United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 18, 2013 Decided April 8, 2014

No. 12-5155

FISHER-CAL INDUSTRIES, INC.,

APPELLANT

v.

UNITED STATES OF AMERICA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-00791)

Lawrence J. Sklute argued the cause and filed the briefs for

appellant.

Alan Burch, Assistant U.S. Attorney, argued the cause for

appellees. With him on the brief were Ronald C. Machen, Jr.,

U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

W. Mark Nebeker, Assistant U.S. Attorney, entered an

appearance.

Before: HENDERSON and SRINIVASAN, Circuit Judges, and

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SENTELLE.
2

SENTELLE, Senior Circuit Judge: Fisher-Cal Industries,

Inc., filed a complaint in the district court, alleging that the

United States Air Force violated the Administrative Procedure

Act when the Air Force opted not to renew a contract for

multimedia services with Fisher-Cal and decided instead to insource the services. The district court dismissed the complaint

pursuant to Federal Rule of Civil Procedure 12(b)(1),

concluding that Fisher-Cal’s claim falls within the exclusive

Tucker Act jurisdiction of the United States Court of Federal

Claims. We affirm.

Background

In 2009 the United States Air Force entered into a contract

with appellant Fisher-Cal Industries to provide Dover Air Force

base with multimedia services. The contract had a base oneyear term with four additional one-year term options. After the

first nine months of Fisher-Cal performing under the contract,

the Air Force notified Fisher-Cal that it had decided not to

exercise its option to renew the contract after the base one-year

term expired. The Air Force explained that it would in-source

the multimedia services, having civilian government employees

perform the work. After expiration of the contract, Fisher-Cal

filed suit in the United States District Court for the District of

Columbia. In its suit Fisher-Cal alleged that the Air Force’s

decision to in-source the multimedia services was arbitrary and

capricious under the Administrative Procedure Act (“APA”)

because the Air Force had failed to perform a proper cost

analysis pursuant to 10 U.S.C. §§ 129a and 2463 (2010).

The district court dismissed the suit for lack of subject

matter jurisdiction pursuant to Federal Rule of Civil Procedure

12(b)(1). In dismissing the suit, the district court noted that the

Tucker Act, 28 U.S.C. § 1491, as amended by the

Administrative Disputes Resolution Act of 1996, provides that
3

the United States Court of Federal Claims “shall have

jurisdiction to render judgment on an action by an interested

party objecting to . . . any alleged violation of statute or

regulation in connection with a procurement or a proposed

procurement.” The district court went on to note that although

the Tucker Act does not define “procurement,” the relevant

definition of the term was to be found in 41 U.S.C. § 111, which

states that “procurement” includes “all stages of the process of

acquiring property or services, beginning with the process for

determining a need for property or services and ending with

contract completion and closeout.” 

The terms of 28 U.S.C. § 1491 and definition of

procurement in 41 U.S.C. § 111, the district court reasoned,

provide that in-sourcing decisions are matters connected to

procurement of federal contracts. Citing Rothe Development,

Inc. v. U.S. Department of Defense, 666 F.3d 336, 339 (5th Cir.

2011), Vero Technical Support, Inc. v. U.S. Department of

Defense, 437 F. Appx. 766, 769–70 (11th Cir. 2011), and

Distributed Solutions, Inc. v. United States, 539 F.3d 1340, 1346

(Fed. Cir. 2008), the district court concluded that the Air Force’s

decision to in-source necessarily involved “determining a need

for property or services” and was therefore “in connection with

a procurement” under the Tucker Act. The district court

consequently determined that it had no subject matter

jurisdiction over the matter because “the Court of Federal

Claims has exclusive jurisdiction over challenges to the

government’s decision to insource services and thus over this

dispute,” Fisher-Cal Industries, Inc., v. United States, 839 F.

Supp. 2d 218, 224 (D.D.C. 2012). The district court dismissed

the suit.
4

Discussion

Fisher-Cal now appeals the district court’s dismissal of its

suit for lack of subject matter jurisdiction. Fisher-Cal states that

the question for the Air Force during the one-year base term of

the contract was whether at the expiration of that initial term the

Air Force would in-source or contract the multimedia services. 

Since the Air Force opted to in-source, Fisher-Cal further states

that this court is now reviewing that decision to in-source. As

it did in the district court, Fisher-Cal asserts that the allegations

raised in its suit concerning the decision to in-source fall within

the APA jurisdiction of the district court. There is no dispute by

Fisher-Cal that the Tucker Act confers exclusive jurisdiction on

the Court of Federal Claims for suits alleging a procurement

violation. Nor does Fisher-Cal dispute that the definition of

“procurement” is that found in 41 U.S.C. § 111. Instead, FisherCal argues that the Air Force’s decision to in-source does not

fall within the Tucker Act jurisdiction of the Court of Federal

Claims because a suit involving in-sourcing does not fall within

the definition of procurement. According to Fisher-Cal, the

Tucker Act references only that which occurs after the decision

has been made to either in-source or contract.

To arrive at this conclusion, Fisher-Cal separates § 111’s

definition of “procurement” into three separate clauses, i.e., the

term “procurement” (1) “includes all stages of the process of

acquiring property or services,” (2) “beginning with the process

for determining a need for property or services,” (3) “and ending

with contract completion and closeout.” Fisher-Cal asserts that

§ 111’s second clause, “beginning with the process for

determining a need for property or services,” must be read in

context of § 111’s first clause, “all stages of the process of

acquiring property or services,” with emphasis on the word

“acquiring.” When the second clause is thus read in context of

the first clause, according to Fisher-Cal, it describes the
5

beginning of the process of acquiring the property/services

referenced in the first clause. Fisher-Cal concludes that the

definition of procurement in § 111 requires the method of

“acquiring,” and does not include the government’s internal

deliberating as to whether to select in-sourcing or contracting as

the method the government will use to obtain the property or

services. Accordingly, Fisher-Cal argues, the Air Force’s

decision to in-source does not fall within the Tucker Act

jurisdiction of the U.S. Court of Federal Claims. Like the

district court, we reject Fisher-Cal’s argument.

