threshold stage," but noled that standing could be reconsidered at the sumnary judgment stage.

Order, p. 1 (citing Lujon v. Defenders of Wddlfe, 504 U.S. 555, 561 (1992) (plaintiff must

demonstrate stanhng at cach stage of the litigation, with the same quanf u n ~ of proof typically

required at that stage)). The Court later expIained what Plaintiffs would need ro show at the

summary judgment stage:

SpecificaIly; plaintiffs must adduce facts at summary judgment, consistent with Rule 56(e), Fed. R. Civ. P., establishing that one or more of their members was precluded from bidding on a federal mapping contract that was procured by non- QBS procedures as allowed by the Brooks Acl, the challenged regulatory provision, and the state law where the procurement occu~ced. The members so affected and the contracts involved must be specifically identified. Failure to do so will result in dismissal.

Memorandum Opinion, Dec. 13,2006 ("Mem. Op."), p. 9. In addition, the Court added, "for one

of plaintiffs' members to suffer an injury in fact he must be plausibly threatened with discipline by

a state authority if he bids on a federal project procured by non-QBS methods . . . ." Id., p. 1 3.

For the reasons that follow, Plaintiff& still have not met their burden to establish that they have

standing to sue. See Allen v. Wrigkr, 468 U.S. 737, 752 (1984) (plaintiffs bear burden).

A. Plaintiffs Still Have Not Identified A Member of the Plaintiff Associations That Has Been Injured.

Where an assoc'iation sues on behalf of its members, the plaintiff association must show,

inter aiia, that at least one of its members would have standing to sue on its own because it has

suffered a cognizable and redressable injury as a result of the challenged action, See H%rlh V.

Seldin, 422 U. S. 49 1 , 5 1 1 (1 975); see also Md. Highways Contract~rs Ass 'n, Inc. v. M a ~ i a n d ,

933 F.2d 1246, 1250-53 (4' Cir. 1991); Mem. Opp., p. 7. In an effort to establish associational

standing, Plaintiffs have submitted the affidavits of three individuals who aver that they are

licensed as Iand surveyors in North Carolina, South Carolina, andlor Oklahoma. See Plaintiffs'

Exhibits ("PEX') I & 2 , a 2 (Affidavits of Patrick h1. Olson and Marvin E. Miller); Supplemental

19

Affidavit of Mickey Blackwell ("Supp. Aff."), 11 3. Mr. Olson and Mr. Miller state that they are

employees of Am-Metric, Tnc. C4Aero-Metric"), which is a MAPPS member. PEX 1 & 2, 7 4.

Mr. Blackwell states that he is an employee of Aerial Data Services, he. rADS"), a MAPPS

member. Supp. Aff., 1 4. Mr. Olson and Mr. MilIer claim that they were personally "barred from

submitting a rqonse" to EPA solicitation PR-NC-04-10550 because EPA did not use Brooks Act

procedures, and they are licensed in states that prohi bit licensed surveyors from responding to non-

Brooks Act solicitations for their services." PEX L & 2, a 7. Mr. BIackwell likewise claims that

he was personally "barred from submitting a response" to USDA-NAP-3-04 because the USDA

did not use Brooks Act procedures, and he is licensed in a state that prohibits licensed surveyors

from responding to non-Brooks Act solicitations for his services. l 8 Supp. Aff. 1 4.

Neither Mr. Olson, nor Mr. Milla, nor Mr. Blackwell ("the three employees") avers that

he, personally, belongs to MAPPS or any of the other plaintiff association^.'^ Plaintiffs attempt to

circumvent this fatal flaw by asserting in their hrief that they nevertheless have standing because

17 Mr. Olson and Mr. Miller inaccurately characterize PR-NC-04- 10550 as a "cost-based procurement." PEX 1 & 2, f 6 . In fact, il was procured using FAR Part 15 procedures, with ali evaluation factors other lhan cost or price, when corn bined, being significantly more important than cost or pricc. . DEX 4,7 3 & p. 15. Mr. Blackwell makes the same error with regard to USUA-NAP-3-04. See Supp. Aff. 1 6; DEX 3, Ex. A, p. 78 ("technical excellence is considered more significant than price").

