# In the United States Court of Federal Claims

No. 18

- 1125 C (Filed September 4 , 2018 )
NOT FOR PUBLICATION

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*

*
VELOCITY TRAINING , LLC

, *

* Plaintiff, *

*

v. *

* THE UNITED STATES, *

* Defendant, *

*

and *

* AIR CENTER HELICOPTERS, *
INC

. , *

*
Defendant

– Intervenor. *

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MEMORANDUM OPINION AND ORDER

WOLSKI, Senior Judge

.

Before the Court is a motion by the plaintiff, Velocity Training, LLC, to strike a paper filed by the defendant

- intervenor, Air Center Helicopters, Inc., supporting
the government’s motion to dismiss this bid protest. Plaintiff contends that the paper must be stricken because it was filed two days after this Court’s deadline for filing motions to dismiss this case. For the reasons discussed below, the plaintif f ’s
motion is DENIED

.

I. BACKGROUND

This bid protest commenced on August 1, 2018. The following day, this Court convened an initial scheduling conference, at which time the parties jointly- 2

- pr oposed a schedule to litigate motion s to dism iss this claim . Based on th e parties’ agreement, this Court issued a scheduling order stating that the “[m]otion(s) to dismiss this case will be filed on or by Wednesday, August 22, 2018.” ECF No. 10, at 1. For reasons that this Court does not entirely understand, the government needed two extensions of time to file its motion. Plaintiff agreed not to oppose the

governme nt’s final request to extend the fili ng deadline

— provided that the parties would confer and agree to request an extension of time for plaintiff to file its

respon se. See ECF No. 21. The government finally filed its currently pending motion on August 27, 2018. See ECF No. 23.

Two days later, intervenor filed a paper styled as a brief in support of the government’s motion to dismiss this case

— asserting that plaint iff lacks standing

. See generally ECF No. 24. No motion for leave to file the document out

- of

- time accompanied the brief

. And none of this Court’s prior orders indicated that intervenor could file any supporti ng papers several days after the government
submitted its motion. Rather, the Court’s order contemplated that intervenor could file its own motion on the same day as the government.

Plaintiff moved to strike interven or’s brief as untimely and prejudicial. See
Plaintif f ’s Motion to Strike Defendant

- Intervenor’s “Brief in Support of Defendant’s
Motion to Dismiss” at 3

– 5 (Pl.’s Mot.), ECF No. 25. Specifically, plaintiff points to this Court’s prior scheduling orders, asserting that no thing in those orders allowed
for inter venor to file a paper advoca ting the dismissal of this case after August 27,

2018. Id. at 4. Plaintiff also argues that intervenor cannot evade the filing deadline by styling its paper as a “brief in support o f ” the government’s motion. Id. In reality, plaintiff maintains, the paper is a stand

- alone motion to dismiss this case and, as such, needed to have been filed on or by August 27, 2018

— the date this
Court ordered the government to file its motion. 1

Finally, plaintiff argues that allowing intervenor’s paper to be considered
would be to its prejudic e . Intervenor apparently cites four cases that the government did not employ in its motion. Pl.’s Mot. at 5. P laintiff maintains that if

1 Indeed, plaintiff goes so far as to insinuate that the intervenor’s motion to dismiss this claim was due on August 24, 2018. It suggests that this Court’s orders granting extensions of time applied only to the government and not the intervenor.
See Pla intif f ’s Reply to Defendant

- Intervenor’s Opposition to Plaintif f ’s Motion to Strike at 2 (Reply), ECF No. 27 . But plaintiff then adds that intervenor’s motion was due “at the latest, [on] August 27, 2018.” Id. Because plaintiff appears willing
to conced e that this Court’s orders granting extensions of time applied eq ually to the government and intervenor, the Court will treat August 27, 2018, as applying to
intervenor.- 3

- it must address intervenor’s untimely paper , this would add needless time and
effort

— hence i ncreasing legal fees. Id.

Intervenor responds that plaintiff will not be prejudiced by its filing. The parties at that time we re scheduled to confer about an extension of time for plaintiff to file its opposition paper

— to account for the government’s del ays in filing its
motion. Defendant

- Intervenor’s Opposition to Plaintif f ’s Motion to Strike at 1

– 2,
ECF No. 26. Further, plaintiff knew

— b ased on previous exchanges by the parties

— that intervenor would likely file a brief in support of the government’s mo tion. Id.

Plaintiff replies th at intervenor’s brief must be considered a motion to
dismiss this claim

— because it specifically requests dismissal of this case.
Plaintif f ’s Reply to Defendant

- Intervenor’s Opposition to Plaintif f ’s Motion to
Strike at 1

– 2 (Reply), ECF No. 27

. Plaintiff contends that nothing gives the intervenor the “unilateral right to ignore” this Court’s deadline for filing motions to
dismiss this claim. Id. at 1. Fu rther, even though the parties we re due to co nfer about scheduling a response deadline

, plaintiff maintains that intervenor’s delayed filing ha s created uncertainty regarding whether that paper’s arguments must be
addressed

. Id. at 2

– 3 . Further, even if plaintiff were to seek an extension of time t o file its response, it argues that this does not cure the impropriety of intervenor’s
untimeliness and the resulting delay and expense in litigating this matter

. Id. at 4.

