In the United States Court of Federal Claims

No. 18-1125C

(Filed September 4, 2018)

NOT FOR PUBLICATION

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VELOCITY TRAINING, LLC, *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant, *

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and *

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AIR CENTER HELICOPTERS, *

INC., *

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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 plaintiff ’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 
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proposed a schedule to litigate motions to dismiss this claim. Based on the 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 

government’s final request to extend the filing deadline—provided that the parties 

would confer and agree to request an extension of time for plaintiff to file its 

response. 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 plaintiff 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 supporting 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 intervenor’s brief as untimely and prejudicial. See 

Plaintiff ’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 nothing in those orders allowed 

for intervenor to file a paper advocating 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 of” 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 prejudice. Intervenor apparently cites four cases that the 

government did not employ in its motion. Pl.’s Mot. at 5. Plaintiff 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 Plaintiff ’s Reply to Defendant-Intervenor’s Opposition to Plaintiff ’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 concede that this Court’s orders granting extensions of time applied equally to 

the government and intervenor, the Court will treat August 27, 2018, as applying to 

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

effort—hence increasing legal fees. Id.

Intervenor responds that plaintiff will not be prejudiced by its filing. The 

parties at that time were scheduled to confer about an extension of time for plaintiff 

to file its opposition paper—to account for the government’s delays in filing its 

motion. Defendant-Intervenor’s Opposition to Plaintiff ’s Motion to Strike at 1–2, 

ECF No. 26. Further, plaintiff knew—based on previous exchanges by the parties—

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

Plaintiff replies that intervenor’s brief must be considered a motion to 

dismiss this claim—because it specifically requests dismissal of this case. 

Plaintiff ’s Reply to Defendant-Intervenor’s Opposition to Plaintiff ’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. Further, even though the parties were due to confer 

about scheduling a response deadline, plaintiff maintains that intervenor’s delayed 

filing has 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 to 

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 paper 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 filing 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 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.”). As such, parties—and even the court itself—are 

free to raise questions about the court’s jurisdiction 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).
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Given the non-waivability of subject-matter jurisdiction, this Court cannot 

hold that intervenor has lost its ability to challenge any matter relating to subjectmatter 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 point 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 plaintiff ’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 engaging in motions practice on 

this point, complete with thorough briefing. This further delayed 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 order 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 address 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, plaintiff 

chose to engage in time-consuming motions practice over an ancillary issue.2 The 

Court, therefore, does not find plaintiff ’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 respond 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. 
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III. CONCLUSION

Plaintiff ’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