1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0156p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

C OMMONWEALTH OF K ENTUCKY , E DUCATION AND W ORKFORCE D EVELOPMENT C ABINET , O FFICE FOR THE B LIND , Plaintiff-Appellant ,

v

.

U

NITED S TATES OF A MERICA , by and through the Honorable Chuck Hagel, S ecretary of Defense, and the Honorable John McHugh, Secretary of the Army, Defendant-Appellee

. ┐ │ │ │ │ │ │ │ │ │ │ │ │ ┘ No. 12-6610

Appeal from the United St ates District Court for the Western District of Kentucky at Paducah No. 5:12-cv-00132—Thomas B. Ru ssell, District Judge. Decided and Filed: July 21, 2014 Before: MOORE, WHITE, and DONALD, Circuit Judges.

_________________ COUNSEL ON BRIEF: Patrick B. Shirley, COMMONWEALTH OF KENTUCKY, Frankfort, Kentucky, for Appellant. Candace G. Hill, UNITED ST ATES ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee.

_________________ OPINION

_________________ KAREN NELSON MOORE, Circuit Judge. The Randolph-Sheppard Act (“the Act”), ch. 638, 49 Stat. 1559 (1936) (codifie d at 20 U.S.C. §§ 107–107e), gives blind persons a priority in winning contracts to operate vending facilities on federal properties. One of these properties 

### >No. 12-6610 Commonwealth of Ky. v. United States Page 2

is Fort Campbell in Kentucky, which operates a cafeter ia for its soldiers. Fo r at least the last two decades, Kentucky’s Office for the Blind (“OFB” ) has helped blind vendors apply for and win
the base’s contracts for various services. In2012, the United States Army (“the Army”), the federal entity that operates Fort Campbell, published a solicitation, asking for bids to provide dining-facility-attendant services. Rather than doing so under the Ac t, as it had before, the Army issued this solicitation as a set aside for Small Business Administration Historically Underutilized Business Zones (“HUBZones”). OFB disagreed with this change in classification and, representing its blind vendor , filed for arbitration under the Act. OFB also sought a temporary restraining order (“TRO”) and a preliminar y injunction in the distri ct court, requesting that the court stay the awarding of a new contract pending arbitration. The district court denied the requests, finding that it lacked jurisdiction to consider a request for a preliminary injunction. OFB appealed to this court. We now hold that OFB’s failure to seek and complete arbitration does not deprive the federal courts of jurisdiction. The district c ourt erred to the extent that it found differently. Therefore, we VACATE the district court’s judgment and REMAND for
reconsideration.

I. BACKGROUND
A. Randolph-Sheppard Act
In 1936, Congress passed the Randolph-Shep pard Act to “enlarge[e] the economic opportunities of the blind” by giving them priority in the bidding of contracts to operate vending facilities on federal properties. 20 U.S.C. § 107( a). “[V]ending facilit[ ies]” include cafeterias and snack bars on military bases, such as Fort Campbell. § 107e(7).
When everything runs smoothly, the priority works as follows: the Secretary of Education (“the Secretary”) desi gnates a “licensing agency” for each state. § 107a(a)(5). These state licensing agencies then provide the blind with training, equipment, certification, and—if necessary—legal representation. See §§ 107b(2), (6); 107d-4; 107a(b); 34 C.F.R. § 395.33. When a federal agency, such as the Army, solicits vending-facility services, it must invite the state licensing agency to bid on the contract. 34 C.F.R. § 395.33(b). The state licensing agency
will then select a blind vendor and submit a bi d if the vendor can “provide food service at comparable cost and of comparable high quality . . . .” Id. If the state licensing agency’sNo. 12-6610 Commonwealth of Ky. v. United States Page 3