18 Unlike the other two indiGduals, who state, "I was barred h r n submitting a response" PEX 1 & 2,7 7, Mr. Blachwell states "we werc barred . . .," Supp. AE 17. It is unclear, however, who '"we" refers to. It could not refer to A D S , since ADS competed for the USDA solicitafion by pledging itself as a subcontractor to Surdex Corporation and Horizons, Inc. in Letters oE Commitment that were fowatdsd to USDA. See DEX 3, Ex. B. Notably, Mr. Blackwell seems to back away from the use oE4tve" in the next paragraph of his affidavit when he states, "I believe that it is improper for me to respond to non-QBS solicitations." Supp. Aff., 1 8 {emph. added).

l9 Insofar as Plaintiffs have not alleged that Mr. Olson, Mr. Miller, Mr. B lackwel l, Aero- Metric, or ADS are members of the Clouncil of Federal Procurement of Archikcturat,and Engienering Services (COFPAES ) , the National Society of Professional Engi neas (NSPE), or the h c r i c a n Society of Civi 1 Engineers (AS CE), at a minimum, these plaintiffs must be dismissed from the suit for lack of standing.

20

these employees "are members of M APPS through their employer." P1. Mem. at 9. However,

"arguments of counsel, absent any evidence such as sworn affidavits . . . , fail to meet the

evidentiary standard necessary to create a genuine issue of material fact." Roundtree v. Faigax

County School Bd., 933 F.2d 219,223 (4h Cir. 1991). Moreover, it does not appear that MAPPS

would consider the three employees to be members of its association for any purpose but this

litigation. MAPPS ' website refers to the organization as "An Association of Photogrammetry,

Mapping, and Geospatial Firms" and defines its membership solely in terms of "member firms"

and bbassociate firms." DEX 2. There is no separate membership category for individuals. Id.

Furthermore, Plaintiffs cite no legaI authority for the assertion that employees of a member

of an association are automatically to be considered members of that association for purposes of

establishing standing. They are not. Other courts have reasoned, under similar circumstances, that

since an association only has standing where its members would, in order for an association to

have standing based on injuries to a member's employees, it must first show that the member-

mplo yer would have standing to sue on behalf of its employees. See, e.g., Region 8 Forest

Service Timber Purchasers Council v. Alcock, 993 F.2d 800,809- 10 (1 1" Cir. 1993); see also

Council oflns. Agents & Brokers v. Juarbe-Jimenez, 443 F.3d 103, 107-10 (1" Cir. 2006). In order

to make that showing, the employer must be able to meet the three-part test for third-pxty standing

set out in Singleton v. Wulg 42 8 U. S . 1 06,113 - 1 6 (1 976)." Under Singleton, the employer must .

show that (1) the employer itself has suffered an injury-in-fact; (2) the relationship between the

employer and employee is such that the employer is nearly as effective a proponent of the

employee's right as the employee itselc and (3) there i s some obstacle to the employee aiserting its

20 The Singleton test sets forth the criteria that must exist for a court to deviate fiom the prudential limitation that plaintiffs must assert their own rights and may not rest upon the rights of others. See Warrh, 422 U.S. at 409.

rights. See Council of Iris. Agents, 443 F.3d at 108; Region 8, 993 F.2d at 809. Applying this test

in Region 8, the Eleventh Circuit concluded that the employer could not assert third-party standing

because it had not suffered an injury of its own, there was no strong identity of interests in the

employer/employee relationship, and tlrcre was no obstacle to the ernployms bringing su-it to

protect their own interests. Kt:gion 8,993 F.2d at 8 10; see also Council of Its. Agents, 443 F.36 at

106, 1 10 (association's members could assert third-party standing because both the members and

the employees had sufhred injury!. This Court should employ the same analysis to decide whether

MAPPS has standing based on the alleged injuries of its members' employees.

Plaintiffs falter at the first step of the third-parLy standing analysis, as there is no evidence

that Aero-Metric or ADS ("the two firms") have suffered any injury of their own. There is no

evidence that the two firms were unable to compete for the USDA or EPA solicitations, much less

that they would have been threatened with discipline by a state authority if they had done so, TO

the conkary, the evidence shows that at least seven W P S members, including Aertl-Melric,

competed for and were awarded contracts in connection with USDA-NAP-3-04. See DEX $ 7 8;

DEX 2. Moreover, several: of those contracts wewe to perform services in states where Plaintiffs

claim that state ethics codes prohibit licensed surveyors and engineers from competing for

contracts where-Brooks Act procedures are not used. See DEX 5,111 6 , 8 (identifqing MAPPS

members that bid fur and later accepted contracts to perform services in Mississippi, North

Carolina, Oklahoma, and South Cuolina). '' Indeed, even ADS-Mr. Blackwell's emp loyer-was

*' It also appears to be klevant whetl~er a company happens to have an employee on staff who is licensed as a swveyor in the state where the company was bidding. For example, Sanbom, a MAPPS member, has an employee who is licensed in North Carolina and yet the company bid for and accepted work in North Carolina. See DEX 3,7171 6 , 8 ; DEX 5 (profile of Gary Eaton, C.P., P.L.S.). Photo Science, Inc., which bid for and accepted work in Mississippi and South Carolina, also ernpl&s licensed professional engineers and land suneyors. See DEX 6.

