In the United States Court of Federal Claims

No. 20-413C

(E-Filed: February 23, 2021)1

CLARKE HEALTH CARE 

PRODUCTS, INC.,

Plaintiff,

v.

THE UNITED STATES,

Defendant,

and

ARMSTRONG MEDICAL SUPPLY 

GROUP, LLC,

Intervenor-defendant,

and 

CONGRESSIONAL MEDICAL 

SUPPLY, LLC, 

Intervenor-defendant.

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Motion for Reconsideration; RCFC 

59(a); Scope of Remand; Limited 

Remand.

Julie M. Nichols, McLean, VA, for plaintiff. James S. Phillips, of counsel.

Joshua A. Mandlebaum, Trial Attorney, with whom were Jeffrey Bossert Clark, Acting 

Assistant Attorney General, Robert E. Kirschman, Jr., Director, and L. Misha Preheim, 

1 This opinion was issued under seal on January 28, 2021. See ECF No. 57. Pursuant to 

¶ 2 of the ordering language, the parties were invited to identify proprietary or confidential 

material subject to deletion on the basis that the material was protected/privileged. See id. at 7. 

No redactions were proposed by the parties. See ECF No. 60 (notice). Thus, the sealed and 

public versions of this opinion are identical, except for the publication date and this footnote.
2

Assistant Director, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, Washington, DC, for defendant. Jason A.M. Fragoso, United 

States Department of Veterans Affairs, of counsel.

Jon W. Burd, Washington, DC, for intervenor-defendants. Kendra P. Norwood and 

Nicole E. Giles, of counsel.

OPINION

CAMPBELL-SMITH, Judge.

On November 18, 2020, defendant filed a motion for reconsideration of the court’s 

October 26, 2020 order clarifying the scope of the court’s remand of this matter to the 

United States Department of Veterans Affairs (VA). See ECF No. 49. Plaintiff and 

intervenor-defendants filed responses on December 10, 2020,2 see ECF No. 53 

(intervenor-defendants’ joint response), ECF No. 54 (plaintiff’s response), and defendant 

replied on December 17, 2020, see ECF No. 55. The motion is now fully briefed and ripe 

for decision. 

The court has considered all of the arguments presented by the parties and 

addresses the issues that are pertinent to the court’s ruling in this opinion. For the 

reasons set forth below, defendant’s motion for reconsideration is DENIED.

I. Background

Plaintiff filed this bid protest on April 10, 2020, challenging the corrective action 

taken by the VA after protests were filed by intervenor-defendants at the United States 

Government Accountability Office (GAO) challenging the agency’s contract award to 

plaintiff. See ECF No. 1. On August 5, 2020, because it could not find any evidence in 

the administrative record setting forth the basis of the VA’s decision to take corrective 

action, the court issued an opinion denying the parties’ cross-motions for judgment on the 

administrative record and remanding this matter to the VA “so that the agency may 

address the grounds for the corrective action taken during the procurement at issue in this 

matter.” ECF No. 39 at 9 (public opinion). 

Plaintiff subsequently moved for clarification of the remand on September 23, 

2020, citing a difference in opinion between the parties as to the scope of the remand. 

See ECF No. 41 at 2. Plaintiff understood the court to be requiring the agency to review 

its records and determine whether it had any evidence explaining the corrective action 

2 The court ordered plaintiff to file a response to defendant’s motion. See ECF No. 51 

(order). Rule 59(f) of the Rules of the United States Court of Federal Claims (RCFC) only 

requires a response if ordered by the court; although the court did not order responses from the 

intervenor-defendants, the court has considered their joint response, ECF No. 53, in its ruling.
3

that could be provided to the court. See id. Defendant, on the other hand, understood the 

scope of the remand to be for the purpose of allowing the VA to “reach a new decision 

and provide a contemporaneous written explanation of the basis for that decision.” ECF 

No. 46 at 1. Defendant further stated that the VA’s new decision could be “essentially 

the same as, similar to, or different from the earlier decision challenged by [plaintiff].” 

Id. 