proposal, according to neutral, pre-published criteria, is within “a competitive range” and the Department of Education (“DOE”) agrees with the state licensing agency’s assessment of the vendor’s qualifications, the bli nd vendor will be awarded the cont ract. § 395.33(a), (b). When a vending-facility-services contract nears expirati on, the federal agency may directly negotiate with the state licensing agency to renew the contr act, or it can open bidding to the general public, triggering the same procedur e outlined above. § 395.33(d).
In the event that disputes arise, the Act and DOE’s regulations pr ovide for arbitration between the state licensing agency and the federa l agency soliciting vendi ng-facility services.
See 20 U.S.C. § 107d-1; 34 C.F.R. §§ 395.33(b), 395.37. The DOE and the parties will select and convene an arbitration panel, which then conducts a hearing and issues a decision. 20 U.S.C. § 107d-2(b); 34 C.F.R. § 395.37(b), (c), (f). The panel’s decision is considered to be the final agency action and to be binding upon th e parties. 20 U.S.C. § 107d-1(b); 34 C.F.R. § 395.37(b). If the federal agency is found to be non-compliant, the regulations provide that “the head of any such department, agency, or instrument ality . . . shall cause such acts or practices to be terminated promptly and shall take such ot her action as may be nece ssary to carry out the decision of the panel.” § 395.37(d). The regulati ons then provide for j udicial review of the panel’s decision. Id. ; see also 5 U.S.C. §§ 701–706.
B. Facts and Procedural History
In Kentucky, OFB is the state licensing agenc y. In this role, it licenses and trains blind
vendors. It also submits bids on their behalf for vending-facility-services contracts on federal properties. In 1995, the OFB appointed James E. Hardin as its blind licensed vendor and submitted a bid for the contract with the Army to perform full-food and dining-facility-attendant
services 1 in Fort Campbell’s cafeteria. R. 1 at 5 (Compl. at ¶ 10) (Pag e ID #5). DOE and the Army adjudged OFB’s bid sufficiently compe titive, and OFB received the contract. Id. Hardin formed a joint venture, First Choice Food Serv ices (“First Choice”), and went about performing the contract. R. 1-1 at 3–4 (Pl. Mem. for TRO) (Page ID #21–22).

1 Dining-facility-attendant services include cleaning and ja nitorial services. Full-food services also include preparing and serving meals. See Appellant Br. at 4 n.1.No. 12-6610 Commonwealth of Ky. v. United States Page 4

In 2000, OFB contacted the Army regarding di rect negotiations for the extension of the Fort Campbell contract. R. 1- 5 at 5 (2002 Arbitration Decisi on) (Page ID #49). The Army declined the invitation and posted a new solicit ation for dining-facility-attendant services. Id. at 6 (Page ID #50). The Army eventually decl ared that “[t]he ne w solicitation [would be] administered as a SBA . . . set aside procurement and not as a Randolph-Shep[p]ard procurement.” Id. at 7 (Page ID #51). OFB filed fo r arbitration pursuant to 34 C.F.R. § 395.33(b). The arbitration pane l found in 2002 that the Act c overs dining-facility-attendant services and ordered the Army to negotiate wi th the OFB regarding the continuation of the contract. R. 1-5 at 13 (Page ID #57).
In 2007, the Army solicited bids for the pe rformance of full-food and dining-facilityattendant services. Again, DOE and the Ar my adjudged OFB’s bid competitive, and OFB received the contract. R. 1 at 5 (Com pl. at ¶ 10) (Page ID #5). First Choice 2 performed the

contract.
In August 2012, the Army decided to rely once again upon its own cooks for meal preparation and service. See R. 1-4 at 1 (Brinly Lette r) (Page ID #41). It also solicited bids for dining-facility-attendant services, a solicitation that the Army classified as a set aside for SBA
HUBZones. See R. 1-2 at 1 (Solicitation) (Page ID #36). OFB objected to the SBA HUBZones classification. R. 1-4 at 1–3 (Brinly Letter) (P age ID #41–43). In a letter, OFB cited the 2002 arbitration decision, which held that dining-facility-attendant servi ces were covered by the Act.
Id. at 2–3 (Page ID #42–43). The Army replied, stating that its “interpretation of the [Act] is that it applies only when contracting for the operation of military dining facilities,” meaning full-food services. R. 1-6 at 1 (Fletcher-Schiewe Letter) (Page ID #59).
As a result of being rebuffed, OFB demanded arbitration with the DOE on September 14, 2012. R. 1-7 at 17 (Arbitration Compl.) (Page ID #78). The arbitration complaint asked DOE to convene an arbitration panel, to find the Army in violation of th e Act, and to order the Army to comply with the terms of the Act. Id. at 16–17 (Page ID #77–78). Thr ee days later, OFB filed a self-styled “Motion and Complaint for Temporary Restraining Order and Pr eliminary Injunction”