22

able to compele for USDA-NAP-3-04 in Oklahoma, as evidenced through the Letter of

Commitment it submitted to Surdex Corporation, expressing its commitment to being ''part of the

Surdex Corportation Teain" that was competing for work in Oklahoma. 'See DEX 5 , Ex. B.

Moreover, Plaintiffs have adduced no evidence that these firms (or their employees) were

threatened with discipline or actually disciplined by any state authorities as a result of their

participation in the NAIF project. Sce Mern. Opp., p. 13. To the contrary, in discovery, Plaintiffs

were asked to identify any members who had been "subject to disciplinary proceedings or any

other penalty or prosecution as a result of bidding on Federal contracts for mapping services in

which the procurement officials failed to use QBS." DEX 7, Plaintiffs' Responses to Defendant's

First Interrogatories, No. 5 . Plaintiffs admitted that they "knew of no members that had been

disciplined for violations of the[ir] respective state ethics [~odes]."~' Id.; see also id, Nos. 6-7.

Plaintiffs also were unable to produce any documents showing that their members had ever been

"subject to disciplinary proc-eedings" for bidding on mapping contracts that were not procured

using Brooks Act procedures. See DEX 8, Plaintiifs' Responses to Defendant's First Request for

Documents, Nos. 1-3.

Under these circumstances, the second and tturd steps of the third-party standing inquuy

are also in doubt, as it is unclear why an employer who is not itself injured would be an effective

proponent for its allegedly injured employees. See Region 8, 993 F.2d at 810 (contrasting the

employm/employee relationship with parentlchild and doctorlpatient relationships, where the

Supreme Court bas found third party standing). In addition, there is no evidence of any obstacle to

" Although Plaintiffs answered the interrogatories with reference to whether their rncmbers had ever been disciplined, it should be noted that both the United States' interrogatories and document requests were broader. They asked whether Plaintiffs' members had ever been "subject to disciplinary proceedings," not actually disciplined. DEX 7, No. 5; DEX 8, No. 1.

the three employees bringing this suit themselves which could be overcome by having it brought

by their employers through MAPPS. See id

For all of these reasons, Aero-Metric and ADS cannot claim third-party standing on behalf

of their employees, and MAPPS cannot rest its associativnal standing on the three employees'

alleged injury. Accordingly, the suit should be dismissed.

B. Even if Membcrs' Employees' Alleged InJury Could Be Imputed to MAPPS, It Is Not a Cognizable or Redressable Iojury-in-Fact.

Even assuming urperrdo that the three employees could be used to establish MAPPS'

standing, there is no evidence that they were "able and ready" to compete for either the EPA or

USDA contrack., or that they would have been plausibly threatened with discipline by a state

authority ifthey had done so. As a result, the employees' alleged injury is neither cognizable, nor

redressable by revision of 48 C.F.R. 5 36.60 1 -4(a)(4).

This Court has tmalogizd the employees' claim of injury to "inability-to-compcte"

challenges in the equal protection context. Mem. Opp., p. 7 n.5 (citing Nori~teosfem Fla. Chapter

of the Associated Gened Conrraclors ofAmerica v. City ofJackronvilCe, 508 U.S. 656,666

(1 993)). In Ci& of Jucksonville, 508 U.S. at 658, the Supreme Court considered whether, in order

to establish standing to challenge a program awarding preferential beatment to minoritydwned

businesses, an associatian of contractors had to show that one of its members would have received

a contract absent the set-aside program. Concluding that i t would not, the Court held that to

establish standing, "a party challenging a set-aside program like Jacksonville's need only to

demonstrate lhat il is able and ready to bid on contracts and that a discriminatory poilcy prevents it

from doing so on an equal basis." Id at 666 (~mphasis added); see also id. at 659 (noting that the

pIaintiff had alleged that "many of its members 'regularly bid on and perform construction work

for the City of Jacksonville,' and that they 'would have . ; . bid on . . . designated set aside

contracts but for the restrictions imposed' by the ordinance. " ) (quoting complaint).

