glue, did rely upon them “and upon defendant’s alleged knowledge of its product and upon its skill in manufacturing the same.” Paragraph 23rd of the proposed fourth cause of action alleges in substance that said glue was not reasonably fit for the purpose for which it was sold; that it “was insufficient, inadequate, unsuitable, defective and improper” for use in manufacture of plaintiff’s furniture; that said statements and representations “were false and untrue, and the said glue proved to be wholly unfit for use in the manufacture of furniture by the plaintiff, and such defects, failure and insufficiencies in the furniture so manufactured * * with the use of the defendant’s glue caused by (it) not being suitable for such use and because * * * defendant through its advertising and through its duly authorized agents and employees had carelessly, recklessly and negligently stated that the glue so sold by it was fit for such purposes; that when the plaintiff discovered that the said glue * * * was inadequate, insufficient and unsuitable * * * the plaintiff gave notice to the defendant of the failure of said glue, as aforesaid.” Paragraph 24th alleges: “That by reason of the careless, reckless and negligent statements and representations made to the plaintiff by the defendant this plaintiff has sustained damage in the sum of $500,-000.00.” Plaintiff alleges in its notice of motion: “That the reason why such motion has not been heretofore previously made is that the depositions of the defendant’s employees taken on August 2nd and 3rd, 1949, by the plaintiff in Chicago, Illinois, elicited facts which were not previously known to the plaintiff inasmuch as such facts are technical in their nature and were such that they could not be discovered by the plaintiff in any manner other than by deposition * * The supporting affidavit of Clayton M. Smith, one of plaintiff’s attorneys, verified October 4, 1949, alleges that deponent, on August 2 and 3, 1949, went to Chicago to take depositions “of several members of defendant’s organization, including Dr. Roy C. Newton, one of the vice presidents of the company and director of research; Harold Mitchell, .his assistant; also Dr. Harland Young, head of the research laboratory; Edward R. Paul, head of the adhesive division of the defendant company; also Frank Cox, one of the salesmen employed by the defendant.” Deponent further alleges that witness Paul “was presented with certain technical data and other written information put out by the defendant for * * * advancing the sale of Glu-Bond and questioned as to the authorship of the information therein contained; that in some instances he was unable to give the source * * * and in other instances he either claimed that the information came from his department or from the research laboratory under the direction of Dr. Young.” Deponent alleges that salesman Cox “evidenced some vagueness as to the source of some of the information * * * but stated that most of the information * * * came from the adhesive department under the direction of Mr. Paul and that was where he 70received his instructions * . Dr. Young * * was shown some of the technical data and other information * * * and asked whether * * * he was the author or source of that information.' In some instances (he) testified that he was the source, in others that he was not sure, and in certain other instances he • denied that he had furnished such information to the adhesive department.” Deponent further alleges that upon reading the depositions of these witnesses “and conferring with his associates and his client and its employees, (he) concluded that in the interest of justice and the proper presentation of any and all causes of action which the plaintiff might have against the defendant, the' pending motion should be made for permission to amend the complaint so as to set up such additional cause of action, based upon careless, reckless,, and negligent statements made by the defendant through its employees.” Deponent finally alleges: “That the reason (he) has not set forth the particular testimony in such depositions which, it is claimed, form the basis for the charge of careless, reckless, and negligent statements, is that he feels that to do so would be to disclose to the plaintiff (?) in advance of the trial some of the evidence on which the defendant (?) depends to establish this particular cause of action and the subject matter of further cross examination of the defendant’s witnesses upon the trial of this action.” The meaning of this last quoted paragraph is eclipsed. Rule 30(f) of Federal Rules of Civil Procedure, 28 U.S.C.A., requires that depositions upon oral examination shall be filed and that “upon payment of reasonable charges” a copy of the deposition shall be furnished “to any party or to the deponent.” Robert M. Hitchcock, one of defendant’s attorneys, in his opposing affidavit, verified October 7, 1949, alleges that, “apart from several conclusions,” the Smith affidavit “makes just one statement of fact that has any bearing upon the motion,” viz. the last paragraph quoted above; “that the express refusal of plaintiff to inform the Court or counsel for the defendant of any facts which form the basis either of the cause of action or for the exercise of discretion in this Court makes it impossible for deponent, and equally for the Court, to understand plaintiff’s position. Plaintiff is asking for relief within the discretion of the Court and flatly and affirmatively refuses to disclose any basis upon which the Court may rule on the application.” Deponent further alleges: “In support of its claim that warranties were made in writing to plaintiff, upon which it relied, plaintiff submitted a so-called data sheet which is Exhibit 8-C attached to its original answers to the interrogatories; and in further answer to (them), ordered by the Court, referred to certain of defendant’s advertisements in four issues, during 1946, of ‘Wood Products’ magazine. These are the only writings which plaintiff has made any claim as constituting .warranties and representations made to it and upon which it claims to have relied.” Rule 15(a) of Federal Rules of Civil Procedure provides: “A party may amend his pleading once as a matter of course at any time before a responsive pleading is served * * . Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Defendant’s answer in this case was filed June 28, 1948. Plaintiff’s counsel in their memorandum assert: “The original complaint contains three causes of action * * based upon breach of warranty and misrepresentation * * . At the time the complaint was drawn the plaintiff did not and could not know that the necessary elements existed which would enable it to set forth the cause of action which it now seeks to include in the complaint. This cause of action in substance alleges that the defendant carelessly, recklessly and negligently made certain claims with respect to its product, which claims the plaintiff relied upon with the result that it sustained the damages 71which have previously been set forth in the complaint and which have been explained in the interrogatories.” Since plaintiff in none of the four causes of action relies on any foreign statute, they must be decided by the law of the forum. Section 93 of the Personal Property Law of the State of New York, McK.Consol. Laws, c. 41, provides: “Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon * * It has been held that knowledge of the falsity of the representation is not an essential of the seller’s warranty. In Lewis v. Doyle, 13 App.Div. 291, 43 N.Y.S. 201, the court said: “His (the seller’s) liability does not accrue because of any false representation or deception on his part, but solely because he has made a contract which has been broken.” 43 N.Y.S. at page 292, 43 N.Y.S. at page 202. See also Fowler v. Anderson, 132 App.Div. 603, 116 N.Y.S. 1092. The proposed fourth cause of action does not allege fraud or deceit. It alleges only “careless, reckless and negligent statements and representations.” While the law does not recognize any special category of negligent warranty, it is not the function of this court to decide whether the proposed amendment states a valid cause of action for common law negligence. Rucienski v. Vanadium Corp. of America, D.C.W.D.N.Y., 6 F.R.D. 313, 314. Plaintiff may set up in its “amended complaint a new cause of action arising out of the same transaction alleged in (its) original pleading.” Kuhn v. Pacific Mut. Life Ins. Co. of California, D.C., 37 F.Supp. 102, 103. Rules 15(c) of Federal Rules of Civil Procedure provides: “Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” “The filing of an amendment after pleading time has expired is a matter within the sound discretion of the court.” Arrow Petroleum Co. v. Johnston, 7 Cir., 162 F.2d 269, 275, certiorari denied 332 U.S. 817, 68 S.Ct. 158. Since defendant has shown no prejudice likely to result therefrom, plaintiff’s motion to amend the complaint by adding the proposed fourth cause of action is granted.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218630/	GANEY, District Judge. This is an action seeking a permanent injunction and declaratory judgment and an application for a temporary restraining order and preliminary injunction upon the affidavit of James H. Durkin. The gist of the complaint alleges that the defendants are to conduct a certain trial of the United Office and Professional Workers of American us well as to take other steps within their control toward its expulsion from the Congress of Industrial Organizations, the date of said trial being Monday, December 19th, and that unless defendants are restrained from so doing by an order of the court, they will suffer immediate and irreparable injury. The application for the restraining order was made to the court on December 12th and at the request of- the -court the trial date was changed from December 15th to December 19th in order to give the court an opportunity to go into the question raised at the time of the application of the complainant, to wit: the question of the jurisdiction of this court in the matter -by the defendants. The delay was primarily granted by reason of the 'fact that both sides wanted to submit briefs on the jurisdictional-question then posed, and the preparation of the latter would entail a few days time and as the trial was set for the 15th the defendants agreed to hold the matter over until Monday, December 19th. On December 15th counsel for both plaintiff and defendants appeared before the court and defendants presented a motion to withdraw one of the party defendants, Emil Rieve. Objection was made by counsel for the complainant but the court granted the defendant’s request and the action proceeded against George Craig as Regional Director and Representative of the Congress of Industrial Organizations alone. The- defendants in appearing specially, was for the sole and only purpose of asserting lack of jurisdiction over the subject matter of the action and the person of the defendants as well as alleging the venue of the action as being improperly laid and moving the court to vacate an Order to Show Cause entered by it on December 9, 1949, as well as to dismiss the action generally. The complaint asserts jurisdiction on the ground of diversity of citizenship, 28 U. S.C.A. §§ 1331, 1332, 1337, as well as on Title 29 U.S.C.A. § 185, that is on the ground of diversity of citizenship as well as under the Taft-Hartley Act. It is to be noted that this cause is by way of a class action against a labor or*73ganization and that the dropping of one of the defendants, Emil Rieve, a vice-president of the Congress of Industrial Organizations as well as a member of the Executive Board of the Congress of Industrial Organizations and Chairman of the Trial Committee appointed by the Executive Board before whom the hearing is to be held, leaves the only other defendant remaining, George Craig, who is described in the complaint as “Regional Director of the CIO in the City of Philadelphia and is sued as representative of members of the CIO”. The question poses itself at the outset, whether jurisdiction is to be founded on diversity of citizenship, or whether it is to be founded under the Taft-Hartley Act, it being a class suit whether the defendant named, is a proper representative of the so-called class. While the Federal Rules have in nowise limited or restricted the right to bring class suits either under Rule 23 or Rule 17(b), 28 U.S.C.A., it is essential that they be properly brought by describing the person as being representative of the class over whom jurisdiction is to be asserted. Here the only assertion is that Craig is the Regional Director of the CIO in the City of Philadelphia. In reading Exhibit C of the plaintiff’s complaint, which is the Constitution of the CIO, no reference is made to the office of Regional Director and nothing has been offered to show that a Regional Director in one city is adequately representative of the CIO, when we consider that the Congress of Industrial Organizations is a group of autonomous unions. It is an essential condition precedent to the maintenance of a class action whether adequate representation is afforded to the otherwise unrepresented interest by the defendant selected as representative of the class. Pacific Fire Insurance Co. v. Reiner et al. D.C. 45 F.Supp. 703; Knowles et al. v. War Damage Corporation, 83 U.S. App.D.C., 388, 171 F.2d 15; Oppenheimer v. F. J. Young & Co D.C., 3 F.R.D. 220; Barker Printing Co. v. Brotherhood of Painters, Decorators & Paperhangers of America, 3 Cir., 15 F.2d 16. The case of Tunstall v. Brotherhood of Locomotive Firemen and Enginemen et al., 4 Cir., 148 F.2d 403, 406, has been pressed upon the court, but here it was adequately set forth in the complaint that the defendant was a local chairman of a lodge and that he acted for the Brotherhood in the enforcing of schedules of rules and working conditions and in matters of grievances, adjustments and job assignments of the particular railroad. In that case likewise the court found that the suit “was unquestionably maintainable as a class suit and that there has been sufficient service upon representative members to give jurisdiction over the entire class constituting the brotherhood”. Here this court cannot say from the record before it that a single individual not an officer of the Congress of Industrial Organizations itself nor a member of any of the unions comprising the Congress of Industrial Organizations and not being a member of the Trial Board before whom the trial of the complainant is to be held and lacking in any description whatsoever of what the capacity of a regional director in the City of Philadelphia is, adequately is representative of the class. Accordingly, the order to show cause entered December 9th is vacated and the motion to dismiss is granted.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218631/	RIFKIND, District Judge. This is an application for leave to intervene as parties plaintiff in an anti-trust action prosecuted by the United States •against the defendants and terminated by consent decree entered on the 17th day of ■ December, 1948. The petitioners are a group of operators of self-service laundries. They employ in their laundries machines manufactured by defendant Bendix which they have purchased from defendant Telecoin. In connection with such purchases they signed agreements whereby, inter alia, in return for a royalty of $2 a month for each machine they were authorized to use the mark “Launderette”. These agreements apparently were can-celled or terminated sometime after the consent decree was filed. Thereafter, Tele-coin instituted actions against the individual petitioners in various municipal eourt9 of the 'City of New York for royalties which had accrued under the agreements. The petition seeks the following relief: 1. Allowing the petitioners to intervene as parties plaintiff. 2. Permanently restraining the defendant Telecoin from enforcing its agreements with the petitioners. 3. Adjudicating the defendant Telecoin in contempt of court by reason of the institution of the suits against the petitioners for the enforcement of such agreements. 4. Declaring such agreements violative of the anti-trust laws. 755. Amplifying and making more specific the consent decree herein if necessary. 6. And for such other and further and different relief as to the court may seem just affd proper. The petitioners do not assert a claim to intervention as of right under Rule 24(a), Federal Rules of Civil Procedure, 28 U.S. C.A. Nor is this an instance of the kind of intervention which has been most closely assimilated to intervention as of right and is illustrated by Missouri-Kansas Pipe Line Co. v. U. S, 1941, 312 U.S. 502, 665, 61 S.Ct. 666, 85 L.Ed. 975. In that case section IV of the decree explicitly preserved to a non-party, Panhandle Eastern, certain rights and section V provided that “Panhandle Eastern, upon proper application, may become a party hereto for the limited purpose of enforcing the rights conferred by Section IV hereof.” Supra, 312 U.S. 507, 61 S.Ct. 668. Intervention was allowed as “a vindication of the decree”. Supra, 312 U.S. 508, 61 S.Ct. 669. The decree in the instant case does not explicitly preserve any rights to the petitioners nor does it expressly provide that they may intervene to enforce any rights. The question presented is, therefore, whether sound discretion exercised within the boundaries of Rule 24(b), F.R.Civ.P. warrants the intervention of the petitioners. U. S. v. Vehicular Parking, Ltd., D.C.1947, 7 F.R.D. 336, is cited and heavily relied on by the petitioners. The differences in fact between that case and the case at bar must be noted. The decree in the Vehicular case was entered after the defendant had been found guilty of violating the anti-trust laws, and provided for compulsory licensing at a reasonable royalty under patents owned by defendant. The intervenor alleged refusal by the defendant to issue him a license except at an unreasonable royalty. The decree did not contain the provisions subsequently incorporated in the decrees in U. S. v. Hartford-Empire Co., 1946, D.C. N.D.Ohio, 65 F.Supp. 271, 276 and in U. S. v. National Lead Co., D.C.S.D.N.Y., 1945, 63 F.Supp. 513, 534, which expressly authorized applicants for compulsory licenses to apply to the court for the determination of the reasonableness of the royalty. As I read the opinion of the court in the Vehicular case it seems to me in effect to say the following: that the decree inadequately expressed the intention of the decree-making court. That court was the only one which could give adequate relief to an applicant for a license. Absent the assistance of that court, the applicant for a license would have to risk the consequences of infringing without knowing in advance what royalty or damages he might be subjected to. In effect, therefore, that decree required amendment. The proper procedure should have, therefore, been for the Attorney General to apply for the amendment of the decree so as to incorporate therein a provision similar to that in the Hartford-Empire case. Since the United States through the Attorney General consented and approved the petition for intervention it amounted to a short-cut of that procedure. In contradistinction, in the case at bar it is by no means apparent that the decree was intended to confer upon persons in the class of the petitioners the right of access to the court in this litigation and that the intention was inadequately expressed. Nor are the petitioners exposed to any future business risks which can be resolved only in this litigation. Moreover, here the United States as the party plaintiff and the Attorney Ge'neral as the statutory vindicator of the Government’s policy enunciated in the anti-trust laws, object to the intervention. jAnalysis of the petition reveals that there is only one immediate end which the petitioners truly seek to attain — the restraint of the suits now pending in the municipal courts of the City of New York for the recovery of past due royalties. There is not the slightest suggestion that they are subjected to the effects of the unlawful conduct condemned by the decree other than by the prosecution of these suits. If the petitioners desire to secure judicial condemnation of conduct not now-prohibited by the decree but allegedly vie lative of the anti-trust laws, then they seek to raise new issues. This they may not do 'by intervention. See Leaver v. K. & 76L. Box & Lumber Co., D.C.N.D.Cal.1925, 6 F.2d 666, 667; United States v. Radio Corporation of America, D.C.Del.1933, 3 F.Supp. 23, 25; United States v. 1,830.62 Acres of Land, D.C.W.D.Va.1943, 51 F. Supp. 158, 161. Their remedy is by private suit under 15 U.S.C.A. §§ 26,15. If the petitioners assert that the existing decree in fact does forbid the prosecution of the pending law suits for the royalty arrears, then they seek to intervene to enforce the consent decree entered into after the United States brought an action under section 4 of the Sherman Act, 15 U.S.C.A. § 4, and section 15 of the Clayton Act, 15 U.S.C.A. § 25. It is settled that a private person may not maintain a suit under section 4 of the Sherman Act. State of Minnesota v. Northern Securities Co.; 1904, 194 U.S. 48, 71, 24 S.Ct. 598, 48 L.Ed. 870; Paine Lumber Co. v. Neal, 1917, 244 U.S. 459, 471, 37 S.Ct. 718, 61 L.Ed. 1256. The Supreme Court, in construing the Sherman Act, has commented: “It seems evident that the Act envisaged two classes of actions, — those made available only to the Government, which are first provided in detail, and, in addition, a right of action for treble damages granted, to redress private injury.” United States v. Cooper Corp., 1941, 312 U.S. 600, 608, 61 S.Ct. 742, 745, 85 L.Ed. 1071. Authorization for suits for injunctions by private individuals resulted only after enactment of the Clayton Act, 15 U.S.C.A. § 26. That Act provided in ¡separate sections for suits for injunctions 'by the United States, 15 U.S.C.A. § 25, and by private parties. 15 U.S.C.A. § 26. It would seem to be a necessary corollary of this dichotomy of rights which underlies the structure of the anti-trust laws that private persons may not intervene in suits which are maintainable only by the United States. And this corollary should apply whether the particular action is for enforcement of the anti-trust laws, or for the enforcement of decrees rendered under those laws. It is clear, however, that under certain circumstances intervention in a Government suit under the anti-trust laws is permissible. Certainly this is so where the decree fashioned with the aid of the Government provides for intervention. Missouri-Kansas Pipe Line Co. v. U. S., 1941, 312 U.S. 502, 665, 61 S.Ct. 666, 85 L.Ed. 975. And if, as in the Vehicular case, supra, the Government invites intervention as a means of amending an inadequate decree, the procedure is sound. In both situations tlie policy behind the bifurcated structure of the anti-trust laws is not disserved since it is essentially the initiative of the Government which guides the suits. It may well be that even under other circumstances the legislative- division between private and public suits can be maintained despite intervention by a private individual in a Government suit. Perhaps the Government, having commenced action to enforce a decree, might welcome private intervention as an aid to Government implementation of the anti-trust laws. It may be that this should be regarded merely as another means of Government enforcement, and not inconsistent with the bifurcated structure of the laws. Perhaps it was considerations such as these which Mr. Justice Roberts had in mind when in a dictum he suggested, in a case involving enforcement of an anti-trust decree, that a private party “had standing to invoke the discretion of the district judge to permit it to intervene * .” Allen Calculators v. National Cash Register Co., 1944, 322 U.S. 137, 141, 64 S.Ct. 905, 907, 88 L.Ed. 1188. But certainly where; as in the case at bar, the United States has taken no action under the decree against the defendant; where, indeed, the United States has sifted the proposed intervenors’ ¡complaints and has decided to oppose the intervention, it would violate the statutory policy to allow the petition. Intervention would tend to’make the private parties quasi attorneys general in enforcing the anti-trust laws, in contravention of 15 U.S.C.A. § 4 and 15 U.S.C.A. § 25 which explicitly require that 77Government suits shall be under the direction of the Attorney General. In this case the Attorney General has by brief indicated to the court that he has ■conducted an extensive investigation to determine whether the defendant should be ■charged with violation of the decree. It is reasonably to be expected that collation of all the relevant evidence of defendant’s conduct will be conducive to a more intelligent determination of the issue of contempt, and if that issue is resolved against the defendant, the remedy to be applied can then be more intelligently fashioned than by piecemeal intervention of a multitude of individual “victims”. As I understand it, the scheme of the statute is sharply to distinguish between Government suits, either criminal or civil, and private suits for injunctive relief or for treble damages. Different policy considerations govern each ■of these. They may proceed simultaneously or in disregard of each other. The very fact that the Congress has made an adjudication in a Government suit prima facie ■evidence of certain facts in a private suit would indicate that it was not the intention ■of the Congress that private parties should be permitted to apply for private relief at the foot of a decree entered in a Government suit. 15 U.S.C.A. § 16. That section, however, denies such effect to a consent •decree. Intervention, if allowed here, would tend to defeat the policy behind the distinction drawn by section 16 between litigated decrees and consent decrees. If the petitioners argue that in fact the existing decree does forbid the prosecution of the pending law suits for the royalty arrears, they can accomplish their purpose of frustrating these suits by pleading the decree as a complete defense or by seeking injunctive relief in a private suit under 15 U.S.C.A. § 26. I do not see why the adjudication of that defense should confront •the municipal courts of New York with any greater difficulty than that presented by any other written instrument. I conclude that it would be improvident -to grant intervention in the instant case. 'The application is therefore denied.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218632/	LEIBELL, District Judge. There are two motions before the Court in this case. Plaintiffs move for a modification of an order of Judge Goddard, dated July 9, 1948 which deferred the taking of depositions of defendants’ employees and agents until after the depositions of both plaintiffs had been taken. The order 78fixed July 22nd as the date for plaintiff, James Walsh’s deposition and September 15th for his wife, Theolas’. The modification sought is to permit plaintiffs to take the depositions of defendants’ agents and employees prior to the taking of the depositions of plaintiff, Theola Walsh, on the ground that she is ill of influenza in California and cannot travel East for the taking of her deposition. Her husband’s deposition was taken here on July 22nd. On ^October 15, 1948 the defendants in this action moved the Court for a change of venue pursuant to § 1404(a) of Title 28 U.S.C.A. which provides: — “(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” Section 1391(c) of Title 28 U.S.C.A. provides with respect to venue in a suit against a corporation: — -“(c) A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.” The proof submitted on the motion with respect to the defendant, Pennsylvania Railroad Company, lacked any definite or material facts on the question of whether the Pennsylvania Railroad Company was doing business in the State of California or had filed a certificate of doing business in that state. On November 1, 1948 the Court filed a memorandum stating:- — “The proof presently submitted as to the defendant, Pennsylvania Railroad Company, falls short of showing that it is ‘doing business’ in the district to which defendants ask that the action be removed. This court will grant both sides until November 10th to submit further affidavits and briefs on this one issue.” The court further directed the attorney for the defendants to ascertain whether the question had been adjudicated in the State of California. On November 18, 1948 the attorney for the defendants submitted an affidavit stating therein that:— “ * * in the case of Brown v. Erie Railroad Company, Pennsylvania Railroad Company, et al., instituted in the United States District Court, Northern District of California, Southern Division, the Court, on June 22, 1945,. granted a motion by the defendant, Pennsylvania Railroad Company, to quash the service of summons on the ground that the Pennsylvania Railroad Company was not doing business in California.” On November 19, 1948 the attorney for the plaintiffs submitted an affidavit stating,, upon information furnished by the Secretary of State of California, that the defendant, Pennsylvania Railroad Company, has-not filed a certificate of doing- 'business ini the State of California. On November 19, 1948 the attorney for the defendants advised the Court that a motion was being brought in this Court to dismiss the complaint as against the defendant, Pennsylvania Railroad Company, on-the authority of Morrison v. Pennsylvania Railroad Company,1 Civil 36-653 (S.D. N.Y. 1946). A favorable decision on this-motion might materially affect the determination of the present motion for a change of venue. The attorney for the defendants requests the -Court to defer decision on the motion for change of venue. The attorney for the plaintiffs, by letter dated November 19, 1948, has objected to-such deferment. In the interest -of economy of time- and effort on the part of the Court and the attorneys and in view of the fact that no-injustice will result to the plaintiff thereby, I have concluded to defer decision on the-motion for a change of venue until the-motion to dismiss as against the Pennsylvania Railroad Company is decided. On May 26, 1948 the defendant, Southern Pacific Company, served its answer to the complaint together with notice to take the-depositions of the plaintiffs, Theola Walsh and her husband, James Walsh, on June 25,. 1948. The depositions were not taken on. that date and on June 28, 1948 the plaintiff served notices of examination of three employees of the defendants on the defend79ants’ attorney set for July 14, 15 and 16 of 1948. On July 9, 1948, in the disposition of a motion by the plaintiffs to vacate the defendants’ notices and a motion by the defendants for judgment by default for plaintiffs’ failure to appear on the examination, Judge Goddard ordered that the plaintiff, James A. Walsh, appear for examination on July 22, 1948 and the plaintiff, Theola Walsh, appear on September 15, 1948. He further directed that the taking of the depositions of the employees of the defendants be deferred until the taking of the depositions of both plaintiffs had been completed. The order provided: — “That the taking of the depositions of the agents, servants, employees, or officers, of the defendants * * pursuant to three notices dated June 25, 1948, served by the plaintiffs, be deferred until the taking of the depositions of both plaintiffs.” James Walsh appeared for examination on July 22, 1948 pursuant to the above order but Theola Walsh failed to appear on September 15, 1948 pursuant thereto. On October 15, 1948 the plaintiff moved to modify Judge Goddard’s order so as to permit the examination of the plaintiff, Theola Walsh, to be deferred until February 1949 and to permit the plaintiffs to examine the employees of the defendants before the date set for the defendants’ examination of Theola Walsh in February 1949. On October 15th when these motions were argued before me, plaintiffs’ attorney submitted a doctor’s certificate which he quotes in his affidavit of October 28, 1948 as follows:— “Richard T. Beem, M.D. 1 3864 Watseka Avenue Culver City, Calif. September 27, 1948. “To Whom It May Concern: Mrs. James Walsh has been under my care for some time. She has recently suffered a severe attack of influenza, which was rather protracted. As a result, her rehabilitation and recovery will necessitate six weeks to two months of rest. Her physical condition is in no way compatable with travel at this time. Sincerely, Richard T. Beem, M.D.” Judge Goddard’s order had directed that Theola Walsh appear for examination by the defendants on September 15, 1948. She did not appear because of her ill health according to her husband’s affidavit. Her attorney states in an affidavit of September 27, 1948 that “it is uncertain at this time when Mrs. Walsh will be available to appear.” The Clerk of the California court has advised plaintiffs’ attorney that the time a case might be reached would be two to ten months according to the judge assigned. Defendants’ attorney states that the case could be reached for trial in California from two to six months. Plaintiffs’ attorney alleges that in this Court the case could be reached in approximately seven months, by May 1949. It also appears that the facts within the knowledge of Theola Walsh are the same as the facts within the knowledge of James Walsh whose deposition was taken July 22, 1948. I believe the above circumstances warrant the exercise of the Court’s discretion in favor of allowing the taking of the deposition of Theola Walsh to be deferred until February 9, 1949. In the meantime the taking of the depositions of the three employees of the defendants should proceed. They will be produced for examination at Los Angeles on some day in the week of December 12, 1948 that will be convenient to plaintiffs’ attorney or counsel. The plaintiffs’ motion to modify the order of Judge Goddard, dated July 9, 1948, is granted to the extent above indicated. * . No opinion for publication.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218633/	DAWKINS, Chief Judge. Defendant, as prevailing party, applied to the Clerk to tax costs to be paid by the plaintiff. The latter moved to disallow the following items as not properly taxable: 1. The item of $1.05 for Post Office registration fee; 2. Premium of $10.00 for cost bond re-, moval; 3. The item of $19.00 for cost of photographic exhibits; 4. The item of $20.00 per diem for-Frank Dean, J. W. Eagleson, Otis Guillot and Percy Gr'os on August 5, 1948; 5. The item of $10.00 for the admission of deposition in evidence; 6. The item of $47.50 for the fee of court reporter for transcribing testimony of Willard B. Parks, Charles A. Myers and Grady Breece; 7. The item of $400.00 as witness fee for Charles A. Myers; 8. The item of $40.00 as witness ’fee for Willard B. Parks; 9. The item of $10.00 per diem of Frank Dean; 10. The item of $10.00 per diem for J. W. Eagleson; 11. The item of $10.00 per diem for Willard B. Parks; 12. The item of $82.60 as mileage for Frank Dean, J. W. Eagleson, Grady Breece and ¡Charles A. Myers; and 13. The item of $20.00 as attorneys’ docket fee as of December 8, 1948. The Federal Rules of Civil Procedure, rule 54(d), 28 U.S.C.A., provide: “Costs. Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs * * In some jurisdictions, when not covered by statutes, there are local applicable rules, practices or customs which control. There are no such rules, practices or customs in this district. The matter must, therefore, be determined according to such statutes as apply, and general principles as conceived by this court. The disputed items will therefore be taken up in the order stated in the motion to strike. No more reason can be seen for' taxing this Post Office registration fee than any other postage paid or incurred in connection with the case. : [3] The giving of the bond required for removal was necessary, and the premium paid to supply it should be allowed. The expense of taking photographs should be classed as any other expenditure for preparation for trial made by a party to the suit, which is controlled or limited only by the diligence and efficiency of the particular agent or counsel. However convenient they may have been for the defendant’s side, there must be a limitation upon the extent to which a litigant or his counsel can go in such preparation, if it is to be taxed against his opponent. The pictures were not indispensable to the development of the case. Authorities cited by defendant are from other jurisdictions, where the practice or custom was to allow such costs. The federal statute provides the fees to be paid witnesses, including mileage and per diem, and should be followed as to witnesses whose testimony was *109taken and used at the trial, not an arbitrary-amount fixed and paid by the litigant. Title 28, U.S.C.A. § 1821. The charge for these four depositions is fixed by statute at $2.50, or $10.00 for the four, as claimed by the defendant. Title 28 U.S.C.A. § 1923. The item of $47.50 paid for one copy of the transcript of testimony taken at the trial at the rate of 25^5 per page was for the defendant’s own use. The plaintiff will have to pay for the original filed as part of the transcript for appeal. There is no provision in the Federal Rules or statutes for the allowance to litigants of the costs of copies of transcripts of testimony which they see fit to purchase from the reporter, other than the original filed in the record. If this were permitted, the cost of litigation could be substantially increased where there happened to be several litigants on the winning side and each attorney saw fit to purchase one or more copies of the notes of evidence from the reporter, at the rates which he is permitted to charge. This copy was not used in, nor was it necessary to a decision of the case and will, therefore, be disallowed. There is no provision in the statutes, the Rules of Civil Procedure, or those of this court, which permit the indiscriminate summonsing of experts and the payment of such fees a-s they may see fit to charge. In cases where experts are necessary, counsel can protect his client’s interest by prior application to the court, setting forth the nature and importance of the testimony of such witnesses, and upon -contradictory hearing, the court may determine which ones shall be permitted and the fees to be paid therefor before they are incurred; otherwise, this type o-f expense, which often runs into large figures, would be restrained only by the judgment of the particular counsel. Only ordinary witness fees can be allowed for Charles R. Myers. 8, 9, 10 and 11. What has just been said as to Item 7 applies equally to Nos. 8 to 11, inclusive. The mileage for travel of witnesses is fixed by statute. Title 28 U.S. C.A. § 1821. As to- the attorneys’ docket fees claimed as of December 8, 1948, there is no authority for the allowance of any attorneys’ fees except the $20.00 covered by Title 28 U.S.C.A. § 1923. This cannot be duplicated as to any other service of an attorney. The attorneys’ fees will, therefore, be limited to $20.00-. Otherwise, the costs bill will be approved.