2 At some point between 2007 and 2012, Faye Autry replaced Hardin as the blind licensed vendor and continued to operate First Choice. See R. 1 at 5 n.1 (Compl. ¶ 10) (Page ID #5).No. 12-6610 Commonwealth of Ky. v. United States Page 5

in federal district court. R. 1 at 1 (Compl.) (P age ID #1). This filing requested that the district court hold an expedited heari ng and issue a TRO or prelimin ary injunction “prohibiting the Army from either conducting th e procurement and/or making award to an offeror pursuant to [the solicitation] until such time as the arbi tration proceeding required by 20 [U.S.C.] § 107d1(b) is concluded.” Id. at 14 (Page ID #14). The Army replied, arguing that OFB could not meet the standard for injunctive relief on the merits . R. 7 at 5–11 (Def. Resp. in Opp’n) (Page ID #109–15). In the alternative, the Army argued that the district court lacked jurisdiction to
entertain the motion because OFB had not exhaus ted its administrative remedies, namely that OFB had not completed arbitration. Id. at 11–16 (Page ID #115–120). OFB disagreed. R. 8 at 1–16 (Pl. Reply) (Page ID #374–389).

On October 9, 2012, the district court held a hearing on the preliminary injunction. It
issued its decision two weeks later on Octobe r 23, denying the injunction and dismissing the action without prejudice. See R. 11 at 11 (D. Ct. Op.) (Page ID #420). The district court found that it lacked jurisdiction to consider OF B’s request because OFB had not exhausted its
administrative remedies. Id. at 9–10 (Page ID #418–19). In the alternative, the district court stated that “even if [it] were to find it had jurisdiction to issue a preliminary injunction, [OFB] has not shown that such an ‘extraordinary remedy’ is warranted in this case. . . . [I]n light of the DOE’s evolving views on the app licability of the [Act] to [dining-facility-attendant]-only contracts, it is not clear that the [OFB] will prevail on the merits.” Id. at 11 (Page ID #420). The Army alerted the district court to the fact that the blind licensed vendor’s contract would expire on March 31, 2013 and that Federal Acquisitio n Regulation § 52.217-8 barred the Army from extending the contract further while arbitrat ion was pending. R. 13 at 1 (Def. Mot. for Correction) (Page ID #422); see also R. 10 at 2 (Def. Supp. Resp.) (Page ID #406). The district court reaffirmed its finding that it lacked jurisdiction. R. 18 at 1 (D. Ct. Oct. 30, 2012 Order) (Page ID #437).

On November 2, 2012, OFB filed a Motion to Alter or Amend pursuant to Federal Rule of Civil Procedure 59. R. 19 at 1–11 (Pl. Mot. to Alter) (Page ID #438–448). OFB requested that the district court reconsider its finding that OFB had not shown that it would suffer irreparable harm absent a preliminary injunction b ecause the Army alerted the district court thatNo. 12-6610 Commonwealth of Ky. v. United States Page 6

the solicitation would close on No vember 9, 2012 and that the bli nd licensed vendor’s contract would expire March 31, 2013. Id. at 1–2 (Page ID #438–39). The district court denied the
motion. See R. 22 (D. Ct. Dec. 4, 2012 Order) (Page ID #463). The district co urt reaffirmed that it “denied OFB’s request for a preliminary in junction based on its fi nding that it lacked jurisdiction.” Id. at 2 (Page ID #464). It also stated that its “discussion of irreparable harm was limited to two sentences in the opinion’s fina l paragraph, which discu ssed in dicta that a preliminary injunction may not have been warranted ‘even if [the district court] were to find it had jurisdiction.’” Id. (quoting R. 11 at 11 (D. Ct . Op.) (Page ID #420)).
OFB appealed the district court’s rejecti on of its Rule 59 motion to this court on December 20, 2012. R. 23 at 1 (Notice of App eal) (Page ID #467). While its appeal was pending, on January 31, 2013, OFB f iled in this court a Motion for Injunction Pending Appeal pursuant to Federal Rule of Appellate Procedure 8. In its motion, OFB recited the arguments it raised in district court and requested that this court enjoin the Army from awarding the diningfacility-attendant contract until arbitration was completed. In response, the Army argued that this court had jurisdiction to consider only whet her the district court erred in finding that it did not have jurisdiction to rule on the merits of OFB’s claims. Additionally, the Army filed a Motion to Dismiss Appeal, assert ing that OFB’s appeal is moot because the Army had already
awarded the contract.