The court, on October 26, 2020, issued an order granting plaintiff’s motion and 

clarifying that the remand was for the limited purpose of permitting the VA to “identify 

any documents or materials that were prepared prior to the corrective action that would 

have informed the agency’s decision-making process.” ECF No. 48 at 2. The court 

further noted that defendant was not permitted pursuant to the remand to “seek a new 

decision at the VA, nor would such an action be appropriate.” Id. Defendant has now 

moved for reconsideration of the court’s order clarifying the remand. See ECF No. 49. 

II. Legal Standards

Rule 59(a) of the Rules of the United States Court of Federal Claims (RCFC) 

governs a motion for reconsideration.3 Rule 59(a)(1) provides that rehearing or 

reconsideration may be granted: “(A) for any reason for which a new trial has heretofore 

been granted in an action at law in federal court; (B) for any reason for which a rehearing 

has heretofore been granted in a suit in equity in federal court; or (C) upon the showing 

of satisfactory evidence, cumulative or otherwise, that any fraud, wrong, or injustice has 

been done to the United States.” RCFC 59(a)(1). Thus, the court, “in its discretion, ‘may 

grant a motion for reconsideration when there has been an intervening change in the 

controlling law, newly discovered evidence, or a need to correct clear factual or legal 

error or prevent manifest injustice.’” Biery v. United States, 818 F.3d 704, 711 (Fed. 

Cir.), cert. denied, 137 S. Ct. 389 (2016) (quoting Young v. United States, 94 Fed. Cl. 

671, 674 (2010)). “A motion for reconsideration must also be supported ‘by a showing 

3 Defendant argues in its reply that the court should consider its motion “pursuant to Rules 

54(b) and 59(a) . . . rather than RCFC 59(e).” ECF No. 55 at 2. Defendant notes that the 

standard under these rules is “less rigorous” and “amounts to determining, within the [c]ourt’s 

discretion, whether reconsideration is necessary under the relevant circumstances.” Id. at 2-3

(quoting Loveridge v. United States, 150 Fed. Cl. 123, 126 (2020)). In the court’s view, the 

language of RCFC 54(b) and the caselaw applying that rule to guide reconsideration of non-final 

orders that adjudicate less than all of the parties’ claims indicate that RCFC 54(b) is intended to 

govern only matters in cases in which the entry of a partial judgment is, or would be, appropriate. 

See BHB Ltd. P’ship v. United States, No. 19-1610, 2021 WL 222815 (Jan. 22, 2021) (denying 

motion for reconsideration and analyzing the application of the RCFC 54(b) and 59(a) standard

to non-final orders). Thus, because the court’s order clarifying its remand was a case 

management order, and not one for which entry of partial judgment was appropriate, the court 

applies the standard articulated under RCFC 59(a).
4

of extraordinary circumstances which justify relief.’” Id. (quoting Caldwell v. United 

States, 391 F.3d 1226, 1235 (Fed. Cir. 2004)).

III. Analysis 

A. Defendant’s Motion for Reconsideration

In its motion for reconsideration, defendant argues that the court’s order “appears 

inconsistent with recent precedent from the United States Supreme Court” that permits an 

agency to provide a “newly-created explanation of its prior decision” or to “mak[e] a new 

decision” on remand. Id. at 1, 4 (citing Dep’t of Homeland Sec. v. Regents of the Univ.

Cal., 140 S. Ct. 1891 (2020)). 

Plaintiff responds by first noting that defendant’s motion does not meet the legal 

standard for reconsideration because the caselaw cited by defendant was decided well 

before the parties briefed plaintiff’s motion to clarify and defendant simply failed to 

include the caselaw in its briefing. See ECF No. 54 at 3-4. Plaintiff goes on to argue that 

this case is distinguishable from the Regents case because it is a bid protest case and must 

be decided under the Tucker Act, 28 U.S.C. § 1491, rather than under the Administrative 

Procedures Act (APA), 5 U.S.C. § 551. See id. at 5-8. Further, plaintiff contends, even if 

Regents applies, it does not permit the agency to create a new explanation for its action 

and does not justify permitting the agency to take new corrective action. See id. at 8-10.