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218634/	JONES, Chief Judge. This is an action by a trustee in bankruptcy to set aside and recover a preferential transfer made within four months of the filing of the petition in bankruptcy. Defendant has moved to dismiss the action or in the alternative to quash the return of service on the ground that defendant has not been properly served with process. The Marshal’s return shows only that service was made on November 29, 1949, upon the defendant’s father, presumably at the address alleged in the petition to be defendant’s usual place of abode. Defendant, however, has filed two affidavits sworn to by defendant’s father and a friend which state that defendant does not now reside at the address where service was made nor has he resided there since a time prior to October 15, 1949, nor is said address his usual place of abode. The affidavits say nothing about the present whereabouts of defendant. Plaintiff has not opposed this motion to dismiss. Federal Rules of Civil Procedure, rule 4(d) (1), 28 U.S.C.A., provides for service upon the defendant personally or for service by leaving copies of the summons at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion. There is no doubt that personal service was not made in this case. The only issue is whether the summons was left at defendant’s residence or usual place of abode. Rovinski v. Rowe, 6 Cir., 131 F.2d 687, states that Rule 4(d) (1) should be liberally construed to effectuate service when actual notice of the suit has been received by defendant. If this ruling is followed literally, defendant has been properly served because he has actual notice of this action. However, the ruling cannot be divorced from the facts which support it and a reading of the case indicates that the Court found service was made at the defendant’s usual place of abode and the Court was liberal only in its finding of what was a usual place of abode. The case of Zuckerman v. McCulley, D.C., 7 F.R.D. 739, sets forth what appears to be the correct rule. It was there held that the courts were without authority to nullify the requirements of the rule providing how jurisdiction might be acquired. This means that the summons must have been left at defendant’s usual place of abode. It is not clear from the return that the summons was left at defendant’s usual place of abode, and there are two- affidavits which state that the place where the summons was left was not the defendant’s usual place of abode. It is true that proof which *111takes the form of affidavits is not the most reliable evidence, and it is also true that these affidavits are somewhat unsatisfactory in that they do not state why defendant no longer resides at the address where the service was made, and they do not state where defendant’s usual place of abode has been- since October 15, 1949. However, because of plaintiff’s failure to offer any contradictory evidence, this Court must follow the Zuckerman case and the case of Thomas v. Furness (Pacific), Limited, 9 Cir., 171 F.2d 434, and hold if the undisputed proof shows that service was not properly made that the action must be dismissed because of want of jurisdiction. The undisputed evidence in this case, however weak it may be, shows that the summons was not left at defendant’s usual place of abode. Therefore, service was not made according to Rule 4(d) (1) and the return of service must be quashed and this action dismissed. On Motion to Vacate Order of Dismissal. This is an action to set aside and recover a preferential transfer. Defendant previously moved to quash the service of summons and to dismiss the action because proper service had not been made. This Court sustained the motion because summons had not been left at defendant’s usual place of abode. Plaintiff, pursuant to Rule 52(b) moves that the Court vacate the order of dismissal and allow service to be made by alias summons. There is some doubt that Rule 52(b) can be used to reopen such matter. However, it is not important to decide that issue because additional information contained in new affidavits filed by defendant shows that the summons was not left at defendant’s usual place of abode. The former opinion was directed to the same conclusion, but the evidence supporting such a finding was doubtful. Had there been any opposition a different result might have been reached. The new affidavits fill in the areas about which the Court was in doubt and there now is no question that proper service was not made. The Court then was justified in dismissing the action for want of jurisdiction. Perhaps it went too- far in dismissing the action, but at the time it had no aid from the plaintiff’s attorney, and an attorney who passes the opportunity to express his views cannot now be heard to complain. There is no reason why the Court should relieve the plaintiff from the consequences of the failure of his attorney to take action at the proper time. Oral hearing as requested by the plaintiff is denied for the reason that judicial assistance is inadequate for the volume of preliminary matters awaiting decision. The motion will be denied.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218635/	WATSON, Chief Judge. After this case was set for trial to begin April 3, 1950, counsel for plaintiff presented to the Court on March 31, 1950, a motion for Production of Documents, etc., under Rule 34 of the Federal Rules of Civil Procedure.1 The motion contains requests in 29 separate paragraphs for documents of various descriptions. On presentation of the motion, the Court requested counsel in the case to confer together and, if possible, to stipulate as to the production of certain of the documents, etc. requested. After the jury was selected and sworn, counsel, on the morning of April 4, 1950, informed the Court that no stipulation had been entered into. Thereupon, the Court held a hearing and heard arguments for and against the production of the various documents, etc. It appears that, as to requests for production referred to in Paragraphs 8, 9, 11, 12, 13, 15, 17, 19, 22, 25, 26, and 29, the defendant does not have same in 'its possession, custody or control, and, therefore, the motion for the production of the documents, papers, books, etc. referred to in said paragraphs will be denied.2 The eighteenth paragraph of plaintiff’s request for production reads as follows: “Original, or copy of, report to United Air Lines from Massachusetts Institute of Technology, or by and from any technical consultant employed by or on the staff of instructors or professors at said Institute, with respect to position of cabin pressure relief valve after crash of airplane NC-37506 on June 17, 1948, near Mt. Carmel, Pennsylvania.” It appears that in the accident investigation report of the Civil Aeronautics Board, referring to the airplane accident involved in this litigation, which report was released August 2, 1949, 113there is the following language: “The study made on behalf of United by M.I.T. resulted in a preliminary report received April 26, 1949 * . The Board, thereupon, entered upon a final analysis and study of the evidence including the reports above described, only one of which, the M.I.T. report, concluded that the cabin pressure relief valves were open.” There is nothing to show that the report by the Massachusetts Institute of Technology, referred to above, was the report referred to in plaintiff’s request in paragraph 18. It does appear that the Massachusetts Institute of Technology, or some one on the staff of instructors or professors of that institute, made a report to and upon the request of the attorneys for the United Air Lines, Inc., when litigation was threatened or pending. Such has been held to be privileged, and it has been held that evidence obtained by an attorney or at his instance after litigation has been commenced or threatened, or with a view to the defense or prosecution of such litigation is protected even if obtained by the client.3 In McCarthy v. Palmer,4 Judge Moscowitz said in the opinion: “While the Rules of Civil Procedure were designed to permit liberal examination and discovery, they were not intended to be made the vehicle through which one litigant could make use of his opponent’s preparation of his case. To use them in such a manner would penalize the diligent and place a premium on laziness. It is fair to assume that, except in the most unusual circumstances, no such result was intended.” It cannot be held that the defendant waived its rights to protection because the report referred to in the report of the Civil Aeronautics Board was said to have been made as the result of study on behalf of United by M.I.T. Furthermore, the M.I.T. report referred to in the Civil Aeronautics Board’s report is not referred to in full, but there is a reference to it only, and that reference is to a conclusion. For reasons stated and others, it is my opinion that the request for production of document designated in Paragraph 18 should be denied. Rule 34 authorizes the Court to order production of documents, etc., upon motion of a party “showing good cause”. The Court must be satisfied that the production of the requested document is necessary to enable a party to properly prepare his case, or that it will facilitate proof or progress at the trial.5 It is my opinion that, under a proper construction of Rule 34, the defendant should be required to produce the documents, papers, books, etc., designated in Paragraphs 1, 2, 5, 6, 7, 10, 16, 20, 21, 27, and certain of those documents, papers, books, etc., designated in paragraphs 3 and 4, and a proper order for their production will be made. The documents designated in paragraphs 14, 23, 24, and 28 for the most part refer to acts of the defendant in providing work and materials to airplane NC-37506 between November, 1947 and June 17, 1948. The plaintiff has shown to the satisfaction of the Court that the production of most of the documents requested is necessary to enable her to properly prepare her case, but whether the documents embody evidence that is material to this cause is doubtful. However, it is not the duty of the plaintiff to prove materiality. It does appear that it is reasonably probable that the documents sought to be examined constitute or contain material evidence, and that is sufficient. The question as to whether they do embody evidence that is material will be determined if and when it arises in the trial of the case, and no prejudice can result from a direction to the defendant at this time to produce the documents designated in paragraphs 14, 23, 24 and 28. In paragraph 24, the plaintiff requests the production of “ ‘proof’ that Airplane Flight Manual for Airplane NC-37506 was revised to include CAA Approved Procedures covering ‘Fuel Usage’, ‘Fire Fighting’ and ‘Smoke Evacuation from the Cockpit’.” Rule 34 provides for the production and in114spection of designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, and does not provide for the production of proof. A proper order will be made directing the production of the documents, records, papers, or tangible things designated in paragraphs 14, 23, 24, and 28. Order Now, April 5, 1950, it is ordered and directed that United Air Lines, Inc., defendant, produce and permit Jessie I. Schuyler, ancillary executrix of the estate of Earl Carroll, deceased, plaintiff, through her counsel, to inspect and to copy or photostat, if counsel so desire, the documents, books, records, papers, pamphlets and bulletins, as follows: 1. The “squawk sheet” of Capt. John M. Roberts, Crew Captain of Airplane NC-37506, on Flight 624 from Los Angeles to Chicago, June 16-17, 1948; 2. All records, papers, documents, work sheets, and inspection reports of mechanical, electrical, and any other maintenance crews servicing Plane NC-37506 prior to take-off on Flight 624 from Chicago, Illinois, en route to New York City, June 16-17, 1948; 3. United Air Lines Operating Manual for DC-6 Pilot and Co-Pilot in force, in effect, and in use during the months of May and June, 1948; and in particular, the training instruction pertaining to emergency procedure in the event of fire or false alarm of fire; 4. Copy of Douglas Aircraft Operating Manual in effect during the months of May and June, 1948, pertaining to DC-6 Airplane NC-37506; 5. Work sheet, check list and inspection reports showing repair of hyraulic lock, engine number two, trip 624, June 16, 1948, Airplane NC-37506; 6. United Air Lines Maintenance Service Bulletin “DC-6 Maintenance,” dated April 27, 1948; 7. “Squawk sheet” and full report of Captain L. L. Jones concerning trip to Seattle and thence to Los Angeles, June 16, 1948, Airplane NC-37506, and work sheets and inspection reports showing corrective measures taken at Seattle and Los Angeles to remedy complaints referred to in Captain Jones’ report. 10. Copy of “scroll” of the cockpit coordinator containing emergency procedures and carried aboard Airplane NC-37506 on Flight 624, Seattle, Los Angeles, Chicago, New York, June 16 and 17, 1948. 16. Telegram dated June 10, 1948, to United Air Lines from the Air Transport Association suggesting tests to determine possible oxygen deficiency in cockpit when CO2 bottles are pulled in cargo compartment, and answers to same. 20. Copy of United Air Line Syllabus (approved by Civil Aeronautics Authority) in use at Denver Training Center, Denver, Colorado, during the months of January through June, 1948, and used in the training of crew personnel in “Refresher Course” with regard to the operation of the DC-6 Airplane. 21. Original copy of “Master Log” United Airlines operated DC-6 No. NC-37506. 27. Copy of “CAA Approved Airplane Operating Manual” revised dated February 26, 1948, and in effect on June 17, 1948; this manual may be known to Defendant as “Douglas Approved Operating Manual”, as approved by the CAA. 14. All records, pre-flight inspection reports, books, papers, “squawk sheets”, worksheets, check-lists of and by mechanics or technicians, including flight crews, and all other documents in possession of the defendant pertaining to the modification for re-certification and maintenance of Airplane NC-37506 following withdrawal from service in November, 1947, and up to and including June 17, 1948. 23. All United Air Line file copies of Douglas Service Bulletins having any material reference to the re-certification requirements of Airplane No. NC-37506, following the grounding of said airplane in November, 1947, up to and including the date of re-certification of said airplane. 24. All work sheets, check-lists, inspection reports, and any and all other books, papers, records, showing work done, names *115of individual workmen and inspectors performing such work and date of compliance with each and every of said Douglas Service Bulletin above referred to and more particularly set forth as follows: (Airworthiness Directive March 8, 1948)— Douglas Service Bulletins DC-6 Nos. 204A, dated December 18, 1947 ; 204B, Feb. 1948; 200 Feb. 26, 1948; 201, Dec. 6, 1947; 202, Dec. 9, 1947 ; 208, Feb. 20, 1948 ; 226, Feb. 1948 ; 226, Feb. 21, 1948 ; 226, Feb. 12, 1948; 226, Feb. 26, 1948; 226, Feb. 24, 1948; 233, Jan. 14, 1948 ; 247, Feb. 18, 1948 ; 252, Feb. 17, 1948; 262, Feb. 24, 1948; 258, 225, Feb. 24, 1948 ; 246, Feb. 17, 1948; 224, Feb. 24, 1948 ; 217, Dec. 23, 1947 ; 214, Feb. 16, 1948; 230, Feb. 16, 1948; 149, Dec. 5, 1947 ; 237, Feb. 21, 1948; 248, Feb. 13, 1948; 212, Jan. 7, 1948; 206, Dec. 9, 1947 ; 218, Dec. 17, 1947; 221, Dec. 20, 1947 ; 210, Dec. 22, 1947; 213, Dec. 1947 ; 242, Feb. 17, 1948; 203, Feb. 17, 1948 ; 260, Feb. 24, 1948; 267, Feb. 27, 1948 ; 205, Feb. 23, 1948; 207, Dec. 19, 1947 ; 253, Feb. 24, 1948 ; 219, Dec. 19, 1947; 114, Oct. 29, 1947 ; 261, Feb. 25, 1948 ; 249, Feb. 24, 1948 ; 232, Feb. 16, 1948 ; 234, Jan. 23, 1948; 62, Sept. 2, 1947; 111, Oct. 22, 1947; 119, Dec. 6, 1947; 16, June 26, 1947; 161, Jan. 20, 1948 ; 95, Oct. 21, 1947; Douglas Service Letter Dec. 29, 1947 to United Air Lines (Reference A214TS-2521/WRD529.37); (Airworthiness Directive Mar. 15, 1948)— Douglas Service Bulletins DC-6 Nos. 223, Feb. 24, 1948 ; 38, Oct. 6, 1947; 250, Feb. 19, 1948; 211, Feb. 23, 1948 ; 227, Feb. 24, 1948 ; 243, Jan. 26, 1948 ; 245, Feb. 24, 1948 ; 40, Sept. 3, 1947; 71, Sept. 3, 1947; 96, Dec. 22, 1947; 141, Feb. 19, 1948; 150, Dec. 1947; 160, Feb. 2, 1948; 179, Dec. 29, 1947; 28, Aug. 20, 1947 ; 258, Feb. 13, 1948 ; 257, Feb. 18, 1948; 13, Aug. 28, 1947, and to produce all work sheets, check-lists, inspection reports and any and all other papers, books, and documents, showing compliance by the United Air Lines, Inc. with the terms and provisions and requirements of Civil Air Regulations, Amendments 41-3, 42-2, and 61-2, as well as Douglas Service Bulletin No. 62 “Install Smoke Detector in Belly Baggage Compartment”; Service Bulletin 66 “Engine Section Piping and Fitting Revision.” 28. Original records, books, work sheets, inspection reports, of the United Air Lines, Inc., showing what, if any, compliance was made by the defendant with the requirements of the following Civil Air Regulations in existence and effect on June 17, 1948; Sections 04b.49; 04b.3825l; 04b.-38251(a); 04b.3825l(b); 04b.38251(c); 04b.38252; and O4b.4910. It is further ordered that the documents, books, records, papers, pamphlets and bulletins, which defendant is herein ordered to produce, be produced by the defendant in Court Room No. 1, Federal Building, Scranton, forthwith, and be made available to the plaintiff, through her counsel, for inspection and copying or photostating, if counsel so desire. Plaintiff’s Motion for Production of Documents is denied as to those documents, etc., designated in paragraphs 8, 9, 11, 12, 13, 15, 17, 19, 22, 25, 26, 29 and 18. . 28 U.S.C.A. . Baldwin v. Newhall, D.C.M.D.Pa. 1948, 8 F.R.D. 368. . Lewis v. United Air Lines Transport Corp., D.C.W.D.Pa. 1940, 32 F.Supp. 21. . D.C.E.D.N.Y.1939, 29 F.Supp, 585, 586. . Hickman Adm’r v. Taylor, 1947, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 and United States v. 5 Cases, etc., D.C.Conn. 1949, 9 F.R.D. 81.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218639/	McGRANERY, District Judge. This action was brought under the Sherman Act, 15 U.S.C.A. § 1 et seq., and under the Clayton Act, 15 U.S.C.A. § 12 et seq., to obtain an injunction and to recover treble damages for alleged violations of those statutes by the defendants. The defendant Paramount Pictures, Inc. (hereinafter referred to as the defendant) was, at the time of the institution of this suit, a corporation organized under the laws of New York, but subsequently it was dissolved. The defendant had registered to do business in the State of Pennsylvania, pursuant to the provisions of Article X of the Business Corporation Law of 1933, P.L. 364, Secs. 1001-1015, 15 P.S. § 2852 — 1001 et seq., but actually transacted no business within the State after August of 1941. However, its wholly owned subsidiary corporation did and still does business in this district. Service of process was made by a United States Marshal, upon an employee of the subsidiary corporation. The defendant moves, under Rule 12 of the Federal Rules of Civil Procedure, 28 U.S.C.A., to dismiss the complaint or, in lieu thereof, to quash the return of service of summons as to it, on the ground that venue is improperly laid in this district, and on the further ground that this Court cannot, by any form of service of process, acquire jurisdiction over the defendant. There are two distinct problems involved in this case, one of service of process, and one of venue. Inasmuch as service of process is the procedure by which the Court may obtain jurisdiction over the person of the defendant so that he may be brought into court at the place where, under the appropriate law of venue, the suit may be maintained, consideration will be directed first to the problem of service. In a suit under the Federal antitrust laws, Section 12 of the Clayton Act, 15 U.S.C.A. § 22, provides not only for venue, but it also provides where process may be served. Service here, under that section, is valid only if the defendant was an “inhabitant” of this district or if it was “found” here. The defendant corporation itself, as distinguished from its subsidiary, did no business in this district, and it cannot be said to have done business here merely because its wholly owned subsidiary did. Consolidated Textile Corp. v. Gregory, 289 U.S. 85, 53 S.Ct. 529, 77 L. Ed. 1047; People’s Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 38 S.Ct. 233, 62 L.Ed. 587, Ann.Cas.1918C, 537; Connon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634. Consequently, the defendant was not “found” within this district. “When applied to a corporation this requirement is the equivalent of saying that it must be present in the district by its officers and agents carrying on the business of the corporation.” People’s Tobacco Co. v. American Tobacco Co., supra, 246 U.S. at page 84, 38 S.Ct. at page 234. If the defendant did no business in this district, it could not have been “carrying on business” in the sense denoted 861, by “found”. See U. S. v. Scophony Corp., 333 U.S. 795, 807, 68 S. Ct. 855, 861, 92 L.Ed. 1091. Nor is the defendant an “inhabitant” (a word synonymous with “resident”) of this district. It is incorporated under the laws of the State of New York, and is therefore a resident of that State. Shaw v. Quincy Mining Co., 145 U.S. 444, 12 S.Ct. 935, 36 L.Ed. 768; Suttle v. Reich Bros. Construction Co., 333 U.S. 163, 68 S.Ct. 587, 92 L.Ed. 614. The definition of corporate residence in Section 1391(c) of Revised Title 28 U.S.C.A. is, by its own terms, “for venue purposes”, so that it does not affect corporate residence for the purposes of service of process. Cf., Wagner Mfg. Co. v. Cutler-Hammer, Inc., D.C., 84 F.Supp. 211. The purported service upon the defendant in this district was, therefore, invalid under the terms of Section 12 of the Clayton Act. Service of process in this case could be sustained only if the defendant has waived compliance with the service provisions of Section 12. By virtue of its 125registration to do business in Pennsylvania, it has designated the Secretary of the Commonwealth as “the true and lawful attorney of the corporation upon whom all lawful process in any action or proceeding against it may be served * 15 P.S. § 2852 — 1004. Even if this designation is held to he a waiver of the service requirements of Section 12, that is, a consent to accept process in this district in a suit under the Federal anti-trust laws, the terms of that consent have not been complied with inasmuch as the Secretary of the Commonwealth was not served. Nevertheless, if waiver is established, service need not necessarily he made on the Secretary, provided it be made in accord with some other recognized practice. See Ward v. Studehaker Sales Corp., 3 Cir., 113 F.2d 567; Wachtler v. Chicago etc. R. Co., D. C., 7 F.R.D. 560. Federal Rule 4(d)(3) permits service on an agent authorized by law to receive process. The Marshal’s return recites that the summons and complaint were served upon “Ulrik F. Smith, Branch Manager in this district at that time” for the defendant. The defendant has submitted an affidavit to the effect that it did not have any place of business or any agent or representative within the State of Pennsylvania, and that Ulrik F. Smith was not an agent, employee, representative or officer of the defendant, nor authorized to accept the service of process for it. The plaintiff, by way of reply, has submitted no affidavits, but merely asserts in its brief that Mr. Smith’s relationship to the defendant is shown by the fact that in a case pending in this Court he has been called and has testified in depositions taken by adversaries of the defendant. I take it as established, therefore, that the defendant maintained no “branch” in this State, that Mr. Smith was not its “Branch Manager” or otherwise its employee or agent, and that he was not an agent authorized to accept the service of process on the defendant. Consequently, service under Rule 4(d)(3) was invalid, and similarly there was no valid service under Rule 2180(a) of the Pennsylvania Rules of Civil Procedure, 12 P.S.Appendix, relevant under Federal Rule 4(d)(7). Since there has been no valid service of process, it is unnecessary to consider the question of venue. The defendant’s motion to quash the return of the summons will be granted.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218640/	FOLLMER, District Judge. This is a motion by the defendant to dismiss the action, or, in lieu thereof, to quash the return of service of the summons. Plaintiff, a resident of Montgomery County, Pennsylvania, brought this action against defendant, a Delaware corporation, having its principal office and place of business at Henderson, North Carolina, for breach of contract. The return of service by the United States Marshal reads as follows: “I hereby certify and return, that on the 7th day of June, A.D. 1949, I received the within summons and served the same at Phila., Pa., in my district, on June 7, 1949, upon The Corbitt Company by leaving a true and attested copy thereof, together with a copy of the complaint, — at the dwelling house, located at 501 W. Hortter St., Phila., Pa., of William S. Lowe, Managing Agent in Charge of The Corbitt Company’s affairs in this district at that time, — with an adult member of his family, to wit: his wife, Mrs. A. H. Lowe, and making contents of the same known to her.” The motion must be decided on the facts averred in the complaint, affidavits, and deposition, which for the purpose of this motion will be accepted as true.1 The facts before the Court are as follows : Defendant company is engaged in the ■business of manufacturing trucks, tractors, and trailers at Henderson, North Carolina. On or about November 29, 1948, plaintiff placed with a dealer, C. W. Anderson, an order for the purchase of a truck from defendant for the sum of $7,000.00 of which a down payment of $3,000.00 was made by plaintiff by check in that amount payable to the order of “The Corbit Company” (sic). The order carried the following inserts, “$3000.00 Deposit Ballance (sic) $4000.00 Plus Tax Contract For Hauling With Hershel Mathews Trucking Inc. At Compision (sic) To Be At Least 75. Percent of Gross Tarrif (sic). Contract And Trade (sic) To Be Approved By Pursher (sic) On Delivery, Or Trailer To Be Resold And Deposit Returned.” Defendant disclaimed any responsibility in connection with the hauling contract, claiming that that was a matter for determination 127between plaintiff and Mathews. Defendant notified plaintiff trailer was ready for delivery and requested advice as to when plaintiff would call. Plaintiff replied that he would call for trailer “as soon as you tell me you have the hauling contract also for me as stated in my contract with you.” Following that impasse the suit was instituted. Defendant owns no property in Pennsylvania and maintains no office in Pennsylvania; it is not listed in any telephone directory in Pennsylvania; it carries no bank account in Pennsylvania; its products are not delivered in Pennsylvania but are delivered at the North Carolina plant where the purchaser takes physical possession of the truck or trailer involved. W. J. Lowe is employed by defendant as its sole representative in Eastern Pennsylvania, and although his title is “District Manager,” his chief functions are to solicit dealers to handle defendant’s products and to solicit orders for defendant’s products; he is paid on a salary basis plus a commission paid on total sales over a certain amount; he solicits orders where defendant has no dealers and in addition, irrespective of dealers, he sells direct to so called national accounts; he uses his home as the base for his operations; he has no authority to close contracts with dealers and his suggestions in relation to dealers is subject to confirmation by the home office of the defendant; he has no authority to adjust claims; orders solicited directly by him are subject to acceptance by the home office ; down payments are channelled through Lowe to the defendant by check drawn to the order of defendant and forwarded by Lowe to the home office in North Carolina, or, if the down payment is made in cash, by Lowe’s depositing the cash in his personal account and forwarding his own check to the home office; he has no functions other than those in connection with the solicitation of dealers and direct orders. From July, 1948, to October, 1949, approximately fifteen Corbitt trucks or trailers were sold to Pennsylvania customers, grossing about $100,000.00. The home office in North Carolina reserved the right to approve or reject suggestions by Lowe as to prospective dealers and also all orders forwarded either by Lowe or any dealer. The plaintiff argues that the things done by defendant's representative in this jurisdiction were sufficient to make defendant amenable to the process of this Court when served on that representative; defendant, on the other hand, contends that it was not doing business in Pennsylvania in 1948 and therefore the service is void. Very recently in Hanley Company, Inc., v. Buffalo Forge Company, D.C., W.D.Pa., 89 F.Supp. 246, I discussed at some length my understanding of the law as it has been stated by the Supreme Court of the United States on the over-all question here involved, starting with the “mere solicitation” doctrine as propounded in Green v. Chicago, Burlington and Quincy Railway Company, 205 U.S. 530, 27 S.Ct. 595, 51 L.Ed. 916, through the “solicitation-plus” doctrine of International Harvester Company of America v. Commonwealth of Kentucky, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479, and ending with “presence theory” of International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057. I see no necessity to repeat the same here but do adopt by reference the comments therein made. “ * * Although the rule (mere solicitation) has not been clearly and expressly repudiated by the Supreme Court, its integrity has been much impaired by the decisions which sustain jurisdiction when very little more than 'mere solicitation’ is done.”2 Nevertheless, in this case I can see nothing but solicitation, first of dealers, and secondly of orders. Rule 4(d) (3) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides a method of service of process, inter alia, on foreign corporations. It is furthermore provided in Rule 4(d) (7) that “it is also *128sufficient if the summons and complaint are served in the manner prescribed by any statute of the United States or in the manner prescribed by the law of the state in which the service is made for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state.” This is an action based on diversity of citizenship and no federal statute is applicable. It is therefore necessary to inquire as to whether the service made herein was valid under the law of Pennsylvania. In Pennsylvania service of process on foreign corporations is governed by Pennsylvania Rule of Civil Procedure No. 2179(a), 12 P.S.Appendix. This rule provides that service on a foreign corporation may be effected only in “(1) the county where its registered office or principal place of business is located; or (2) a county where it regularly conducts business.” Since the defendant has no registered office in Pennsylvania and its principal place of business is not located here, it follows that under Pennsylvania law service can be sustained only if it has been served with process in a county “where it regularly conducts business.” Rule 2179 (a) (2) in using the term “regularly conducts business”merely restates the earlier Pennsylvania cases which invalidated service on foreign corporations which were not “doing business” within the county where they were served. As stated in the Goodrich-Amram Procedural Rules Service (Standard Pennsylvania Practice), section 2179 (a) (2), “Subdivision (2) of Rule 2179(a) restates the prior practice with respect to venue of actions against domestic corporations, and introduces no new concept. Decisions under the prior practice remain authoritative insofar as they discuss what does and does not constitute sufficient activ-iy within the particular county to support venue therein.” A long line of cases starting with Shambe v. Delaware & Hudson R. R. Co., 1927, 288 Pa. 240, 135 A. 755, through New v. Robinson-Houchin Optical Company, 1947, 357 Pa. 47, 49, 53 A.2d 79, 80, have consistently held that “Mere solicitation of business within the commonwealth does not in itself constitute the ‘doing of business.’ ” I therefore conclude that defendant was not doing business within this District in such manner as to subject it to service of process here. Motion to dismiss the action and to quash the service of the summons is granted. . Kaffenberger v. Kremer, D.C.E.D.Pa., 63 F.Supp. 924; Alexander Young Distilling Co. v. National Distillers Products Corporation, D.C.E.D.Pa., 33 F.Supp. 334; Metropolitan Life Ins. Co. v. Skov, D.C.Or., 45 P.Supp. 140. . Frene v. Louisville Cement Co., 77 U.S.App.D.C. 129, 134 F.2d 511, 517, 146 A.L.R. 926.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218641/	McGOHEY, District Judge. This is a seaman’s death action under the Jones Act, 46 U.S.C.A. § 688, in which plaintiff moves, pursuant to Rule 34, Federal Rules of Civil Procedure, 28 U.S.C.A., for an order to compel production of certain documents. Of the eight items demanded, defendant objects to producing only the third: “All statements taken from any of the members of the crew concerning the accident up to the time suit was instituted by the plaintiff.” Defendant asserts that no good cause is shown as required by the rule. The affidavit of plaintiff’s counsel attached to the notice of motion, in so far as it purports to make any showing of good cause, states only the following: “The instant case has been assigned Calendar Number 3321 and in order to properly prepare for trial the aforementioned papers and documents have been requested to be produced by the defendant for inspection and copying. “Your deponent expects to prove that the vessel was unseaworthy and negligently navigated.” Permission was granted plaintiffs attorney to submit additional arguments by letter and one, dated March 14, 1950, has been received and, though unsigned, has been considered. In it I find this statement: “The plaintiff’s attorney does not even know the number of persons from whom statements have been taken.” This is suprising in view of defendant’s answers, filed December 12, 1949, to plaintiff’s interrogatories. The second answer gives the names of six persons who made written statements, and their addresses appear in crew list which was furnished as part of the answers. There is no showing that any attempt has been made by plaintiff’s attorney to interview and get statements from these members of the crew, except a not very enlightening comment on argument, that only a few of the crew had responded to letters. One further quotation from the unsigned letter will suffice: “Unfortunately, the plaintiff is unable to maintain a large staff of investigators.” This bit of information is undoubtedly true. Indeed, one would suppose that the lack of such staff is one of the reasons that impelled the plaintiff to retain counsel. If it is offered to explain to the court what attempts counsel, as distinguished from the plaintiff herself, has made to secure statements from the six persons whose names he has had since the twelfth of last December, it fails completely to do so. Accordingly, if the court were to look only to this letter and the affidavit for a showing of good cause, this motion would have to be denied. However, the financial distress of the plaintiff, who is the widow of the deceased seaman, was deemed by Judge Knox sufficient to warrant preference in this case and he has put it down for trial on June 5 next. From what has been said above, the court fears that if the discovery is not granted the widow may either have to proceed to trial ill-prepared or lose her preference. This hard choice, it seems to the court, constitutes sufficient cause within the rule and the motion is therefore granted. Submit order.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218642/	McGOHEY, District Judge. For the third time defendants move to dismiss because the complaint does not comply with the Federal Rules of Civil Procedure, 28 U.S.C.A., although the plaintiff has twice been ordered to amend in conformity therewith. The action appears to be for breach of contract, although by whom or in what manner or, indeed, of what contract, it is impossible to learn from reading this second amended complaint. Two other Judges of this court had similar difficulties with its predecessors. The original complaint was served on August 4, 1949. The defendants’ motion for a more definite statement, as provided in Rule 12(e), was granted, and the order entered on September 19, 1949 specified with particularity the defects to be corrected and the details to be furnished. Thereafter, on October 27, 1949, the first amended complaint was served and it, too, on motion, was ordered on January 20, 1950 to be amended within twenty days, under penalty of dismissal because, as the court found, it failed to comply with the order of September 19. Now we have under consideration the plaintiff’s third effort. The only substantial difference in this second amended complaint is a new and additional cause of action. ■ After realleg-ing all the paragraphs of the first cause of action, the second, in one long and confusing paragraph, charges fraud, conspiracy, conversion and wrongful interference with a business. The court’s previous orders have clearly been breached in pleading the first cause of action in this new complaint, and the second cause of action certainly ignores them. The plaintiff apparently just will not obey the rules or the court’s orders, despite the provision in the order of January 20, 1950 directing dismissal of the complaint unless the court’s directions of September 19 were complied with. All the infirmities of the original complaint are manifest in this second cause of action and the history of this case gives no basis for hope that they will ever be removed. Indeed, it seems quite clear that the second cause of action was inserted merely as a device to circumvent the two previous orders and to lay a basis for the argument which is now urged that the second cause of action, being pleaded now for the first time, cannot be dismissed without opportunity for one amendment under Rule 15(a). *131Under this theory the plaintiff could flout not only Rule 12(e) but also the orders of this court for as long as ingenuity can suggest more causes of action. This would surely not promote the efficient and speedy determination of issues. That is the underlying purpose of the Federal Rules of Civil Procedure, which are to be applied not as a set of isolated precepts but a harmonious whole. Disproportionate emphasis therefore may not be prudently accorded to one rule in disregard of another which comes into operation. United States v. Ass’n of American Railroads, D.C. Neb, 4 F.R.D. 510, 529. This plaintiff already has had two opportunities to amend in accordance with specific directions. Having ignored those directions, he will not now be allowed to use Rule 15(a) to nullify Rule 12(e), which makes clear that a litigant may not “remain in court on a mere pleading generality without some indication that he has substance to back it up.” Clark, Experience Under the Amendments to the Federal Rules of Civil Procedure, 1950 Rev.Ed., Federal Rules of Civil Procedure and New Title 28 U.S.Code, p. 6. The separate motions of each defendant to dismiss the complaint are therefore granted. Submit orders.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218643/	DELEHANT, District Judge. By an order recently entered upon the court’s motion after an examination of the files in this action, a time was prescribed for hearing upon (a) the question of the court’s jurisdiction and (b) any then pending and undetermined motion or other preliminary pleading in the case. At such hearing the problem of jurisdiction was chiefly considered. Briefs relating to it have also been submitted, the plaintiff supporting, and the defendants Byron Reed Company, Inc., and Glenn H. LeDioyt opposing jurisdiction. The action was instituted by the plaintiff, a citizen of Nebraska against the defendants, Mellon, a citizen of California, Byron Reed Company, Inc., a Nebraska corporation, and LeDioyt, a citizen of Nebraska. The complaint’s averments touching citizenship are not made with precision, since it speaks, in the case of the individual parties, rather of “'residence” and “domicile”. But the citizenship of those two parties is not questioned. Process was served on the defendant corporation and LeDioyt in Douglas County, Nebraska, and a summons was issued for the defendant Mellon and a copy of it and a copy of the complaint were delivered to her in Los Angeles, California. Alleging his occupancy as tenant of a Nebraska farm owned by the defendant, Mellon, whose agent in the farm’s management was and is the defendant corporation, represented in the field by the defendant, Le-Dioyt, its employee, and that the defendant, LeDioyt, in the course of his employment by the corporate defendant and in behalf of the defendant, Mellon, wrongfully abused, threatened and assaulted the plaintiff, the plaintiff demands judgment against the defendants, and each of them, for a sum of money exceeding $3,000.00, together with costs. The case is, therefore, one fo'r the recovery of a joint and several judgment for money only against all of the defendants, and an entirely personal action. Jurisdiction is claimed on the ground of diversity of citizenship. It must obviously be denied because of the common Nebraska citizenship of the plaintiff and the defendants Byron Reed Company, Inc., and LeDioyt, jointly included as defendants with the defendant Mellon. By Title 28 U.S.C.A. § 1332(a)(1) it is provided that: “The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $3,000 exclusive of interest and costs, and is between: (1) Citizens of different States”. Construing the indistinguishable language of the code in its former revision, which is the source of Section 1332(a)(1), the Supreme Court of the United States recently said in Indianapolis v. Chase National Bank, 314 U.S. 63, 62 S.Ct. 15, 17, 86 L. Ed. 47: “To sustain diversity jurisdiction there must exist an ‘actual’ * * * ‘substantial’ * * * controversy between citizens of different states, all of whom on one side of the controversy are citizens of different states from all parties on the other side.” And it resorted in support of that observation to the early case of Strawbridge v. Curtiss, 3 Cranch 267, 7 U.S. 159, 2 L.Ed. 435 in which the court as early as 1806 ruled that, “If there be two or more joint plaintiffs, and two or more joint defendants, each of the plaintiffs must be capable of suing each of the defendants, in the courts of the United States, in order to support the jurisdiction.” The necessity of actual diversity of citizenship as between each hostile plaintiff and defendant has often been reiterated by the supreme court, sometimes in default of any jurisdictional contention by parties. Among representative cases may be mentioned, Cameron v. McRoberts, 3 Wheat. 