We denied both motions on March 28, 2013. Kentucky Educ. & Workforce Dev. Cabinet Office for the Blind v. United States , No. 12-6610, at *3 (6th Cir. Mar. 28, 2013) (unpublished order) (“ Office for the Blind ”). We held that this situatio n was “‘capable of repetition, yet evading review’” and, thus, not moot. Id. at *2 (quoting In re Search of Fair Fin ., 692 F.3d 424, 428 (6th Cir. 2012)). Furthermore, we also held that “[t]he district court did not abuse its discretion in denying the prelimin ary injunction” and noted that “[n]umerous courts, including this court, have required exhaus tion under similar circumstances.” Id. (citing Fillinger v. Cleveland Soc’y for the Blind , 587 F.2d 336, 338 (6th Cir. 1978) (“ Fillinger I ”)). Three days later, on March 31, the blind licensed vendor’s cont ract expired with the Army, and the next day, the winner of the solicitation started providi ng dining-facility-attendant services.No. 12-6610 Commonwealth of Ky. v. United States Page 7

Arbitration continued between the Ar my and OFB, and on February 14, 2014, the arbitration panel issued a divide d decision, siding with OFB. The arbitration panel concluded that the Act covers the dining-facility-attendant services at Fort Campbell and that the Army violated the Act by soliciting bids as a HUBZones set aside. Ar b. Dec. at 26, 27. Accordingly, the panel ordered the Army to terminate its co ntract with its current vendor on March 31, 2014 and to commence negotiations with OFB immediatel y for a new contract to take effect on April 1, 2014. Id. at 28. OFB has continued its appeal, a nd we asked the parties to supply letter briefing regarding whether the appeal is now moot.

II. ANALYSIS
In its briefing before this court, OFB asks us to hold that the district court erred in finding that it lacked jurisdiction to issue a preliminary injunction, whic h could have stayed the awarding and implementation of the contract pending arbitr ation. At this point in time, the Army has already awarded the contract, ar bitration has already been completed, and OF B has filed another suit in district court, seeking to enforce the arbitration panel’s de cision. Therefore, two questions arise: (1) is OFB’s appeal moot; and (2) if not, did the district court err in its jurisdictional finding? We answer the first question in the negative and the second one in the affirmative.

A. Mootness

“Under Article III of the Constitution, federa l courts may adjudicate only actual, ongoing
cases or controversies.” Lewis v. Cont’l Bank Corp. , 494 U.S. 472, 477 (1990) (citing Deakins v. Monaghan , 484 U.S. 193, 199 (1988); Preiser v. Newkirk , 422 U.S. 395, 401 (1975)). “When— for whatever reason—the dispute discontinues or we are no longer able to grant meaningful relief to the prevailing party, the acti on is moot, and we must dismi ss for lack of jurisdiction.” United
States v. Blewett , 746 F.3d 647, 661 (6th Cir. 2013) (Moore, J., concurring) (citing Knox v. Serv. Emp. Int’l Union , 132 S. Ct. 2277, 2287 (2012)); accord Chafin v. Chafin , 133 S. Ct. 1017, 1023 (2013). “‘[I]t is not enough that a dispute was very much alive when suit was filed.’” FEC v. Wisconsin Right to Life, Inc. , 551 U.S. 449, 461 (2007) (quoting Lewis , 494 U.S. at 477). There must be a live controversy “at every stage of the litigation” for us to have Article III jurisdiction.
Lawrence v. Blackwell , 430 F.3d 368, 370–71 (6th Cir. 2005).No. 12-6610 Commonwealth of Ky. v. United States Page 8

This doctrine, however, is not without its ex ceptions. “[A] case will not be considered moot if the challenged activity is capable of repetition, yet evading review.” Id. at 371; see also Murphy v. Hunt , 455 U.S. 478, 482 (1982); Weinstein v. Bradford , 423 U.S 147, 149 (1975). “The exception applies where ‘(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable exp ectation that the same complaining party will be subject to the same action again.’” 3 Wisconsin Right to Life , 551 U.S. at 462 (quoting Spencer v. Kemna , 523 U.S. 1, 17 (1998)). In our March 28, 2013 order, we held that OFB’s suit challenging the Army’s solicitati on of bids outside the Act’s requirements fit within this exception. The same is true today.
The time between when the Army publishes it s solicitation of bids and when the new vendor’s contract goes into effect is exceptionally short. In this case, the Army posted its solicitation on August 28, 2012 and established a closing date of September 19, 2012. R. 1 at 7 (Compl. at ¶¶ 15, 17) (Page ID #7). OFB’s c ontract was set to e xpire December 31, 2012, though the Army extended it three months. See R. 10 at 2 (Def. Supp. Re sp.) (Page ID #406). However, the Army claims that regulations prevented it from extending it further. See Appellee Br. at 10 & n.4 (citing FAR § 52.217-8). The di strict court ruled quickly on October 23, 2012, R. 11 at 11 (D. Ct. Op.) (Page ID #420), but the case did not reach us until December 21, 2012, with the appellant’s brief not due until February 4, 2013. Absent an extension from the Army,