Defendant replies that “justice requires reconsideration” because it “had little or 

no opportunity to bring Regents to the Court’s attention earlier” given that it had only 

two business days to respond to plaintiff’s motion. ECF No. 55 at 3. And, it is the APA 

standards that apply, even in bid protest cases, defendant argues. See id. at 4. Therefore, 

defendant reasons, Regents applies. See id. Defendant further contends that, because the 

United States Court of Appeals for the District of Columbia has interpreted Regents as 

permitting an agency to make a “‘fuller explanation of the agency’s reasoning’” when the 

record is devoid of reasoning for a decision, id. at 5 (quoting Bhd. of Locomotive Eng’rs 

& Trainmen v. Fed. R.R. Admin., 972 F.3d 83, 117 (D.C. Cir. 2020), the court here 

should permit the VA to provide a new explanation “elaborating on the reasoning in [the] 

VA’s April 2, 2020 memorandum,” id. at 5-7. 

B. Reconsideration Is Not Warranted 

Here, as plaintiff asserts, the caselaw and argument defendant puts forth does not 

amount to an intervening change in the controlling law, newly discovered evidence, or a 

clear factual or legal error that requires correction. See id. at 711. The Supreme Court 

issued its decision in Regents on June 18, 2020—well before plaintiff’s motion for 

clarification was filed on September 23, 2020. See Regents, 140 S. Ct. at 1891. 

Therefore, the case is not an intervening change in the controlling law. Nor does 

defendant assert any new facts in its motion. See generally ECF No. 49. Thus, to justify
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reconsideration, the court must need to correct a clear factual or legal error. Biery, 818 

F.3d at 711. The precedent in the Regents case, however, does not demonstrate that the 

court made a clear legal error sufficient to warrant reconsideration. 

In Regents, the Supreme Court notes that when the grounds for agency action are 

inadequate, the court “may remand for the agency to do one of two things: First, the 

agency can offer ‘a fuller explanation of the agency’s reasoning at the time of the agency 

action.’” Regents, 140 S. Ct. at 1907 (quoting Pension Benefit Guar. Corp. v. LTV 

Corp., 496 U.S. 633, 654 (1990)) (emphasis in original). “Alternatively, the agency can 

‘deal with the problem afresh’ by taking new agency action.” Id. at 1908 (quoting Sec. & 

Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 201 (1947)) (emphasis in original). The 

Supreme Court also discussed two important limitations on the agency action: (1) “When 

an agency’s initial explanation ‘indicate[s] the determinative reason for the final action 

taken,’ the agency may elaborate later on that reason (or reasons) but may not provide 

new ones,” id. (quoting Camp v. Pitts, 411 U.S. 138, 143 (1973));

4 and (2) an agency 

making a new determination “is not limited to its prior reasons, but must comply with the 

procedural requirements for new agency action.” Id. The Supreme Court analyzed the 

Department of Homeland Security’s memorandum which set forth the reasons the agency 

took particular action and, based on the principles articulated above, determined that the 

offered explanation included “impermissible post hoc rationalizations” and could not be 

considered. Id. at 1909.

The remand in this bid protest case was a limited one for the purpose of 

determining whether the agency had omitted from the administrative record any relevant

materials explaining its decision-making process with regard to the corrective action at 

issue. Because the court had concluded that the only explanation provided in the record 

was an impermissible post hoc rationalization, see ECF No. 39 at 8, defendant’s reliance 

on Regents is misplaced. Any elaboration here, such as was sought in Regents, would be 

4 Defendant also cited Brotherhood of Locomotive Engineers and Trainmen v. Federal

Railroad Administration, 972 F.3d 83 (D.C. Cir. 2020), in support of its argument that a new 

explanation is proper where the record was devoid of explanation for the agency’s action. See

ECF No. 49 at 3-4. In that case, however, the United States Court of Appeals for the District of 

Columbia found that the agency’s “wholly unexplained approval of material decisions . . . was 

arbitrary and capricious,” noting that what the Court “confront[ed] in this case is a total 

explanatory void.” Bhd. of Locomotive Eng’r & Trainmen, 972 F.3d at 88, 117. The court, 

therefore, vacated the decision and then remanded it to the agency for action consistent with the 

remand actions described in Dep’t of Homeland Sec. v. Regents of the Univ. Cal., 140 S. Ct. 