591, 16 U.S. 591, 4 L.Ed. 467; Greeley v. Lowe, 155 U.S. 58, 15 S.Ct. 24, 39 L.Ed. 69; Shainwald v. Lewis, 108 U.S. 158, 2 S.Ct. 385, 27 L.Ed. 691; Mitchell v. Maurer, 293 133U.S. 237, 55 S.Ct. 162, 79 L.Ed. 338; Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85; and Lee v. Lehigh Valley Coal Co., 267 U.S. 542, 45 S.Ct, 385, 386, 69 L.Ed. 782. In the case last cited, the court affirmed an order of dismissal for want of jurisdiction of a suit for relief under a lease brought in the District Court for the Southern District of New York against the lessee, a Pennsylvania corporation, and, as an allegedly unwilling party, the plaintiff’s sister and colessor, a citizen of Pennsylvania. Upon appeal the plaintiff argued that his colessor was not a necessary party in which relation she would have to be aligned with him as a plaintiff for jurisdictional purposes ; and the court, speaking through Mr. Justice Holmes, noticed the familiar rule that a defendant seeking to remove a case to the federal court may question the status as a necessary party of one or more of the other parties included by his adversary. But the court then said: “It is a different question whether the plaintiff can repudiate the effect of his own joinder, can retain a party to the relief sought and yet keep him on the wrong side in order to avoid the effect of his own act. Without inquiring whether the plaintiff could have maintained the suit alone had he so elected and had he found it impossible to- join Kate P. Dixon, obviously she was a ‘necessary’ even if not an indispensable party. Shields v. Barrow, 17 How. 130, 139, 15 L.Ed. 158. It would be hard upon the Coal Company to compel it to submit to an adjudication upon the lease, upon a fraud alleged to have been committed against both owners, and to an account, in the absence of one of the lessors. The joinder of both is much more than a mere form. As both are named they must be arranged upon the side on which they belong. Menefee v. Frost, 2 Cir., 123 F. 633. Blacklock v. Small, 127 U.S. 96, 8 S.Ct. 1096, 32 L.Ed. 70.” The court of appeals, eighth circuit, has consistently and necessarily observed the same rule, e.g., Hawes v. First National Bank of Madison, 8 Cir., 229 F. 51; Emmke v. DeSilva, 8 Cir., 293 F. 17; Thomson v. Butler, 8 Cir., 136 F.2d 644, certiorari denied 320 U.S. 761, 64 S.Ct. 69, 88 L.Ed. 454, rehearing denied 320 U.S. 813, 64 S.Ct. 156, 88 L.Ed. 491; Thompson v. Moore, 8 Cir., 109 F.2d 372; De Hanas v. Cortez-King Brand Mines Co., 8 Cir., 26 F.2d 233, certiorari denied 278 U.S. 635, 49 S.Ct. 32, 73 L.Ed. 552. And it is administered uniformly in other United States courts. Mathers & Mathers v. Urschel, 10 Cir., 74 F.2d 591; Levering & Garrigues Co. v. Morrin, 2 Cir., 61 F.2d 115, affirmed 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062; Osthaus v. Button, 3 Cir., 70 F.2d 392; Shipp v. Williams, 6 Cir., 62 F. 4; Van Ingen & Co. v. Burlington County Bridge Commission, D.C.N.J., 83 F.Supp. 778; Genevese v. Skol Co., D.C.N.Y., 73 F.Supp. 423; Soptich v. St. Joseph National Croatian Beneficiary Ass’n, D.C. Kan., 34 F.2d 566. On this occasion, the plaintiff has elected to proceed against the, three defendants upon an alleged joint liability. He had the unquestionable right to- do that since, under the law of Nebraska where the tort is claimed to have been committed, a joint liability could arise against the three defendants for a wrong committed by the defendant, LeDioyt, in the course of his employment by Byron Reed Company, Inc. and, through it, by the defendant, Mellon. To that joint claim all three defendants are proper parties. And two of them sharing Nebraska citizenship with the plaintiff, this court’s jurisdiction fails. The case is, therefore, being dismissed at the plaintiff’s costs for want of jurisdiction. In view of that dismissal the court is under no necessity of proceeding further with its discussion. It may, however, be observed in the interest of clarity and thoroughness that, although at the time of the hearing the defendants Byron Reed Company, Inc. and Glenn H. LeDioyt had formally tendered only a presently Irrelevant motion for a more definite statement, the defendant, Mellon, had served and filed a motion to quash service of process on her. Considered as a motion within the contemplation of Rule 12(b) (4, 5), Federal Rules of Civil Procedure, 28 U.S.C.A., that pleading is well taken and would necessarily be sustained, if the dismissal for want of jurisdiction were not required. 134Pointing to Title 28 U.S.C.A. § 1391(b), the plaintiff insists that he had the right to bring his action against the defendant Mellon in this district and division where he, the sole plaintiff, resides. That is true but it is no answer to the position tendered in the motion of the defendant Mellon. Electing to sue her in this purely personal action within the state of his own residence, the plaintiff must proceed in such circumstances that he may obtain service of process upon her in Nebraska. If, by coming into Nebraska or otherwise, she shall hereafter bring herself within the service of the process of this court, he may still sue her in this district and division, but not jointly with her present codefendants or any other Nebraska citizen. Except when a statute of the United States provides for service beyond the territorial limits of the state in which the court is held, the reach of this court’s process is limited to the state of Nebraska. Rule 4(f), Federal Rules of Civil Procedure; Camp v. Gress, 250 U.S. 308, 314, 39 S.Ct. 478, 481, 63 L.Ed. 997 wherein the court in this connection said: “Ordinarily jurisdiction could be obtained in the district of the plaintiff’s residence only over nonresidents because all of the defendants must be nonresidents in order to satisfy the requirement of diversity of citizenship. And as to these there can be personal jurisdiction only so far as found within or voluntarily appearing within the district.”; Moreno v. United States, 1 Cir., 120 F.2d 128; Howard v. United States, 10 Cir., 126 F.2d 667, certiorari denied 316 U.S. 699, 62 S.Ct. 1297, 86 L.Ed. 1768; Melekov v. Collins, D.C.Cal., 30 F.Supp. 159; Niemiec v. Interstate Motor Freight System, D.C. Mich., 2 F.R.D. 408; Miller v. Hano, D.C. Pa., 8 F.R.D. 67. No statute is suggested, or believed by the court to exist, as authority for the service of the process of this court beyond the boundaries of Nebraska in an action of this character. Accordingly, if the suit were not being dismissed for want of jurisdiction, the motion of the defendant Mellon for the quashing of the service of process upon her would be granted and sustained and such service would be quashed. Such action would leave a suit whose plaintiff and only defendants are Nebraska citizens, which in default of any asserted ground of jurisdiction except diversity of citizenship, would then imperatively undergo dismissal for failure of jurisdiction.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218645/	LEAVY, District Judge. The petitioner herein seeks relief from a final decision of the United States Board of Immigration Appeals. The decision dismissed the petitioner’s appeal from an order of the Assistant Commissioner of Immigration and Naturalization. The Assistant Commissioner had affirmed a decision of the Board of Special Inquiry, held at San Francisco, California, excluding the petitioner as a person not qualified for admission under the Act of December 28, 1945, Public Law 271, 8 U.S.C.A. § 232. The complaint of the petitioner seeks a declaratory judgment finding that he is the minor son of Hong Jam Eng, and that the said Hong Jam Eng is an honorably discharged veteran of the United States Armed Forces, a naturalized citizen of the United States, and entitled to have his minor children, though born abroad, admitted into the United States under’ the provisions of the above-mentioned Act. Service was made upon the parties defendant by registered mail: on the Attorney General in Washington, D. C., and on the Acting Director of Immigration and Naturalization in San Francisco. The petitioner contends that such service confers jurisdiction upon this court by virtue of 8 ■ U.S.C.A. § 903 and section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009. *137The defendants have moved to dismiss the petition on jurisdictional grounds, claiming that there is no right conferred upon the petitioner to secure service in the manner indicated, and that jurisdiction in this action can he acquired only as provided in Rule 4(f) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which rule fixes the territorial limits of a district court as being within the state in which such court is held. The petitioner cannot maintain this action in this court by virtue of section 903, as that section is applicable only to those who are, or claim to be, nationals of this country. We must, therefore, look to the other ground on which the petitioner contends the law confers jurisdiction upon this court, which is 5 U.S.C.A. § 1009. The question whether an action such as this can be reviewed in a Federal District Court under the provisions of the Administrative Procedure Act, S U.S.C.A. § 1001 et seq., is one upon which the courts have differed. However, the Supreme Court of the United States, in an opinion rendered February 20, 1950, No. 154, Wong Yang Sung v. McGrath, 70 S.Ct. 445, has put at rest this issue and makes it clear that the Administrative Procedure Act is applicable to a situation such as is disclosed by the pleadings of the petitioner herein. This conclusion does not, however, dispose of the challenge made by the defendants to the jurisdiction of this court, for failure to serve process within the limits as fixed by Rule 4(f) of the Rules of Civil Procedure. In none of the citations submitted, nor in any that we have been able to find, has there been a determination that the enactment of the Administrative Procedure Act modified, amended, or repealed Rule 4(f) as it applies to matters involving either the Immigration and Naturalization Service or the various administrative agencies of the Government. It follows, therefore, that, with Rule 4(f) being in full force and effect, the service as made is without authority of law and leaves this court without jurisdiction over the parties named defendants in this action. This is true even though the Attorney General is not a necessary party. It is the contention of the petitioner that it would work a great hardship upon him should he be required to return to San Francisco and there submit himself to be taken into custody, and then institute a habeas corpus proceeding there. Such a procedure is wholly unnecessary, but it is necessary that the review he seeks be had in a District Court of the State of California, where jurisdiction exists. To construe the Administrative Procedure Act comprehensively enough to bring the petitioner within its terms, by permitting him to maintain this action in this court, would result in permitting any person who felt aggrieved with an administrative decision to travel about the United States and institute an action wherever he happened to be at the moment, and then change his residence either permanently or temporarily to another distant place, and dismiss his original action and institute a new one. I feel this matter turns entirely upon the validity and effectiveness of Rule 4(f), and, for that reason, the challenge to the jurisdiction of this court must be sustained. An order dismissing this action without prejudice for want of jurisdiction may be submitted.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218646/	. BARD, District Judge. On August 26, 1949 a creditors’ petition in bankruptcy was filed against Eizen Furs, Inc., a corporation. On September 30, 1949, ten days before its return day, a pluries subpoena was served upon the alleged bankrupt by leaving a copy of this subpoena, together with a copy of the creditors’ petition, at the residence of the president of the corporation with an adult member of his family. No appearance whatever was made by or filed in behalf of the alleged bankrupt. On October 24, 1949 this Court entered an Adjudication of Bankruptcy and issued an Order of General Reference to a referee in (bankruptcy. On October 31, 1949 the alleged bankrupt filed this petition, which is now before me, to vacate the decree of adjudication and order of reference and to strike off the service of subpoena upon it. Rule 4(d) (3, 7) of the Federal Rules of Civil Procedure, 28 U.S.C.A., and Rule 2180 of the Pennsylvania Rules of Civil Procedure, 12 P. S., Appendix, provide that service of process upon a corporation can only be accomplished by handing a true and attested copy of the summons and the complaint to an officer of the corporation, to the managing agent or person in charge of any office of the corporation, or to a registered agent authorized to accept service of process. The alleged bankrupt contends that service upon an adult member of the household of one of the corporate officers is not in accordance with the aforementioned rules, and is insufficient to confer jurisdiction over the corporation. I agree. General Order in Bankruptcy 37, following Section 53 of Title 11 U.S.C.A., pro*139vides that the Federal Rules of Civil Procedure shall be followed if they are not inconsistent with the Bankruptcy Act of 1898, as amended1. Although the Bankruptcy Act provides for service of process to be made in the same manner as suits in equity, 11 U.S. C. A. § 41, sub. a, Equity Rule 13 applies only to service of process upon individual defendants, not upon corporate defendants. Therefore, it would seem that service of process upon corporations should be made in accordance with the Rules for Civil Procedure. In re Shapiro Holding Corp., D. C., 15 F.2d 601. When interpreted in this manner, the Bankruptcy Act is not inconsistent with Rule 4(d) (3, 7) of the Federal Rules of Civil Procedure. The alleged bankrupt’s petition must be granted. The petitioning creditors contend that under Rule 12(a, h) of the Federal Rules of Civil Procedure the alleged bankrupt has waived its right to object to any insufficiency of service of process since the objection was not filed within twenty days after service was attempted. In this instance the alleged bankrupt has not subjected itself to the jurisdiction of this Court by a voluntary appearance or by any other method. All it has done is file what formerly was a special appearance contesting the jurisdiction of the Court over it. A valid judgment of any kind cannot be granted unless the court has jurisdiction over the person of the alleged bankrupt. Until such jurisdiction is acquired, the twenty day period cannot commence to run against the alleged bankrupt. It could have ignored the entire proceedings and subsequently have attacked any dissolution or sale that might have ensued. Cf. Orange Theatre Corp. v. Rayherstz Amusement Corp. et al., 3 Cir., 139 F.2d 871, 873, certiorari denied sub nom. Orange Theatre Corp. v. Brandt et al., 322 U.S. 740, 64 S.Ct. 1057, 88 L.Ed. 1573. Accordingly, the alleged bankrupt’s petition to vacate the decree of Adjudication of Bankruptcy and the Order of General Reference and to strike off the service of the subpoena upon the alleged bankrupt corporation is hereby granted. . Act of July 1, 1898, c. 541, § 1 et seq., 30 Stat. 544, as amended, 11 U.S.C.A. § 1 et seq.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218647/	KENNEDY, District Judge. Plaintiffs, husband and wife, residents of the State of New Jersey, are suing defendant Harwood, a New York resident physician, for damages in the sum of $115,000 1 allegedly resulting from defendant’s malpractice in performing a tonsilectomy upon the plaintiff wife. In his answer defendant ■ sets up as a separate and complete defense a general release signed by plaintiff wife. Defendant now moves for an order praying for a separate trial on the issue of the release and also for a stay of the action until the trial of that issue. Defendant urges that it has brought itself within rule 42(b), Federal Rules of Civil Procedure, 28 U.S.C.A. in that a 'separate trial will be in “furtherance of convenience” and will “avoid prejudice”. He argues that the release is a complete bar to the wife’s claim2 and further that it will be “utterly impossible in the face of common experience to- gain fair consideration by a jury on the quesion of a general release when it is merged with the over-all consideration of the question of the plaintiff’s recovery for the serious injuries”. On the latter point I cannot bring myself to believe that a jury cannot fairly determine that issue along with the other issues in the case. It will be noted that plaintiff husband is not a party, to the release agreement. Assuming that the release would be a complete bar to the wife’s claim, it would in no way estop plaintiff husband from proceeding with his claim. To determine that claim it will be necessary for the court tO' hear proof on the question whether defendant was or was not guilty of malpractice. In other words, the proof will be the same whether plaintiff wife is or is not a party.Therefore, nothing will be accomplished, except perhaps undue delay, if this motion is granted. The motion is denied. . Plaintiff husband sues for $15,000 for loss of services and for medical expenses. . Defendant seems to say that if it be held that the release bars the wife’s claim, the probability of any recovery by the husband will 'be negligible and if the claim doesn’t fall of its own weight; it could be settled for a nominal amount.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218648/	FOLEY, District Judge. By separate notices of motion, the defendant attacks the amended complaints in the two' actions herein. The actions are similar in their nature and inasmuch as the relief requested by the defendant in its challenges to the complaints is the same, the motions can be discussed as one. As designated by the attorneys for convenience, the “San Rafael” complaint involves five claims, the “Cartonera” complaint sets forth six claims. The notices of motion itemize the particular reasons in reference to the complaints which the defendant relies upon to support the alternative relief it seeks. The request for dismissal must be denied. The dismissal would have to be predicated upon Rule 12(b) (6) of the Federal Rules of Civil Procedure, 28 U.S. C.A. There is no basis in such provision nor in the law for a dismissal because there is no allegation of damage contained in the claim. The complaints do contain demands for money damages and set forth — even if we consider the pleading in respect to damages faulty — claims upon which relief can be granted. In any event, it seems the defendant stresses and places reliance mainly upon the alternative relief that the claims are not set forth with sufficient particularity to enable the defendant to properly prepare its answer. For that reason, the defendant ■seeks a more definite statement based apparently upon the new wording of Rule 12(e) of the Rules, that such pleadings (complaints) are so vague or ambiguous that the defendant cannot reasonably be required to frame responsive pleadings; i. e., answers. The Federal Rules of Civil Procedure were created in an atmosphere of extreme liberality. They were designed, and have been so construed, to obviate the abhorrent technicalities which sometimes arise in procedural problems. In a situation as presented herein, it must be remembered that practicality is at times a much greater virtue than patience. From my reading of the complaints, it is my judgment that they can reasonably be answered by the defendant. The bulk of the money damages are set forth specifically in relation to the “Fifth” and “Sixth” claims of the respective complaints. The remainders, which are easily ascertainable by simple subtraction, are sufficiently related to the preceding claims in each complaint. In my opinion if the plaintiffs are in error at all, they err on the side of too much detail in setting forth the separate counts or claims arising from the alleged breach of single contracts. The complaints, under the circumstances involved in the transactions, are in substantial accord with Rule 10(b) of the Federal Rules in stating the separate claims. I cannot agree that Rule 8(a) compels the demand for damages to be set forth in each claim although in many instances such pleading might be the better draftsmanship. It does not seem an undue burden upon the defendant to meet the issue of damages as set forth in the complaints by the usual denials because the broad remedy of discovery is available under the rules, and the final computation of damages must necessarily depend upon proof at a trial. However, in my judgment, there is confusion created by the commingling of the allegations of preceding claims, which are assumed to be self-sufficient, by realleging them in following claims which should also be self-sufficient. As indicated by the plaintiffs in their brief, it would be much simpler to confine such prior allegations to the general allegations surrounding the contracts which only are necessary to support the separate claims. With this minor surgery, I cannot hold that the complaints *142are vague and ambiguous. The motions of the defendant are granted only to the limited extent indicated herein. The answers of the defendant shall be served ten days after the receipt of complaints amended as herein indicated. An order may enter accordingly.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218899/	ERVIN, District Judge. The Gillis Bros. Construction Company had a contract with the state of Alabama to build three road projects. The complainant signed the bond of the construction company to the state guaranteeing the completion of one of these projects, namely S-90 and payment of the bills. The Bank of Brewton, respondent, advanced money to finance the three projects, taking assignments from the construction company of all sums payable to it by the state from all those projects and containing a power of attorney to indorse the name of the construction company on all of the pay cheeks issued by the state as the work progressed. These assignments were filed with the road department of the state. The proof shows that the bank made advances to the construction company without reference to the project, and, when advances-were made, notes were taken by the bank for the amount of these advances, and, when the pay cheeks came in, again without reference to the project, these notes were paid out of the checks received by the bank. It therefore does not appear what, if anything, was owing the bank for advances on project S-90 when the final cheek was received and appropriated by it. The cashier of the bank testified that no account was kept by the bank of these advances showing the different projects for which the advances were made, and they had no means of proving this fact. He testified further that no entries were made on the books of the bank showing the cash the bank received from the state on the various projects or what moneys the bank advanced to the construction company; that, when the pay cheeks came, notes were taken up with the proceeds of the cheek and the notes returned to the construction company. The contractor seems to have gotten behind with the bank which then took a mortgage on .contractor’s plant, including the mules, and on certain real estate. The last two cheeks before the final one which were for comparatively small sums were placed by the bank to the credit of contractor’s cheeking account in the bank. When the work was finally completed and the publication dulv made of that fact, as required by the contract, the state mailed to the bank a check payable to the construction company for the 15 per cent, held out from the pay cheeks. The president of the bank had managed for the bank the whole transaction. After the completion of the work, and before its acceptance, one of the subcontractors, whose bill for about $7,000- had not been paid, discussed with the president of the bank this bill, and threatened to stop the final cheek, and the president told him that, if he would not do so, the bank would pay his bill out of the cheek when it came. Such payment, however, was not made. 273The cheek was received and indorsed in the name of the contractors and! collected by the bank. The next day it credited the mortgage that had been given it by the contractors with $11,-000, and gave each of the two partners in the contracting firm its cashier’s check for $1,-000, and to the firm $752.36 in cash, and released the mules and contracting plant and the other two projects from the mortgage. One of 'the subcontractors who had not been paid wrote the state complaining, and the state informed the surety of this fact. The testimony showed: That the complainant- made no effort to keep up with the progress of the work by the construction company as it progressed, but relied solely on reports made to it by the state as the state received notice of the failure of the construction company to pay the bills for labor and materials. That it had no notice of any default on the part of the construction company until after the final payment of $14,746.84 was made on January 26, 1929. This check was for $14,746.84, but only $13,843.49 was the percentage held up> and only that sum is involved. Its agent then went down to Montgomery and had an interview with the road department, and ascertained what payments had been made to the construction contractor, and from there to Brewton, where the agent had an interview with the president of the bank and with parties who claimed that the contractor owed them for labor and materials amounting to about $19,288.22. That he then learned that the bank had received the final payment and notified the bank that, if called on to pay these bills, they would look to the bank for reimbursement to the amount of this reserved percentage which had been received by the bank. Suit was brought on the bond by the various parties who claimed amounts due them by the contractor and subcontractor, which resulted in judgment, and was paid by the surety, who then filed this bill, claiming subrogation. The bank denies liability because: (1) It claims priority in right to the money; (2) that in effect the money has been paid to the contractors under the terms of the contract; (3) that the surety, by negligently failing to ascertain the fact of failure of the contractors to pay their bills, and stopping the final payment, have permitted it, in reliance upon the issue of the final check and its payment to them, to release security they held in the mortgage of the contractors. As to the first question: This was considered in Prairie State Nat. Bank v. United States, 164 U. S. 227, 17 S. Ct. 142, 145, 41 L. Ed. 412, which holds two things, viz.: “That a stipulation in a braiding contract for the retention, until the completion of the work, of a certain portion of the considera^ tion, is as much for the indemnity of him who may he guarantor, of the performance of the work, as for him for whom the work is to be performed, that it raises an equity in the surety in the fund to be created.” That the right of a surety on a contract to subrogation dates back to the execution of the surety contract. We are not here concerned with the question of application of payments. That question arises only where the one who received a payment had the right as against his adversary to receive such payment, but equity required him at the instance of such adversary to apply such payment in a particular manner. Here the question goes deeper and questions the right as between the two parties to receive the payment. Of course, if, as between the surety and the bank, the surety had a prior equity in the fund or percentage held baek by the state, then the bank had no right to such payment, and that is the holding of the Prairie State Nat. Bank Case. It is true that in that case the surety took over and completed the performance of the work called for in the contract, while in this one the failure of the contractors was to pay their bills, but this makes no difference; in each ease there was a failure of the contractor to do what its contract required, and the surety was called on and required to make good this failure of the contractor, and was so subrogated to the rights of the subcontractors. Many other eases might be cited but this is the leading ease and settles the proposition. In the Prairie State Nat. Bank Case the final payment was still held by the government, while in the instant case the bank has collected it before the surety knew there had been a default by the contractor, and the surety, having been compelled to pay the subcontractors, is'now seeking to require the bank to account to it for such money. If the surety had an equity in the fund prior to the claim of the bank as assignee of the contractor as held in the Prairie State Nat. Bank Case, then the surety should have the right to require the bank to account, for the bank knew all the facts when it received 274the fund. U. S. Fid. & Guar. Co. v. Bristow (D. C.) 4 F.(2d) 810; Cox v. New England Equitable Ins. Co. (C. C. A.) 247 F. 955; Labbe v. Bernard, 196 Mass. 551, 82 N. E. 688, 14 L. R. A. (N. S.) 457; Mass. Bonding & Ins. Co. v. Chouteau Trust Co. (C. C. A.) 264 F. 793; So. Surety Co. v. Merchants’ & Farmers’ Bank (Ind. App.) 159 N. E. 3. As to the second question: In fact the cheek was not sent to or received by or indorsed by or collected by the contractor. It is true the indorsement by the bank was under a power of attorney from the contractor, but in this whole transaction the bank was acting for itself and in its own interest; it took the assignments and powers of attorney for its own protection and not in the interest of the contractor. The contractor had a checking account in the bank at this time, but the bank, while it filled out a deposit slip, did not deposit the proceeds or any part of it in this account and have the contractor draw checks against it in payment of any sum they owed the bank. On the contrary, it used the deposit slip it filled out as a memorandum so as to keep the whole transaction off their books. In fact, no entry of this transaction appears to have been made on any book of the bank. The two cashier’s cheeks for $1,000 each wrongfully given to the two Gillises seems according to the testimony of C. U. Gillis to have been intended to put this money as well as the cash then paid over to them beyond the reach of their creditors. These cheeks and the cash were the only portion of this check that ever got into the possession of the contractors. The bank at that time knew all the facts, that this was the final payment, and that, while the contractor had completed the work, it had not paid the bills for the work. They also knew that there was a surety for the performance by the contractor. Knowing these facts, they also knew that this final payment was liable for these unpaid bills, and that, if the surety should be called on to pay them, it had a lien on this reserved percentage. It is held, and I think correctly, in the eases already cited that, as long as this percentage held back to secure the performance of the contract can be identified and followed, it can be subjected in equity to the lien of the surety. There is no doubt in this case that the bank received and appropriated the proceeds of this cheek, and that such portion of it they did not retain was paid out by them in an effort to put it beyond the just claim of those who had the prior right to be paid out of it. As to the third: It is urged that complainant was negligent in not keeping up with the performance by the contractor with its work and its payments to its subcontractors. That, if it had investigated, it would have learned the facts prior to the issuance by the highway department of the final or reserve payment. It may be that the facts would have been ascertained upon investigation, but that is not the question. Was there any duty to investigate? Contracts are executed with the purpose of being performed, not breached, so complainant owed no duty to supervise its performance or inquire as to whether the contractor had paid his subcontractors until it had some information tending to show such failure by the contractor. Suppose the surety had made inquiry and learned that the contractor did owe its subcontractors and their employees, before the final cheek was drawn. This was no more than the bank knew when it received the check and applied $11,-000 of it to the debt of the contractor and credited the mortgage with that sum and released a part of the security covered by the mortgage. How can it complain of the negligence and delay of the surety when everything it did was done with full knowledge of the facts? What omission.of the surety caused it to innocently change its position for the worse? It is true that equity will not aid one who by his negligent aet, omission, or delay has misled another into changing his position for the worse. How was the bank misled? What it did was not caused by any aet or omission of the surety, but by its effort to get into its possession a fund it knew was pledged to pay liens held by others, whom it was then misleading into delaying the enforcement of their rights. Chouteau Trust Co. v. Mass. Bonding & Ins. Co. (C. C. A.) 1 F.(2d) 136 (8).	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218900/	BREWSTER, District Judge. In this action the petitioner seeks to recover upon two policies of war risk insurance for $5,000 each, issued under the dates of February 6 and March 24, 1918, respectively. He was honorably discharged from the service on March 6, 1919, and on May 1, 1919, his policies lapsed for nonpayment of premiums. The ease presents the familiar question whether, during the life of the policy, the insured had become totally and permanently disabled. Prior to his enlistment, the petitioner had learned the trade of an automobile mechanic. When he enlisted he was in good health. He was sent to France soon after his enlistment, and, after arriving in France, he was transferred to Company A, 101st Supply Train. His duties were driving and repairing trucks. In the course of his service he received two injuries to his hand, which left him with a hand somewhat deformed, but these injuries furnish no adequate foundation for a claim of total disability. On August 13, 1918, he was driving a truck loaded with ammunition near the front line during an engagement with the enemy around Chateau-Thierry. He had been obliged to abandon his truck and had volunteered as a litter carrier. While rescuing the wounded, he encountered mustard gas and was severely burned in the face and also internally. He began to cough and choke and was, shortly after, sent to a hospital, where he received treatment. He has no continuous recollection of his hospital experiences, but remembers that he was’ transferred to Base Hospital No. 30 and later to Base Hospital No. 6 at Bordeaux, where he remained until after the Armistice. He was then brought to New York on a hospital ship and sent to a hospital at Camp Merritt, thence to Parker Hill Hospital in Boston, from which hospital he went to Camp Devens. After about 2 weeks there he was discharged. According to their records, he was received at the several hospitals as a victim of gas, and his complaint was diagnosed then as chronic bronchitis, or bronchial catarrh. His eyes and ears had been affected and his face was burned, leaving sears which are still noticeable, but except for the chronic bronchitis he seems to have recovered from the effects of the attack. There is no doubt that his bronchial troubles were induced by inhaling mustard gas, and ever since he was a victim of the gas he has had difficulty in breathing, has had spells of coughing,’ and after a time he became subject to hemorrhages of varying severity, some of which would, leave him weak and unable to continue his work. From the medical testimony, and in the light of subsequent events, I am satisfied that the disability was one which, back in 1919, gave no reasonable expectation of recovery. From the time of his discharge down to the present time, he steadily grew worse until 1928, when the government rated him as totally and permanently disabled. The real controversy in this ease is whether the evidence warrants the finding that petitioner’s disabilities became total prior to May 1, 1919, the government contending that his subsequent employment was of such duration and of such regularity that it must defeat his right to recover on the contracts of insurance. The pertinent facts on this aspect of the ease I find to be as follows: 276Upon his discharge on March 6,1919, this veteran returned to his home in Westfield, and some time in April of that year secured employment at his old trade of automobile mechanic in the Park Square Garage, where he continued until the fall of 1920. The evidence is conflicting as to the regularity of this employment, and no records of his time were produced. The petitioner testified that he was frequently obliged to lay off for a day or more at a time on account of his disability. His associates recall no lost time on account of illness, but all agree that he had spells of coughing, was short of breath, and his condition was so obvious that his fellow workmen raised a fund to send him to Colorado in the belief that a change of climate would improve his physical eonditon. He went to Colorado Springs and stayed there and in New Mexico and Texas until early in 1921, when he returned to Westfield. During his absence in the West he did not work at any gainful employment. Upon his return he married, and in April, 1921, entered the employ of the Williams Auto Company as an automobile repair man. He was on the pay roll of this company for 54 weeks, during whieh time he was only able to work 16 full weeks. There were 4 full weeks when he did no work at all, and in the remaining 34 weeks he lost anywhere from a fraction of a day to 5 days, and was finally obliged to give up again and try another vocation. The evidence is uneontradieted that during this period he was subject to frequent coughing spells, had difficulty in breathing, spit up blood, and, following these attacks, he was weak and obliged to lay off. For the time he actually worked he receivéd 55 cents per hour. His next employment of any consequence was with a market gardener. His testimony is that this employment was frequently interrupted on account of his disability. On May 23, 1925, he went to work again as an automobile mechanic with Clifford Barrett, in Springfield, Mass. He remained there until October, 1927. He appears to have been carried on the pay roll until the week of October 29, 1927, although for two weeks previous he had been unable to work. With the exception of the period between July 31, 1926, and March 7, 1927, the number of days of actual work is shown by his employer’s books. During the 95 weeks covered by these records, the petitioner worked only 26 full weeks. He lost during the same period 8 full weeks, and during the period for whieh no records are available he was out for 6 months and unable to do any work at all. The records for the 61 remaining weeks show the petitioner was out anywhere from one to 5 days. While with Barrett he received for the time that he actually worked wages at the rate of 50 cents an hour for part of the time and 60 cents an hour for the remainder. During this employment his condition had not improved. He was still working under difficulties, with coughing spells, hemorrhages, and weakness, and his employer testified that he would not have kept him on his pay roll as long as he did had he not been a veteran. Upon the advice of a physician, he gave up his work at Barrett’s garage, and, except for two unsuccessful attempts to carry on, he has not since been engaged in any gainful employment, and at the time of the hearing he presented a case of total disability. As the result of an examination September 9, 1923, Dr. George L. Sehadt diagnosed his case as one of chronic bronchitis. The doctor testified that the veteran was suffering from the results of the mustard gas, and that his condition was undoubtedly aggravated by the arduous work whieh he had undertaken. In other words, that his activities connected with his employment had been detrimental to his health. The petitioner only knew the trade of a mechanic, and his education, training, and experience did not fit him for clerical work. Upon this state of facts, has the petitioner established total disability prior to May 1,1919? The definition of total disability adopted by the Veterans’ Bureau in regulations has been somewhat enlarged by the courts, which have, in several cases, held that, if the disability is such as to render the veteran unable to work at any employment for whieh he is fitted without detriment to his health or peril to his life, the disability is total within the meaning of the contract. United States v. Sligh (C. C. A.) 31 F.(2d) 735; United States v. Phillips (C. C. A.) 44 F.(2d) 689; Knight v. United States (D. C.) 45 F.(2d) 202; O’Hora v. United States (D. C.) 49 F.(2d) 945. Employment after the lapse of policy does not necessarily defeat the right of the insured to recover the benefits of the policy. Ford v. United States (C. C. A.) 44 F.(2d) 754; United States v. Godfrey (C. C. A.) 47 F.(2d) 126, 127; Kelley v. United States (C. C. A.) 49 F.(2d) 897. See, also, to the same effect in other jurisdictions: United States v. Eliasson (C. C. A.) 20 F.(2d) 821; United 277States v. Sligh, supra; Knight v. United States, supra; Carter v. United States (C. C. A.) 49 F.(2d) 221; United States v. Auer (C. C. A.) 51 F.(2d) 921; Sorvik v. United States (C. C. A.) 52 F.(2d) 406. On the other hand, the subsequent employment may be of such duration, of such nature and so far free from interruptions due to disability that it will preclude the idea of totality. Nicolay v. United States (C. C. A.) 51 F.(2d) 170; Ford v. United States, supra. It is not easy to define the line between those eases where subsequent employment will, and those where it will not, conclusively refute any claim of prior total disability, and I am prepared to admit that the case at bar comes close to the line. But it is the well settled rule of the federal court to resolve any doubts in favor of the veteran. White v. United States, 270 U. S. 175, 46 S. Ct. 274, 70 L. Ed. 530; Ford v. United States, supra; United States v. Phillips, supra; United States v. Godfrey, supra; McNally v. United States (C. C. A.) 52 F.