3 In several recent cases, the Supreme Court has reaffi rmed that “a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging.” Susan B. Anthony List v. Driehaus , 134 S. Ct. 2334, 2347 (2014) (internal quotation marks omitted); Lexmark Int’l, Inc. v. Static Control Components, Inc. , 134 S. Ct. 1377, 1386 (2014) (same). In doing so, the Court has placed the conti nuing vitality of the prudential aspects of standing and ripeness, doctrines that sound in Article III and are closely related to mootness, in doubt. See Driehaus , 134 S. Ct. at 2347 (ripeness); Lexmark , 134 S. Ct. at 1386–88 (standing).
As with standing and ripeness, there are constitutional and prudential aspects to the mootness doctrine as well, Allen v. Wright , 468 U.S. 737, 750 (1984) (citing Vander Jagt v. O’Neill , 699 F.2d 1166, 1178–79 (D.C. Cir. 1983) (Bork, J., concurring)), but it is not always eas y to distinguish the constitutional aspects of mootness, grounded in Article III, from the prudential ones, grounded in policy, see, e.g. , United States Parole Comm’n v. Geraghty , 445 U.S. 388, 420 n.15 (1980) (Powell, J., dissenting) (accusing the majority of conflating the two arms of the doctrine). The “capable of repetiti on yet evading review” exception itself straddles the constitutional/prudential divide. At least one member of the Court has interpreted “the probability of recurrence between the same parties” portion of the exception to be “essential to [federal-court] jurisdiction,” see Honig v. Doe , 484 U.S. 305, 341 (1988) (Scalia, J., dissenting); the same Justice, who recently penned Lexmark , also considers the “evading review” portion of the exception to be prudential, see Honig , 484 U.S. at 341. We interpret the exception’s test, as stated above and applied, to focus upon the constitutional aspects of mootness and to be grounded in Article III, as both prongs focus upon whether an actual controversy exists between the parties. See id. Therefore, although in the future the Supreme Court may r eexamine the mootness doctrine, the doctrin e as it exists today compels us to exercise jurisdiction over this claim if OFB can demonstr ate that the “capable of repetition, yet evading review” exception applies.No. 12-6610 Commonwealth of Ky. v. United States Page 9

the case arguably could have been moot ten da ys after reaching us. Ev en with the extension,
there would be little time for us to consider OFB’s reply brief, orig inally due March 24, 2013,
before the new contract took eff ect. Accordingly, we hold that the facts of this case demonstrate that the controversy expires too quickly for OFB to litigate the matter before the contract goes
into effect. See Turner v. Rogers , 131 S. Ct. 2507, 2515 (2011) (n oting that 12-month, 18- month, and two-year time periods qualified as too short in duration to be litigated sufficiently).
Additionally, the history of these parties demonstrates that this scenario will likely play out again between them in the future. At roughly five-year intervals, the Army solicits bids for dining-facility-attendant services. See R. 1 at 5–6 (Compl. at ¶¶ 10–12) (Page ID #5–6). On at least two prior occasions, OFB has challenged the Army’s deci sion that a solicitation is not governed by the Act. See R. 1-4 at 1–3 (Brinly Letter) (Pag e ID #41–43) (citing other cases and disputes); see also Kentucky, Educ. Cabinet, Dep’t for the Blind v. United States , 424 F.3d 1222 (Fed. Cir. 2005) (“ Dep’t for the Blind ”); Kentucky v. United States , 62 Fed. Cl. 445 (2004). It does not appear likely that the Army will st op needing dining-facility-attendant services, nor does it appear likely that OFB will stop asserting that the Act applies to these contracts. Thus, there is a reasonable expectation that a district court, in the not so distant future, will face a request that it issue an injunction to stay the awarding of a contract pe nding arbitration involving these parties. Cf. Turner , 131 S. Ct. at 2515 (holding that a de fendant’s frequent failure to make child-support payments in the past created a reasonable expectation that the dispute would arise again between the same parties). As a result of these two determinations, we hold that OFB’s appeal fits within “the capable of repetition, yet evading review ” exception and is, therefore, not

moot.