Imwer courts have likewise concluded that &though those claiming standing need not show

that "but for the alleged illegal conduct of the agency, they would have received the position, we

cannot find a basis for standing if there is no realistic possibility of thosc competing for a position

to receive it once the supposed illegality is corrected." Albuquerque Itzdian Rights v. Lujon, 930

F.2d 49, 56 (D.C. Cir. 199 1) (internal citations omitted); sce Ranger CelluIar v. FCC, 348 F.3d

1044, 1050 (D.C. Cir. 2003) (finding no standing where plaintiffs had not shown a "capacity to

compete for and to obtain [the] contra~t[]") (internal quotation marks omitted); qf Uuherty v.

Rutgers Sc/~ool of luw-Newark, 651 F.2d 893, 899-902 (3d Cir, 1981).

Although the three employees aver that they were "barred from submitting a response,"

they, unlike the plaintiffs in Ciw @Jacksonville, never aver that they woirid have competed for

either USDA-NAP-3-04 or PR-NC-04- 105 50 if it had been procured using Brooks Act

procedures. This omlssion distinguishes this case from Cily of Jacksonville and suggesb that the

three employees never actually faced a "Hobson's choice" of deciding "whether to violate their

governing codes of ethics or respond to a non-QBS s~licitation."~~ PI. Mem. at 9-10.

It seems likely that the reason the three employees have not averred that they would have

Even if Plaintiffs had faced such a choice, the mere fx t of having to make such a choice would not, alone, give rise to a cognizable injury unless thcre was a plausible threat of state prosecution as a result of violating the slate elhics codes. See, e.g., A m u y v. Attorney Genertrl oj' Ngw J~rsey, 3 1 F.3d 1235, 1246 (3d Cir. 1996) (finding that plaintiffs "Hobson's choice" constituted a sufficient injury where he had to choose between either "complying w it11 Megan's Law, which undoubtedly burdens him, or facttig prosecution, ") (emphasis added); Smith v. Wisconsin Dept. ofAgric., Trade, 8 CvnsurnerPro~., 23 F.3d 1134, 1141-42 17' Cir. 1994) ("[Pjlaintiff should not be required to face the Hobson's choice between foregoing behavior that he believes to be lawful and violattting the challenged law ~c the risk of prosecution .") (emphasis added),

responded lo the EPA and USDA solicitations is because, realistically, they could not have.'" City

ofJacksonvilZ~, 508 U. S. at 666. The respondents to both PR-NC-04- 10550 and USDA-NAIP-3-

04 were major cornpanles, [lot individuals. DEX 3 7 6 (noting that there were seventwn

respondents to the USDA solicitation, all companies); DEX 4 7 8 ( ident i fpp Fortune 500

companies-Lockheed Martin, Gcneral Dynamics, and Computer Science Corporation-as the

sole resporldents to the EPA solicitation). The respondents had to be major companies because of

the massive national, and in EPA's case, international, scope of the contr..cls at issue. See DEX 3,

4, 7; DEX 4,7 5. EP.4 anticipated awarding its contract to "a curnpany with a wide range of

capabilities that could provide a multi-disciplinary staff skilled in the application af remote sensing

technology to natural and cl~ltural resources identification and mapping, . . . as well as personnel

with technical capabilities in image analysis, image processing, Geographic Information Systems

(GIs), photogammetry, Global Positioning Systems (GPS) and cartography." DEX 4 7 7 & pp. 3-

4. The company also had to have personnel cleared to the Top Secret level. Id fl 7 & p. 13-14.

As for USDA-NAP-3-04, "[olnly those companies that could . . . provide all necessary, materials,

equipment, transportation, superintendence, and labor, . . . were eligible to compete." DEX 3,J 5 ,

Because there is no realistic possibility that the three employees would have or could have

responded to these solicitations as individual licensed surveyors, apart from their companie, their

alleged injury is purely hypothetical. See Lujun, 504 U.S. at 560 (explaitling that injury in fact may

only be shown through "concrete" injury that is "actual of imminent, not conjectural or

hypothetical"); Albuquerque Indian Rights, 930 F.2d at 55-56 (abstract interest in competing

without qualifications to do so is insuffscient to confer standing). Moreover, leaving aside that

I' It is clear that they would not: have been competing on their companies' behalf since both Aem-Metric and ADS were able to co111pete for USDA-NAIP-3-04. DEX 3, 6-7.