(2d) 440. In this circuit, the court has been especially liberal in dealing with eases involving the effeet of employment after the lapse of the war risk insurance, and it is my opinion that the facts of the instant case may well bring it within the definition of total disability adopted in the Ford and in the Godfrey Cases. In the latter ease Judge Anderson made the following observation: “The evidence is persuasive that Godfrey was a war victim. He was entitled to the most favorable view of the evidence. * * * To hold him remediless because he tried, manfully, to earn a living for his family and himself, instead of yielding to justifiable invalidism, would not, in our view, accord with the treatment Congress intended to bestow on our war victims.” I deem Judge Anderson’s observations peculiarly applicable to the ease of Alvord. He clearly was a war victim who, despite his disabilities, and laboring under constant difficulties, has endeavored to support himself and his family by working when “yielding to justifiable invalidism” would have been better for him. To deny him the benefits of the insurance is, in effect, to penalize the veteran for his struggle to carry on since the war. Such injustice ought to be avoided, if possible. In United States v. Auer, supra, the insured had worked 86 weeks, but received full pay for only 13 weeks, or about 15 per cent, of the time. In this case Judge Davis, speaking for the Circuit Court of Appeals for the Third Circuit, remarked: “We think it cannot, in the light of this evidence, be said that he followed his occupation ‘continuously,’ or, as this word has been defined, ‘with reasonable regularity.’ ” I find and rule that the petitioner is entitled to a judgment for whatever amount may be lawfully due on the contracts. Judgment may be entered accordingly.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218901/	PETERS, District Judge. This is a suit to recover damages for alleged breach of two contracts between the parties covering the sale by the plaintiff to the defendant of a certain quantity of maple lumber produced in Canada and agreed to be delivered at certain prices f. o. b. Auburn, Me., heard by the court with a jury waived. Two orders, signed by the defendant, accepted in writing by the plaintiff, formed the contracts in question, and were dated respectively July 19, 1929, and December 4, 1929'. The first order had appended to it the following words: “This order will be void if there is a tariff tax.” The second order had no such language, but it appears from the evidence that the omission was probably an error. The learned counsel for the defendant say that the omitted words should be read into the second order by virtue of the previous correspondence between the parties, touching the terms of the proposed contract, in which, among other things, the defendant wrote the plaintiff that “specifications to be the same as on our order No. 1200'.” Considering the wording of the orders, I do not think the correspondence touches upon the matter of a tax. That omission from the written contract could be corrected by proceedings in equity, and should be, before the reformed contract is declared on in a suit at law. However, it makes no difference, in my view of the ease, in the rights of the parties here, because I cannot sustain the defense based on the language referred to, contained in the first contract. It seems that the Revenue Aet of 1932, approved June 6th (see 26 USCA § 3091 et seq.), carried an import duty on the entry of maple lumber from Canada. At that time the defendant had not taken all the lumber called for by the contracts, although repeatedly urged to do so by the plaintiff, and it also appears that the market price for maple lumber at Auburn had become materially less than the prices the defendant was obligated to pay under its contracts. On September 1, 1932, plaintiff wrote defendant, calling attention to the alleged unreasonable delay in taking lumber and demanding compliance with the contracts. On September 6, 1932, defendant wrote plaintiff taking the position that the orders were automatically canceled when the tariff tax went into effect. The last shipment was in April, 1932. From the evidence I consider and find that the words in the order of July 19, 1929, “this order will be void if there is a tariff tax,” were inserted at the request and wholly for the benefit of the plaintiff. The plaintiff made prices for the lumber f. o. b. Auburn, Me. If later, by reason of changes in tariff rates, a higher duty should be imposed, the plaintiff might suffer a considerable loss, as he had made prices for the lumber after entry into the country and transportation to its destination. As no one knew in 1929 what the new duties, if any, would be, the obvious way to protect the plaintiff was to provide for the cancellation by him of the contract if any duty should be imposed. The defendant was protected by the guaranteed prices for the lumber delivered at Auburn. The circumstances of the ease support the testimony of the plaintiff that the conditional clause referred to was inserted for his benefit. This being true, it follows as a matter of law that the plaintiff may waive the condition inserted in the contract for his benefit, and that the defendant has no right to insist on the performance of the condition. The quotation from Prof. Williston on this point, found in the comprehensive brief of the plaintiff’s counsel, is apposite and follows: “Waiver of Conditions. — If a condition in the contract is wholly for the benefit of one party thereto, he may waive it. The other party cannot insist that the condition shall be performed. A common instance of this arises where a contract, as a lease or insurance policy, declares that it shall be void on the happening of a certain contingency. If the nature of the contingency is such as to show clearly that the provision was inserted for the benefit of one party only, the meaning given to the word ‘void’ is voidable at the option of this party, and if he does not choose to avoid the contract, he need not do so.” Williston on Sales (1st Ed.) § 192, p. 242. Mr. Justice Holmes puts it this way in his opinion in Stewart v. Griffith, 217 U. S. 323, 30 S. Ct. 528, 529, 54 L. Ed. 782, 19 Ann. Cas. 639: “The condition plainly is for the benefit of the vendor, and hardly less plainly for his benefit alone, except so far as it may 279have fixed a time when Stewart might have called for performance if he had chosen to do so, which he did not. This being so, the word ‘void’ means voidable at the vendor’s election, and the condition may be insisted upon or waived, at his choice.” If the contract in suit had been drawn by a lawyer, doubtless the word “voidable” would have been used, and to make the meaning clearer the words “at the election of the shipper” would have been added. Under the circumstances of this ease, I feel that the language used means the same thing. Further, the defendant is not in a position to take advantage of the condition making the contract void or voidable, even if it was inserted for his benefit. It was in default under its contract before the Tariff Act was passed. No time for shipment of lumber being specified, the usual rule of reasonable time would apply, and, as the orders were both made in 1929, certainly a reasonable time had elapsed, and the defendant was in default. The letter of September 1, 1932, from the plaintiff to the defendant was written to fix a liability and not to waive a default, unless the defendant accepted the offer. “Unless there are clear words to the contrary, a clause making a contract void must be read subject to the condition that the party who is seeking to set up the invalidity is not himself in default.” (Quoted from a leading English case cited by defendant, New Zealand Shipping Co. v. Societe des Atliers, 2 K. B. 77.) As stated by one of the law lords on appeal in the same case: “The decisions on the point are uniform, and are really illustrative of the very old principle handed down by Lord Coke (Co.. Litt. 296 b) that a man shall not be allowed to take advantage of a condition which he himself brought about.” If the plaintiff had the right to waive the condition in this contract, as I hold that he had, it is clear that he did waive it, and that there was a breach of the contract by the defendant. There was at one time some difference of opinion between the parties relative to the amount of lumber not taken by the defendant under both contracts, and some confusion in the correspondence between them which seems to have been settled by the acquiescence of the plaintiff in the definite assertion of the defendant in its letter of June 39,1931, that on the first order there were then 196,033 feet of the kind of lumber referred to as 8/4 undelivered. The same letter states that 47,639 feet out of the order of 159,999 of so-called 9/4 had been delivered, leaving 102,361 feet undelivered. These two amounts, approximating 208,394 feet, represent the amount declared on in the plaintiff’s writ. The defendant in its letter of June 39,1931, claimed that a part of the order had been canceled, but there is no satisfactory evidence that any such change in the contract was agreed to by the plaintiff. As to the second order, the assertion by the defendant in its letter of June 39, 1931, that there was then a balance of 89',104 feet undelivered, was not apparently disputed by the plaintiff, and is the amount declared on in the writ, less two carloads subsequently taken by defendant, aggregating 28,429 feet in reduction of the balance of 89',194 feet, leaving 60,684 feet undelivered. These are the amounts I find the defendant neglected and refused to take and pay for under its contracts, for which failure the plaintiff is entitled to recover damages. The parties have agreed that the measure of damages is the difference between the contract price and the market value of such lumber at Auburn on September 1, 1932. As there were three different grades of lumber, carrying different prices, as well as different sizes, and as it is practically impossible to make a finding from the records of the proportion of each grade undelivered, at least consistent with the figures in the correspondence, I have adopted the percentages of different grades agreed upon by the parties, viz. 14 per cent, for the grade denominated F. A. S., 73 per cent, for C. & S., and 13 per cent, for common. This settles everything except figures of fair market value in Auburn in September, 1932. The witnesses differed slightly on this point. The plaintiff’s tabulation takes the priees testified to by his own witnesses and himself. Witnesses for the defendant placed the figures somewhat higher. Taking all the testimony into consideration, I fix the market value of the lumber in question in the Auburn market on or about September 1, 1932, at $63.59 per thousand for F. A. S., $43.50 for C. & S., and $32 for common. Applying these figures, the result would be as follows: Order of July 19, 1929, undelivered 208,394 feet, of which 14 per cent, was to be paid for at $93 per thousand feet, the contract price, 73 per cent, at $63, and 13 per cent, at $47, making a total of $13,570.62. Using the same principles and the same quantity at the prices I have fixed as the mar280ket price in Auburn at the time of the breach, I find: 14% of 208,394 F. A. S., or 29',174 feet @ $63.50....-.............$1,852.61 73% of 208,394 C. & S., or 152,128 feet @ $43.50................. 6,617.56 13% of 208,394 common, or 27,091 feet @ $32.00................. 866.91 Total market value..........$9,337.08 Deducting the market total value from the total agreed price leaves $4,233.54 as the damages for the breach of the first contract. Order of December 4,1929: Undelivered, 60,684 feet, of which 14 per cent, was to be paid for at $90 per thousand feet, the contract price, 73 per cent, at $63, and-13 per cent, at $44, making a total of $3,902.70'. Using the same principles and the same quantity at the prices I have fixed as the market price in Auburn at the time of the breach, I find: 14% of 60,'684 F. A. S. or 8,496 feet @ $63.50.................$ 539'.49 73% of 60,684 C. & S. or 44,299' feet @ $43.50................. 1,926.90 13% of 60,684 Common, or 7,928 feet @ $32.00 ................. 253.69 Total market value..........$2,720.08 Deducting the market total value from the total agreed price leaves $l,182.62'as the damages for breach of the second contract, or a total of $5,416.16 as the damages for which the plaintiff is entitled to judgment, with interest from this date and costs. Requests for findings and rulings are refused, except so far as they are embodied in or implied from the above.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218902/	BREWSTER, District Judge. In this bill of complaint the plaintiff seeks to enjoin the defendant Pearson, as receiver of the Federal National Bank (hereinafter referred to as the bank), from prosecuting an action at law upon a check for $2,-554.50 drawn by other defendants, copartners doing business as Lapham, Potter & Holden (hereinafter referred to as the brokers). There is no diversity of citizenship between plaintiff and the defendants other than Pearson, consequently this court has jurisdiction only so far as the controversy is involved in the winding up of the affairs of a national bank. It cannot in this proceeding adjudicate the equities between the plaintiff and the drawers of the cheek. The receiver in a law action pending in this court has sued to recover from the brokers the amount of the check. Both the law action and this equity suit were tried together; the parties consenting that this controversy may be disposed of in this proceeding. If I find and rule that the plaintiff is entitled to an injunction enjoining the receiver from asserting any rights in the check, it will necessarily follow that the receiver must fail in his law action, and, in that event, I understand that Lapham, Potter & Holden stand ready to satisfy the plaintiff’s claim. If, on the other hand, the receiver is entitled to judgment against the brokers in the action at law, this bill is to be dismissed. The single question, therefore, which calls for decision is whether Pearson, as receiver of the bank, is entitled to recover upon the check, and I proceed to a consideration of that issue. Statement of Facts. (1) The plaintiff requested the Lawrence Trust Company (hereinafter called the trust company) to sell for him certain shares of stock, and to that end delivered certificates representing the stock to the trust company which, in turn, forwarded them to the brokers, doing business in Boston, with instructions to sell the shares and credit the trust company’s “Commercial Department Account in the Federal National Bank of Boston, covering proceeds.” The plaintiff had nothing to do with selecting the broker, nor did he authorize any instructions to the broker respecting transmission of the proceeds of the sale. (2) In accordance with these instructions, the brokers sold the shares and drew their cheek, dated December 14, 1931, for $2,554.-50, the amount of the net proceeds of the sale, payable to the “Federal National Bank of Boston A/C Lawrence Trust Co. Commercial Account.” On the morning of the same day, the cheek was taken to the bank and deposited to the account of “Lawrence Trust Co. Comm’l Acct.” The deposit slip accompanying the cheek contained the following terms: “In receiving items for deposit or collection, this bank acts only as depositor’s collecting agent and assumes no responsibility beyond the exercise of due care. All items are credited subject to final payment, in cash or solvent credits. * * * This Bank * * * may send items, directly or indirectly, to any bank, * * * and accept its draft or credit as conditional payment in lieu of cash: It may charge back any item at any time before final payment, whether returned or not. * * * ” The deposit slip was one of those generally used by depositors in the. bank, and was furnished by the bank to its customers. At the time of the deposit nothing occurred which would modify or operate as a waiver of any of the above terms. (3) Upon receipt of the deposit, the bank at once entered it as a credit upon the commercial account of the trust company, upon which the trust company drew its checks in excess of all sums deposited that day. The books of the bank show that on December 14 there was deposited $24,829.28, including the brokers’ cheek in question. On the same day it charged to the commercial account of the trust company $28,926.47, paid to the Federal Reserve Bank of Boston to cover checks drawn upon that account which were cleared through the Federal Reserve Bank. The commercial account of the trust company had also been debited with other checks presented and paid, totalling over $44,909. The transactions on December 14, after the check of brokers had been deposited, involved debits in excess of the credits. (4) Since early in December, 1931, the commercial department account of the trust company in the bank was overdrawn, and on December 10, 1931, the overdraft was nearly $84,000, when on that day the bank loaned to the trust company $190,000. Two days later the commercial account was again overdrawn, and on December 14 the overdraft before the close of the banking hours had increased' to 287over $58,000. There was other indebtedness owing by the trust company to the bank, but it is not necessary to state the exact amount due. (5) On the morning of December 15, 1931, the Federal National Bank did not open for business, and on the same day the defendant Pearson was appointed receiver by the Comptroller of Currency, and since that time the bank has been in the process of liquidation. (6) I find that the Federal National Bank did not at any time change its position in reliance upon or upon the faith of the eheck in question. No credits were given or advances made on the faith or expectation that the cheek of the brokers would be paid. The bank would have extended to the trust company all the credits in faet extended by it on December 14, regardless of the deposit of the eheck. (7) The eheck in question was drawn on the National Rockland Bank of Boston, and, when presented, payment was refused, the makers in the meantime having stopped payment. Conclusions of Law. The equities of the ease are strongly in favor of the plaintiff. He had intrusted his shares of stock with the trust company which had undertaken to sell them and account to him for the proceeds. The stock was sold and, before the proceeds had been received by the plaintiff, the hank which had received the brokers’ cheek had "ceased to do business, and payment of the cheek had been stopped. The proceeds are now in the hands of the brokers, who are ready to pay them to the plaintiff. They should be permitted to do so unless the receiver can establish a right superior to the equities of the plaintiff. It is the contention of the receiver that the bank, as holder for value, in due course acquired title to the cheek, and, as such owner, may now recover against the drawers the amount of it. The cheek was drawn payable to the Federal National Bank of Boston A/C Lawrence Trust Co. Commercial Account. While the Federal National Bank was payee, it was named only for the purpose of receiving the item for the account of the trust company. It is clear that it gave no consideration to drawers, and the rule that a payee may be a holder for value (Russell v. Bond & Goodwin, Inc., 276 Mass. 458, 177 N. E. 627; Boston Steel & Iron Co. v. Steuer, 183 Mass. 140, 66 N. E. 646, 97 Am. St. Rep. 426) has no application. The solution of the questions presented must he approached as if the eheck were drawn payable to the trust company and indorsed and deposited by that company upon the terms of the deposit slip in evidence. The courts are not in accord upon some of the legal propositions involved, but I think all agree that, if the bank received the cheek for collection, its authority to collect ended when it ceased to function as a bank. Salem Elevator Works v. Commissioner of Banks, 252 Mass. 366, 148 N. E. 220, 222. It is an implied condition of the contract of principal and agent that the “banking agent for collection of cheeks shall continue to do business in the customary way in order that the agency may continue. If it ceases to do so, the agency to collect the cheek, to appropriate the proceeds to itself and to substitute for the money its own liability as for a debt, has come to an end.” Rugg, C. J., in Salem Elevator Works, Inc., v. Commissioner of Banks, supra. This case turns upon the question whether the bank received the check for collection or whether it became the purchaser so that title to it passed at once to the hank when deposited. The claim is made on behalf of the bank that it became a purchaser of the paper and that it did not assume any agency for collection. This claim is predicated largely upon the undisputed fact that the cheek was at once credited to the -commercial account of the trust company against which the trust company was permitted to draw, and against which, in faet, it did draw in amounts in excess of the total deposits of-the trust company made on December 14. I have found as a faet that the bank did not extend credit upon the strength of the item in question. Its dealings with the trust company were in no way influenced by the deposit of the cheek of the brokers. If the test is, as was intimated in Bank of the Metropolis v. New England Bank, 1 How. 234, 11 L. Ed. 115, whether the bank without notice of the rights of the true owner and regarding the depositor as the true owner extended credit or suffered balances to remain in the hands of the bank from which it received the paper, then the Federal National Bank has failed to meet that test. This ease is easily distinguished from Latzko v. Equitable Trust Co., 275 U. S. 254, 48 S. Ct. 60, 72 L. Ed. 267, cited by the receiver. In that case, while the cheek was drawn payable to the bankers for the account of the plaintiff, the dominant purpose of the deposit with the bankers was to establish a credit in favor of the plaintiff against which he could draw. In the case at bar, the dominant purpose was to transmit funds belonging to the plaintiff. 288Reliance is placed upon the rule frequently applied in the courts that: “Ordinarily, where paper is indorsed without restriction by a depositor and is at once placed to his credit by the bank, the inference is that the bank has become the purchaser of the paper and in making the collection is not acting as the agent of the depositor.” Mr. Justice Stone in Equitable Trust Company v. Enabling, 275 U. S. 248, 252, 48 S. Ct. 58, 59, 72 L. Ed. 264. But this inference yields to an express agreement of the parties that the bank shall act as agent for collection. National Bank of the Republic v. Millard, 10 Wall. 152, 155, 19 L. Ed. 897; Federal Reserve Bank v. Malloy, 264 U. S. 160, 164, 44 S. Ct. 296, 68 L. Ed. 617, 31 A. L. R. 1261; Union Electric Steel Co. v. Imperial Bank of Canada (C. C. A.) 286 F. 857, 861; Texas & P. R. Co. v. Pottorff (C. C. A.) 63 F.(2d) 1; Nomland v. First Natl. Bank of Kansas City, Missouri (C. C. A.) 64 F.(2d) 399. In Massachusetts the rule is not applied if. it appears that the bank informed its customers by notices upon the passbook or deposit slip that it accepted deposits of commercial paper only as an agent for collection. Taft v. Quinsigamond National Bank, 172 Mass. 363, 52 N. E. 387; Salem Elevator Works v. Commissioner of Banks, supra. The intention of the parties is the controlling factor, In re Ruskay (C. C. A.) 5 F.(2d) 143, and the deposit slip constitutes material evidence of what that intention was, King v. Bowling Green Trust Co., 145 App. Div. 398, 129 N. Y. S. 977. In the ease at bar, the deposit slip purported to state the terms and conditions upon which the deposit was received by the bank. In unequivocal language the bank gave notice to its depositor that “in receiving items for deposit * * * this bank acts only as depositor’s collecting agent.” (Italics mine.) It also tells its customers that all items are credited subject to final payment in cash or solvent credits, and that it may charge back at any time any item before final payment whether returned or not. I am aware that acceptance of deposit subject to final payment alone is not enough to overcome the inference that the bank purchased the paper deposited and credited to depositor’s account. City of Douglas v. Federal Reserve Bank, 271 U. S. 489, 46 S. Ct. 554, 70 L. Ed. 1051. Nor will the inference be met by the reservation of the right to charge back the item. Dickson v. First National Bank of Buffalo, Okl. (C. C. A.) 26 F.(2d) 411; Union Electric Steel Co. v. Imperial Bank of Canada, supra. But both of these provisions are more compatible with the relationship of principal and agent than with that of debtor and creditor, and, when they supplement a positive disclaimer by the bank of any intention to act in any capacity other than that of agent for collection, the inference relied upon is not warranted. The bank cannot complain if we accept as final its announced purpose to act only as agent when it has been shown that nothing occurred to take the item in question out of the usual course of its banking business, and especially when, as in this ease, it is quite apparent that neither the trust company nor the bank can in justice or equity assert a claim of ownership to the proceeds of the sale of plaintiff’s stock. I rule, therefore, that the defendant Pearson is not entitled to recover upon the check given by the brokers and now held by the bank, the agency, of the bank to collect having ended, and therefore it follows that plaintiff is entitled to a final decree perpetually enjoining the defendant Pearson from asserting any right in and to said cheek, and, according to the understanding of the parties, a judgment will be entered for defendant in the pending law action.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218903/	STRUM, District Judge. In an action at law, plaintiff sues to recover excessive charges said to have been exacted from him by the defendant, Florida East Coast Car Ferry Company, upon divers shipments of lumber from Key West, Fla., to points in the Republic of Cuba. As the shipments moved wholly in foreign commerce, the action is controlled by common-law principles; regulatory statutes being inapplicable. In substance, the declaration alleges that the shipments originated at divers points north of Key West and moved over Florida East Coast Railway to the latter point, where bills of lading theretofore issued covering the rail haul were surrendered and ocean bills of lading issued on behalf of the defendant, Florida East Coast Car Ferry Company, covering the ocean haul to Cuba, and “showing plaintiff as consignor.” That the freight rates for the ocean haul were exacted as a condition precedent to the issuance of bills of lading, and were unjust and unreasonable in violation of the ocean carrier’s common-law duty to charge only reasonable rates. That the lumber shipped was the property of plaintiff, and that he paid the alleged extortionate charges which he now sues to recover. See Cullen v. S. A. L. Ry., 63 Fla. 122, 58 So. 182. An amended eighth plea filed by defendant in substance avers that the lumber in question was purchased by plaintiff from third persons named in the original railroad bills of lading issued at points of origin of said shipments north of Key West; that the contracts of sale of said lumber between plaintiff and the sellers thereof provided for delivery to plaintiff f. o. b. designated points in the Republic of Cuba; that the original sellers of the lumber remained the owners thereof until delivery in Cuba, until which time plaintiff did not acquire legal title thereto; that in all the transactions complained of and until delivery of the shipments in Cuba, plaintiff was acting only as agent for the original shippers and sellers of the lumber; that notwithstanding the surrender of the original railroad bills of lading and issuance of new bills of lading at Key West for the ocean haul, plaintiff continued to recognize and perform his purchase contracts with the original shippers of the lumber and obtained credit upon the purchase price of the lum-' ber for all ocean freight collected by the defendant from the plaintiff for the ocean transportation, as well as for all railroad transportation by connecting carriers; that by the means aforesaid plaintiff was fully reimbursed and made whole for the payments of freight made by him, now sued for; and that prior to the institution of this suit plaintiff was relieved of all liability and duty under the agency contracts under which he reshipped the lumber as agent for the original shippers. Plaintiff demurs to and moves to strike the amended eighth plea. The substance of the defense attempted by the plea in question is that plaintiff should not recover because in shipping the lumber plaintiff acted as agent for other persons by whom he has been reimbursed for the alleged overcharges made by defendant. But this is a collateral matter — res inter alios— remote from and wholly unconnected with the contract of carriage between plaintiff and defendant. Defendant accepted plaintiff as consignor, and contracted with him as such. Having dealt with plaintiff as consignor, the defendant is not concerned with collateral and unrelated transactions between plaintiff and other persons respecting the purchase of lumber, and defendant cannot claim the benefit of those dealings in order to absolve itself from the consequences of the tortious acts charged against it. A consignor may recover overcharges exacted by a carrier, even though the consignee actually pays the freight, when under the contract of sale the amount so paid is credited on the purchase price of the goods, which in principle is the ease alleged by the amended eighth plea. Louisville & N. R. Co. v. Sloss-Sheffield Co., 269 U. S. 217, text 237, 46 S. Ct. 73, 70 L. Ed. 242, text 252. If defendant had lost or converted the lumber, plaintiff, as consignor, could have recovered therefor. It would have been no defense that plaintiff was acting as agent for third parties in making the shipments as consignor. So if there had been an undercharge, plaintiff, as consignor, would have been liable for the difference. Louisville & N. R. Co. v. Central Iron Co., 265 U. S. 59, text 67, 44 S. *290Ct. 441, 68 L. Ed. 900, text 903. The converse of that proposition is true as to an overcharge. Doughty-McDonald Co. v. A., T. & S. P. R. Co., 155 I. C. C. 47; Missouri Portland Cement Co. v. Director General, 88 I. C. C. 492, both cited approvingly by the Supreme Court in Adams v. Mills, 286 U. S. 397, 52 S. Ct. 589, 76 L. Ed. 1184. Defendant was under a duty to plaintiff to exact only a reasonable charge for carriage. As was said in Southern Pac. Co. v. Darnell Lbr. Co., 245 U. S. 531, 38 S. Ct. 186, 62 L. Ed. 451, at page 455: “The carrier ought not to be allowed to retain his illegal profit, and the only one who can take it from him is the one that alone was in relation with him, and from whom the carrier took the sum.” See, also, Adams v. Mills, 286 U. S. 397, 52 S. Ct. 589, 591, 76 L. Ed. 1184. The two cases last cited seem in principle to control the question here. As was said in Adams v. Mills: “Neither the fact of subsequent reimbursement by the plaintiffs from funds of the shippers nor the disposition which may hereafter be made of the damages recovered is of any concern to the wrongdoers. This proceeding does not involve a controversy between the consignors and the consignees; and the carriers cannot be allowed to import one into it.” The carrier is, therefore, not concerned with rights or equities between plaintiff and the original shippers of the lumber. Louisville & N. R. Co. v. Sloss-Sheffield Co., supra. The situation here is the same in principle as where an injured party recovers damages from a wrongdoer, as, for instance, for personal injuries, notwithstanding the injured party may be also indemnified by insurance. That the injured party is so indemnified is no concern of the wrongdoer, and no defense in an action for the tort. In So. Pac. Co. v. Darnell Lbr. Co., supra, it was said: “The general tendency of the law, in regard to damages at least, is not to go beyond the first step. As it does not attribute remote consequences to a defendant so it holds him liable if proximately the plaintiff has suffered a loss.” To endeavor to follow every transaction to its ultimate result would be endless and futile. If plaintiff recovers, he may be accountable to the third parties with whom he dealt in purchasing the lumber on the terms aforesaid, and who are alleged to have heretofore reimbursed him by deductions of freight charges from the purchase price. But neither is this any eoneem of the defendant carrier in defense of an action for overcharges upon shipments in which the plaintiff was consignor. L. & N. R. Co. v. Sloss-Sheffield Co., supra; Arizona Grocery Co. v. A., T. & S. F. R. Co., 284 U. S. 370, 52 S. Ct. 183, 76 L. Ed. 348. Defendant claims that in making the shipments, plaintiff acted only as agent for third parties, which agency was terminated prior to suit, and plaintiff relieved of all liability under his agency contract. But plaintiff was recognized and accepted by the defendant as consignor of the shipments. As such he is entitled to recover overcharges. When the plaintiff acquired absolute title to the lumber is not material to the controversy. Even if he was only a bailee, if the carrier accepted him as consignor he would have such a special interest as would support an action by him for conversion, and upon the same principles an action for overcharge in rates. In any event, however, it is not disputed that plaintiff was consignor of these shipments, which entitles him to recover as against the defense attempted by the amended eighth plea. Demurrer sustained.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218905/	GALSTON, District Judge. This ease is now before the court on an amended answer settling forth inequitable conduct of the plaintiff in-the alleged misuse of the decision of the Circuit Court of Appeals, after the entry of an interlocutory decree in behalf of the plaintiff. See Art Metal Works, Inc., v. Abraham & Straus, Inc. (C. C. A.) 62 F.(2d) 79; Id. (D. C.) 2 F. Supp. 292. The ultimate issue presented for determination is: Whether the plaintiff in its various activities was guilty of bad faith. It is contended by the defendant that bad faith is the inevitable inference that must be drawn from a consideration of the plaintiff’s acts. These, briefly, may be stated to be: 1. That on the day the opinion of the Circuit Court of Appeals was handed down, telegrams and letters were sent by the plaintiff to its salesmen throughout the country authorizing and instructing them to misrepresent the effect and scope of the opinion. 2. Also that immediately thereafter, plaintiff advised the trade of the decision by telegraph, circular letters, registered letters, advertisements in trade journals, and by the oral statements of its salesmen; and in so doing misrepresented the meaning, scope, and effect of the decision of the Court of Appeals. 3. By claiming profits from customers of the Evans Case Company on the sale of non-infringing articles, such as spin-wheel lighters, cigarette eases, humidors, and ash trays. 4. By representing that the Trig-a-lite did not differ in substance from the Evans Roller Bearing lighter and is an infringement of the patent in suit, No. 1,673,727. The record includes depositions de bene esse of many witnesses taken in various parts of the United States, in addition to the testimony of a number of witnesses at the trial. The record is exceedingly voluminous. It is replete with instances of many occurrences, but for the most part they are largely cumulative. Since the representations made by the salesmen must be considered in the light of the authority vested in them, it will be helpful to consider a telegram and a general letter, in evidence as Exhibits 11 and 12, respectively. The telegram reads as follows: “This instant received decision of the United States Circuit Court of Appeals awarding us sweeping victory on every point involved in our suit against Evans Case Company for their infringement by their Automatic also Roller Bearing lighters of our patent 1673727 Stop Supremely happy to be able impart this wonderful news Stop Further details will follow tomorrow meanwhile okay to advise your trade but be careful not to indulge in any threats until our definite plan of campaign for damages is completely worked out regards “Art Metal Works, Inc.” I do not believe that there is anything in this telegram from which bad faith can be inferred. It was but natural that the executives of the plaintiff should have been elated at the successful conclusion of a litigation that had lasted for years between the parties and which was at all times conducted in a spirit of bitter controversy, involving also conflicts in the Patent Office in respect to priorities of invention. The affirmance of the lower court’s decision in respect to the validity of the patent and the broad scope extended to its claims certainly justified the plaintiff in considering a definite plan of campaign for damages. The defense in the case was always under the control of the Evans Case Company, the manufacturer of the infringing articles. Such articles had been widely sold throughout the United States. The plaintiff could reasonably, therefore, look to the customers of the Evans Case Company, as well as to the Evans Case Company, for damages in such proper proceedings as might be brought) against them. Now as to the letter dated August 24, 1933: This, in the opening paragraph, reiterates the elation on the part of the secretary of the plaintiff in advising representatives of the plaintiff: “We had sustained a complete victory in our ease before the United States Circuit Court of Appeals involving the infringement by the Evans Case Company of our Patent No. 1,673,727.” The second paragraph of the letter states: “As soon as our Ronson De-Light commanded its instantaneous success, they set out to devise ways and means to imitate it and believed that with their first so-called ’auto300matic’ form and with their later so-called ‘roller-bearing’ form, they would be able to circumvent our patent.” I must say that from the proofs before me, taken before the entry of the interlocutory decree, I was of the same opinion. It seemed to me that neither the Evans Case Automatic lighter nor the Roller Bearing lighter was independently designed by the Evans Case Company. It was apparent that the former was in direct imitation of the Aronson device, and the latter showed a skilled effort to combine what Aronson taught with features, perhaps, suggested by the prior art. But as a result of those proofs I was left with the undoubted impression that the defendant sought to avail itself of the teachings of the Aronson patent and profit by its pronounced commercial success. Then there is this passage, which, though somewhat ambiguous in terms if read by others', must have been entirely clear to the salesmen: “It must be borne in mind by you that this decision naturally covers not only the pocket form of lighters but also their combinations, whether in sets or as units imitating our Tuxedo. It covers also their table lighters.” ' The writer of that letter was not a skilled rhetorician. He was using commercial English, which frequently lacks precision; but I think the fair inference to be drawn is’that the salesmen were told that the decision covered lighters not only of the pocket form but also such other lighters as might be found in combination with other articles, whether in sets, i. e., smoking sets, or in other units. In the third paragraph of the letter, the representatives of the plaintiff are informed that steps will be taken against the manufacturers of other lighters known as the Marathon and the Golden Wheel. Certainly that was well within the rights of the plaintiff. < The fourth paragraph is a statement that the Evans Case Company and its customers are liable for the damage which they have done by reason of- the sale of infringing products. So they were. . Finally, in the fifth and last paragraph, there is the hope expressed that a larger business would result from the prevention of the sale of infringing articles. I see nothing in this letter from which bad faith can be deduced, nor which would authorize the persons to whom the communications were sent to misrepresent in any degree whatsoever the scope and effect of the opinion of the Circuit Court of Appeals. It is significant indeed that the defendant employed almost the same language in its telegram of August 24, 1932, to its own representatives, doubtless realizing that the recipients of the telegram would have no difficulty in understanding the language. The telegram read: “Discontinue on receipt of this wire all sales of present lighter in all forms individual pocket and in sets and combinations and table lighters.” On August 24, 1932, the plaintiff wired: “Received this day decision of the U. S. Circuit Court of Appeals awarding us sweeping victory on every point involved in our suit against Evans Case Company for their infringement by their so-ealled Automatic also so-called Roller Bearing lighters of our patent 1,673,727 Stop Further details will promptly follow meanwhile this telegram to promptly convey this information to you.” This telegram is complained of by the defendant because it recites a suit against the Evans Case Company. Literally the statement is incorrect, but the stipulation at this trial was that the defense was by the manufacturer, the Evans Case Company, and the actual defendant has taken no active part. So far as the use of the words “Automatic” and “Roller Bearing” are concerned in this telegram and'in other forms of communications and advertisements, it may be stated that throughout the trial of this ease, prior to the interlocutory decree, two