B. Jurisdiction
The district court denied OFB’s applicati on for a preliminary injunction because OFB had not exhausted its administrative remedies, name ly arbitration. In doing so, the district court found that it lacked jurisdic tion to decide the case. In self-described “dicta,” see R. 22 at 2 (D. Ct. Dec. 4, 2012 Order) (Page ID #464), the dist rict court also found th at OFB’s application lacked merit because “it [was] not clear that [O FB] [would] prevail on th e merits,” R. 11 at 11 (D. Ct. Op.) (Page ID #420). We stated, in our March 28, 2013 order, that “[ t]he district courtNo. 12-6610 Commonwealth of Ky. v. United States Page 10

did not abuse its discretion in de nying the preliminary injunction.” Office for the Blind , No. 12- 6610, at *2. The parties, however, do not read our order as disposing of their case, and admittedly, the order is not a model of clarity. As a result, we address the parties’ concerns below, and we hold that exhaustion is not a jurisdictional prerequisite and that OFB has demonstrated that it meets an exception to the Act’s statutory e xhaustion requirements.
1. Completing Arbitration Is Not a Jurisdictional Prerequisite
In recent years, the Supreme Court has rec ognized that jurisdiction ‘“is a word of many, too many, meanings’” used far too loosely by federal courts. Steel Co. v. Citizens for a Better
Env’t , 523 U.S. 83, 90 (1998) (quoting United States v. Vanness , 85 F.3d 661, 663 n.2 (D.C. Cir. 1996)). Too often, the Court has observed, federal courts “dismiss[] ‘for lack of jurisdiction’
when some threshold fact has no t been established, without expl icitly considering whether the dismissal should be for lack of subject matter jurisdiction or for failure to state a claim.” Arbaugh v. Y & H Corp. , 546 U.S. 500, 511 (2006) (internal quotation marks om itted). The Court has acknowledged that “t he distinction between jurisd ictional conditions and claimprocessing rules can be confusing in practice.” Reed Elsevier, Inc. v. Muchnick , 559 U.S. 154, 161 (2010). However, in an effort to avoid “drive-by juri sdictional rulings,” Steel Co. , 523 U.S. at 91, the Court has instituted a clear-statement rule requiring Congress to “state[] [clearly] that a
threshold limitation on a statut e’s scope shall count as jurisdictional . . . .” Arbaugh , 546 U.S. at
515.

Under this rule, the Act’s e xhaustion requirement is not ju risdictional. Section 107d-1(b) provides that
Whenever any [s]tate licensing agency determines that any department, agency, or instrumentality of the United States th at has control of the maintenance, operation, and protection of Federal prope rty is failing to comply with the provisions of [the Act] or any regulations issued thereunder . . . such licensing agency may file a complain t with the Secretary who shall convene a panel to arbitrate the dispute pursuant to section 107d-2 of this title, and the decision of such panel shall be final and binding on the parties except as otherwise provided in this chapter.
This language does not rise to the level of a clear statement. Sect ion 107d-1 is simply not phrased in jurisdictional terms. Our decision in Allen v. Highlands Hospital Corp. , 545 F.3d 387No. 12-6610 Commonwealth of Ky. v. United States Page 11