USDA-NAP-3-04 was awarded in April 2004, a year before the agency action at issue in this case,

the employees' alleged injury could not have been redressed by the FAR Council deciding that it

was necessary to amend 43 C.F.R. 9 36.60 1-4(aj(4) in April 2005 becausc to ttie ex tent the

employees were ineligible to compete for the EPA contract, it would not matter whether it was

procured through FAR Part 15 or Brooks Ac,t procedures. See Ranger Cellular, 348 F.3d at 1050

(dismissing for lack ~f~standing where it was "'merely speculative"' that the plaintiffs "'injury

will be redressed by a favorable decision"') (quoting Bennett v. Spear, 520 U.S. 154, 167 (1997));

Doherp, 65 1 F.2d at 899-902.

Finally, the three employees' afidavits say nothing to establish that these men feared

discipline by a state authority, let alone faced a plausible threat of discipline if they had somehow

tried to respond to the USDA or EPA soliciations. All the three employees say is, ''I believe that it

is improper for me to respond to non-QBS solicitations for professional services that includes work

in" the state(s) in which each is licensed.'' PEX 1 & 2,7 8; Supp. Aff. 7 8. Mere discomfort with

the idea ofpmsibly violating state ethics rules is not enough to establish that Plaintiffs have been

injured for purposes of constitutional standingnZ6 See Lujan, 504 US. at 560 (requiring a

25 It is not even clear that the three employees definitely would have been required to perform work in the states in which they were licensed, such that the ethics codes would have been implicated. PR-NC-04-10550 specified that work could be needed "anywhere in the United States or its Trust Territories," making it purely speculative whether work actudly would have been required in North or South Carolina. DEX 4, p. 6 . USDA-NAP-3-04 was set up so that respondents could specify the handful of states for which they wanted to be considered. DEX 3 , l 6. Had Mr. Blackwell been able or ready to respond, he could have easily avoided Oklahoma.

'6 The United Statcs lulderscores Lbpossibly" because Plaintiffs have povided no authoritative constructions of either the North Carolina, Oklahoma, and South Carolina etllics . codes, 21 N.C. Admin. Code 56.0701(f); S. C. Code Ann. Regs. 49-305; Okla. Adn~in Code 245: 15-1 5-2, -3, or the state laws that define the scope of the practice o f surveying in those states, N.C. Gem. Stat. 5 89C-3(7); S.C. Code Ann. § 40-22-20(23 ); Okla Stat. tit. 59, 5 475.2(7), such that it is clear that the three employees would have violated these state laws if they had competed to perform the types of services at issue in USDA-NAIP-3-04 and PR-NC-04-10550.

"concrete" injury in fact). Rather, as this Court has recognizd, Plaintiffs must show a real risk of

prosecution by a state disciplinary authority, See Mem. Opp, p. 1 3; see also Younger v. Harris,

40 1 U.S. 37 (1 97 1) (finding that court lacked jurisdiction where plaintiffs "do not claim that they

have ever been threatened with prosecution, that a prosecution is likely. or even that a prosecution

is remotely possible. They claim the right to bring this suit solely because, in the language of their

complaint, they 'feel inhibited."').

Thus, although it is clear that Plaintiffs would not have to show that the three employees

would definitely have been awarded a contract if they had competed for it, they must at least have

been "able and ready" to compete and plausibly threatened with injury if they had. CQ of

Jacho~tvillc, 508 U.S. at 666, Bccause they were not, Plaintiffs have not met their burden to show

that the three employees' alleged injury is cognizable or redressable.

In sum, Plaintiffs lack standing to sue because ( I ) MAPPS' members' employees' alleged

rnjuries cannot be imputed to MAPPS because the members lack third-party standing to assert Iheir

employees's claims; and (2) even if MAPPS could rely on its members' employees' allegd

injuries, the injuries are neither cognizable nor redressable. Accordingly, the complaint should be

dismissed for lack of jurisdiction.

11. The United Stat& Is Entitld to Summary Judgment on the Merits of Plain tiffs' APA

A. Standard of Review

. In the event the Court determines that Plaintiffs have standing to sue, their substantive APA

claims raise two questions: whether the FAR Council acted (1) "contrary to law," 5 U.S.C. $

706(2)(C), or (2 ) in an "arbitrary and capricious" manner, id. § 706(2)(A), when it detmined in

April 2005 that it was unnecessary to propose a new rule to amend 48 C.F.R. 5 36.601 4(a)(4). As

Plaintiffs acknowledge, judicial review of the first question is governed by Chevron USA, h c . v.