types of defendant’s lighters were referred to by both sides as the “Automatic” and the “Roller Bearing,” and the same terminology was employed by the Circuit Court of Appeals in its opinion and by this court likewise. No improper inference can be drawn from such terminology. The defendant next calls attention to circular letters of the plaintiff to the trade dated September 13, 1932. To this letter is attached a notice bearing date August 26,1932. This notice, it must be conceded, is perhaps unfortunate in terms. After reciting that the opinion of the Circuit Court of Appeals held the patent to he valid and infringed by the Evans Automatic and the Evans Roller Bearing lighters, there is stated: “This decision confirms the position that we have always maintained that these Evans Lighters and others of similar construction constitute infringement of our patent. “Furthermore we must advise the trade that any further sale of these Evans lighters or others of similar construction now becomes 301illegal according to the decision of the Court of Appeals.” Whatever inferences may have been drawn by the trade as to the meaning of this notice, so far as the matter of faith is concerned in the issuance of the letter by the plaintiff, due weight must be given to the fact that it was approved by plaintiff’s patent counsel. Some of the trade believed that all Automatic lighters were held by the court decision to be infringed. But this is not justified by the language of the circular. I have no doubt that the plaintiff, advised as it was by patent counsel, sought to inform the trade that lighters embodying the same construction of the Evans Automatic and the Evans Roller Bearing lighters would be regarded by the plaintiff as embodying an infringement of the patent. The most that can be said is that the language is not as explicit as, perhaps, the situation demanded; but in the circumstances, the linguistic inadequacy is not sufficient to warrant the imputation of bad faith. Any doubt is dissipated by the phrase in the body of the notice to the trade, which reads: “Its decision confirms the position we' have always maintained.” The registered letters to some of defendant’s customers, such as, for example, Defendant’s Exhibit B, of October 12, 1932> to M. Rosenthal & Son, could readily mislead. Here we find a variation from the notice as approved by the patent counsel: “As we have already advised you, this patent was duly adjudicated by the United States Circuit Court of Appeals * ' ® the so-called ‘automatic’ and ‘roller-bearing’ lighters made by the Evans Case Company, also any other lighters of similar construction, were held to be infringements of this patent.” Strictly speaking, of course, the language was inadequate to express the full meaning of the writer, but after all, it was a layman’s letter; and bad faith certainly does not appear on its face. Harris, the secretary, signed thesé various letters. If the letter be read with the circular letter of August 26, 1932, wherein it was clearly set forth what lighters were held to be infringements, the imputation of bad faith is not well grounded. The same explanation disposes of the advertisement of September 8, 1932, in the Retail Tobacconist. The language is bad. It is not justified by the facts, but an evil intent need not of necessity be spelled therefrom, for, as has been said, not only the phrase “and others of similar construction constitute infringement of our patent,” but also the phrase “or others of similar construction now becomes illegal according to the decision of the Court of Appeals,” can be explained. Certainly it is not language couched in legal terms, but it could reflect the honest opinion of the commercial writer that all devices which embody the construction of the “Automatic” or the “Roller-Bearing” lighter would in the opinion of the plaintiff constitute an infringement “according to the decision of the Court of Appeals.” Other publications to which the defendant points recite: “Important: Ronson Lighters, Cigarette Case and Lighter Sets ® ®.” Of course, it may be conceded that cigarette eases and lighter sets were not manufactured under United States letters patent which were adjudicated and held valid; but other notices to the trade had stated that the adjudicated patent covered the plaintiff’s Ronson lighters. Standing by itself, this notice might have caused a false impression to be drawn by the trade; but I take it that with the extensive distribution' of the circular letter or notice of August 26, 1932, no discriminating person in the trade could reasonably have believed that this so-called important notice was to be read literally. In view of such wide distribution by the plaintiff of the circular letter of August 26, 1932, I do not believe that the paragraph was conceived in bad faith. I can understand that some customers were misled, but much of the testimony in that respect may be viewed with doubt. Such testimony as that given by the witness Sol Sallan is not convincing. Bis understanding as to the meaning of the trade statement was certainly not that of his son, Raymond Sallan, nor of Hering of the same establishment. Raymond Sallan testified: “XQ310. You never had any idea that Evans cases, if you sold an Evans ease apart that was an infringement of the Ronson patent, did you? A. You mean after we got notice of this? “XQ311. Yes, at any time. A. We never believed so, but we never looked at an Evans cigarette case as a separate item. We looked at it as a set; that is, we bought them as sets; we never bought them separately; we bought a set, we bought the two pieces. “XQ312. Yes. If you sold a’ case apart from the set, you never considered that that would be an infringement, did you? A. No, we never considered it that.” And Hering said: “XQ151. You never had any idea, did you, that you could not sell a cigarette ease 302separately from a set — I mean an Evans cigarette case separately — even though it came from the set, did you? A. No, I don’t believe we did. “XQ152. What? A. No, I don’t think so. “XQ153. That is, you thought of course you could sell the cigarette ease if you did not sell it in conjunction with an Evans lighter? A. Yes, you could break the sets.” It is neither necessary nor feasible in this opinion to review the testimony of all the witnesses offered by the defendant and the instances in which alleged misconceptions arose. The foregoing extract is, perhaps, typical, as is the following, which relates to the testimony of defendant’s witness Mr. E. D. Miller, the president of Square Deal Miller, Inc., of Detroit: “XQ212. That if you sold it as a set, that would constitute an infringement? A. Yes. “XQ213. That is your understanding? A. Yes. “XQ214. Is that right? A. Yes. “XQ215. And that was your understanding at that time? A. Yes. “XQ216. But that if a cigarette ease was sold separately, that would not constitute an infringement, isn’t that right? A. Yes.” And the defendant’s witness W. G. Harry, of the same corporation, testified: “XQ139. I suppose, of course, you will testify, will you not Mr. Harry, that you thought you could not sell these compacts individually, is that right? A. That we could not sell them individually? “XQ140. Yes, is that right, these compacts that you returned? A. Well, it is possible that we could sell them individually, but most of them were sets, most of them had lighters with them, and they were returned for that reason. “XQ204. Did you think that the notice applied to individual cigarette eases? A. Only as complete sets, that is what I am referring to. Anything with a lighter or combination or anything as a set. “XQ205. Perhaps I was a little unfair to you by not showing you the inside of the folder. A. That is all right. “XQ206. In some instances there are individual cigarette eases. I do, not understand you to say that you thought the notice applied to the individual cigarette eases only ? A. Nothing only with the lighter top, anything consisting of a lighter or combination.” Representations made by the plaintiff’s salesmen to customers are urged as reprehensible and as evidence of bad faith; but in no instance do I find that any representation was made with authority from the principal to mislead the trade. Efforts of salesmen to sell their merchandise and earn commissions on their sales not infrequently result in overstatements. But in the matter of bad faith the principal should not be bound by unauthorized representation; and there is nothing in this record which warrants the belief that the salesmen had instructions from the employer which deviated from the telegram and letter heretofore discussed. Indeed, on the whole the evidence on overstatement by the salesmen is not conclusive. Most of the people visited by the salesmen knew of only two automatic lighters. So said defendant’s witness Petzold, and referred to the Art Metal lighters and the Evans lighters. Hearing, it is true, refers not only to the Evans and the Ronson, but also to the Marathon and Golden Wheel of other manufacturers. But there was some talk which led him to understand that the plaintiff was considering bringing suit against “the Golden Wheel people and other lighter concerns,” and that led him to believe “that we could not sell any kind of an automatic lighter that was made.” Nor should it be overlooked in weighing the testimony of those who had been selling Evans Automatic and Roller Bearing devices, that they were hostile to the plaintiff. After all, they had sold infringing devices and were in consequence subject to suit for an accounting of the profits realized. In the proofs of the alleged scheme to damage the Evans Case Company, testimony was taken with respect to alleged attempts to collect profits on the sale of noninfringing articles. Letters are referred to as having been sent to Montgomery Ward & Co., Jaffrey Jewelry Company, St. Louis Jewelry Company, Leonard Krower & Sons, Inc., and to James McCreery & Co. The letter to Montgomery Ward & Co.: This letter repeatedly refers to infringing lighters. It expresses no unwarranted demand. The same is true of the letter of October 13, 1932, to the Jaffrey Jewelry Company, of the letter of September 10, 1932, to the St. Louis Jewelry Company, of the letter of September 9, 1932, to Leonard Krower & Sons, Inc., and of the letter of August 30, 1932, to James McCreery & Co. The letter of September 21,1932, to Leon-. 303ard Krower & Sons, Inc., obviously must be read in connection with the letter to the same firm of September 9,1932. The testimony taken at the trial with respect to the accounting against James MeCreery & Co. must also be considered in the light of the original demand made in the letter of August 30,1932, to James MeCreery & Co. The conclusion is inevitable that in none of these cases did the plaintiff seek profits not comprehended within the terms of the opinion of the Circuit Court of Appeals. . Finally, inequitable conduct and bad faith are predicated on the institution of the action pending in this court against the same defendant because of the sale of the Trig-a-lite device. It is contended that by virtue of the position taken by the plaintiff to sustain the validity of the letters patent in suit, in the effort to meet the prior art adduced by the defendant, the plaintiff should be estopped from asserting infringement of the patent by this Trig-a-lite device. I believe that the defendant, guided as it doubtless was, in the interpretation of the scope of the claims of the patent, by two judicial opinions, succeeded in designing a device which avoids infringement. 'I have so found in an opinion to be filed concurrently with this. (D. C.) 4 F. Supp. 303. But with the issue raised in this ease we are concerned not with the matter of either validity or infringement, but with the question of relief. Motive again plays the leading role in the determination of this question. In the Trig-a-lite action the plaintiff rigorously urged infringement, and its counsel honestly was of the opinion that Mr. Hammer’s testimony in the present litigation was not inconsistent with the position taken in the Trig-a-lite case; and Mr. Hammer himself testified that there was no inconsistency. Nor can I believe that plaintiff’s counsel acted in bad faith in advising that the Trig-a-lite in their opinion was an infringement of the patent in suit. Accordingly, the defendant has not established bad faith and is not entitled to the relief prayed for in its amended answer, that the patent be declared invalid or that plaintiff be deprived of its accounting. Asbestos Shingle, Slate & Sheathing Co. v. H. W. Johns-Manville Co. (C. C.) 189 F. 611; De Forest Radio Telephone & Telegraph Co. v. Radio Corporation of America (D. C.) 4 F. (2d) 134; Alliance Securities Co. v. De Vilbiss Mfg. Co. (C. C. A.) 41 F.(2d) 668; and also a recent case decided in this court, Eclipse Machine Company v. J. H. Specialty Co., 4 F. Supp. 303. In reaching this conclusion I do not mean to decide that the Evans Case Company did not suffer damage as the result of the various activities of the plaintiff and its representatives, but such damages as were thus sustained cannot be imputed to bad .faith. Settle decree on notice.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218906/	GALSTON, District Judge. The validity of the patent in suit, No. 1,-673,727, granted to Aronson, for a cigar lighter, was upheld as to claims 2, 7, 12, 13, and 14, in a litigation between the same parties. (D. C.) 52 F.(2d) 951, and (C. C. A.) 61 F.(2d) 122, 123. The defendant’s structures there considered were referred to as the Evans “Automatic Lighter” and the “Roller Bearing Lighter.” 304The suit at bar alleges that a third form made by the same manufacturer and sold by this defendant since the former adjudication, and known to the trade as the “Trig-a-lite,” is also an infringement of the patent. There is no contention that the Trig-a-lite is similar to the Automatic; but it is asserted by the plaintiff that the Trig-a-lite is in all respects similar to the structure and mode of operation of the Roller Bearing device. In outward appearance the two lighters are very much alike; and so far as relative positioning of the three main parts — the wick with its snuffer, the abradant wheel, and the finger piece — constituting the “one, two, three arrangement” referred to by the Circuit Court of Appeals in adopting the descriptive terminology of plaintiff’s expert, Mr. Hammer, such arrangement is reproduced in the Trig-a-lite. However, important points of difference are urged by the defendant. It is contended that the Trig-a-lite enables the operator to obtain the shower of sparks, not by manual, but by spring, actuation of snuffer and abradant wheel and without the use of gears. The three claims in suit recite the inclusion of such gear means; and no matter how generous the interpretation of the scope of the claims, Trig-a-lite does not embody such a gear member as the claims define. The pin and slot combination of the Roller Bearing device has been omitted. The actuation of parts is brought about by a combination of finger piece in the form of a lever which is pivoted about an axis upon which the abradant wheel is mounted. In the upper position the finger piece is pressed by a spring. The snuffer is mounted upon a horizontal lever pivoted about an axis marked E in Defendant’s Exhibit H. Coiled about this axis E is a spring, one end of which projects to the left and bears on the under side of the snuffer lever. The other end of the spring extends to the right and bears under a portion of the finger piece. A pawl Q, pivoted at point 0, and provided with a spring P, causes the pawl to rotate counter clockwise. Notches in the pawl are of such shape and size as enable them to loek around the pivot D. The energy of the finger piece is used to tension the spring coiled around the axis E; that is, the whole spring is tensioned. The energy is stored in the spring without regard to the rate at which the finger is depressed; and the rate at which the abradant wheel and the snuffer move are independent of the rate at which the finger piece is depressed, but are dependent upon the strength of the spring. One of the notches of the pawl holds the snuffer lever down when the finger piece is pressed, so that the spring is tensioned until the end of the downward movement, and is finally unlatched by the finger piece, which causes the spring to throw up the snuffer lever until the other notch in the pawl contacts with the shaft on which the abradant wheel is mounted. Thus the snuffer lever cannot be forced up further by the spring. This is neither the mode of operation of the Roller Bearing device nor of the patent. The patent discloses a connection of gearing from the finger piece to the snuffer and to the abradant wheel. That there is a different mode of operation between finger piece and spark wheel in the. patent in suit and in the device Trig-a-lite appears from the dependence of movement of finger piece and spark wheel of the former, and the independence of the speed of movement of the surface of the abradant wheel with the speed movement of the finger piece in the Trig-a-lite. This may or may not be an advantage; but be that as it may, there is indicated a difference in operation, resulting from a difference in structure. On the question of merit, it may be said that the surface movement of the sparking wheel is an important factor in spark production, because the quicker the work is done, the greater the heat, and, therefore, the greater the supply of sparks. Mr. Ray is of opinion that the wheel in the Trig-a-lite device moves much faster in the ordinary use thereof than in the ordinary use of a device made in conformity with the. patent in suit. He also points out that so far as the roller bearing construction is concerned, the pin and slot combination bear on the relative ranges of movement between the spark wheel surface and the finger piece. This is not the operation of the Trig-a-lite device. I think one must conclude then, both on the ground of construction, as well as from operation of the Trig-a-lite and the Roller Bearing Lighter, that in the Trig-a-lite one does not find a gear in the sense of the patent in suit, nor even the equivalent of a one-tooth gear of the Roller Bearing device. And inasmuch as I do not interpret the opinion of the Circuit Court of Appeals in the prior litigation as compelling so broad a construction of the claims in issue as to lead to a disregard of the limitamt phrases with respect to the necessity of the inclusion of the gear member, I find that the defendant in the Trig-305a-lite device has avoided infringement by the omission of such a gear member. Moreover, in a discussion of the matter of infringement, the position taken by the plaintiff in overcoming the pertinency of the prior art in the former litigation cannot be overlooked. Ror example, the plaintiff’s expert, in distinguishing the German Gebhardt patent, said: “Another distinction is noted when we proceed in the reading of the claim and find the requirement of ‘means whereby, upon pressing said finger piece downwardly, said wheel is rotated by manual pressure to ignite the wick, and said snuffer is removed from the wick.’ And there I must comment on what apparently was in Mr. Ray’s mind in calling attention to the manual operation of this German device. “As I understand it, the patent in suit is broadly differentiated from much prior art by having a rotation of the wheel depending upon the energy of the thumb action on the thumb piece or finger piece. In other words, if you give a short, sharp, snappy action of the thumb, you get a different effect than if you just move it down deliberately, and it is within the control of the user as to the amount of vigor with which that device shall be operated. “There is a class of prior art, of which this German patent is representative, in which the actual operation of the wheel is not a function of the finger pressure. In illustration of that we have in this German patent a wheel k, only one-half of which is abradant; the other half is smooth. That wheel is so arranged with reference to the movable, pivoted side section of the easing that the movement of that side piece toward the left in Rig. 4, until it reaches the position shown in Rig. 5, that only the smooth portion of that wheel comes in contact with the pyrophoric metal, and therefore no sparks are produced. So that the movement by manual pressure of this green side piece does not itself produce any sparks. What it does is to turn the wheel around into the position shown in Rig. 5, and at the same time put the spring p under pressure, under tension, because the rotation of the wheel in clockwise fashion carries the little crank around with it and extends the spring. “Now, up to that time, and that is the limit of the movement of the side piece, there will be no sparks, but having reached that point the teeth on the wheel escape from the teeth on this rack and the spring which has then been put under this tension, and which has been carried just beyond the center o of the wheel, causes that wheel to give a short, sharp, snappy movement in a clockwise direction, passing the eerated portion of the wheel across the surface of the pyrophoric metal, and giving the shower of sparks which is supposed to light the wick. “So that it is not the downward movement of the finger piece which rotates by manual pressure the wheel to ignite the wick, although with that same movement you do raise ■ the snuffer.” And again: “Under those circumstances I can’t go beyond that, except that the means whereby operation of said finger piece will operate the wheel and snuffer by manual pressure is not present in this patent. “The Court: You say that because the spring e— “The Witness: Does the work. “The Court: Does the work? “The Witness: Yes, sir. “The Court: Doesn’t the spring 40 do the work in part at least in the patent in suit? “The Witness: No, sir, because all that 40 does is to oppose the action of the finger piece; it opposes the means that you must press. “The Court: You mean if, for instance, the element 40 were omitted from the construction the finger piece would nevertheless actuate the wheel and the snuffer? “The Witness: Yes, but it would not be returned. “The Court: I understand. “The Witness: To its original position. “The Court: Yes; you would have to move it back of itself ? “The Witness: Manually move it back instead of having it spring returned. “The Court:' All right. “The Witness: I think that answers your Honor’s question regarding Claim 13 and Gebhardt, because as I view it, there are two features of that claim which Gebhardt lacks. “The Court: Of course, the other side could very well take the view, and does take the view, that the pressure of that equivalent, as they say, finger piece, the part f, does in itself actuate the spring, which in turn does the work. “The Witness: There is no doubt of that, *306that that is exactly what happens, you set the spring and set the wheel, and then your responsibility ends because the spring from that time on is out of your control and does the work, and that is not the patent in suit.” With thiá testimony in the prior suit in mind, it seems to me that to distinguish the patents of the prior art because they indicate a spring rather than a manual operation must lead to the elimination of the Trig-a-lite device, for it must be classified among the spring-actuated devices. With this view of the issue of infringement, it is not necessary to discuss the matter of validity of the claims. However, it may be said that despite the inclusion in the prior art whieh was developed in this trial, of patents not offered in the earlier suit, notably, Wolff United States patent, No. 1,106,175, and German patent to Wolff, No. 221,577, that the defendant is concluded on the issue of validity through the estoppel created by the prior litigation. Carson Inv. Co. v. Anaconda Copper Mining Co. (C. C. A.) 26 F.(2d) 651, 655. The opinion in that case, referring to In re Potts, 166 U. S. 263, 17 S. Ct. 520, 41 L. Ed. 994, said: “We regard that ease as sustaining the principle that if, in a patent litigation, a decree finally determines the principal issues of validity and infringement presented by the pleadings, and settles the litigation over those issues, it is so far conclusive as to determine other litigation between the same parties over the very same issues.” However, if one assumed that such an estoppel did not exist, I think the opinion of the Circuit Court of Appeals leaves no doubt that it would not have been impressed with either of these Wolff patents as an anticipation, for, as Judge Augustus N. Hand stated, in a discussion of the Bergmann British patent, which is not unlike the structure of the Wolff patents: “There is nothing which may be reasonably called a finger piece within the meaning of the patent in suit.” Judge Hand called attention to the freedom “from a cumbersome outer housing” of the snuffer, abradant wheel, and finger piece. The Wolff device certainly shows an outer housing. Defendant may have a decree dismissing the bill. If this opinion is not in sufficient compliance with the rule requiring findings of fact and conclusions of law, submit findings of fact and conclusions of law in accordance therewith.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218649/	JONES, Chief Judge. This is a personal injury action in which plaintiff alleges that injuries he received have permanently and partially incapacitated him. Defendant moves for the production and inspection of plaintiff’s income tax returns for the years 1945, 1946, 1947 and 1948. There is authority in other District Courts for the production of income tax returns. Reeves v. Pennsylvania R.R. Co., D.C., 80 F.Supp. 107. Such authority is not binding on this Court. The Internal Revenue Code, 26 U.S.C.A. § 55, and regulations issued thereunder provide that tax reurns shall be confidential and disclosed only upon application of the plaintiff or his attorney in fact. No provision is made for the production of such returns upon order of a Federal Court. Until such provision is made, this section of the Court has been and is of the opinion that such returns are, in private civil actions, confidential information between the taxpayer and the Government and should not be open to inspection under Rule 34, Federal Rules of Civil Procedure, 28 U.S. C.A. Such a ruling is in accord with previous holdings that documents which have been declared confidential by Federal department rulings are not open to discovery under Rule 34. 2 Moore’s Federal Practice 2641, F.N. 1. Such a ruling will have no serious consequences as the information desired can be obtained by intelligent use of other discovery procedure.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218651/	JONES, Chief Judge. These are motions to dismiss because of lack of jurisdiction. 145Involved are four actions with different plaintiffs but the same defendants. Plain? tiffs are motion picture distributors and defendants operate the Dayton Theater in Akron, Ohio. Films were licensed by plaintiffs to defendants on a percentage of gross admissions or a flat rate basis. The percentage return allegedly served as the basis for the flat rate license. Plaintiffs allege that defendants defrauded and conspired to defraud plaintiffs to their damage by falsifying the gross admissions on percentage rentals. This in turn caused plaintiffs to license pictures at a lower flat rate than they would have if the true gross admissions on the percentage licenses had been known to them. Plaintiffs further alleged that the exact amount of damages is not known to them but they believe the amount is in excess of $3,000. Plaintiff also asks for exemplary damages. • Defendants’ motions to dismiss are based on the facts that plaintiffs admit they do not know the total damages and there is no showing by plaintiffs that the damages do exceed $3,000. Plaintiffs respond by an affidavit of one of their attorneys. When the jurisdictional amount is denied by a motion to dismiss the plaintiffs have the burden of showing that the necessary amount is involved. This can be done by affidavit. KVOS, Inc., v. Associated Press, 299 U.S. 269-277, 57 S.Ct. 197, 81 L.Ed. 183. This case also holds that the formal allegation of the amount in litigation is sufficient unless the complaint contains other allegations which qualify or detract the formal allegation in such measure that when all are considered together it cannot fairly be said that jurisdiction appears on the face of the complaint. In this action the formal allegation of the jurisdictional amount appears. Also appearing is the admission that plaintiffs do not know the exact amount of the damages. This admission of lack of knowledge of the exact amount in controversy does not detract from the formal allegation of jurisdictional amount, if plaintiffs had good cause to believe the damage would exceed $3,000. If good cause exists this Court has jurisdiction. The affidavits of the plaintiffs in my opinion show good cause to believe that the required jurisdictional amount is involved and this Court, therefore, has jurisdiction. In an exactly similar case the same result was reached. See Columbia Picture Corp. v. Rogers, D.C., 81 F.Supp. 580. The motions to dismiss must be overruled. Plaintiffs have also filed motions to produce documents. Since there is no opposition to these motions by defendants, they will be granted. Due to inadequacy of judicial assistance, oral argument cannot be granted. On Objections to Order for Production of Documents and on Motion for a More Definite Statement of the Complaint These are actions for damages arising out of an alleged conspiracy to defraud plaintiffs. Plaintiffs originally filed a motion for production of certain documents in the possession of defendants there being no opposition, plaintiffs’ motion for production was sustained. However, one of the defendants died after the actions were commenced but before the order for production was entered. Thereafter, the administratrix of the deceased defendant was made a substituted defendant. This defendant, with the consent of this Court, now has entered objections to the order for production of documents as it applies to her and also moves for a more definite statement of the complaint. In her objections to the discovery of documents and records, defendant has entered practically every objection permitted l?y Rule 34, Federal Rules of Civil Procedure, 28 U.S.C.A. Production should be denied, it is claimed, because the documents are not sufficiently designated, because they are not relevant to the issues in the case, and because good cause for production has not been shown. The first two objections have little merit. It is obvious from a reading of the complaint alone that the documents and records requested will contain relevant evidence. Furthermore, the documents are 146designated with enough particularity. This Court, in G. & P. Amusement Co. v. Regent Theater Corp., D.C., 9 F.R.D. 721, held that only the specific subject matter of the documents need be designated and this has been done by the plaintiffs in this action. In the Amusement Company case that issue was also before the Court and it was held, if the information desired ■could be obtained only from documents in the possession of the defendants and these documents contained relevant evidence or would facilitate proof or progress at trial, a showing of good cause had been made. In this case it is clear that the information in the documents is relevant and that such information only can be had by discovery of the requested documents. Good cause, therefore, has been shown. The motion for production of documents will be sustained with but one exception. Plaintiffs ask for production of defendants’ income tax returns and papers dealing with such returns. It is the policy of this division of the Court to overrule requests for production of income tax returns for the reasons given, in the case of O’Connell v. Olson & Ugelstadt, D.C., 10 F.R.D. 142. The order for production then will not include provisions for the production of income tax returns. In considering the motion for a more definite statement it should be noted that plaintiffs have agreed to amend their complaints to show the time when the fraud was discovered. This is a material allegation and plaintiffs will be ordered to amend their complaints to show this date. In the disposition of the balance of the motion the Makinson cases, (Loew’s Inc., v. Makinson), D.C., 10 F.R.D. 36, recently decided by this Court are controlling. Essentially the same complaints and the same objections are found in the Makinson cases as are presented by this motion. It was held there that the granting of the motion would enlarge the complaint to proportions beyond those contemplated by Rule 8(a) which provides for a short and plain ■statement of plaintiff’s claim, and that the allegations of fraud were detailed with enough particularity to inform defendants of what the plaintiffs claimed was fraudulent conduct. That ruling applies to this case and the motion therefore will be overruled. The Court realizes of course that defendants must have the information they wish, produced by motion for a definite statement. Since full discovery of defendants’ books, documents and records has been granted to the plaintiffs, it would seem, once discovery has been completed, that the plaintiffs should inform defendants of the facts upon which they will rely. If this is not done defendants still may have recourse to the rules of discovery, and if plaintiffs refuse to disclose the facts which they discover, the Court will order full discovery to the defendants under Rules 26-37.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218652/	SWITZER, District Judge. In the above entitled action, there came on for hearing in open court at Des Moines, Iowa, on February 3, 1950, a motion by the plaintiffs to require the defendant, Iowa-Illinois Gas and Electric Company, to produce certain documents under Rule 34 of the Rules of Civil Procedure, 28 U.S. C.A., and the same was argued and submitted by written briefs by the attorneys for the plaintiffs and for the defendant; and the court having examined the pleadings and the briefs, and being advised, finds: That the main action here is one for damages by reason of the claimed negligence of the driver of a bus owned and operated by the defendant, in colliding with and striking Gary Dulansky, the ten year old 148son of plaintiffs, inflicting injuries to 'said child from which he died on December 1, 1948. Plaintiffs first presented interrogatories upon the defendant under Rule 33 wherein, among other questions, Interrogatory No. 6 asked — “Whether or not the driver of the bus, Mr. Leonard W. Hughes, made any written report or reports concerning this accident to the defendant herein or its agents? If so, in whose possession are the report or reports?” To this interrogatory No. 6, defendant, through its claim agent, Mr. L. J. Moeller, replied — “Mr. Leonard W. Hughes, the driver of the bus, has made a written report concerning this accident to the defendant herein. This report is in the possession of the defendant.” Thereupon plaintiffs filed their motion under Rule 34 requesting an order of the Court to compel the defendant to produce for inspection and copy— (1) the written report made by Mr. Hughes, the bus driver, referred to in answer to a previous Interrogatory (No. 6) thereon; and (2) all reports and written memoranda made by any officer, claim agent or other agent in the full time employ of this defendant, or other employees, pertaining to the' accident out of which this cause of action grew, and including statements made by any witnesses who may have been eye witnesses to the accident. Defendant, Iowa-Illinois Gas & Electric Company, strenuously resists the granting of any such order as prayed for by plaintiffs in their motion, contending that plaintiffs’ mere statement that the documents sought are needed to aid in the preparation of their case, is not a sufficient showing of good cause to justify its request; that plaintiffs’ motion fails to show that the documents sought contain evidence which is material to any matter involved in this action; that that portion of plaintiffs’ motion mentioned in (2) above, does not sufficiently designate or describe the documents sought for inspection and copying as required by Rule 34, or that they are in the possession, custody or control of the defendant; and that plaintiffs’ motion is in the nature of a “fishing expedition” and not permissible under Rule 34. Rule 34 of the Rules of Civil Procedure for the District Courts of the United States, reads in part — “Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 30(b), ' the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26(b) and which are in his possession, custody, or control; It is agreed generally that the new Rules of Civil Procedure, especially Rules 26 to 37, are to be accorded broad and liberal treatment, for, as Judge Moscowitz has stated in Beler v. Savarona Ship Corporation, D.C., 26 F.Supp. 599 — “One of the basic purposes of the new Rules is to enable a full disclosure of the facts so that justice might not move blindly.” But, the right of the plaintiffs in this case to require the production of records and other matters and to inspect, copy and use the same is not an absolute right, hut is one which can be secured and must he exercised only under definitely restricted circumstances, subject always to such limitations as the court may direct for the protection of the parties under Rule 30(b). Under Rule 34 the plaintiff must make a showing, as follows: (1) That there is “good cause” for the production and inspection of the desired material. (2) The material requested must he “designated” with reasonable definiteness and particularity. (3) The material must not be privileged. (4) The material must constitute or con-' tain evidence relating to matters within the scope of the examination permitted by Rule 26(b), i. e., it must be “revelant to the subject matter involved in the pending action.” 149(5) The material must be within the possession, custody or control of the party upon ■whom the demand is made. The new Federal Rules provide for only a sketchy statement of the substance of the claim or defense, which can amount to little more than a notice. It is therefore incumbent that some machinery be substituted for such lack of detail in the pleading and the discovery rules are the answer. It has been said that the most effective machinery for reducing and clarifying the issues is a preliminary examination of the evidence of both parties, as broad in scope as the trial itself. Likewise, it should be noted that this reasoning applies with like force as to both plaintiff and defendant. •The discovery rules, Nos. 26 to 37, inclusive, set up a means of reducing and clarifying the issues and provide for a preliminary examination of the evidence of both parties, as broad in scope as the trial itself. Rule 26 provides for taking the testimony of any party or witness by oral examination or written interrogatories. Rule 33 provides for the issuance of written interrogatories to any adverse party. Rule 34 provides, upon a showing of good cause, for an order upon any party to produce designated papers for inspection, copying or photographing. The scope of the examination allowed is set forth in Rule 26(b) and permits a party to be examined regarding any matter not privileged, which is relevant to the subject matter involved in the pending action, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of the persons having knowledge of relevant facts. The pre-trial deposition discovery mechanism established by Rules 16, and 26 to 37, is indeed a significant innovation of the Federal Rules of Civil Procedure. Previous to the adoption of said new Rules inquiry into the issues and facts before trial was narrowly confined and often cumbersome and, as such, civil trials in the federal courts need no longer be carried on in the dark by either party to them. It is now possible and practicable, consistent with compliance to the 5 prerequisites heretofore enumerated, for either party to obtain the fullest possible knowledge of the issues and facts before trial; and mutual knowledge of all the relevant facts gathered by both parties is essential to' litigation; thus permitting either party to compel the other to disgorge whatever facts he has in his possession. The net effect of this procedure simply is to advance the stage at which these facts are available to each party and thus eliminate to the fullest extent possible, prior to the time of the trial, the possibility of surprise to either party. Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451. Plaintiffs contend that because of the severe injury and subsequent death of their child that they were prostrated and grief stricken for some period of time following the alleged accident; and that, as such, were not provided with an opportunity to immediately retain counsel and obtain for themselves an intimate knowledge of the facts surrounding said accident, and that defendant availed itself of this information by a regularly employed claim agent who obtained a statement from the driver of the bus which allegedly collided with the child. And it should here be observed that good cause has nothing to do with the contents of the documents requested, but rather with the reasoning why their production is called for. Reeves v. Pennsylvania R. Co., D.C., 8 F.R.D. 616. Plaintiffs’ motion as to the documents or papers requested is couched in two numbered paragraphs, each of which must be treated individually in our search to ascertain whether the tests under Rule 34 have been met in said motion. Since no affidavit is appended to the motion, the court must look to the statements made in the motion itself, the complaint and written arguments for the facts upon which to base a decision. In conclusion, I am of the opinion from a reading of the complaint, the motion and arguments that the request made in paragraph 1 of this motion meets all the tests set forth in the cases and as dis150cussed herein. Certainly there is reasonable ground for belief that the documents requested contain evidence relating to matters not privileged, and which are relevant to the allegations of the complaint herein and particularly to paragraphs 5 and 6 thereof; or are reasonably calculated to lead to the discovery of admissible evidence and are needed by the plaintiffs to aid in the preparation of their case. Likewise, good cause is shown for the production and inspection of the desired material. The document requested is designated with reasonable definiteness and particularity, and the material .is shown to be within the possession, custody and control of the defendant. Certainly there is no prejudice to the defendant which could result from the production of the statement made by the driver of the bus. As to paragraph No. 2 of the motion, no showing has been made that the material thereby sought is not privileged. Likewise, no showing has been made that it is relevant to the subject matter involved in the pending action; nor, is the material “designated” with reasonable definiteness and particularity. It is true that the courts have recently departed from their prior denunciations of “fishing expeditions”, Hirshhorn v. Mine Safety Appliances Co., D.C., 8 F.R.D. 11, 21, Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451; and yet the discovery rules do not go so far as to permit an encroachment by one party upon the other’s files made up in contemplation of and in preparation for the trial of his cause, without a particularly strong showing of good cause, which is not present here. Hickman v. Taylor, supra. It is quite conceivable that there may be statements, memoranda, or other papers now in the possession of the defendant or its counsel which could be reached by the discovery mechanism, provided the prerequisites herein set forth are adequately shown. The Clerk will enter the following order: This matter coming on for hearing on the motion of the plaintiffs for an order on the defendant Iowa-Ulinois Gas and Electric Company to produce documents under Rule 34 of the Rules of Civil Procedure, and the same having been argued by briefs of counsel, and being advised, It is ordered that said motion is sustained except as to paragraph No. 2 thereof which is overruled. Both parties except.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218653/	KLOEB, District Judge. This matter is before the Court on the motion of the defendant 'for rehearing of plaintiff’s motion, fded under the provisions of Rule 34 of the Federal Rules of Civil Procedure, 28 U.S.C.A., for the production and permission to inspect and to copy, photograph or photostat statements and reports of employees of the defendant’s crew relative to the accident and injuries which resulted in the death of plaintiff’s decedent. This motion was granted as to such statements and reports made to the defendant prior to the filing of this case, which was intended to exclude any statements taken in preparation for the trial of the case. The leading case on the construction of Rule 34 is Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. In that case the Court held that the rule should be liberally construed, stating: “We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent's case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be 'Compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise. But discovery, like all matters of procedure, has ultimate and necessary 'boundaries. As indicated by Rules 30 (b) and (d) and 31 (d), limitations inevitably arise when it can be shown that the examination is being conducted in bad faith or in such a manner as to annoy, embarrass or oppress the person subject to the inquiry. * * * ” 329 U.S. at pages 507, 508, 67 S.Ct. at page 392. (Emphasis supplied.) In the concurring opinion by Mr. Justice Jackson, it was stated with reference to production of signed statements under the rule: “The question remains as to signed statements or those written by witnesses. Such statements are not evidence for the defendant. Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, [87 L.Ed. 645, 144 A.L.R. 719.] Nor should I think they ordinarily could be evidence for the plaintiff. But such a statement might be useful for impeachment of the witness who signed it, if he is called and if he departs from the statement. There might be circumstances, too, where impossibility or difficulty of access to the witness or his refusal to respond to requests' for information or other facts would show that the interests of justice require that such statements be made available. Production of such statements are governed by Rule 34 and on ‘Showing good cause therefor’ the court may order their inspection, copying or photographing. * * * ” 329 U.S. at page 519, 67 S.Ct. at page 297. (Emphasis supplied.) The witnesses whose statements and reports are involved are all employees of the defendant and there may have been no other witnesses to the accident. The action is one for the wrongful death of the plaintiff’s decedent. 'Counsel for plaintiff makes a statement in his affidavit that, in order to properly prepare for trial and possibly take depositions of the witnesses, it is necessary that plaintiff be afforded an opportunity to inspect, copy and photograph the statements and reports made by members of the crew to its operating or claim department in the regular course of business relative to the accident. He makes the professional statement in his brief that several of the witnesses were seen and stated they did not wish to make any statements to any one not connected with the company. Such an attitude on the part of the employees of the railroad company is understandable. Of course, the plaintiff may take the depositions of the witnesses and they may be compelled to disclose their version of the facts, but the statements which were made after the accident by the employees of the defendant who witnessed the accident to the claim department in the course of its investigation may be useful and serve the interests of justice in the examination of the witnesses. While the showing of “good cause” on the motion in this case is not all that could be desired, the 'Court deems it sufficient in this case to *152justify the order heretofore made, and the motion for rehearing will be overruled. The ruling of this Court in the case of Pacer v. Greyhound Corporation of Delaware, No. 6110 Civil,1 referred to by counsel for the defendant, on objections to interrogatories is not inconsistent with this ruling. That involved merely a matter of procedure, the Court holding that the production of documents was .properly a matter ooming under Rule 34 of the Federal Rules of Civil Procedure rather than under Rule 33, relating to interrogatories. . No opinion for publication.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218655/	KIRKPATRICK, Chief Judge. The action is by a passenger on a bus of the defendant, Pennsylvania Greyhound Lines, to recover for injuries incurred in a collision in Philadelphia with a bus owned by the defendant, Philadelphia Transportation Company. The plaintiff is a resident of Boston. After answer filed, the defendant, Philadelphia Transportation Company, served notice of intention to take the deposition of the plaintiff upon oral examination, the place specified being in Philadelphia. The plaintiff has moved under Rule 30(b), Federal Rules of Civil Procedure, 28 U.S. C.A., for a protective order requiring the defendant to elect either (a) to pay the plaintiff’s travel expenses to and maintenance in Philadelphia in connection with the taking of her deposition here, (b) to take the deposition in Boston or (c) to proceed by written interrogatories. In support of the motion the plaintiff has filed an affidavit stating that, because of her physical condition resulting from the injuries, she has been and is unable to earn any money and that she has no savings or no source of income whatever and that she is living with her son-in-law and being supported by him. Rule 30(b) has always been construed as authorizing orders of the kind asked for by the plaintiff and the Court is given a wide discretion. In a number of New York cases, relief similar to that asked for by the plaintiff has been granted. In doing so the Court acted in conformity with a local rule and, therefore, the cases d'o not quite meet the issue here presented. However, the adoption of the local rule may be taken as an indication of the general policy of •the District Court of New York and, of course, indicates that the Court does not consider that policy in conflict with the spirit of the Federal Rules. In Societe Internationale Pour Participations Industrielles et Commerciales S. A. v. Clark, 8 F.R.D. 565, the District Court for the District of Columbia ordered the Attorney General, who had noticed the plaintiff to take depositions of its officers in Washington, to pay the expenses of the officers from Switzerland. Of course, the conditions of the case were not much like the present one but it may be noted that there is nothing to show that the plaintiff itself was not fully able to pay the expenses of bringing its officers to Washington. Under the circumstances of this case I regard the order as a proper one and it will be entered as prayed for.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218656/	BURKE, District Judge. Plaintiff, an employee of the defendant, has a verdict against the defendant for personal injuries. The action was brought under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. The defendant moves here, under Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., for judgment notwithstanding the verdict, and in the alternative for a new trial on the ground of alleged errors of the Court at the trial, and upon the ground that the verdict was contrary to law and to the weight of the evidence. I think now, as I thought at the conclusion of the evidence, that it was proper to deny defendant’s motion for a directed verdict, in view of the unmistakable trend toward liberality in the interpretation of the Federal Employers’ Liability Act and the policy of the United States Supreme Court of resolving differences in doubtful cases in favor of injured railroad employees as evidenced by decisions of that Court. Lilly v. Grand Trunk Western Ry. Co., 1943, 317 U.S. 481, 63 S. Ct. 347, 87 L.Ed. 411; Tiller v. Atlantic Coast Line R. Co., 1943, 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967; Bailey v. Central Vermont Ry., 1943, 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Tennant v. Peoria & P. U. Ry. Co., 1944, 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Tillor v. Atlantic Coast Line R. R. Co., 1945, 323 U.S. 574, 65 S.Ct. 421, 89 L.Ed. 465; Blair v. Baltimore & Ohio R. Co., 1945, 323 U.S. 600, 65 S.Ct. 545, 89 L.Ed. 490; Wilkerson v. McCarthy, 1949, 336 U. S. 53, 69 S.Ct. 413. I therefore deny defendant’s motion for judgment notwithstanding the verdict. But defendant’s alternative motion is based upon other considerations. The trial court may weigh the evidence, set aside a verdict and grant a new trial upon proper grounds, even though there was substantial evidence to prevent the direction of a verdict. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 156189, 85 L.Ed. 147; Garrison v. United States, 4 Cir., 62 F.2d 41, 42; Roedegir v. Phillips, 4 Cir., 85 F.2d 995, 996; Aetna Casualty & Surety Co. v. Yeatts, 4 Cir., 122 F.2d 350, 354; Marsh v. Illinois Central. R. Co., 5 Cir., 175 F.2d 498. It is no answer to a motion for a new trial to cite cases such as Tennant v. Peoria & P. U. Ry. Co., supra, and Lavendar v. Kurn, 327 U. S. 645, 66 S.Ct. 740, 90 L.Ed. 916, as authority for the proposition that questions of fact are for the jury’s determination and not the court’s. Such cases deal with the power of the court to direct a verdict. The direction of a verdict finally, as a matter of law, substitutes the determination of the court on questions of fact for that of a jury. The granting of a motion for a new trial does not, but merely requires that another jury determine the facts, for reasons which in the interest of justice are compelling. When a new trial is ordered it should be done cautiously and prudently. It is proper, and helpful to the party whose verdict is upset, for the court to point out specifically the reasons for the court’s action. See dissenting opinion in Galloway v. United States, 319 U.S. 372 at page 411, 63 S.Ct. 1077, at page 1097, 87 L.Ed. 1458, for the advantage to a losing party of -knowing the specific grounds for ordering a new trial. I am not persuaded to set aside the verdict on the ground of alleged errors of the Court at the trial, but I think that the verdict was against the clear weight of the evidence. Plaintiff’s injuries arose, according to his claim, out of an occurrence of loading a keg of railroad spikes onto a truck which had been backed up to a railroad crossing. The proof rested solely on the testimony of the plaintiff himself, although according to his own testimony fourteen to sixteen fellow workmen were on the truck. No explanation was offered by the plaintiff why none of them were called as witnesses. The particular crossing where the alleged incident took place was indefinitely identified, although the plaintiff said he worked on it many times, but it was a farmer’s crossing. A fellow workman named Felicita was helping plaintiff load the spikes onto the truck, according- to the plaintiff’s testimony. He lived less than two miles from the plaintiff. He is no longer employed by the railroad. He was not called as a witness by the plaintiff, but he was called by the railroad. He remembered riding on the truck the morning of the alleged occurrence but denied that any kegs of spikes were loaded onto the truck by the plaintiff or by anyone else. On the evening of June 30th, 1948, the date of the alleged occurrence, plaintiff went to the Robert Packer hospital in Sayre, Pennsylvania, where he lives, to get relief from pain in his back. He was examined by Doctor Johnson who made a written report of what was told to him by the plaintiff. The doctor reported that the plaintiff said he was shoveling and using an iron bar when he noticed a severe pain in his low back region. The time was given as 10:30 A. M. June 30th, 1948. On July 2nd, 1948, while in the hospital for treatment, his history was taken by Doctor Potter and reduced to writing. The written report showed that the patient said his injury occurred while he was shoveling stones and a sharp pain caught him in the low back. Neither of these doctors had any connection with the railroad. The plaintiff made a written statement to the railroad claim agent on July 14th, 1948 to the effect that on June 30th, 1948 he, with Holmes a fellow workman, was engaged in tamping stone under railroad ties and that about 11 A. M. -a sudden pain caught him in the lower part of his back! In his testimony at the trial he fixed the alleged occurrence of loading the spikes shortly after 7:00 A. M'. On July 15th, 1948, while at home with his wife, plaintiff, in his own handwriting, made an application to the Benefit Association of Railroad Employees, an insurance company having no connection with the railroad. He there fixed the date and hour of the accident -at 11 A. M. on June 30th, 1948, and in answer to written questions as to how he was hurt and what he was doing he wrote “shoveling stone and tamping them under ties.” Holmes, no longer employed by the railroad, said that he worked with the plaintiff -all of the morning of June 30th, 1948, tamping stone and that no mention was made by the plaintiff of any injury until nearly noon when he 157complained of a stitch in his back. Rorick was the plaintiff’s foreman. He testified that he was present at the Yellow House crossing on June 30th, 1948 prior to the time the truck arrived. He said the truck could not, and did not, approach within several hundred feet of the track because of obstructions. He said that the plaintiff made no complaint of any kind to him that morning until about 10:30 A. M. Plaintiff had been shovel tamping with Holmes for several hours when he told Rorick that he had a stitch in his back. Rorick made a report stating that plaintiff was shovel tamping with Holmes and that he told Rorick about 10:30 A.M. that he had a stitch in his back. The report stated that Rorick asked him what caused it and that the plaintiff said he did not know. Pry-slopski was the truck driver employed by the railroad who drove the men to work. He had no recollection of this particular date but did remember that in the summer of 1948 he had driven the men and let them out four or five times at the Yellow House crossing. He said that he never drove the truck to the tracks because of obstructions but let the men out at the barn, which was about 300' to 350' from the tracks. He denied ever giving any orders to the plaintiff or any one else to load railroad spikes onto the truck and said that he never hauled railroad spikes when men were riding on the truck. As has been noted, the crossing ■where the alleged incident of loading the spikes took place, was indefinitely identified by the plaintiff. It could not have been Campion crossing, the next crossing to Yellow House toward the west, for that was a public crossing with a macadam pavement (there is confusion in the testimony regarding directions, arising probably because railroad directions in this locality do not coincide with compass directions). The next crossing to Yellow House to the east was Norris crossing, a farm crossing, but the truck driver testified that this crossing was 1000' from the road and was protected by a gate, and that the truck never went closer than 30' from the tracks and never went through the gate. No testimony was offered by the plaintiff to rebut defendant’s evidence that a truck could not approach closer to the tracks at Yellow House crossing than 300’, nor was the indefiniteness of the crossing where the alleged incident took place ever cleared up by the testimony. No testimony was offered to rebut the testimony of the truck driver that there was a gate at Norris crossing and that the truck never went through the gate. The witness Jessey was called by the plaintiff to discredit the testimony of Fe-licita. Jessey, an employee of another railroad and a member of the Railroad Brotherhood, was used on occasions by plaintiff’s attorneys for investigation of claims. He went to Sayre in February, 1949. He interviewed Felicita on the street. He took no written statement. His testimony was unsatisfactory and unconvincing. He said Felicita remembered having helped Benjamin lift a keg of spikes onto a truck, and that he complained as he was pushing those spikes on the truck about a kink in his back, and that he had to quit work. When asked in regard to what time it occurred, he said that Felicita told him it happened before lunch. Then the witness said, “As I recall it, it happened before lunch and after he got this kink in his back he went over and laid down in the car.” Then the question was asked, “Right away?” and the answer was, “Right away.” This version of the accident is neither in accord with Fe-licita’s testimony nor Benjamin’s, and it is a fair inference that it was the result of superficial and inadequate investigation of the details. Although the witness had been sent to investigate the circumstances of the occurrence, he said that he did not ask Felicita where the incident took place, but that Felicita said it was out of town a short ways. Outside of plaintiff’s own testimony,, which is discredited by his own statements in writing and by admissions made shortly after the alleged occurrence to- disinterested persons, all the testimony tends to establish that plaintiff’s injuries came about late in the morning of June 30th, 1948, while he was tamping stone under railroad ties. Considering the testimony as a whole the verdict of the jury is not supported by ihe *158evidence and is contrary to the clear weight of the evidence. In the exercise of discretion and to prevent a miscarriage of justice the defendant’s motion to set aside the verdict and for a new trial is granted.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218657/	McCARTHY, District Judge. Plaintiff’s motion to inspect a statement given by him to “the defendant, its agents, servants or representatives in the investigation of the accident upon which this suit is based and which was procured prior to the institution of this suit” came before the court and was allowed, with memorandum of decision, on January 17, 1950. Defendant then moved for a rehearing of the motion in order to clarify certain facts upon which the legal conclusion allowing the motion was based. Upon the arguments and representations of counsel, and without hearing evidence, I originally found that the statement in question in the files of the defendant’s attorney was “mere verbatim recordation of plaintiff’s account of the alleged accident”, “taken by one of the attorney’s employees”, and did not “involve the attorney’s mental impressions, conclusions, and opinions, legal theories, or personal beliefs”, and was not a “work product” of the attorney. I also found good cause for the production of the statement under Rule 34, Fed. Rules Civ. Proc. 28 U.S.C.A. After hearing witnesses, viz., the plaintiff and the attorney-associate of defendant’s counsel who took the statement, I *159must agree that, as defendant states it, there was “an erroneous or unclear presentation of the controlling factual situation involved in this motion.” From the evidence presented I find that there was no “mere verbatim recordation” hut, rather, that the statement as it now appears is the result of information drawn from the plaintiff in an investigating interview by the questioning of an attorney in preparation of a case which might come to trial. If the plaintiff had merely dictated a statement to a person in the attorney’s office, as I had originally thought the fact to be, then, given good cause, I am still of the opinion that the court has the requisite discretion to make a judgment as to whether discovery should be allowed as to such a statement. Such a verbatim recordation can hardly he said to differ from a written statement secured from a witness, discovery of which for good cause may he allowed. Hickman v. Taylor, 329 U.S. 495, 512, 67 S.Ct. 385, 91 L.Ed. 451. But in the instant case the attorney did more than merely record, verbatim, the plaintiff’s statement. The statement recorded was, at least to some extent, the product of the attorney’s questioning and part of the “work product” of the defendant’s counsel which is protected under the Hickman case, supra. Even if the statement were not part of the “work product”, I am unable to find on the evidence that good cause exists for its production. At the original hearing on the motion I was impressed by the representations of plaintiff’s attorney in this regard. But, after observing the plaintiff testify, I find that he knew that he was in a law office, that the person who interviewed him was an attorney, that the completed “statement” was read back to him, and, in summation, that he has adequate knowledge of all that transpired at the interview. Such being the case, I find no cause sufficient to order production of the statement. In accordance with the above, I revoke my original allowance of the motion, withdraw my memorandum of decision dated January 17, 1950, as inapplicable to the pi oven facts, and deny plaintiff’s motion to inspect, etc.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218658/	SMITH, District Judge. This is a civil action of interpleader instituted under 28 U.S.C.A. § 1335. The complaint alleges that the plaintiff is in possession of a certain stock certificate registered in the name of the defendant Frank Corral, representing 300,000 shares of capital stock of Higgins, Inc. The complaint further alleges: first, that the defendants, other than Andrew J. Higgins and Thomas J. Fleming, have demanded delivery of the said certificate; and second, that the defendant Andrew J. Higgins “asserts rights to 171,000 shares of the 300,000 shares of stock.” The complaint contains the usual prayers for relief. The defendant Andrew J. Higgins filed an answer in which he alleges “that he is entitled to 171,000 shares of the 300,000 shares represented by the said stock certificate.” This allegation appears to be predicated on a certain contract, a copy of which is annexed to the answer, to which the defendants Armando Mayorga and Fernando Mayorga are alleged to be parties. The defendant Thomas J. Fleming filed an answer in which he failed to assert any claim to the certificate of stock notwithstanding the execution of a writ of attachment under which, as appears from the allegations in the pleadings, he seized the certificate but subsequently surrendered it to the plaintiff. The action is before the Court at this time on the motion of the defendant Corral, first, to dismiss the complaint for failure to state a claim upon which relief can be granted, and second, for summary judgment in his favor. Rules 12(b) and 56(b) of the Rules of Civil Procedure, 28 U.S. C.A. Dismissal of Complaint. The motion to dismiss the complaint seems to be based solely on the argument that the defendant Higgins does not have a valid claim to the certificate of stock. There are several arguments advanced in support of this contention but we see no reason to summarize them in this opinion. It must be remembered that the said defendant has asserted- a right “to 171,000 shares of the 300,000 shares of stock” under a contract with the former owners. The property here in litigation is not the certificate of stock but the shares of stock of which the certificate is merely evidence. It is.argued that the claim asserted by the defendant Higgins is “baseless.” We may assume, for the purpose of discussion only, that his claim rests upon tenuous grounds but this assumption would not justify a dismissal of the present complaint. The staute clearly recognizes the right of a stakeholder to institute a civil action of interpleader if two or more adverse claimants “are claiming or may claim to be entitled to * * * money or property, or to any one or more of the benefits arising by virtue of any note, bond, certificate, policy or other instrument, or arising by virtue of any such obligation.” The mere fact that the claim of one of the claimants may be without merit, the usual situation, will not defeat the right of- the stakeholder to invoke the remedy intended for his protection. “The jurisdiction of a federal court to entertain a bill of interpleader is not dependent upon the merits of the claims of the defendants. Metropolitan Life Ins. Co. v. Segaritis, D.C., 20 F.Supp. 739. It is our opinion that a stakeholder, acting in good faith, may maintain a suit in inter-pleader for the purpose of ridding himself of the vexation and expense of resisting *161adverse claims, even though he believes that only one of them is meritorious.” Hunter v. Federal Life Ins. Co., 8 Cir., 111 F.2d 551, 556; See also Metropolitan Life Ins. Co. v. Mason, 3 Cir., 98 F.2d 668; Edner v. Massachusetts Mut. Life Ins. Co., 3 Cir., 138 F.2d 327. The stakeholder is clearly not required to decide the issues raised by the respective claims, especially where, as here, the decision may expose him to a multiplicity of suits. The complaint alleges that the stock certificate was seized by the defendant Fleming, as Sheriff of the County of Hudson, pursuant to a writ of attachment issued by the Superior Court of New Jersey, in a suit brought by the defendant Higgins against Armando Mayorga and others. This allegation is denied by the said defendant, who alleges in his answer “that he never had actual physical custody or possession of the stock certificate in question.” An issue of fact is clearly presented by these conflicting allegations, an issue of fact which cannot be determined on the affidavits now before the Court. It is our opinion that the motion to dismiss the complaint must be denied. Summary Judgment. The motion for summary judgment is predicated primarily upon the affidavit of the defendant Corral, who states therein that he is the owner of the stock certificate in question and entitled to immediate possession thereof. Except for these factual statements, the statements made by the defendant in his affidavit are argumentative. The other affidavits, which contain irrelevant matter, only reiterate the conflicting claims. It is our opinion that the present record will not support the motion for summary judgment. It is now well established by the many reported decisions that Rule 56 of the Rules of Civil Procedure vests in the Court a limited jurisdiction to enter judgment only if it clearly appears “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” There is no authority in the Court to summarily try the factual issues on the affidavits of the parties. The complete absence of any genuine issue of fact must be apparent, and all doubts thereon must be resolved against the movant. The motion for summary judgment must be denied. An examination of the pleadings discloses that the defendant Higgins has attempted to broaden the scope of the present action by stating in his answer claims for damages against the defendants other than the defendant Fleming. These claims are stated in the alternative, hut their inclusion is nevertheless an attempt to introduce several independent actions. We entertain some doubt as to the right of a defendant to thus enlarge the scope of a civil action of interpleader. It is our opinion that the question should be argued and decided either at a pretrial conference or on motion of the parties.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218659/	FREED, District Judge. Defendant objects to five of the requests for admissions made by plaintiff pursuant to Rule 36, Federal Rules of Civil Procedure, 28 U.S.C.A. These requests concern matters which were previously the subject of interrogatories propounded by plaintiff under Rule 33. The Court ruled on the ground of irrelevancy that these interrogatories need not be answered. Plaintiff justifies the reiteration of these questions by asserting that the test of relevancy under Rule 36 is broader, in some fashion, than the test of relevancy under Rule 33. The Court does not agree. If anything relevancy for purposes of Rule 33 should be more liberally construed, for Rule 33 recognizes inquiry into matters inadmissible in evidence while Rule 36 is intended to facilitate proof at trial. The only difference between the substance of the present requests and the earlier interrogatories is that the “innuendo” found objectionable by the Court is no longer present, and defendant quite properly assumed that the question had been put at rest by the Court’s ruling. However, the Court is now of the opinion that its earlier ruling was in error and the present objections should not be sustained. Plaintiff seeks admission of the genuineness of answers to interrogatories propounded and a deposition taken in another lawsuit arising out of the same airplane accident involved in this case. The Court is not called on now to rule definitively that these will be allowed in evidence, for whatever may be the ordinary rule as to the admissibility of facts admitted under Rule 36. See Sulzbacher v. Travelers Insurance Co., D.C., 2 F.R.D. 491, the form in which plaintiff submits the requests reserves to defendant the right to make objection to admissibility at trial. Suffice it to say that under some circumstances a deposition in a former action is sometimes admissible as original testimony, InsulWool Insulation Corp. v. Home Insulation, 10 Cir., 176 F.2d 502; Mid-City Bank & Trust Co. v. Reading Co.,1 or is admissible for purposes of impeachment in the event 163deponent testifies at trial. The admissibility of the answers to the interrogatories in the previous action will be determined by the rules governing the admissibility of admissions of a party. No burden on or prejudice to the defendant will result from requiring it to answer the requests for admissions subject to the right to make all pertinent objections at trial, whereas plaintiff will be prejudiced if the items in question are ruled admissible on trial and he has no expeditious way to prove them. The obj ections will be overruled. No opinion for publication.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218660/	SWITZER, District Judge. Builders Distributing Corporation, an Ohio Corporation, defendant herein, having filed what is designated “Special Appearance and Motion to Dismiss,” the question for determination is whether or not that corporation has been brought within the jurisdiction of this court in. this proceeding. From the complaint of plaintiff Hart-sock it is shown: That in the fall of 1949, defendant, Commodity Credit Corporation, an agency operating within the United States Department of Agriculture, undertook to procure the construction of a large number of grain storage bins in Iowa for the purpose of 182warehousing and storing of grains. Co-defendant Builders Distributing Corporation obtained a contract to furnish and construct the said bins on sites supplied by the Commodity Credit Corporation. No performance bond was ever required by the Commodity Credit Corporation or furnished by the Builders Distributing Corporation in connection with the said contract. On Oct. 30, 1949, the Builders Distributing Corporation entered into two written contracts for the erection of these bins with the plaintiff to fulfill the contracts had by and between the Builders Distributing Corporation and the Commodity Credit Corporation. Under oral contracts and agreements prior to Oct. 30, 1949, plaintiff Hart-sock had been engaged in the construction of such storage bins for the Builders Distributing Corporation in Iowa, and by virtue thereof he had already purchased large quantities of materials and had employed many workmen. On Nov. 1, 1949, plaintiff Hartsock and the Builders Distributing Corporation, who in all these transactions acted through its vice-president, Mr. M. S. Clark, entered into a further oral contract and agreement whereby the written contracts mentioned were cancelled and it was agreed that plaintiff should continue and complete the construction of said bins in Iowa and in return the Builders Distributing Corporation would pay plaintiff Hartsock his actual cost for the erection of the bins and in addition thereto “a reasonable profit” for all his services. That under and by virtue of said oral contract, plaintiff continued to employ laborers and to purchase building materials and that he did thereafter complete the construction of 362 steel bins of 3250 bushel capacity each upon sites held under lease therefor by the Commodity Credit Corporation in different Iowa localities. As a part of the oral agreement of Nov. 1, 1949, the Builders Distributing Corporation agreed to furnish funds as needed by the plaintiff to pay the workmen and for the purchase of materials. That plaintiff Hart-sock relying upon this agreement of the defendant Builders Distributing Corporation issued many checks purporting to pay said laborers for their services and the material men for their supplies as furnished on his order, but which checks are still unpaid for the failure of the Builders Distributing Corporation to abide by its agreement to furnish him with the required funds. Total cost of the construction of the said bins is alleged to be $64,136.54, toward which the Builders Distributing Corporation advanced $37,500, leaving unpaid $26,636.54, the amount claimed by plaintiff Hartsock in his action for himself and the respective working men and material men claimants for whom a purported mechanic’s lien was filed in each of the counties in Iowa where said bins are located. On motion, certain claimants, both against the plaintiff Hartsock and the defendants, were permitted to become inter-venors herein. Following this intervention, on behalf of Hartsock there was filed: “Appearance of Herman K. Hartsock to Intervenors Motion and Complaint. “Comes now Herman K. Hartsock and by his attorneys * * hereby enters his appearance to intervenors Motion and Complaint filed in the above entitled cause of action and consents to the jurisdicton of the court.” Application was made on behalf of the intervenors that notice of the filing of their complaint be served on the nonresident Builders Distributing Corporation of Cleveland, Ohio, by the U. S. Marshal in that city. On refusal to permit such service on the nonresident defendant, the plaintiff Hartsock filed an amendment to his complaint, to the effect -that when the contract of Oct. 30, 1949, was entered into the Builders Distributing Corporation constituted and appointed said Hartsock as its agent to supervise the erection of the grain bins in Iowa, and that pursuant thereto he constructed the bins, purchased ’the materials needed and employed the necessary workmen, contracted said debts and obligations as the agent of the Builders Distributing Corporation, and that he was and is its agent in connection with the transaction of its business in the respective counties in Iowa where grain bins were constructed under his supervision. The complaint of the inter-venors was amended in the same manner. 183Summons was directed to the Builders Distributing Corporation on both the main action and on the intervenors’ complaint. The Marshal’s return on such service shows :“*! served this summons on Builders Distributing Corporation, a non resident corporation, by reading this writ to Herman K. Hartsock, its agent in the southern district of Iowa, at Wapello, Iowa. * * ” After service of the two summons mentioned, defendant Builders Distributing Corporation filed its “Special Appearance and Motion to Dismiss” wherein it moved the court to dismiss the action or quash the return of service of summons on the ground that the Builders Distributing Corporation is an Ohio corporation and service of summons was made upon Mr. Hartsock as agent of the Builders Distributing Corporation, which agency did not exist at the time of the service and that no jurisdiction exists therefor. Also, “To dismiss the action because of lack of jurisdiction over the subject matter in that plaintiff attempts to invoke the jurisdiction of this court by filing purported mechanics liens but the purported mechanics liens show on their face that they are insufficient under Chapter 572 of the 1946 Code of Iowa. [I. C. A.]