(6th Cir. 2008), is helpful here. In that case, we held that an exhaustion requirement in the Age Discrimination in Employment Act (“ ADEA”), 29 U.S.C. §§ 621–634, did not meet Arbaugh ’s stringent test. The ADEA provides that “[n]o civil action may be commenced by an individual under this section until 60 days after a charge allegi ng unlawful discrimination has been filed with the Equal Employment Opportunity Commi ssion [(‘EEOC’)].” 29 U.S.C. § 626(d). In
Allen , we found it important that this provision doe s not reference the ju risdiction of federal courts. Moreover, we said that § 626(d)’s language stating that “no civil action may be commenced” until an EEOC charge has been f iled “does not suffice to show that Congress intended for the requirement to be jurisdictional in nature.” Allen , 545 F.3d at 402. Similarly, here § 107d-1 of the Act does not reference the jurisdiction of fe deral courts, nor does it contain language remotely close to 29 U.S.C. § 626(d )’s “no civil action” bar. Thus, given Allen ’s
treatment of the ADEA and Arbaugh ’s caution against “drive-by ju risdictional rulings,” we hold that 20 U.S.C. § 107d-1 does not crea te a jurisdictional prerequisite.
The Army cites a variety of cases and ar gues that they hold otherwise. We are unconvinced. First, most of the cases predate the Supr eme Court’s decisions in Arbaugh and
Muchnick , which altered how we interp ret exhaustion requirements. See, e.g. , Emswiler v. CSX Transp., Inc. , 691 F.3d 782, 789 (6th Cir. 2012) (collecting cases in which we revisited prior holdings after Arbaugh ); Hoogerheide v. IRS , 637 F.3d 634, 636 (6th Cir. 2011) (same). Second, the Army appears to confuse a mandatory exhaus tion requirement with a jurisdictional one. There is a subtle, but important , difference. The ADEA’s require ment that a plaintiff file a complaint with the EEOC before commencing a ci vil action in district court is certainly not optional. Allen , 545 F.3d at 401. Federal courts, however , can craft prudential exceptions to non-jurisdictional exhaustion require ments and grant relief in extr aordinary cases, as explained
below. See McCarthy v. Madigan , 503 U.S. 140, 146–49 (1992) (notin g various exceptions to exhaustion requirements). On the other hand, if a jurisdictiona l requirement is not met, then a federal court must dismiss the suit, regardless of any special considerations or circumstances.
See Bowles v. Russell , 551 U.S. 205, 213 (2007) (noting that forfeiture and waiver arguments could not cure failure to comply with jurisdictio nal time limitations). The bar for establishing a jurisdictional requirement is quite high and not to be inferred li ghtly. For the reasons stated above, we do not believe the Act contains statemen ts sufficient to clear th is hurdle and impose aNo. 12-6610 Commonwealth of Ky. v. United States Page 12

limit on the jurisdiction of federal courts. Thus, we hold that the Act’s exhaustion requirement is not jurisdictional.
2. OFB Meets an Exception to the Act’s Jurisprudential Exhaustion Requirement
Even though the Act’s exhaustion requireme nt is not jurisdicti onal, it has bite. See, e.g. , Dep’t for the Blind , 424 F.3d at 1228; Randolph-Sheppard Vendors of Am. v. Weinberger , 795 F.2d 90, 104 (D.C. Cir. 1986); Alabama Dep’t of Rehab. Servs. v. U.S. Dep’t of Veterans Affairs , 165 F. Supp. 2d 1262, 1270 (M.D. Ala. 2001). In most cases, a failure to exhaust
administrative remedies is fatal to a suit in federal court. See, e.g. , Hoogerheide , 637 F.3d at 634 (collecting cases). Ex haustion requirements, like this one , “serve[] the twin purposes of protecting administrative agency authority and promoting judicial efficiency.” McCarthy , 503 U.S. at 145. “[E]xhaustion prin ciples apply with special for ce when ‘frequent and deliberate flouting of administrative proce sses’ could weaken an agency’s effectiveness by encouraging disregard of its procedures.” Id. (quoting McKart v. United States , 395 U.S. 185, 195 (1969)). That said, exhaustion is an area of law in which “sound judicial disc retion governs” “where Congress has not clearly required exhaus tion [as a jurisdictional matter].” Id. at 144 (citing
McGee v. United States , 402 U.S. 479, 483, n.6 (1971)). In accordance with that discretion, the federal courts have recognized at least three prudential exceptions to exhaustion requirements. Exhaustion may be excused if a li tigant can show: (1) that requ iring exhaustion will result in irreparable harm; (2) that the administrative re medy is wholly inadequate; or (3) that the administrative body is biased, making recourse to the agency futile. Id. at 146–48; RandolphSheppard Vendors , 795 F.2d at 104–108.

