UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CROWLEY GOVERNMENT SERVICES, INC.,

Plaintiff, Civil Action No. 21-cv-2298 (BAH)

v. Chief Judge Beryl A. Howell

GENERAL SERVICES ADMINISTRATION, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Crowley Government Services, Inc. (“Crowley”), initiated this action, invoking

the judicial review provisions of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–

706, seeking equitable relief to stop the General Services Administration and its Administrator

(collectively, “GSA” or “defendants”) from an ongoing practice of interfering with payments due

plaintiff pursuant to a contract with the U.S. Transportation Command, a component of the U.S.

Department of Defense (“DOD”). See Compl. ¶¶ 1–3, 108–37, ECF No. 1. Following remand

by the D.C. Circuit, which reversed this Court’s dismissal of the complaint for lack of subject

matter jurisdiction, see Crowley Gov’t Servs., Inc. v. General Servs. Admin.,

, 1108

(D.C. Cir. 2022), defendants seek to stay this matter until the resolution of Crowley Government

Services, Inc. v. United States, No. 21-cv-1405 (PEC), pending in the Court of Federal Claims.

Defs.’ Motion to Stay (“Defs.’ Mot.”), ECF No. 29. For the reasons set forth below, the motion

to stay is denied and this case will proceed as expeditiously as practicable.

Federal courts have a “virtually unflagging obligation . . . to exercise the jurisdiction

given them.” Colo. River Water Conservation Dist. v. United States,

(1976).

Generally, however, “[c]onsiderations of comity and orderly administration of justice dictate that 1 two courts of equal authority should not hear the same case simultaneously,” Wash. Metro. Area

Transit Auth. v. Ragonese,

(D.C. Cir. 1980), and instead “avoid duplicative

litigation,” Colo. River,

. Thus, the D.C. Circuit has held that “where two cases

between the same parties on the same cause of action are commenced in two different Federal

courts, the one which is commenced first is to be allowed to proceed to its conclusion first.”

UtahAmerican Energy, Inc. v. Dep’t of Labor,

(D.C. Cir. 2012) (quoting

Wash. Metro.,

). This rule is not to be applied “mechanical[ly],” however, as

“countervailing equitable considerations, when present, cannot be ignored.” Columbia Plaza

Corp. v. Sec. Nat’l Bank,

(D.C. Cir. 1975). 1

Here, the first-filed rule of Wash. Metro. does not apply, because this matter and the one

pending before the Court of Federal Claims are simply not “the same case,” and do not arise

from the “same cause of action.” Wash. Metro.,

. The D.C. Circuit pointed out

that the causes of action in this matter are “the statutes identified in Crowley’s complaint”—the

Transportation Act, Contract Disputes Act, and Administrative Procedures Act—where

Crowley’s “claimed right sounds more in the nature of tort, not by virtue of its contract with

TRANSCOM.” Crowley Gov’t Servs., 38 F.4th at 1108. The Court of Federal Claims matter, by

1 The parties quibble over which standard is appropriate for the government’s motion to stay. Crowley, citing cases involving parallel litigation before state and federal courts, argues that the Court may “exercise its discretion to decline jurisdiction for the purpose of judicial economy only in truly ‘exceptional circumstances.’” Handy v. Shaw, Bransford, Veilleux & Roth,

(D.C. Cir. 2003) (emphasis added) (quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp.,

(1983)); Pl.’s Opp’n to Defs.’ Mot. to Stay (“Pl.’s Opp’n”) at 7–8, ECF No. 32. The government, by contrast, advocates for what it calls the “discretionary standard,” which allows district courts greater discretion in determining whether to stay a case in the context of declaratory judgment actions. The government, too, only cites cases involving parallel state and federal matters to argue for this standard. Gov’t’s Reply Supp. Defs.’ Mot. to Stay (“Gov’t’s Reply”) at 2–3, ECF No. 33. This Court need not choose between these two square pegs for the instant round hole, where this Court does not decline to exercise jurisdiction, and the “abuse of discretion” review standard applies, see UtahAmerican Energy,

.

2 contrast, is a breach of contract case. See Am. Compl. at ¶ 1, Crowley Gov’t Servs., Inc. v.

United States, No. 21-cv-1405 (PEC), ECF No. 8 (Fed. Cl. Aug. 26, 2021).

The evidence at issue in both cases also diverges substantially. Whereas the Court of

Federal Claims matter involves extensive discovery, the instant claims raise a question of

statutory interpretation and can be decided on the administrative record. See Crowley Gov’t

Servs., 38 F.4th at 1108–09 (“[D]etermining whether the GSA infringed Crowley's rights as

alleged in the complaint requires primarily an examination of the statutes the GSA has

purportedly violated, not of Crowley's contract with TRANSCOM.”); Pl.’s Opp’n to Defs.’ Mot.

to Stay (“Pl.’s Opp’n”) at 11, ECF No. 32. Viewed through the lens applied by the D.C. Circuit

and apparent from comparison of the complaints pending in this Court and the Court of Federal

Claims, the instant action and Claims Court matter are “far from being substantially the ‘same

case,’ as is necessary for the first-filed rule to apply.” Nat’l Indus. for Blind v. Dep’t of Vet.

Affairs,

(D.D.C. 2017) (quoting UtahAmerican Energy,

); see also UnitedHealthCare Ins. Co. v. Price,

, 210 n.1 (D.D.C. 2017)

(declining to apply the first-filed rule to federal district court cases with diverging causes of

action).