28

Mrtuml Resources Defettse Council, lac., 467 U.S. 837 (1 9841.~~ Undm Chevron, if Congress "has

directly spoken to the precise question at issuea' and its intmt is clear. then "the court, as well as

the agency, must give effect to [that] unambiguously expressed intent." Id. at 842-843. If,

however, "the statute is silent or ambiguous with respect to tlic specific issue, the question for the

court is whether the agencfs answer is based on a permissible construction of the statute." Id. at

843. If it is, the Court must defer to the agency's construction. See id.

Judicial review of the second question focuses on whether the FAR Council acted

arbitrarily or capriciously in April 2005 when it denied W P S ' request for a new rulemaking.

See 5 U.S.C. 4 706(2)(A). In many cases, this inquiry is guided by the deferential standard of

Mobor Vehicle Manufacturers ' Association oftli e United States, In c. v. State Farm Mutual

Automobile Insurance Co., 463 U.S. 29 (1983). There. the Court established that "[tlhe scope of

review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its

judgment for that of the agency." Sbrrte Form, 463 U.S. at 43. If the agency's decision was "based

on a consideration of the relevant factors," and lhere has not been a "clear error of judgment," the

agency action must be upheld. Id. (internal quotation marks omitted).

Here, however, the court is asked to review the FAR Council's decision not to initiate new

rulemaking proce.edings after requesting comments on whether a revision was necessary, not, as in

Sture Farm, a decision to rescind a regulation. See State Farm, 363 U.S. at 41. The distinction is

critical, as the FAR Council's decision is entitled to a degree of deference higher than what was

afforded even in State F a m . "Review under the 'arbitrary and capricious' standard 'encompasses

a range of levels of deference to the agency."'Maier v. W.S. EPA, 114 F.3d 1032, 1039 (loh Cir.

*' "The FAR regulations are the very type or regulations that the Supreme Court in Chevron and later cases has held should be afforded dcfirence." Brownlee v. DynCarp., 349 F.3d 1343, 1354 (Fed. Cir. 2003).

1397) (quoting American Horse Prolection Ass 'n v. Lyng, 8 12 F.2d 1,4 (D.C. Cir. 1987) (AHPA));

accord Brown v. Sec. qf Henlrfr dl Humnn S e m . , 46 F.3d 102, 1 I O- 1 1 (1'' Cir. 1995). At the "hi@

end" of the spectrum is an agency's refusal to initiate r~lemaking.~' Maier; 1 14 F.3d at 2039;

Capital Netw~vkSys., Inc. v. FC'C: 3 F.3d 1526, 1530 @,C. Cir. 1993). Recognizing the

discretionary nature of such a decision, the D.C. Circuit has emphasized that "[sJuch a refusal is to

be overturned only in the rarest and most compelling of circumstances, whch have primarily

involved plain errors of law, suggesting that the agency has becn blind to the source of its

delegated power." AIIPA, 812 F.2d at 5 (emphasis added) (internal quotation marks omitted); sce

Capitol Nemurk Sys., Inc, v. FCC, 3 F.3d 1526, 1530 (D.C. Cir. 1993) (describing the degree of

deference as "extraordinary"). Indeed, agency refusals to initiate rulemaking proceedings are

properly revicwed "with a deference so broad as to make the process akin to non-reviewabili~."

Cellnet Corrmtc'ns, hc. v. FCC, 965 F.2d 1106, 111 I (D.C. Cir. 1992). Thus, to the extent the

Court reaches Plaintiffs' "arbitrary and capricious" claim, it should review the April 2005 notice

with extraordinary deferen~e.~'

'' Them is sornc question whether, after the Supreme Court's dccision in Heckler v. Chuney, 470 U.S. 822 (1985), such decisions are reviewable at all. In C'haney, the Supreme Court construed 5 U.S.C. $ 701(a)(2), which excepts horn judicial review all agency actions that are "committed to agency discretion by law." The Court held that agency decisions not to undertake enforcement action are immune from judicial review because a court would have no meaningful standard against which to judge the agency's act of discretion. See Clcaney, 470 U.S. at 830. In a recent Ninth Circuit decision, Judge Kozinski, writing in dissent, argued that an agency's decision not to adopt new regulations is unreviewable because "[r]egulations implicate precisely the same concerns addressed in Chaney; one can properly view the adoption--or non-adoptiowf regulations as an enforcement dccision." Animal Legal Defense Fund v. Yeneman, 469 F.3d 826, 849 (9" Cir. 2006) wozinski, J., dissenting). By contrast, the D.C. Circuit has concluded that decisions not to commence new rulemakings are re\-icwable, but in light of Chancy and the discretionary nature of such decisions, has accorded them an extraordinarily degree of deference. See, e.g., AHPA, 812 F.2d at 4-5.