1891 (2020). See id. at 117. In the court’s view, this case does not support defendant’s 

argument. Rather, it supports the proposition that, in the face of a “total explanatory void” such 

as the one here, the proper finding is that the agency’s action was arbitrary and capricious, and 

the proper remedy is vacatur of that action. Id.
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more impermissible post hoc rationalization as it would amount to an entirely new 

explanation. See Regents, 140 S. Ct. at 1909. 

Although the court in Regents notes that courts are permitted to remand a matter 

for a new decision, it does not require courts to do so. See id. at 1907 (stating that the 

court “may remand for the agency to do one of two things”) (emphasis added). When an 

agency “seeks to defend its decision on grounds not previously articulated by the 

agency,” the court “generally decline[s] to consider the agency’s new justification” and 

“affirm[s] or reverse[s].” SKF USA, Inc. v. United States, 254 F.3d 1022, 1028 (Fed. 

Cir. 2001) (citing Chenery, 332 U.S. at 196; Koyo Seiko Co., Ltd. v. United States, 95 

F.3d 1094, 1099-102 (Fed. Cir. 1996)). However, “the agency may request a remand 

(without confessing error) in order to reconsider its previous position,” which the court 

may grant if the “agency’s concern is substantial and legitimate,” rather than “frivolous 

or in bad faith.” Id. at 1029. Thus, not only is an agency not guaranteed a remand to 

make a new decision, but such a remand would be inappropriate if the agency’s concern 

were “frivolous or in bad faith.” Id.; see also 28 U.S.C. § 1491(a)(2) (permitting the 

court to remand matters “with such direction as it may deem proper and just”). Allowing 

the agency to render a new decision that might be “essentially the same as, similar to, or 

different from the earlier decision challenged by [plaintiff],” ECF No. 46 at 1, would 

permit the agency to effect an end-run around the bar against post hoc rationalizations. In 

the court’s view, such an action would be ill-considered.

Because the court’s decision to limit the scope of the remand is consistent with the 

Regents precedent, there is no clear legal error to correct. Reconsideration is, therefore, 

not appropriate in this case. 

C. Defendant Need Not Provide Privileged Materials

In its motion, defendant also requests clarification as to whether the court’s 

remand “obligates [defendant] to produce to the [c]ourt and the parties documents, if 

any, that would ordinarily be protected by the attorney-client privilege, the attorney 

work-product doctrine, or other applicable privileges.” ECF No. 49 at 4. The court’s 

remand order did not direct defendant to produce any privileged materials, it merely 

“permitted [the VA] to identify any documents or materials that were prepared prior to 

the corrective action that would have informed the agency’s decision-making process . . . 

and advise the [c]ourt if it has anything in the record . . . that can be provided to the 

[c]ourt.” ECF No. 48 at 2 (emphasis added). As such, defendant is not obligated, 

pursuant to the court’s October 26, 2020 order, to provide any privileged documents to 

the court or the parties. 

IV. Conclusion

Accordingly, for the foregoing reasons: 
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(1) Defendant’s motion for reconsideration of the court’s October 26, 2020 

order clarifying the remand in this matter, ECF No. 49, is DENIED; 

(2) On or before February 19, 2021, the parties are directed to CONFER and 

FILE a notice attaching the parties’ agreed upon redacted version of this 

opinion, with all competition-sensitive information blacked out; and 

(3) All other outstanding deadlines in the court’s August 5, 2020 order, ECF 

No. 34, remain in place.

IT IS SO ORDERED.

s/Patricia E. Campbell-Smith 

PATRICIA E. CAMPBELL-SMITH

Judge