II. DISCUSSION

To begin with, the Court agrees with plaintiff that intervenor’s p aper should be treated as a motion to dismiss this case. And plaintiff is indeed correct that intervenor should have submitted its motion on August 27, 2018

— the deadline set by this Court for f iling motions to dismiss this case . But because the paper is a motion to dismiss this case for lack of subject

- matter jurisdiction , the victory on this point is a pyrrhic one

.

A federal court’s subject

- matter jurisdiction is a non

- waivable issue. Union Pac. R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment, Cent. Region , 558 U.S. 67, 81 (2009). If a federal court does not possess the power to hear a given case, then the court must dismiss the action. See Ex Parte McCardle

, 74 U.S. (7 Wall) 506, 514 (1868) (“ Jurisdiction i s 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. ”). As such, parties

— and even the court itself

— are free to raise questions about the court’s jurisdic tion at any stage of the litigation.
See Folden v. United States , 379 F.3d 1344, 1354 (Fed. Cir. 2004) (“ Subject

- matter jurisdiction may be challenged at any time by the parties or by the court sua sponte. ”); cf. John R. Sand & Gravel Co. v. United States , 552 U.S. 130, 132 (2008) (discussing how this court must consider issues pertaining to its limited jurisdiction

— even if not raised by the parties)

.- 4

- Given the non

- waivability of subject

- matter jurisdiction, this Court cannot
hold that intervenor has los t its ability to challenge any matter relating to subject

matter jurisdiction

— such as standing. See Gonzalez v. Thaler , 565 U.S. 134, 141 (2012) (“Subject

- matter jurisdiction can never be waived or forfeited. The objections may be resurrected at any poin t in the litigation, and a valid objection may lead a court midway through briefing to dismiss a complaint in its entirety. ”); S. Cal. Fed.
Sav. & Loan Ass’n v. United States , 422 F.3d 1319, 1328 n.3 (Fed. Cir. 2005) (explaining that standing is a question of subject

- matter jurisdiction). By filing late, intervenor was certainly in poor form

— as it should have moved this Court for
leave to file its brief after the deadline . For whatever reason, it chose not do so. Nevertheless, the Court must consider its arguments because they address the fundamental question of whether this Court may hear the case. See Ashcroft v. Iqbal , 556 U.S. 662, 671 (2009) (explaining that arguments about the lack of subject

- matter jurisdiction “ should be considered when fairly in doubt. ”).

Even were this Court able to strike intervenor’s motion , the Court would still
allow the document to remain filed as plaintiff appears to have suffered only
minimal inconvenience . The parties have yet to negotiate proposals on the timing of p laintif f ’s opposition and the reply filings. Plaintiff therefore still has the opportunity to request additional time to file its brief

, commensurate with the amount of time the government and the intervenor had in filing their papers.

Further, the Court does not believe that plaintiff will suffer prejudice in the
form of the marginal cost of addressing four additional authorities. Indeed, it seems

that plaintiff chose to incur even greater costs in engag ing in motions practice on this point, complete with thorough briefing. This further delay ed these proceedings by requiring the Court to act upon the motion. See Reply at 3 (discussing how plaintiff cancelled a conference call and put its drafting of its opposition brief on

hold in ord er to litigate this motion). Motions practice should be an avenue of last resort, undertaken when the parties are genuinely unable to reach an agreement. If expense and delay were truly problems for plaintiff, then the proper avenue would
have been to ad dress this matter out

- of

- court and amicably negotiate an extension of time with the other parties, such that plaintiff could address intervenor’s
arguments. To be sure , plaintiff would have had every right to do so given the extra time that the government and intervenor took to file their papers. Instead, plainti ff chose to engage in time

- consuming motions practice over an ancillary issue. 2 The Court, therefore, does not find plaintif f ’s concerns about expense credible.

2 Plaintiff makes much of the “uncertainty about the briefing schedule” caused by intervenor’s late filing , arguing that it could not negotiate a new schedule with the other parties because it was unsure whether it would have to re spond to intervenor’s arguments

— due to the pendency of this motion to strike intervenor’s
brief. Reply at 3. But such self

- inflicted uncertainty is not terribly persuasive.- 5

- III. CONCLUSION

Plaintif f ’s motion to strike intervenor’s brief is DENIED , as that paper is more properly considered a motion to dismiss this case for lack of subject

- matter jurisdiction . Plaintiff is free to seek an extension of time in which to file its response to the motions to dismiss this case

.

IT IS SO ORDERED.

s/ Victor J. Wolski
VICTOR J. WOLSKI
Senior Judge