29 In the cited cases, the courts were reviewing a decision to deny a petition for rulemaking under the informal rulemaking provision of the M A , 5 U.S.C. 553(e). FAR regulations are exempted from 5 553(e) by $ 553(a)(2), which states that the provisions of the section do not apply

B. The FAR Council's Reasonable Interpretation of the Brooks Act is Entitled to Chevron Deference.

Plaintiffs argue that the plain language of 40 U.S .C. $ 1 102(2)(C) unambiguously precludes

the final sentence of 48 C.F.R. 9 36.60 1 -4(a)(4) because it requires that all surveying and mapping

must be procured using Brooks Act They thus conclude that the Court's analysis

should end at Chevron Step One. To the contrary, 40 U.S.C. 9 1 102(2)(C) does not foreclose the

exclusion of certain types of mapping services from Brooks Act procurement. Because Congress

left a gap for the agency to f i l l , it is appropriate for the Court to consider whether, at Step Two of

to, inter rrlicr, matters relating to "cuntract[s] ." 5 U.S,C. $553(a)(2). Notice and comment rulemaking by the FAR Council is instead governed by a provision of the Office of Federal Procurement Policy Act of 1974,4 1 U.S.C. 9 4 18b, which r io ts not contain an explicit provision like 4 553(e) authorizing petitions for rulemaking. Nevertheless, one can analogize MAPPS' request in February 2002 that the OFPP Administrator exercise her authority under 41 U.S.C. 5 405 to "facilitate a chance in the [FAR]" by "issu[ing] a new rule" ( AR 402-403) to a petition for rulemaking under 5 U.S.C. 5 553re). See AHPA, 812 F.2d at 5 ("The record before us contains no formal rulemaking petilion, but we have no difficulty in characterizing the Association's requests for action as such."). Moreover, the FAR Council's response to MAPPS' letter-issuing a request for comments on the possibility of amending the FAR and subsequently concluding that no further rulemaking was necessary--is consistent with the actiot~s of agencies when they deny 9 553(e) petitions for rulernaking under 5 U.S.C. 9 555(e). See, e.g., WWHr Inc. V. FCC, 656 F.2d 807, 81 1-81 2 (D.C. Cir. 198 1). Accordingly, the standard of review to be applied in this case should be at Iaast as deferential as that applied to agencies that are required to accept petitions for rulemaking under 5 553(e). Arguably, it should be even greater since the FAR Council was under no obligation to open a notice and comment period in response to MAPPS' letter, or to issue a detailed explanation of its decision not to initiate a rulemaking. To subject such discretionary actions to stringen1 judicial review would only deter the FAR Council from seeking the public's input when deciding whether to propose revisiorls to the FAR in the future.

yo Plaintiffs concede that the first two Cull sentences of 48 C.F.R. 5 36.601-4(a)(4) (excludng the heading) are consistent with 1 I f 02(2)(C), and that they are urily challenging the final sentence, which states:

However, mapping services that arc not connected to traditionally understood or accepted architectural and engineering activities, are not incidental to such architectural and engineering activities or have not in themselves traditionally been considered architectural and engineering services shall be procured pursuant to provisions in parts 13, 14, and 15.

48 C.F.R. 8 36.601-4(a)(4). PI. Mem. at 11.

the Chevron analysis, the FAR Council's construction of the statute is a reasonable one. See Waf 'l

Cable 8 Telecomms. Ass'n P. GulfPower Co., 534 U.S. 327,339 (2002) (explaining that when

statutes are silent, "agcncics have authority to fill gaps"); see also Nut 'l Czw Bank of lnd. v.

Turnbaugli, 463 F.3d 325, 332 (4* Cir. 2006). Because il is, "Chevron requires [the Court] to

accept the agency's c.onstruciion of the statute, even if the agency's reading differs from what the

court believes is the best statutory interpretation." N a t l Cable d Telecomms. Ass 'n Y. Brand X

Internel Sens, 125 S. Ct. 2688,2699 (2005).

1. The Brooks Act Does Not Clearly Apply to All Mapping Services.

Step One of the Chevron analysis requires the Court to inquire whether the Brooks Act, or

any other Congressional enactments, "clearly foreclose" the FAR Council's interpretation of what

types of mapping services must be procured using Brooks Act procedures. Md. Dep 't of Herman

Resources v. U.S. Dep 't of Agric., 976 F.2d 1462, 1475 (4' C~T. 1 992). Plaintiffs contend that 40

U.S.C. 8 1 102(2)(C> unarnbibw~usly requires all sunleyjng and mapping services to be procurd

using Brooks Act procedures, '"without any reservation." PI. Mem. at 1 1. The plain language of

the statute precludes their reading.