In this case, we conclude that exhaustion should have been excused because requiring the completion of arbitration prior to filing in federa l court for a preliminary injunction would likely result in irreparable harm. Under OFB’s conception of the Act and its accompanying regulations, the Army must negotiate exclusiv ely with OFB for the successor dining-facilityattendant-services contract, see 34 C.F.R. § 395.33(d), or the Army must give OFB a priority in the bidding process, see § 395.33(a)–(b). Under either scenar io, Ms. Autry and First Choice would continue to provide the dini ng-facility-attendant services so l ong as the cost and quality of the services remained competitive. See § 395.33(b). However, because the Army chose to issueNo. 12-6610 Commonwealth of Ky. v. United States Page 13

the solicitation as a HUBZones set aside, the successor contract we nt to another firm, and Ms. Autry and First Choice were ousted as incumbents and had to close up shop. Although a mere loss of profits generally will not qualify as irreparable harm, see Manakee Prof’l Med. Transfer Serv., Inc. v. Shalala , 71 F.3d 574, 581 (6th Cir. 1995) (“[M ]onetary damages do not generally constitute irreparable harm.”), here the pub lic policy in favor of economic stability and opportunities for the blind was also implicated, and additionally, OFB and the Army agree that sovereign immunity bars the arbitr ation panel (or a federal court) from granting OFB damages in the event that the Army is f ound to have violated the Act, see Appellant Letter Br. at 7–9; Appellee Letter Br. at 9–10; see also Lane v. Pena , 518 U.S. 187, 192 (1996) (“A waiver of the Federal Government’s sovereign immunity must be unequivocally e xpressed in statutory text.”); but see Tennessee Dep’t of Human Servs. v. U.S. Dep’t of Educ. , 979 F.2d 1162, 1167 (6th Cir. 1992) (finding that a DOE arbitra tion panel’s award of damages against a state does not offend the Eleventh Amendment). As a result, we conclude that requiring OFB to complete arbitration before challenging the Army’s decision not to apply the Act would result in a loss for which there is no remedy, an irreparable harm. Theref ore, OFB meets the irre parable-harm exception,
and the district court could have—and should have—considered OFB’s claim.
C. Merits and Remedy
Having settled that the district court had ju risdiction to consider OFB’s request for an injunction, we turn to the distri ct court’s alternativ e conclusion, denying th e application on the merits. In reviewing a district court’s decision to deny a preliminary injunction, we evaluate the
same four factors that the distri ct court does: “(1) whether th e movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparabl e injury without the injunction; (3) whether issuance of the injunction would cause substantia l harm to others; and (4) whether the public interest would be served by issuance of the injunction.” City of Pontiac Retired Emps. Ass’n v. Schimmel , 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (internal quotation marks omitted). “Whether the movant is likely to succeed on the merits is a question of law we
review de novo.” Id. (citing NAACP v. City of Mansfield , 866 F.2d 162, 169 (6th Cir. 1989)). “We review ‘for abuse of discretion, however, the district court’s ultimate determination as to whether the four preliminary injunction factors weigh in favor of granting or denyingNo. 12-6610 Commonwealth of Ky. v. United States Page 14

preliminary injunctive relief.’” Id. (quoting Tumblebus Inc. v. Cranmer , 399 F.3d 754, 760 (6th Cir. 2005)). “This standard is de ferential, but [we] may reverse th e district court if it improperly applied the governing law, used an erroneous le gal standard, or relied upon clearly erroneous findings of fact.” Id. (citing NAACP , 866 F.2d at 166–67). In addition, we must remember that “[t]he party seeking a preliminary injunction bear s a burden of justifying such relief, including showing irreparable harm and likelihood of success.” Michigan Catholic Conf. & Catholic Family Servs. v. Burwell , --- F.3d ---, 2014 WL 2596753, at *5 (6th Ci r. 2014) (internal quotation marks omitted).

The district court denied OFB’s request for a preliminar y injunction because it found—in two, rather conclusory sentences—that OFB had not shown that it was likely to succeed on the merits. R. 11 at 11 (D. Ct. Op.) (Page ID #420). Since the district court rendered its decision, however, a DOE arbitration panel has ruled that the Act applies to the dining-facility-attendantservices contract. Given this change in circum stances and the unusual posture of this case, we
think it best to allow the district court to cons ider whether any injunctive relief is available or appropriate at this time. See City of Pontiac , 751 F.3d at 432–33. Therefore, we vacate the
district court’s decision and remand for furthe r proceedings consistent with this opinion.

III. CONCLUSION
In summary, OFB’s application for a prelim inary injunction is not moot. Even though
the contract it wished the district court to st ay went into effect, the alleged wrong is capable of repetition, yet evading review, and thus meets an exception to the mootness doctrine. In addition, OFB’s failure to exhaust its administrative remedies did not deprive the district court of jurisdiction to hear this case. Given that th e arbitration panel has rendered its decision and another suit between the part ies has commenced since the di strict court’s decision, we VACATE the district court’s judgment and REMAND for reconsideration consis tent with this opinion.