Again like the district court, we accept the reasoning of the

Federal Circuit, the court with jurisdiction to review decisions

of the Court of Federal Claims, in Distributed Solutions. In that

case the Federal Circuit held that lawsuits involving decisions

whether to in-source or contract fall within the jurisdiction of the

Tucker Act. In Distributed Solutions, the government issued a

Request for Information (“RFI”) to software vendors in June

2005 to identify “acquisition and assistance” solutions for a

“common computer platform” it was developing between the

United States Agency for International Development and the

Department of State. 539 F.3d at 1342. After reviewing

vendors’ responses, however, it decided to use SRA

International, Inc., a company with which it already had a

contract, “to integrate the various acquisition and assistance

functions necessary to implement” the computer platform. Id.

at 1343. In connection with its integration role, SRA was

charged with selecting software vendors to perform different

functions, which it did after issuing a RFI of its own in August

2005. Two vendors that were not selected following the August

RFI filed suit in the Court of Federal Claims challenging the

government’s decision to award the integration work to SRA. 

See id. at 1343–44. 
6

One issue before the Federal Circuit was whether the

vendors’ complaint had met the jurisdictional requirements of

the Tucker Act. The court stated the issue as whether the

vendors’ protest was “in connection with a procurement or

proposed procurement” under 28 U.S.C. § 1491(b). The court,

emphasizing “beginning with the process for determining a need

for property or services” in the definition of procurement,

concluded that “the phrase, ‘in connection with a procurement

or proposed procurement,’ by definition involves a connection

with any stage of the federal contracting acquisition process,

including ‘the process for determining a need for property or

services.’” Id. at 1345–46.

Fisher-Cal argues that in Distributed Solutions the Federal

Circuit looked to the issuance of the Request for Information as

marking the beginning of the process for determining the

agency’s needs, and not the internal agency discussions that

preceded issuance of the RFI. Distributed Solutions, according

to Fisher-Cal, should therefore be read as limited to situations

where the agency has already decided to contract. Fisher-Cal’s

argument continues that the district court, as well as the Fifth

Circuit in Rothe Development and the Eleventh Circuit in Vero

Technical Support, on which the district court relied,

fundamentally misapplied Distributed Solutions to challenges to

an agency’s internal deliberations as to whether the property or

services can be in-sourced. 

While we review de novo the dismissal by the district court

for lack of subject matter jurisdiction, see Tex. Alliance for

Home Health Care Servs. v. Sebelius, 681 F.3d 402, 408 (D.C.

Cir. 2012), we reach the same conclusion. To begin, we reject

Fisher-Cal’s strained reading of § 111. The statute explicitly

specifies that the stage where the process “begin[s]” is the

“process for determining a need for property or services.” 

Fisher-Cal’s proposition that the procurement process does not
7

begin until after the government has already determined the

need to procure is inconsistent with the plain meaning of this

language. “[W]e must be governed by the statute and its plain

meaning.” U.S. v. Atchison, T. & S.F. R. Co., 234 U.S. 476, 488

(1914). 

Nothing in the statute suggests any presumption of

acquiring the services by contract. The statute comfortably

includes acquiring the services by either in-sourcing or

outsourcing. No appellate court has adopted Fisher-Cal’s

interpretation of the definition of procurement. Rothe

Development and Vero Technical Support, as well as Distributed

Solutions, all cited by Fisher-Cal, actually reference the plain

meaning of procurement’s definition. See Rothe Development,

666 F.3d at 339 (challenge to in-sourcing decision within scope

of Tucker Act because definition of procurement “includes the

process for determining a need for services, which by necessity

includes the choice to refrain from obtaining outside services”)

(emphasis in original); Vero Technical Support, 437 F. Appx. at

769–70 (challenge to in-sourcing decision within scope of

Tucker Act because decision to in-source involves process of

“determining a need for property or services”); Distributed

Solutions, 539 F.3d at 1346 (“the phrase, ‘in connection with a

procurement or proposed procurement,’ by definition involves

a connection with any stage of the federal contracting

acquisition process, including ‘the process for determining a

need for property or services’”). 

We conclude that Fisher-Cal’s challenge to the Air Force’s

decision to in-source is governed by the Tucker Act, and

therefore jurisdiction for the challenge lies with the U.S. Court

of Federal Claims. We note that appellees raise several other

justiciability objections to Fisher-Cal’s action, but in light of our

disposition on the jurisdictional question discussed above, we

need not reach them and express no opinion on them. Courts
8

may “choose among threshold grounds for denying audience to

a case on the merits.” Ruhrgas AG v. Marathon Oil Co., 526

U.S. 574, 585 (1999).

Conclusion

As the district court rightly held, if the complaint of FisherCal states a claim within the jurisdiction of any court, it is within

the exclusive Tucker Act jurisdiction of the United States Court

of Federal Claims pursuant to 28 U.S.C. § 1491. The district

court’s dismissal of Fisher-Cal’s complaint pursuant to Federal

Rule of Civil Procedure 12(b)(1) is therefore

Affirmed.