. An affidavit of the president of the Builders Distributing Corporation was attached containing statements disclaiming any agency relationship between Hartsock and the said corporation or that he was ever authorized to accept service of process on behalf of that corporation. On the other hand, affidavits were filed for and on behalf the plaintiff and inter-venors in resistance to the Special Appearance and Motion to Dismiss by Mr. A. T. Wollenhaupt, assistant cashier of the State Bank of Wapello, Iowa, stating generally that vice-president Clark of the Builders Distributing Corporation opened an account with his bank in October 1949 and made deposits in less than thirty days of $35,500, which were drawn out on checks signed by Mr. Hartsock who had been authorized by Mr. Clark to fill in as to payee and amount in connection with the construction of steel grain bins. Mr. Hartsock also filed his affidavit in resistance to said special appearance and motion wherein he sets out what transpired between him and Mr. Clark in the entering into of the agency contracts and the many acts and services which he performed in fulfilling and carrying out the agency so delegated to him by the Builders Distributing Corporation, in the main as alluded to above. Commodity Credit Corporation has not yet filed its pleading as it has been granted an extension of time to do so. These are the facts of the controversy rather fully stated. The court regrets exceedingly that it has had to give precedence to trial work in the interval since the submission of the Special Appearance to the present time. We come directly to the question in issue —Was the service of process on Herman K. Hartsock, “its agent in the Southern District of Iowa, at Wapello, Iowa,” on plaintiff’s and intervenor’s complaints, valid to obtain jurisdiction of the person of Builders Distributing Corporation in this action? The question thus posed must under the authorities be answered in the negative as to both. It is apparent from the pleadings and the affidavits of the respective parties that the defendant corporation did do business in this State, that the plaintiff Hartsock was for certain purposes an agent of said corporation during the time it did business in this jurisdiction. The questions here presented are procedural in character and thus governed by the Federal Rules of Civil Procedure, 28 U.S.C.A. See Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 445, 66 S.Ct. 242, 90 L.Ed. 185, which was confined to Rule 4(f). Citation of Iowa authorities is made merely in support thereof. Rule 4(d) (3) of the Federal Rules clearly authorizes service upon a principal by and through an agent, in the absence of an adverse interest. If therefore we should conclude our inquiry at this point without further pursuing the question of the relationship and interest of the plaintiff Hartsock, jurisdiction certainly would be conferred by the process served here on the plaintiff’s and intervenor’s complaints. And it is im184material in this State whether the agency at the time of the service of process had or had not been terminated. Tuttle v. Nichols Poultry & Egg Co., Iowa, 35 N.W.2d 875. In this State service of process on an agent in charge of the agency out of which the transaction in question arose, is sufficient to confer jurisdiction as to the principal corporation. Duhigg v. Waterloo Gasoline Engine Co., 189 Iowa, 547, 178 N.W. 530. But service on an officer or agent, who, although within the terms of the statute, sustains such a relation to plaintiff or the claim in suit as to make it to his interest to suppress the fact of service, is unauthorized. Section 1315, 19 C.J.S., Corporations, p. 999, and cases cited under Note 69 thereof. Section 108, 42 Am.Jur. page 94. And, as was said by the Supreme Court of the State of Iowa in Re Estate of Duro, 236 Iowa 165, 168, 18 N.W.2d 199, 201, in 1945: “When an original notice is served upon an authorized agent in a suit against the principal or upon an officer in a suit against his company, it marks the commencement of the action and is for the purpose of acquiring jurisdiction of the person of defendant. It imposes upon the one served the duty of acquainting his principal with the commencement of the proceeding in order to avoid default and to enable the defendant to prepare his defense. Interest adverse to the principal in such a case clearly should and does disqualify the service agent. To hold otherwise would manifestly open a door to fraud. White House Mountain Gold Min. Co. v. Powell, 30 Colo. 397, 70 P. 679; Atwood v. Sault Ste. Marie Light, Heat & Power Co., 148 Mich. 224, 111 N.W. 747, 118 Am.St.Rep. 576.” In Iowa an agent cannot represent both himself and his employer in transactions where their interests are adverse. Clapp v. Wallace, 221 Iowa 672, 676, 266 N.W. 493; Benton v. Morningside College, 202 Iowa, 15, 209 N.W. 516. In George v. American Ginning Co., 46 S.C. 1, 24 S.E. 41, 32 L.R.A. 764, 57 Am.St. Rep. 671, it was held that an agent could not commence an action against his corporate principal by having himself served with process when his interest in the outcome of the suit was adverse to his principal. It cannot be seriously argued that the plaintiff Hartsock has no pecuniary or adverse interest personally in the outcome of this suit. His personal interests, even though adverse to the intervenors, are likewise squarely adverse to the defendant corporation. This is true both as to his own prayer for relief and the prayer of the intervenors against the defendant corporation independently of the claim of the plaintiff Hartsock. The very agency which he here urges is to be determined in the suit and his ultimate personal liability to said intervenors or the shifting of that liability to the alleged principal would be determined here in a trial on the merits. These factual conclusions compel a holding that this court is without jurisdiction over the person of the defendant corporation. Both the plaintiff Hartsock and the intervenors strongly urge that the pleading filed herein on March 28, 1950, by the defendant Builders Distributing Corporation, which was denominated “Special Appearance and Motion to Dismiss,” in fact constituted a general appearance, because by its terminology it invokes other powers of this court than simply to quash the service of process. Support for a conclusion on this point may be found in old Iowa Supreme Court cases, as Wood, Bacon & Co. v. Young, 38 Iowa 102, 106, wherein appears the statement: “A motion which calls into action the powers of a court for any purpose, except to decide upon its own jurisdiction constitutes a full appearance.” More recent decisions of the Iowa Supreme Court have relaxed the rigidness of the former rule on “special appearances.” Read v. Rousch, 189 Iowa, 695, 701, 179 N.W. 84; Johannsen v. Mid-Continent Petroleum Corporation, 227 Iowa 712, 719, 288 N.W. 911. However, the contention of the plaintiff and intervenors here that the Builders Distributing Corporation in its “special appearance” has gone beyond the limits of such a pleading is answered by the very wording of Rule 12(b), Federal Rules of Civil Pro185cedure, which is plain and unambiguous as to the present latitude on defensive motions. Judge Maris in Orange Theatre Corp v. Rayherstz Amusement Corp., 3 Cir., 139 F.2d 871, page 874, says : “It necessarily follows that Rule 12 has abolished for the federal courts the age-old distinction between general and special appearances.” The motion should accordingly be sustained and the Clerk will enter the following order: The above entitled matter came on for hearing in open court at Des Moines, Iowa, on the Special Appearance and Motion to Dismiss by the defendant Builders Distributing Corporation, which was argued both orally and by written briefs, and the court having filed its memorandum opinion herein; It is Ordered that the said Special Appearance and Motion to Dismiss by the defendant Builders Distributing Corporation be, and the same is, hereby sustained. Plaintiff and intervenors except.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218907/	GALS TON, District Judge. Exceptions have been filed to the report of the commissioner as to the amount of libelant’s damages to the coal barges Ruthie M. and Florence M. These exceptions rest generally on the ground that the allowances recommended are in excess of the market value of the two barges at the time that the injuries were sustained. On October 23,1931, these barges were lying moored alongside of a bulkhead in the East River. As a result of the negligence of the S. L. Crosby and the barge City, the libelant’s barges were tom from their moorings and sustained the damages in question. There is no issue raised concerning the necessity for the repairs nor that the sum expended in making them was a fair and reasonable amount. These amounted, in the case of the Florence M., to $1,983.69, and for the Ruthie M., to $2,174.89. 318That a claim for damages to a vessel, except in most unusual circumstances, must be limited to the value of the vessel, seems well settled. The Havilah (C. C. A.) 50 F. 331. If the cost of repairing a vessel injured in collision be greater than the price at which a vessel to replace her could be purchased in the open market, obviously such vessel ought to be considered a total loss, and the measure of damages recoverable is her market value, with interest from the time of collision, and incidental expenses. The Benjamin A. Van Brunt (D. C.) 3 F.(2d) 655. It is fundamental in the law of damages that the injured party is entitled to compensation for the loss sustained. . Where property is destroyed by wrongful act, the owner is entitled to its money equivalent, and thereby to be put in as good position pecuniarily as if his property had not been destroyed. In the case of the total loss of a vessel, the measure of damages is its market value, if it has a market value at the time of destruction. Standard Oil Co. v. Southern Pacific Company, 268 U. S. 146, 45 S. Ct. 465, 69 L. Ed. 890. The libelant established its prima facie case by proof of the extent of the damage and the cost of repairs. The burden was then placed on the claimants to show that such damages exceeded the fair market value of the coal barges. The commissioner found that the claimant failed to sustain such burden, and a careful review of the evidence confirms that view. The witness Jeremiah J. Kelly, called by the claimant, testified that he had purchased the two barges from the libelant on June 13, 1932, for $1,750. This, it may be noted, was after the collision and subsequent also to the making of the repairs. Were this testimony to stand alone, it would raise serious doubts as to the reasonableness of the libelant’s claim. However, it does not stand alone, for it appears that the contract of sale, in addition to the cash payment of $1,750, provided that the purchaser was to carry coal for the libel-ant at 3 cents per ton less than the prevailing freight rate. This was a substantial allowance, for the average annual tonnage carried for the libelant was 125,000 tons. It was therefore entirely proper for the commissioner to reject $1,750 as the purchase price of the two boats, though it may be noted that the contract itself I do not find in evidence, and it does not appear for how long a period the claimant was to have such beneficial freight rate as was indicated. The witness Kelly also testified that he had in 1932 purchased nine other coal boats. These had belonged to the Tice Towing Line. They were in poor condition, and only some of them were usable. A total of $4,000 was paid for the nine boats. The testimony concerning them is very vague as to tonnage. Kelly said they ran from 500 to 800 tons. If Kelly based his opinion on the sale of the Tice boats, it seems to me that hardly any weight can attach to his conclusion that $1,-750 represented more than the Florence M. and the Ruthie M. were worth. Cummings was a little more convincing. This witness testified to the sale of thirteen boats by the Pennant Line in May, 1929. The boats were in very poor condition, and were purchased for the purpose of using them as “fill.” Most of them were not in usable condition. He testified also to a sale of the Berwind-White boats in December, 1929, and to a sale of nine coal boats by the United States Navy in 1930. The sale price of these Navy boats was for a lump sum which averaged $1,550 for each boat. He referred also to sales in 1931 by the Berwind-White Company, and by the Park Coal Company on June 20,1931. This latter sale was of thirty-eight boats, of which only three could be operated, and the other thirty-five were sold for bulkheading purposes. The claimant called also the witness Drum, who testified as a marine surveyor and appraiser. He placed the value of the Ruthie M. in October, 1931, at $400, after she had been repaired. His opinion was in part based on the sale of eighteen barges by the Lehigh Coal & Navigation Company in November, 1931. He was familiar also with the sale of the Berwind-White boats, four in number, to Tracy in December, 1929, and of the Pennant boats in 1929, and the Park Coal Company boats in 1931. It seems that the December sale of the Berwind-White boats was for $2,500 each. The sale of the four boats by the McWilliams Blue Line to Meenan Coal Company in July, 1932, was referred to by this witness. These boats were 850 tons. The boats were in fair condition, and were sold for a lump sum of $2,250. The fourth witness called by the claimant was William T. Hanley, who also testified as to sales of coal boats. On the whole, claimant’s proofs fall short of a real standard of comparison with the Ruthie M. and the Florence M. The Pennant Line sale was eighteen boats for a lump sum of $1,800. The Park Coal Company sale was 319thirty-eight boats for a lump sum of $4,200. There is no testimony as to whether any one of the eighteen boats of the Pennant Line sale or any one of the Park Coal Company sale was as good as either the Ruthie M. or the Florence M. There is no comparison of dimensions; and the fact that the boats were in the main used for “fill” or for bulkheading purposes is significant of their lack of condition as vessels fit for operation. The Lehigh Valley sale of eighteen boats for the lump sum of $5,000 included those of from 150 to 450 tons and from 50 to 103 feet in length, and there is a notation on the exhibit that the business went with the purchase price. There is no sufficient particularity proved of any one of these boats such as establishes a means of comparison with either of libelant’s vessels. As to the vessels included in Hanley’s list, only the Crystal, Hunter, Reddy, and Walker need be considered. Each was about twenty years old. These vessels needed repairs. The boats were sold for a lump sum. How they compared with the Ruthie M. and the Florence M. is left a matter of speculation. The testimony of the claimant’s experts is certainly not convincing. How true this is is indicated, perhaps, by the extraordinary divergence of opinion of Drum and Cummings as to the value of the Ruthie M. and the Florence M. They were almost 100 per cent, apart; that is, the former placed $400 as the value of each boat, and the latter, $750. On the other hand, I agree with the commissioner that the testimony of the libelant’s witnesses is much more persuasive. De Mars, who was familiar with the boats, stated that they were between eighteen and nineteen years old; that they had been receiving good care. He estimated the boats to be worth, $3,500 for the Florence M., and $3,200 for the Ruthie M., not on what he knew had been spent by way of repairs, but on his knowledge of the condition of the boats and market conditions. This witness was familiar with the Berwind-White boat sales, and spoke of the custom of that company to sell their boats after they had been in service for twenty years. Such boats make from three to five trips a week with loads of coal, and are subjected to hard usage. They are a smaller type boat than the Ruthie M. and the Florence M. The Park Coal Company boats he knew to be in bad shape, and were fit only for use as “fill.” In conclusion, therefore, I find that the commissioner has very carefully analyzed the evidence; and his report, in accordance with the foregoing view, is in all respects confirmed. The exceptions are therefore overruled. Settle'order on notice.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218908/	GIBSON, District Judge. The trustee, in petition to the referee, asserted that a certain piece of real estate owned by the bankrupt was so ineumbered by liens as to make it worthless to the estate in bankruptcy, and prayed the referee to call a meeting of the creditors to determine whether or not the property should be relinquished. The referee refused to grant the petition and ordered the trustee to make sale of the property. The trustee has caused the matter to be certified to this court for review. It is apparent that the referee’s action was based upon what we conceive to be his misinterpretation of certain language used by Mr. Justice Roberts in his opinion in Isaacs v. Hobbs Tie & T. Co., 282 U. S. 734, 739, 51 S. Ct. 270, 272, 75 L. Ed. 645, which is as follows: “The jurisdiction in bankruptcy is made exclusive in the interest of the due administration of the estate and the preservation of the rights of both secured and unsecured creditors. This fact places it beyond the power of the court’s officers to oust it by surrender of property which has come into its possession. Whitney v. Wenman, 198 U. S. 539, 25 S. Ct. 778, 49 L. Ed. 1157; In re Schermerhorn (C. C. A.) 145 F. 341. Indeed, a court of bankruptcy itself is powerless to surrender its control of the administration of the estate. U. S. Fidelity & G. Co. v. Bray, 225 U. S. 205, 32 S. Ct. 620, 56 L. Ed. 1055.” In the case mentioned, the question before the court was one of conflicting jurisdiction between the bankruptcy court and certain other courts. As we conceive it, the idea which Mr. Justice Roberts sought to convey was not that all property of the bankrupt, onerous or otherwise, must be administered by the bankruptcy court, but was that the bankruptcy court could not devolve upon other courts matters which were within its own peculiar jurisdiction. The original Bankruptcy Act did not mention burdensome property. The English bankruptcy law did mention it and authorized the trustee to disclaim it. The bankruptcy courts of the United States have been universally following the English practice in respect to burdensome property. By the Act of May 27, 1926, section 64a of the Bankruptcy Act (44 Stat. 666, 11 US CA § 104(a) was amended. That section, after the direction to the effect that the court shall order the trustee to pay all taxes legally due, contained the following proviso, which is the subject of the amendment: “Provided, That no order shall be made for the payment of a tax assessed against real estate of a bankrupt in excess of the value of the interest of the bankrupt estate therein as determined by the court.” This language is an indirect enactment of the English statute, and recognizes the rulings of the federal court in respect to burdensome property. The right of trustees in bankruptcy to refuse to accept property of an onerous or unprofitable character has been directly asserted by the United States Supreme Court. See First National Bank v. Lasater, 196 U. S. 115, 25 S. Ct. 206, 49 L. Ed. 408. The order of the referee must be reversed and set aside.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218910/	FORMAN, District Judge. Plaintiff, a citizen of New Jersey, brought suit against the defendant bank of Bradley Beach, N. J., upon certain business transactions between them. On account of the fact that the defendant is a national bank, he alleges his right to bring the action in the United States District Court for this district. Defendant bank asserts that, there being no diversity of citizenship, no facts alleged which involve the United States, or any statute of the United States, or any officer of the United States, and no facts stated which pertain to the winding up of the affairs of the defendant bank by any receiver, the United States District Court is without jurisdiction and moves to dismiss the complaint. Plaintiff defends the motion on the grounds that the specific bank and banking provision authorizing suits against national banicing associations in federal courts was not repealed by the general judiciary clause, and that the jurisdiction of this action is concurrent between this and the state courts. The pertinent statutory provisions are as follows: “Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such, association may be established, or in 336any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar eases.” R. S. § 5198; Feb. 18, 1875, c. 80, § 1, 18 Stat. 320. (12 USCA § 94). “The district courts shall have original jurisdiction as follows: * * “Sixteenth. Of aE cases commenced by the United States, or by direction of any officer thereof, against any national banking association, and eases for winding up the affairs of any such bank; and of aE suits brought by any banldng association estabHshed in the district for which the court is held, under the provisions of chapter 2 of Title 12, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by said chapter. And all national banking associations estabHshed under the laws of the United States shall, for the purposes of aE other actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located.” R. S. § 563, par. 15, § 629, pars. 19, 11; July 12, 1882, c. 290, § 4, 22 Stat. 163; Aug. 13, 1888, c. 866, § 4, 25 Stat. 436; Mar. 3, 1911, c. 231, § 24, par. 16, 36 Stat. 1092 (28 USCA § 41 (16). The language of Mr. Justice Harlan in Continental National Bank v. Buford, 191 U. S. 119, 24 S. Ct. 54, 48 L. Ed. 119, appears dispositive of the question. He states at page 123 of 191 U. S., 24 S. Ct. 54, 55: “But, in respect of national bank associations, a radical change was introduced by subsequent acts of Congress. “By the act of July 12th, 1882, chap. 290, it was provided: ‘That the jurisdiction for suits hereafter brought by or against any association estabHshed under any law providing for national banking associations, except suits between them and the United States, or its officers and agents, shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business, where such national banking associations may be doing business when such suits may be begun: And all laws and parts of laws of the United States inconsistent with this proviso be, and the same are hereby, repealed.’ 22 Stat. 162. Then came the judiciary act of March 3d, 1887, corrected by the act of August 13th, 1888, chap'. 866, and providing [section 4] : ‘That all national banking associations estabHshed under the laws of the United States shall, for the purposes of all actions by or against them, real, personal, or mixed, and aE suits in equity, be deemed citizens of the states in which they are respectively located; and in such eases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same state. The provisions of this section shall not be held to affect the jurisdiction of the courts of the United States in cases commenced by the United States or by direction of any officer thereof, or cases for winding up the affairs of any such bank.’ 25 Stat. 433. “The necessary effect of this legislation was to make national banks, for purposes of suing and being sued in the circuit eourts of the United States, citizens of the states in which they were respectively located, and to withdraw from them the right to invoke the jurisdiction of the circuit courts of the United States simply upon the ground that they were created by, and exercised their powers under, acts of Congress. No other purpose can, be imputed to Congress than to effect that result. Of course, notwithstanding the aets of 1882 and 1888, there remained to a national bank, independently of its Federal origin, and as a citizen of the state in whieh it was located, the right to invoke the original jurisdiction of the circuit courts in any suit involving the required amount, and which, by reason of its subject-matter, and not by reason simply of the Federal origin of the bank, was ‘a suit arising under the Constitution or laws of the United States. Petri v. Commercial Nat. Bank, 142 U. S. 644, 648, 12 S. Ct. 325, 35 L. Ed. 1144, 1145.” (Italics ours.) This suit being based entirely upon commercial transactions between the parties, and no federal question being involved, it follows that this court is without jurisdiction, and an order wiE therefore enter dismissing the complaint.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218661/	REEVES, Chief Judge. Heretofore, towit, on February 2, 1950, the plaintiff submitted twenty-one interrogatories to be answered by the defendant. On May 22, 1950, the defendant filed its answers to said interrogatories save only as to Interrogatories 3, 7 and 21. Interrogatory number 3 is as follows: “State the location in said premises where said gas meter was installed and the manner in which it was connected and installed.” The answer to said Interrogatory No. 3 was: “In a closet of the house with which plaintiff is familiar.” It appears, in a letter from counsel for defendant, dated May 22, 1950, that the plaintiff was an occupant of the premises and was entirely familiar with the location of the gas meter. The manner in which it was connected and installed would be a mere matter of mechanics and plaintiff would be in a better position to make such inspection than is the defendant. Interrogatory No. 7 asks for: “the names and addresses of any and all agents, servants and employees of defendant who inspected or examined said meter or gas pipes and connections, etc.” The defendant gave the names and addresses of three persons, and then said, “and there may be others.” In the above mentioned letter from counsel, which letter was intended as a brief or suggestions in opposition to the motion here under consideration, counsel said that no others were known but that the defendant did not want to be foreclosed if others shotdd be found who had inspected said meter. Interrogatory No. 21 requests: “ * * * the names and addresses obtained by defendant of all persons who were, or claim to have been, witnesses to said fire; or who have, or claim to have, knowledge thereof; or who have, or claim to have, knowledge or information as to the cause thereof.” In answer to this interrogatory the defendant declined to give any information for the reason that “Interrogatory No. 21 is an improper interrogatory, and not answered for that reason.” Under Rule 33, Federal Rules of Civil Procedure, 28 U.S.C.A., interrogatories may be co-extensive with depositions under Rule 26. Adverting to paragraph (b) of Rule 26, it is to be noted that: “ * * * the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, * * * including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts." (Emphasis mine.) It will be noted that Interrogatory No. 21 does not request “the identity and location of persons having knowledge of relevant facts” but it asks that defendant “give the names and addresses obtained by defendant of all persons who were, or claim to have been, witnesses to said fire; etc:” Clearly, this would be an invasion of counsel’s private files and would be in violation of public policy. It has been ruled repeatedly that counsel in a case should not be required to divulge information obtained in preparation for trial, and, as indicated, the information sought by Interrogatory No. 21 is not conformable to the provisions of paragraph (b) of Rule 26, Rules of Civil Procedure. In view of the foregoing, the motion to compel answer to said interrogatories should be and will be overruled.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218663/	REEVES, Chief Judge. This motion has been examined together with the briefs of counsel. The action is one in replevin. The plaintiff seeks the possession of one 1947 Ford Truck, Motor No. 1643066, together with all attachments thereto and the equipment thereon. The moving defendant has not only filed a counterclaim against the plaintiff, but in like manner has filed a counterclaim against his codefendant, R. H. Weaver. By this motion said defendant now seeks to bring in a third party. Rule 13, Federal Rules of Civil Procedure, 28 U.S.C.A., is inadequate for the purpose sought by said defendant for the reason that it relates solely and alone to counterclaims either against the plaintiff or against a codefendant. By Rule 14 relating to third-party practice, in a proper case a third-party defendant might he brought in. However, under such circumstances such a third party must either be liable to the third-party plaintiff or to the plaintiff in the action. This being a simple action of replevin wherein the gist of the action is the right of possession of personal property, there is no place for a third-party proceeding. This is so for the reason that at common law even a counterclaim could not be interposed in a replevin suit. Without statutory authority the rule has been relaxed, however, in Missouri. Boehme v. Roth, Mo.App., 280 S.W. 703; McCormick Harvesting Co. v. Hill, 104 Mo.App. 544, 79 S.W. 745; Ely v. Sutton, 177 Mo.App. 546, 162 S.W. 755. In a mere replevin suit there would he no basis for third-party adjudications. Accordingly, the motion to bring in a third-party defendant will be denied.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218665/	GALSTON, District Judge. This is a motion made by the defendant, State Mutual Life Assurance Company, under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., for summary judgment dismissing the complaint on the grounds that plaintiff is not the proper party to bring the action, and that plaintiff has failed to join an indispensable party; or, in the alternative, for an order, pur- ’ suant to Rule 19(b), to stay further proceedings in this action until such time as the plaintiff joins a necessary party. The complaint sets forth a cause of action seeking reformation of a life insurance policy issued by the defendant insurance company to the defendant bank for the period from March 15, 1948 to and in- • eluding August 21, 1948, to exclude therefrom, so far as it may apply to the death of the plaintiff’s deceased husband, Vinton E. Broidy, the exclusion contained therein limiting the liability of the insurance company on the death of said Broidy while engaged as a pilot flying an Army plane. The complaint sets forth that on or about March 15, 1948 the plaintiff and her late husband, Vinton E. Broidy, purchased certain real estate in Garden City, County of Nassau, State of New York. In connection with the purchase of these premises the plaintiff obtained from- the defendant bank a loan of $11,000, which he secured by executing a bond and mortgage on the premises. At the time of the institution of the action there was due upon said bond and mortgage a sum in excess of $10,000. At about the same time the plaintiff and’ her late husband were told by an agent of the insurance company that it had written a group life insurance policy covering the lives of mortgagors on mortgages held by the defendant bank. In reliance upon the agent’s alleged misrepresentations, plaintiff and her husband entered into an agreement to purchase and pay for insurance coverage for Broidy under the group creditors insurance policy. They procured such insurance and paid the premiums up to and including August 21, 1948. On that day Broidy was killed flying an Army plane. On the death of Broidy the insurance company refused to pay the sum of $10,000, the amount of the policy, claiming the policy contained a provision excluding any coverage on the lives of persons who were killed while engaged in piloting Army planes. The relief sought by the plaintiff is based on the alleged misrepresentations of the agent. The basis for this motion is the defendant insurance company’s contention that, if it is adjudged that the proceeds of the policy in issue are payable, the ultimate benefit would accrue not to the plaintiff in her individual capacity, but to the general estate of the deceased husband. Therefore, it is contended by the insurance company, a representative of the deceased husband’s estate is an indispensable or necessary party plaintiff to this action. The “Plan of Insurance” in the certificate of participation given the -insured provided that, upon due proof of the death of “Debtor”-insured, the principal amount of the outstanding indebtedness, not exceeding $10,000, would be paid to the defendant, First Federal Savings & Loan Association of Hempstead, as the insured’s “Creditor”. When the loan was made husband and wife executed the bond and mortgage on the purchased premises as co-obligors. The deed conveying the premises granted the property to “Vinton E. Broidy and Virginia E. Broidy, his wife”. Under the laws of New York, which is the applicable law herein, when an estate is conveyed in one grant to a husband and wife without any words of exception, a tenancy by the entirety is created. Miner v. Brown, 133 N.Y. 308, 311, 31 N.E. 24; Armondi v. Dunham, 221 App.Div. 679, 225 N.Y.S. 87, affirmed 248 N.Y. 603, 162 N.E. 542. on the death of -one, the fee vests entirely in the other as the representative of the unified ownership. Matter of Lyon’s Estate, 233 N.Y. 208, 135 N.E. 247. As noted, the group policy provides that upon the death of a participating debt- 197or, the insurance proceeds will be paid to the defendant bank, to be applied to discharge the indebtedness of the insured-debtor. Furthermore, also as indicated, the husband was indebted to the defendant bank for the whole amount of the mortgage loan. If the proceeds of the policy are payable, it will mean the loan will be paid off and, as a consequence, not only will the entire estate vest in the plaintiff, but she will take free and clear of the bond and mortgage. It is clear that the husband’s purpose in obtaining the policy was to insure payment of the loan in the event of his death before it was paid off. Unquestionably the husband’s intent was to benefit the plaintiff, since she was the only person in whom the estate could vest on his death. Therefore, plaintiff was entitled to bring this action as a third party beneficiary. In Seaver v. Ransom, 224 N. Y. 233, at page 238, 120 N.E. 639, at page 640, 2 A.L.R. 1187, in discussing the third party beneficiary principle, the court declared: “The natural and moral duty of the husband * * to provide for the future of wife or child sustains the action on the contract made for their benefit.” Moreover, since the proceeds under the policy are expressly limited to the insured’s indebtedness under the bond and mortgage, there is no likelihood of any balance over which might enure to the benefit of the husband’s general estate. In the circumstances it is difficult to believe that the policy was intended for the. benefit of possible legatees, devisees or distributees of the husband’s estate. Ordinarily upon the death of a mortgagor, his liability on the bond and mortgage constitutes a charge on his estate. This principle is applicable to a mortgage on an estate by the entirety. First National Bank of Binghamton v. Goodman, 173 Misc. 562, 18 N.Y.S.2d 562. There is an equitable rule in New York that “where a claimant has two funds to which he may resort, both real and personal assets to answer the demand, and another an interest in only one, the last claimant has a right to compel the former to take satisfaction out of that fund on which the second has no lien.” Matter of Dell’s Estate, 154 Misc. 216, 219, 276 N.Y.S. 960, 964, and cases cited. Applying this principle here, the mortgagee must first resort to the mortgaged property, which is now vested in the plaintiff, before seeking to have any part of the general estate of the deceased husband applied to the payment of the obligation. Hauselt v. Patterson, 124 N.Y. 349, 26 N.E. 937; Matter of Dell’s Estate, supra. So in the event of a default in payment of the loan, foreclosure, sale of the mortgaged premises, and such sale resulting in a deficiency, the balance due on the bond and mortgage would be a charge on the husband’s estate. The mortgagee has a provable claim against the estate only if and to the extent that the security proves inadequate; and prior to actual foreclosure of the mortgage such claim is merely contingent and unliquidated. Matter of Weissman’s Estate, 140 Misc. 360, 250 N.Y.S. 500. In the instant case, not only is there no showing that the security will prove inadequate, but it does not even appear that foreclosure is likely. Consequently, although the husband’s general estate may be regarded as a co-obligor on the mortgage bond, the liability resting on it is contingent and secondary, as well as being separate and indirect. In the leading case of Shields v. Barrow, 17 How. 130, 58 U.S. 130, 15 L.Ed. 158, indispensable parties were defined as “ * * * (3) Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting this interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.” 17 How. 130, 58 U.S. 130, 15 L.Ed. 158, 160. To grant this motion for a summary judgment and dismiss this action would, in effect, prevent or postpone a determination of the rights of a plaintiff who stands to benefit primarily and directly from the policy because of an interest which, at present, is secondary, contingent and unliqui-dated. Such an interest, it seems, does 198not fall within the definition set forth in Shields v. Barrow, supra. In this connection the language of Judge Knox in New England Mutual Life Insurance Co. v. Brandenburg, 8 F.R.D. 151, where he denied a similar motion, is pertinent. There, in an insurer’s -actions for rescission of life insurance policies on the ground of insured’s misrepresentations as to health, the court, -in holding that the possibility that surplus might be left for payment to the insured’s estate did not make such estate an indispensable party, stated, 8 F.R.D. at page 153: “If the suit is dismissed, a wrong may be done to plaintiff. If the suit continues, a possible wrong may be done to the absent estate. In such a situation, the equities of the parties is the basic consideration.” Then, after quoting the definition of indispensable parties in Shields v. Barrow, supra, the court quoted the following from Parker Rust-Proof Co. v. Western Union Telegraph Co., 2 Cir., 1939, 105 F.2d 976, 979, certiorari denied, 1939, 308 U.S. 597, 60 S.Ct. 128, 84 L.Ed. 500: “The doctrine that one whose interests will be affected by a decree must be made a party to the suit is an equitable doctrine, and a court of equity should not apply it, we think, where special circumstances would make its application inequitable.” This motion is also for an order to stay the proceedings under Rule 19(b). This rule provides for the joinder of “ * * persons who are not indispensable, but who ought to be parties if complete relief is to be accorded between those already parties * # * » It is clear from the discussion herein that complete relief may be accorded “between those already parties” without joining any representative of the husband’s estate. Sauer v. Newhouse, D.C., 1944, 24 F.Supp. 911; Greenleaf v. Safeway Trails, Inc., 2 Cir., 140 F.2d 889, 890, certiorari denied, 1944, 322 U.S. 736, 64 S.Ct. 1048, 88 L.Ed. 1569. In view of the foregoing, the motion to dismiss, or in the alternative, for an order staying the proceeding's, is denied.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218666/	RIFKIND, District Judge. Defendant moves for summary judgment under Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A. The action is in two counts of which the first is for infringement of plaintiff’s copyright in the unpublished play entitled “A Lady Goes to Congress” by the defendants’ publication and presentation of a play entitled “State of the Union”. Ever since Arnstein v. Porter, 2 Cir., 1946, 154 F.2d 464, district courts have treated motions for summary judgment in plagiarism suits with caution. But unless Rule 56 is to be completely nullified in this type of action, it requires that judgment be granted to the defendants in this case. If Rule 56 is impotent to protect the defendants in this case against the expense of trial, it might as well be excised from the federal rules. Copying is, of course, the essence of plagiarism. Direct proof of copying is often impossible to procure. Hence access to the original plus similarity between the original and the accused works frequently do duty for proof of copying; and sometimes similarity alone does duty for both. In this case I shall assume that defendants had access to plaintiff’s play. It has always been my understanding that, unlike the rule which prevails in another branch of the law, opportunity plus inclination are insufficient to establish the offense of plagiarism unless there be similarity between the accused offspring and the paternal original. I have carefully read the 14 page play written by plaintiff and the accused play of the defendants, in book form, consisting of 226 pages, which the plaintiff has testified is not substantially different from the play as produced. The short of it is that there is no similarity between “A Lady Goes to Congress” and “State of the Union”. When I make this generalization I realize, of course, that it is meant to be true only in the context of a plagiarism suit. Manifestly, there are, in fact, some similarities. Both plays are written in the English language. Both plays relate to men and women. Both are connected with politics. Both introduce the highly original theme of a man wavering in his affections for his wife. In both there is a second woman who completes the traditional triangle. In both plays, according to the plaintiff, occur the momentous words, “the next President of the United States”. Plaintiff’s play is based upon the trite theme of the woman who loses her husband to the demands of her career. In this case she is a Representative in Congress from Massachusetts instead of the traditional opera star, concert singer or ballet artist. The husband runs off with his wife’s secretary, while the wife continues in her devotion to her political career. The play is enacted in war-time Washington of 1943 and subjects then much in public view are discussed, such as isolationism, the America-First movement, the presence of pressure groups in Washington. The characters of the play are not fully delineated; they are barely indicated. Cf. Nichols v. Universal Pictures Corporation, 2 Cir., 1930, 45 F.2d 119, 122. “State of the Union” is concerned with the theme of the successful business man, unfettered by orthodox political shibboleths, who is being promoted for the Republican nomination for the presidency by a woman publisher of a chain of newspapers. This publisher represents “practical politics”. She is in love with the prospective candidate. The candidate’s wife represents integrity and idealism. In the end she regains his love and restores him to the path of political integrity. This play is enacted against the scene of post-war Washington and is directly concerned with the prospective nomination for president in *2001948. It is also concerned with the political themes then prevalent in Washington, such as reconversion, management and labor problems, world unity and national unity. Neither in plot, theme, characterization or language does the one bear resemblance to the other. Under the circumstances, I see no issue of fact to be tried either to the court or to a jury. I have not the “slightest doubt” that the plaintiff’s claim is the product of nothing but hope that, to avoid the expense and irritation of litigation, the owner of a successful play would buy his peace. Summary judgment was designed specifically to put a quietus on that kind of a claim. The first count is dismissed. With the dismissal of the first count the second count likewise must fail, since absent infringement there are no damages resulting from the .fraud and breach of fiduciary duty alleged in the second cause of action. Moreover, if no copying occurred, there was neither fraud nor breach of fiduciary duty. Summary judgment is granted the defendants on both causes of action.