Defendants’ contention that the first-filed rule applies favoring a stay, because this matter

and the matter pending before the U.S. Court of Federal Claims are “inextricably intertwined,”

Defs.’ Mot. at 4, relies on a misapplication of D.C. Circuit precedent. In so arguing, defendants

cite Handy v. Shaw, Bransford, Veilleux & Roth,

(D.C. Cir. 2003), which held that

“[i]f there is a question whether the two cases involve the same subject matter, and hence, should

be litigated in a single forum, we use [FED. R. CIV. P.] 13(a) to answer the question.” Handy,

(footnote omitted). This rule makes counterclaims compulsory, requiring that

3 parties raise them in the instant litigation or forever lose the opportunity, when they “arise[] out

of the transaction or occurrence that is the subject matter of the opposing party’s claim” and

“[do] not require adding another party over whom the court cannot acquire jurisdiction.” FED. R.

CIV. P. 13(a). Defendants urge that the two Crowley cases “arise out of the same ‘transaction,’”

Defs.’ Mot. at 6, but FED. R. CIV. P. 13(a) cannot be logically applied in this context, where the

two federal courts at issue are not “of equal authority.” Wash. Metro.,

. The

Court of Federal Claims, an Article I tribunal granted limited jurisdiction by statute, does not

have the authority to grant the broad injunctive relief that Crowley seeks in the instant case—let

alone such relief against GSA, a governmental entity with which plaintiff is not in privity. See

Gov’t’s Mot. to Dismiss at 8–9, ECF No. 7, No. 21-cv-1405 (PEC) (Fed. Cl. Aug. 9, 2021)

(arguing that “the actions of one Government agency cannot give rise to a breach of contract

claim against a different agency” (citing Data Mktg. Co. v. United States. 107 F. App’x. 187, 195

(Fed. Cir. 2004))). See also Nat’l Indus. for Blind,

(declining to apply

first-filed rule between cases in Claims Court and district court when they did not involve same

“cause of action”); Nat’l Veterans Legal Servs. Program v. United States, No. 16-cv-745 (ESH),

, at *3 (D.D.C. Dec. 5, 2016) (also declining to apply rule in context of related

district court and Federal Claims actions).

Further, equitable considerations also weigh heavily against a stay of the instant

litigation. The government claims that permitting this matter to proceed would “frustrate the

goals (efficiency and justice) of the Court” and raise the specter of “inconsistent rulings” that

would “detrimentally impact Defendants.” Gov’t’s Mot. at 7. These concerns echo those raised

by this Court in considering the jurisdictional issue, see Crowley Gov’t Servs., Inc. v. GSA, No.

21-cv-2298,

, *8, *12 (D.D.C. Oct. 22, 2021), and they were plainly

4 unpersuasive to the D.C. Circuit given the differences in the claims asserted in the two cases,

Crowley Gov’t Servs., 38 F.4th at 1112 (“The fact that Crowley may obtain monetary relief from

the United States in Claims Court if it succeeds in its suit against the GSA in district court ‘is

insufficient to deprive the district court of jurisdiction.’” (quoting Smalls v. United States,

(D.C. Cir. 2006)). The government had the chance to press its arguments before

the D.C. Circuit to avoid this apparently unbearable hardship, but declined even to seek en banc

review of the Appeals Court’s decision to permit both matters to proceed in parallel. Now, it

limply claims without explanation that the doctrines of res judicata and collateral estoppel cannot

“substantially mitigate the risk of conflicting results.” Gov’t’s Reply Supp. Mot. to Stay

(“Gov’t’s Reply”) at 6, ECF No. 33. To the extent that this matter incorporates the contract

dispute before the Court of Federal Claims, however, the preclusion doctrines apply, because

GSA, as a defendant in this suit, is in privity with the defendant in the other suit, the United

States. See Middleton v. U.S. Dep’t of Labor,

(D.D.C. 2018) (holding

that “federal agencies are in privity with the United States Government for purposes of res

judicata” (citing Mervin v. FTC,

(D.C. Cir. 1978))). More broadly, the

government’s appeals to efficiency ring hollow in the context of this case, which arises entirely

as a result of the U.S. Department of Defense (“DOD”) and GSA holding a contractor hostage to

their intragovernmental disagreements on implementation of and compliance with a DOD

contract.

In contrast, the plaintiff’s potential hardship is severe. According to Crowley, GSA’s

actions have subjected this company to over “163,000 [Notices of Overcharges (“NOCs”)], with

more than $40 million seized, and GSA maintains that it has the sovereign right to issue new

NOCs” with two years still remaining on Crowley’s contract. Pl.’s Opp’n at 16. The

5 government contends that “[p]laintiff cannot claim any financial harm as GSA has agreed to stop

seizing money until the Court of Federal Claims lawsuit is resolved,” Gov’t’s Mot. at 7, but this

is simply not so. The Tolling Agreement—which government counsel presumably read, as the

government’s own memorandum included the Agreement as an exhibit—only stays GSA’s hand

until November 19, 2022. See Gov’t’s Mot., Ex. C, Tolling Agreement at 1, ECF No. 29-3. By

that time, the parties will not have finished even expert discovery in the Claims Court matter.

See Scheduling Order, Crowley Gov’t Servs., Inc. v. United States, No. 21-cv-1405 (PEC), ECF

No. 14 (Fed. Cl. Nov. 10, 2021) at ¶ 4. The harm to plaintiff of continuing to await resolution of

this intragovernmental disconnect over what Crowley’s contract with DOD requires is severe,

weighing the equitable considerations in favor of this Court exercising its jurisdiction without

delay.

I. ORDER

For the foregoing reasons, it is hereby

ORDERED that defendants’ Motion to Stay, ECF No. 29, is DENIED.

SO ORDERED.

Date: September 19, 2022

__________________________ BERYL A. HOWELL Chief Judge

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