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218667/	JONES, Chief Judge. This is a patent infringement action. Defendants have answered and have set up two counterclaims based on patent infringement, unfair trade practices and monopolistic trade practices. Plaintiff moves to strike the counterclaims because (1) neither action arises out of the subject matter of the complaint, (2) misjoinder of federal and nonfederal causes, and (3) the asserted causes do not rest on substantially identical facts. Defendant in a patent infringement suit has the right to counterclaim for patent infringement by plaintiff of defendant’s patents. This is true even if the patent which is the subject of the counterclaim is not related to the patent which is the sub*201ject of the complaint. General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 53 S.Ct. 202, 77 L.Ed. 408; Leman v. Krent-ler-Arnold, 284 U.S. 448, 52 S.Ct. 238, 76 L.Ed. 389; Hauserman Co. v. Wright Metal, D.C., 1 F.Supp. 43; Michigan Tool Co. v. Drummond, D.C.Cir., 33 F.Supp. 540. Plaintiff has cited some authority which in effect holds that a plaintiff cannot join an unrelated nonfederal cause with a federal cause. French Renovating Co. v. Ray Renovating Co., 6 Cir., 170 F.2d 945. It is not clear that this case applied to the counterclaims of the defendant. It is, however, sufficient to state that, if the unfair trade practices of the plaintiff are non-federal claims, they relate to the misuse of plaintiff’s federal patent, and are therefore sufficiently related to the federal cause to give this court jurisdiction under the French ruling. Finally, counterclaims in a patent infringement action which raise the issue of plaintiff’s monopolistic practices have been approved by various courts. Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376; Hancock Oil Co. v. Universal Oil Co., 9 Cir., 115 F. 2d 45. The plaintiff’s motions to strike will be overruled, and leave given to file a reply within the time limit set by Rule 12(a), Federal Rules of Civil Procedure, 28 U.S. C.A.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218668/	RODNEY, District Judge. Seven of the defendants have specifically objected that a number of the interrogatories are such as to impose a tremendous burden and expense upon the defendants in obtaining the answers to such interrogatories. Five of the defendants have specifically objected to interrogatories 6 through 13, as they are numbered in the interrogatories addressed to RKO Radio Pictures, Inc. Taking these interrogatories as an example, we find the following information required: Interrogatory 6. List all theatres located in the key run cities of the United States (over 100,000 population) in which you license feature pictures for first-run exhibition and which are not located in the immediate downtown area, stating the name of the owner and exhibitor of each theatre, whether or not the owner or exhibitor operating each theatre is affiliated with any major producer or distributor of motion pictures and the name of any such distributor-producer; and the seating capacity and night adult admission price for each theatre. Interrogatory, 7. State in what key run cities you now license or have licensed since January 1, 1946 [June 1, 1947 in Civil Action No. 1077] feature pictures for exhibition on a day and date first run policy. (a) Name the theatres in each city in which you license pictures on such a policy, including both downtown and outlying theatres; (b) State the seating capacity and night adult admission price of each theatre; (c) State the name of owner and exhibitor operator of each theatre; (d) State whether or not the owner and operator of each theatre is affiliated with a major producer or distributor of motion pictures. Interrogatory 8. State in what key run cities you now license or have licensed since January 1, 1946 [June 1, 1947 in Civil Action No. 1077] feature pictures for exhibition on move-over runs where: (a) The move-over theatre is affiliated with the first run theatre; (b) The move-over theatre is not affiliated with the first run theatre. Interrogatory 9. For each key run city in the United States, state the clearance or availability in days after first run exhibition on which you regularly license feature pictures for second run exhibition. Interrogatory 10. For each key run city in the United States, state the clearance or availability after first run exhibition for third run exhibition. Interrogatory 11. List the name of each theatre in Houston regularly served by you since April 4, 1934 [in Civil Action No. 1077, In Dallas since June 1, 1947], This interrogatory also seeks further detailed information regarding each of such thea-tres as to availability in run and changes made in availability and run. Interrogatory 12. List each city or town served by you out of the Dallas exchange area with a population of 20,000 or over. The interrogatory then seeks information regarding the name of theatres in each such city to which the defendants regularly license feature pictures first run, second run, and third run and the clearance intervals between the various runs. Interrogatory 13. (Interrogatory 14 in certain of the interrogatories). In this interrogatory the defendant is required to furnish information regarding its participation in the advertising and exploiting of feature pictures during several seasons with exhibitors of those pictures in Houston or Dallas, as the case may be. The *203name of the theatre, the name of the operator of the theatre, the run on which the picture was exhibited, and the extent to which such participation occurred in such instances, are inquired into. In addition, the defendants Interstate Circuit, Inc. and Texas Consolidated Pictures, Inc. have objected, on the ground of burden and expense imposed, to Interrogatories 3, 4, 5, 6, and Interstate Circuit objects also to No. 7. These will not be specifically here set out. The defendant, RKO Radio Pictures, in connection with the objections to these interrogatories, has filed an affidavit, the general content of which is adopted by the other defendants. This affidavit alleges that there are upwards of 100 “key run” cities in the United States having a population of over 100,000 and these cities have over 5,000 theatres; that to service these theatres and the remainder of approximately 20,000 theatres in the United States the defendant maintains 32 branch offices which exclusively keep the records necessary to answer the interrogatories and that the records in all these branch offices would have to be collected and compiled. The affidavit estimates that RKO feature pictures, during the four years inquired about, were shown in about 4,000 theatres in “key run” cities; that some 13,000 first run exhibitions were had in upwards of 500 thea-tres all over the country; that information as to the second or subsequent run exhibitions would run into hundreds of thousands of instances. The affidavit estimates that even this portion of the investigation would consume 10,000 to 15,000 man hours of time. The affidavit states that the investigation just mentioned would not include seating capacity, admission costs or affiliation of the various theatres, which, if not found in sources already available to the plaintiffs, would require personal and individual visits in connection with each separate theatre. It is estimated that many additional thousands of man hours will be required to furnish information unconnected with the so called “key run” cities, and in this connection a separate affidavit was filed by Interstate Circuit, Inc. and Texas Consolidated Theatres, Inc. setting forth the labor and expense involved. The plaintiffs insist that the interrogatories are moderate in their requests and entail no great amount of labor or expense. The defendants with equal insistence maintain that the answers entail elaborate research in 32 scattered localities and an expenditure of time reaching into many thousands of man hours and with but imperfect result. These differences are so marked in character that it is impossible to reconcile them although the court is favored with the assistance of counsel of a high character. The court itself is without either the time or facilities to ascertain the extent of the burden and expense to be placed upon the defendants. No method is apparent to the court except the appointment of a master pursuant to Federal Rules of Civil Procedure, rule 53(a), 28 U.S.C.A., to inquire as to the availability of the information sought and the burden and expense involved. I adhere to the view expressed in Cinema Amusements v. Loew’s Inc., D.C., 7 F.R.D. 318. Clearly an interrogated party must furnish relevant information which can be obtained without great labor or expense. It is equally clear to me that, desirable as discovery process may be, it should not place upon a defendant the burden of many thousand man hours of labor and the expense of many thousands of dollars. Such are the claims. If the interrogatories remain as filed and the parties maintain their present positions, the court, after the expiration of thirty days, will consider the advisability of appointing a master to inquire as to the •burden and expense of answering the demands of the plaintiffs. The court may require deposits to cover the preliminary expenses of the master and will reserve the right to finally assess the costs of the proceedings by the master as to it may seem proper after the proceedings by the master have concluded.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218911/	SCHOONMAKER, District Judge. This is an action in equity to enforce a conditional sale contract for furniture used in the hotel of defendant Webster Hall Corporation of America, now in custody of this court through its receivers, who are also defendants in this ease. From the bill, answer, and proofs, we make and find the following findings of fact and conclusions of law. Findings of Fact. We find the facts in this ease to be as stated in the plaintiff’s requests for findings of fact, which are hereby affirmed and filed herewith as the findings of fact in this ease. Conclusions of Law. On these facts we make the following conclusions of law: We adopt and affirm the plaintiff’s requests for conclusions of law, whieh are filed herewith as the conclusions of law in this ease. Opinion. The sole issue in this case is the validity of a conditional sale contract between the plaintiff, as seller, and defendant Webster Hall Corporation of America, as buyer of the furniture and furnishings of the Webster Hall Hotel in Pittsburgh, Pa. The validity of this contract, as between the parties, is not disputed; but the receiver defendants deny its validity as against the general creditors of the Webster Hall Corporation of America. The conditional sale contract grew out of an agreement between the Webster Hall Corporation and S. W. Straus Company, Inc., 338dated November 25,1925, wherein the Strans Company was to buy an issue of bonds in the sum of $1,650,000, to be secured by a mortgage to a trustee on real estate of the Webster Hall Corporation, with the understanding that the proceeds of the bonds were to be applied to the construction of a hotel building, and to furnishing the same. The title to the furniture in the hotel was to be placed in the name of the trustee under the mortgage, and was to remain in him until the bonds were fully paid off. This was to be accomplished by the assignment to the trustee of the contract for the purchase of the furniture, and then the execution and delivery of a conditional sale contract between the trustee and the Webster Hall Corporation covering the furniture and furnishings of the hotel. This plan was carried out. On January 22,1926, the Webster Hall Corporation entered into a written contract with Albert Pick & Co. for this furniture and furnishings for the hotel. The same day the Webster Hall Corporation assigned this contract to the trustee. On January 27, 1926, the trustee paid $100,000 to Albert Pick & Co. to apply on this furniture contract. Thereupon, the furniture and furnishings contract was carried out, and the furniture and furnishings were installed in the hotel. When this was accomplished, on or about December 7, 1926, Albert Pick & Co. executed and delivered to the trustee a bill of sale of the furniture and furnishings. Then, on March 31, 1927, the conditional sale contract involved in this suit between the trustee, as seller, and the Webster Hall Corporation, as buyer, was executed, delivered, and filed in the office of the prothonotary of Allegheny county, Pa., in conformity with provisions of the Uniform Conditional Sales Act of Pennsylvania (69 PS § 361 et seq.). We hold this to be a valid conditional sales contract under the Pennsylvania law. In the first place, this contract was executed and filed of record before any of the debts owed by the Webster Hall Corporation at the time of the appointment of receivers by this court came into existence, with the possible exception of Albert Pick & Co., who certainly are estopped from contesting its validity after execution and delivery to the trustee of - a bill of sale for this furniture. All other person^ dealing with the Webster Hall' Corporation had notice of this conditional sale from the record. 'The contention of the receiver that this sales agreement is a mere attempt to subject thé furniture and furnishings of this hotel to the mortgage lien of the entire' amount of the mortgage indebtedness, and is therefore illegal and ineffective as against creditors, will not hold in the ease at bar. True, it is that a conditional sales contract is more often conditioned for the payment of the purchase price. But the Pennsylvania Conditional Uniform Sales Act specifically provides in section 1 as follows: “Section 1. Definition of Terms. Be it enacted, etc., That in this act ‘conditional sale’ means any contract for the sale of goods under whieh possession is delivered to the buyer and the property in the goods is to vest in the buyer at a subsequent time upon the payment of part or all of the price or upon the performance of any other condition or the happening of any contingency.” 1925 Laws of Pennsylvania, page 604 (69 PS § 361). The act further provides in section 4 (69 PS § 401): “Section 4. Conditional Sales Valid except as Otherwise Provided. Every provision in a conditional sale, reserving property in the seller after possession of the goods is delivered to the buyer, shall be valid as to all persons, except as hereinafter otherwise provided.” It is apparent from these quotations from the Uniform Sales Act of Pennsylvania that it was the purpose-of the act that other conditions than the mere payment of the purchase price might properly be imposed by the terms of the sales agreement, and that it was the purpose of the law that all these conditions should be valid as to all persons, except as otherwise provided in the act. As we construe this provision of the statute, a conditional sales contract is' presumptively valid as against the world, and the person attacking the validity of the seller’s reservation of title must show that his case falls within one of the exceptions mentioned in section 4 of the act. These exceptions are stated in section 5 of the act (69 PS § 402) in the following language: “Section 5. Conditional Sales Void as to Certain Persons. Every provision in a conditional sale reserving property in the seller shall be void as to any purchaser from or creditor of the buyer who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien upon them before the contract or a copy thereof shall be filed, as hereinafter provided, unless such contract or-copyus so filed within ten days after the making of the conditional sale.” In the instant case, there was no creditor who acquired by attachment or levy a lien upon the furniture and furnishings of this 339hotel. There was no such creditor who had any lien upon the goods covered by the conditional sale contract. The only creditor in existence at the time the conditional sale contract was executed, who was a creditor at the time of the appointment of a receiver in this case, was Albert Pick & Co., who executed a bill of sale to the trustee under the mortgage, who knew all about it long before, and who axe therefore estopped from now attacking the validity of the title of the trustee to these hotel furniture and furnishings. The testimony in this case shows that the only creditors other than Albert Pick & Co., who had any dealings with the Webster Hall Corporation, were the United Laundries, Albert L. Brahm & Co., and Peter Avetta. The indebtedness that was owing to these creditors at the time the conditional sale contract was made has been paid. Any claims that they may now have are for debts that were contracted after the conditional sale contract was made and recorded, as provided by the Pennsylvania statute. If it be said that the receiver in this ease is in the same position as a trustee in bankruptcy, having the relative position of an execution creditor, even then this ease is not within the provisions of the act, because the receiver was not appointed until after the conditional sale contract had been filed in the prothonotary’s office of Allegheny county, and the receiver must have had notice of the provision of the contract by that recording. There seems to be some question as to whether or not the reeeivér in equity in this case does actually stand in the position of a creditor, who has, by attachment or levy, acquired a lien upon goods. There has been no decision in Pennsylvania upon this subject, but in Koerner v. United States Waxed & Coated Paper Company, 94 N. J. Eq. 655, 121 A. 338, it was held that possession of property by a receiver in equity is not synonymous with the statutory expression, “lien by attachment or levy,” and does not give to such possession the protection and effect of a lien or levy. In a later ease, the New Jersey courts held that the receiver stands in the shoes 'of the company, and, as the company could not attack the contract, the receiver could not. Depew v. C. W. Depew & Co., 98 N. J. Eq. 461, 131 A. 76. The same conclusion was reached in the courts of Wisconsin in the construing of a Uniform Sales Act. Milwaukee Tank Works v. Sadlier, 191 Wis. 233, 212 N. W. 790. In a careful review of the testimony in the instant ease, we find, in the situation which existed prior to the making and filing of a conditional sale contract, nothing which contained any element of fraud against the creditors of the Webster Hall Corporation. The contract between the Webster Hall Corporation and Albert Pick & Co. was assigned to the trustee on the date it was made, January 22, 1926. They had notice of that assignment, made deliveries thereunder, and received $100,000, paid by the trustee on the 27th day of January, 1926, the next day after the contract was made and assigned to the trustee. The fact that this property was in possession of the Webster Hall Corporation at its hotel is not of itself evidence of fraud, because the Pennsylvania courts have long held that the mere possession of personal property is but evidence, prima facie, of ownership of a personal chattel. It is never conclusive of the title. Quinn v. Davis, 78 Pa. 15; Miller Piano Co. v. Parker, 155 Pa. 208, 26 A. 303, 35 Am. St. Rep. 873; McMahon v. Sloan, 12 Pa. 229, 51 Am. Dec. 601; Mackay v. Benjamin Franklin Company, 288 Pa. 207, 210, 135 A. 613, 50 A. L. R. 1164; Kendall Produce Co. v. Terminal Warehouse Company, 295 Pa. 450, 145 A. 511. It is a general and well-established rule of law in Pennsylvania that the bailor’s title is valid as against the creditors of his bailee; and this is not affected by the fact that, from the time the bailment commences, the parties contemplate that the bailee shall eventually become the owner of the articles bailed. Schmidt v. Bader, 284 Pa. 41, 130 A. 259. The mere fact of the shipment of furniture to the Webster Hall Corporation is not of itself evidence that it was the intention of the parties to consummate a sale to the Webster Hall Corporation. The original agreement of November 25, 1925; the minutes of the stockholders of Webster Hall Corporation held January 4,1926; the assignment of the Pick contract on January 22, 1926; and the Pick bill of sale to Martin — all show the unchanging intention on the part of all the parties to this transaction that no title was to vest in the Webster Hall Corporation until it took on the provisional and conditional title upon the execution of .the conditional sales agreement. This is not a case of a chattel mortgage of personal property, or of an equitable pledge of personal property, which are held to be ineffective in Pennsylvania against creditors of a chattel mortgagor or pledgor. A chattel mortgage, or pledge of personal prop*340erty, implies title in the mortgagor or pledg- or; and, in the instant case, there was no time, during the whole period that the furniture was contracted for and being manufactured, that the title ever vested in the Webster Hall Corporation. If the title to this furniture, and the possession of it, had both vested in the Webster Hall Corporation prior to the time of the making of the conditional sale contract, one would have a ease where the parties attempt, by the mere execution of papers, to provide a conditional sales agreement with reference to property, the title to which was already in the Webster Hall Corporation. In such a situation, you would have a ease where there was no change in possession of the personal property, and all that would be done would be to execute papers. In such instances, the Pennsylvania courts have held the transaction fraudulent as against creditors. A ease in point is that of Root v. Republic Acceptance Corporation, 279 Pa. 55, 123 A. 650, where an automobile dealer had purchased motorcars from the manufacturer. He borrowed money from the acceptance corporation, giving as security a bill of sale of the automobiles, and taking in return a paper purporting to be a bailment lease. Under the circumstances, the Pennsylvania courts held no title valid as against creditors. Here we have no such situation. Prom the very first, the title to this property never actually vested in the Webster Hall Corporation, except as it acquired a conditional title thereto by the conditional sales agreement. The receivers in this case have cited a number of eases as to the position of the receivers, among them a decision of our Circuit Court of Appeals in Porter Co. v. Boyd, 171 P. 305. This ease was decided, of course, before the Conditional Sales Act of Pennsylvania was passed, and declares that equity receivers, where the receivership is based on insolvency of the corporation, were in the position of one holding an equitable execution attachment or sequestration for the benefit of creditors, and were therefore permitted to hold the property in spite of a secret lien unenforceable at law. But, in the instaAt case, we have no situation of a secret lien. Parties, from the first, contemplated a conditional sale under the conditions of the Pennsylvania act, actually entering into that conditional sales agreement and recording it, ”as required by law. In Olson & Co. v. Voorhees, 292 P. 113, our Circuit Court again said that the receivers appointed for the purpose of winding up the affairs of a corporation and distributing its assets to creditors represent the creditors, and may avoid any conditional sales agreement that the creditors themselves could avoid. In the instant case, no creditor is in a position to have avoided this conditional sales agreement, because there was no judgment or lien levy prior to . the filing of the contract, as required by law. The receivers contend that, if this is a valid conditional sales contract, we would have no jurisdiction in the ease at bar, because the proceedings must be had under the Conditional Sales Act of Pennsylvania, and not by a bill in equity to foreclose the right of the conditional vendor. That might be true under some circumstances; but it must be borne in mind that, in the present ease, the property in question is now in the custody of the court through its receivers, and the conditional sales vendor could not forcibly enter into possession of this property under the provisions of the Pennsylvania Act, and take it out of custody of the law. It seems logical that the only way the custody of the law over this property could be ended would be by some proceeding in this court involving the receivers, which would restore the property to the conditional vendor for a resale of it under the terms of the act. On all the facts of this ease, we find that the plaintiff is entitled to the relief prayed for in his bill of complaint. A decree may be submitted in accordance with our findings of fact and conclusions of law in this ease.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218913/	SLICK, District Judge. This cause having been submitted to the court for trial, finding, and decree, and the court having heard the evidence and the arguments of counsel, and being sufficiently advised in the premises, now, pursuant to Federal Equity Rule 70½ (28 USCA § 723), finds the facts to be as follows: 1. The plaintiff, Central Radio Laboratories, is a corporation, duly organized and existing under and by virtue of the laws of the state of Wisconsin, having its principal office and place of business in the city of Milwaukee and state of Wisconsin. 2. The defendant, Chicago Telephone Supply Company, is a corporation, duly organized and existing under and by virtue of the laws of the state of Indiana, having a regular and established place of business in the city of Elkhart, county of Elkhart, and state of Indiana. . •3. This cause arises under the patent laws of the United States, and this court has jurisdiction of the parties and the subject-matter of this suit. 4. Plaintiff is the owner of each of the patents in suit: Moore, No. 1,660,879, dated February 28, 1928; Stoekle, No. 1,704,154, dated March 5, 1929; and Stoekle, No. 1,-653,745, dated December 27, 1927. 5. Plaintiff commenced the manufacture and sale of variable resistance devices of the type shown by Plaintiff is: Exhibits 7, 8, and 9 in or about the year 1923 .for use in the circuits of radio receiving apparatus as tone or volume controls and the same met with immediate commercial success, displacing prior devices, and plaintiff is still engaged in the manufacture and sale of such variable resistance devices. 6. Plaintiff has sold upwards of ten millions of such devices. 7. Defendant commenced the manufacture and sale of its series No. 40 variable resistance devices of the typé shown by Plaintiff’s Exhibit 4 in or about June, 1930, and is still manufacturing and selling "such devices. 8. The date of invention in respect, of the 343subject-matter of the Moore patent, No. 1,-660,879, in suit is at least as early as October 8,1921. 9. Both plaintiff’s and defendant’s series No. 40 devices are made especially for use in the circuits of radio receiving apparatus as tone or volume controls and are so used. 10. Defendant began the manufacture and sale of its series No. 40 devices like Plaintiff’s Exhibit 4 in order to meet a demand in the market for variable resistance devices of the character embraced by the .patents in suit. 11. Defendant for a number of years pri- or to June, 1930, manufactured and sold variable resistance devices of other types, but these did not meet that demand. 12. With the exception of defendant, plaintiff’s patents are respected by all in the industry. 13. Defendant’s Exhibits 135, 144, 145, 158, 159', 162, and 172 do not represent nor are they in accordance with Gillig, but, on the other hand, are reorganizations of Gillig involving additions, substitutions, and altera^ tions in accordance with the teachings of the patents in suit. 14. Prior to the inventions of the patents in suit, it was the practice to control the volume or tone of a radio receiver by rheostats employing wire wound or carbonaceous resistors adjustable by means of sliding arms or shoes engaging directly upon the resistor. 15. The wire wound rheostats of the prior art were objectionable by reason of the fact that the sliding shoe or arm engaging upon the wire coil produced a noisy step-by-step contact. 16. The carbonaceous resistor type of rheostat of the prior art was objectionable by reason of the fact that the value of the resistor underwent constant change in operation and was damaged or destroyed within a relatively short period of use due to the direct engagement of the shoe or arm upon the carbonaceous substance. 17. The objections and disadvantages inherent in the prior art devices were solved and overcome by the devices of the patents in suit. 18. Gillig does not disclose a resistor having a smooth, electrical conducting surface, nor any form of device in which the resistance can be varied in infinitesimal steps. 19. The Gillig patent was cited, considered, and passed upon by the experts of the Patent Office in the prosecution of each of the applications which matured into the patents in suit and the claims in suit were allowed thereover. - 20. Sharp does not disclose a thin, film-like resistor nor an arm for adjusting the resistance value, nor any means for maintaining a selected adjustment, nor a device which could be successfully used as a radio tone or volume control. 21. Brownlow and Hadley disclose neither a rheostat nor a potentiometer, but a circuit interrupter not capable of any of the performances of the devices of the patents in suit. 22. The devices of the Stoekle patents in suit and plaintiff’s commercial devices are adapted for and capable of use, either as rheostats or potentiometers, and are so used. 23. Defendant’s series No. 40 devises are adapted for and capable of use, either as rheostats or potentiometers, and are so used. 24. Slight slippage unavoidably occurs between the contact member and the resistor upon adjustment of the arm in the device of each of the patents in suit. 25. The statements in the patents in suit referring to -the absence of rubbing or frictional engagement with the resistor have reference to the absence of such rubbing or frictional engagement as was present in the various prior art devices by reason of the direct engagement of the adjustable arm upon the resistor, and do not have reference to the absence of the minute slippage inherent in each of said devices. 26. The device of Stoekle patent, No. 1,-653,745, and plaintiff’s commercial devices employ a resistor on a flat base and a conical contact member. . 27. Defendant’s series No. 40 devices employ a flat contact member and a resistor on a conical base. 28. The accused device incorporates a disk-shaped contact member, the contacting portion of which is in the form of a flexible circular strip interposed between an arm and a conical drum of insulating material having a thin, filmlike resistor disposed on the periphery thereof and means for restraining the contact member from rotation and preventing a sliding motion of the contact member upon the resistor. 29. In the accused device, the flexible strip portion of the contact member is pressed by the arm into substantially linear contact with the resistor. Upon the foregoing facts the court concludes the law to be as follows: 1. Plaintiff is the owner of - each of the patents in suit: Moore, No. 1,660,879, dated February 28, 1928; Stoekle, No. 1,704,154, 344dated March 5, 1929'; and Stoekle, No. 1,-653,745, dated December 27, 1927; 2. The invention of each of the three patents in suit is incorporated in both, plaintiff’s and defendant’s series No. 40 devices. 3. Neither Gillig, Sharp, Brownlow, and Hadley, nor any of the other prior art references brought forward in this ease, negatives the presence of invention in, discloses or anticipates any of the patents in suit. 4. To change Gillig to meet the advance represented by the patents in suit would require reorganization not disclosed or suggested in the prior art. 5. Any differences in slippage, abrasion, contact areas, or variations in resistance between defendant’s devices and the devices of the patents in suit are in degree, only and do not avoid infringement. 6. The Patent Office proceedings had upon the applications for the patents in suit and the interferences involving patents 1,660,879 and 1,704,154 thereof do not estop plaintiff from asserting the validity of said patents or from asserting that the claims in suit cover and are infringed by the accused devices. 7. Defendant has infringed claims 17, 20, 21, 22, 23, 24, 28, and 32 of the Moore patent, No. 1,660,879; claims 1, 4, 5, and 6 of Stoekle patent, No. 1,704,154; and claims 1 to 6, inclusive, and 10 of Stoekle patent, No. 1,653,745,'by making, offering for sale, and selling its series No. 40 variable resistance devices like Plaintiff’s Exhibit 4 within the Northern district of Indiana and elsewhere in the United States. . 8. The employment in defendant’s series No. 40 devices of a flat contact member and a resistor on a conical base is a mere reversal of the arrangement shown in Stoekle patent, No. 1,653,745, and does not avoid infringement of claims 1, 2, 3, 4, and 6 of said patent, which recite a flat resistor and a conical or curved contact member. 9. Claims 17, 20, 21, 22, 23, 24, 28, and 32 of the Moore patent No. 1,660,879; claims 1, 4, 5, and 6 of Stoekle patent, No. 1,704,-154; and claims 1 to 6, inclusive, and 10 of Stoekle patent, No. 1,653,745, and none of them, are anticipated by any of the devices of the prior art. 10. The devices claimed and described in claims 17, 2'0, 21, 22, 23, 24, 28, and 32 of the Moore patent, No. 1,660,879; claims 1, 4, 5, and 6 of Stoekle patent No. 1,704,154; and claims 1 to 6, inclusive, and 10 of Stoekle patent, No. 1,653,745, and each of them, involved invention in view of the prior art. 11. Plaintiff is entitled to judgment sustaining the validity of said claims 17, 20, 21, 22, 23, 24, 28, and 32 of the Moore patent, No. 1,660,879, claims 1, 4, 5, and 6 of Stoekle patent, No. 1,704,154; and claims 1 to 6, inclusive, and 10 of Stoekle patent, No. 1,653,-745, and finding them and each of them valid and infringed. 12. Defendant’s counterclaim is dismissed for want of equity.	01-04-2023	07-25-2022
https://www.courtlistener.com/api/rest/v3/opinions/7218914/	PATTERSON, District Judge. There was a collision at sea between the Toluma and the Sucarseco. The collision was due to the fault in navigation of the two vessels equally. Both were damaged, the Toluma so badly that the master determined to run to a port of refuge for repairs. Part of the cargo was unloaded, repairs made, and the cargo reloaded, after which the voyage was resumed. The repairs and incident expenses involved a large sum of money and were paid by the owner of the Toluma. The bills of lading governing the carriage of the Toluma’s cargo contained the customary Jason clause, to the effect that, in case of danger or disaster resulting from fault in navigation (the shipowner having exercised due diligence to make the ship seaworthy), the owners of cargo should contribute with the shipowner in general average to the payment of sacrifices, losses, or expenses of a general average nature incurred for the common benefit, to the same extent as if the danger or disaster had not arisen out of fault in navigation. Accordingly, on arrival at destination the cargo was subject to a lied for general average expenses and losses. A general average statement was made, apportioning the expenses and losses between the shipowner and cargo owners, and under this statement the sum of $39,394.01 was charged against the cargo owners. Most of these parties have paid in their contributions. The only physical damage to cargo resulting from the collision was breakage due to handling in the course of repairing the ship, the amount of such damage being $2,956.89, which sum was allowed to cargo in the general average. Three suits were brought in this court and were ordered consolidated for trial. The first is by the owner of the Toluma against the Sucarseco. The damages demanded include the full amount paid for repairs to the vessel, no deduction being'made for the sums assessed against and collected from cargo owners in general average. The second- is a cross-libel by the owner of the Sucarseco against the Toluma for damages sustained by the Sucarseco. The third is by owners of cargo on the Toluma against the owner of the Sucarseco, to recover the amounts paid by them as general average contributions. The facts referred to above have been stipulated as true. The question is whether in a collision case, where both vessels were at fault, the cargo owner may recover from the nonearrying vessel, not merely the physical damage suffered by cargo, but also the amount which he has paid as contribution in general average to the carrying vessel, liability for such contribution having resulted from the presence of the “Jason clause” in the contract of affreightment. It is settled that between two vessels equally at fault in a collision the damages will be divided in equal amounts. The North Star, 106 U. S. 17, 1 S. Ct. 41, 27 L. Ed. 91. It is also clear that for physical damage done to cargo the cargo owner may recover in full from the nonearrying vessel, The Atlas, 93 U. S. 302, 23 L. Ed. 863, and this notwithstanding that, as between the cargo owner and the carrier, the latter, though at fault in the collision, is not liable because of the Harter Act (46 USCA §§ 190-195). One-half of the amount so paid by the noncarrier to the cargo owner will be charged against the carrier in settling the controversy between them, thus indirectly making the carrier liable up to one-half the damage to cargo. The Chattahoochee, 173 U. S. 540, 19 S. Ct. 491, 43 L. Ed. 801. It is therefore clear in this ease that those whose goods were damaged to the amount of $2,956.89 through breakage while the Toluma was being repaired may recover *346the full amount directly from the Suearseeo, and the latter may pass on to the Toluma one-half of this amount. Now as to the right of the cargo owner to recover from the nonearrying vessel what he has paid by way of general average. The liability of a cargo owner to contribute in general average toward sacrifices or losses suffered by the shipowner is comparable to the liability of an insurer of maritime risks. Where the damage to hull is caused solely by the fault of a stranger, the primary liability to make the loss good is on the stranger, and the liability of the cargo owner to the shipowner in general average is no more than secondary. These views were set forth in Pool Shipping Co. v. United States, 33 F.(2d) 275, 277, a collision case where the Circuit Court of Appeals of this circuit held that the owner of the innocent vessel might recover full damages from the owner of the vessel at fault, although part of the damages had already been collected by the former from owners of cargo under general average. The court added that recovery to the extent of any amount already contributed by the cargo owner would be for the latter’s account. Where a collision is brought about by negligent navigation of both vessels, there is no obligation on the cargo owner to contribute in general average to the sacrifices or losses of the carrier, in the absence of an express agreement to make contribution. The Irrawaddy, 171 U. S. 187, 18 S. Ct. 831, 43 L. Ed. 130; The Jason, 225 U. S. 32, 32 S. Ct. 560, 56 L. Ed. 969. With, such an agreement, there is a liability on the cargo owner to contribute in general average, but that liability is still secondary. The primary responsibility is upon the other vessel for its proportionate share of the injury. If the cargo owner has made good to the carrier part of the loss incurred, the carrier on later recovery against the other vessel must account to the cargo owner for a proportionate amount when the damages have thus been diminished. See Ralli v. Societa Anonima (D. C.) 222 F. 994. Prom these views it must follow that the cargo owner whose goods have not been injured, but who has paid contribution in general average toward making good the loss suffered by his carrier in a collision with another vessel in which both vessels were guilty of negligent navigation, has no direct right of action against the other vessel. His only basis of recovery against the other vessel is by subrogation to the right of the carrier. It is argued that The Energia (C. C. A.) 66 F. 604, is opposed to this result. There the carrying vessel was solely at fault, and it was held that cargo owners who had contributed in general average might recover back -what had been exacted from them. The case did not involve any o-f the questions presented here. There is another aspect of the ease that in my opinion suffices to defeat any direct recovery by the cargo owners against the Suearseeo for what they have paid in general average. As already pointed out, the law at large imposed no burden on them to contribute in general average, because the carrier was negligent. That burden fell upon them because of their agreement with the carrier that under the conditions which later developed they would contribute to make good losses of a general average nature, even though caused by the carrier’s negligence. Their loss arose only because of their contract with the carrier. The fact that the Suearseeo injured the Toluma does not make it liable to persons who incurred losses because of contracts with the owner of the Toluma that were rendered burdensome because of the injury. In the eye of the law such damages are too remote. Robins v. Flint, 275 U. S. 303, 48 S. Ct. 134, 72 L. Ed. 290; The Federal No. 2 (C. C. A.) 21 F.(2d) 313; Mobile L. Insurance Co. v. Brame, 95 U. S. 754, 24 L. Ed. 580. The result is that the cargo owners are entitled to recover from the Suearseeo the physical damage done to cargo; the Toluma is entitled to recover from the Suearseeo one-half the amount by which its damages exceeded those of the Suearseeo, the damages to the former to include items for which it was reimbursed in general average, and the damages to the latter to include the amount which it must pay to the cargo owners; and the eargo owners will be entitled to recover from the Toluma their proportionate part of one-half the damages allowed to the Toluma of a general average character. In case of disagreement as to the computations, the matter will be sent to a commissioner.	01-04-2023	07-25-2022