In 1988, Congress clarified that the Brooks Act's defmilion of A-E services included 'other

professional sewices of an architectural or engineering nature, or incidental savices, which

members of the architectural and engineering professions (and individuals in their employ) may

logically or justifiably perform . . . ." 40 U.S.C. 9 1 102(2)(C). Congress then provided a list of

example of such servica, which included, "studies, investigations, surveying and mapping. tests,

evaluations . . . and other related services." Id.

Congress did not attempt to define with precision what types of "studies, investigations,

surveying and mapping, tests, evaluations" and other such services "members of the architectural

and engineering professions (and individuals in their employ) may logically or justifiably

perform.'' Id. Instead, it left that gap to be filled by the FAR Council, the body charged with

creating a "single unifonn Government-wide procurement regulation." 3 1 U.S.C.8 42 1 (c)(l).

It is clear, however, that Congress did not mean for all of the listed services to be procured

using Brooks Act procedures, even if they were not the types of those services that members of the

architectural and engineering professions may logically or justifiably per f~rm.~ ' If all "studies,"

"investigations," "tests" and "evaluations" had to be procured using Brooks Act procedures, all

medical research and all food safety studies would 6 1 1 under the Brooks Act. Congress clearly did

not intend that rmult.

Plaintiffs nevertheless make what amounts to the same claim with regard to "surveying and

mapping" which the statute treats identjcaIly to "studies, investigations . . . tests [and]

evaluations." 40 U.S.C. 5 1 1 02(2)(C). Pursuant to the canon of statutory construction rtoscitur a

sociis-"a word is known by the company it keeps7'40t~gress likewise could not have intended

for all mapping services to be procured using Brooks Act procedures irrespective of their

connection to A-E services. Gustofson v. Alloyd Co., 5 13 U.S. 561, 575 ( 1995 ); see also Dole Y.

Steelworhrs, 494 U.S. 26,36 (1 990). As the Supreme Court explained in &sta/son, the canon of

nuscitur Q socizs is used "to avoid ascribing to one word a meaning so broad that i t is ir~consistent

with its accompanying words, thus giving unintended breadth to the Acts of Congress." 5 13 U.S. at

575 (internal quotation marks omitted). Contending that all mapping services must fall undcr the

Brooks Act without any reservation would ascribe a meaning to mapping that is inconsistent with

31 Because the FAR Council concluded that all types of surveying were of this nature, it provided in 48 C.F.R. 4 36.601-4(a)(4) that all surveying is subject to the Brooks Act. It did not reach the same conclusion with respect to mapping services.

the words that surround it. A textual analysis alone thus precIudcs Plaintiffs' interpretation of 3

1 102(2)(C).

The legislative history of the I 988 amendments casts it in further doubt. The Committee

Reports to the 1988 amendments make clear that Congress's intention was to "clarifIy]"-not

expand-the types of services to which it applied. ILR. Rep. 1 00-9 1 1, at 24 ( 1 988); H.R. Rep.

100-1070, at 89 (1 988) (Conf. Rep.), as reprtrtfcd in 1988 U.S.C.C.A.N. 5401,5523; see ako 134

Cong. Rec. H10606-03 (daily ed. Oct. 20, 1998) (Rep. Brooks: "The definition of architectural and

engmeering services contained in S . 22 15 is not an expansion of previous law, but a clarification of

the definition of the term 'architectural and engineering services' as it was incorpordled into law by

Public Law 92-582 in 1972."). Clarification was needed because the Comptroller General had

ir~terpreted the Brooks Act's original reference to "incidental sewices," 40 U.S.C. $ 54 l(3) (19721,

to mem only services that were incidental to a specific A-E project. See Ninneman

Engmeering-Reconsiderat~ot~, B- 1 84770,77-1 CPD 1 7 1, 1977 WL 13209 ( 1 977). Section

1 102{2)(C) aimed to correct this crror, not to dran~atically expand the scope of the Brooks Act

beyond those services that are connected to traditional A-E activities.

The Mavmules-Brooks colloquy further supports the FAR Council's understanding, as it

shows that even the sponsor of the Brooks Act and the 3 988 amendments recognized that mapping

services that "are not connected to traditionally understood or accepted architectural and

engineering activities, are not incjde~ltal to such architectural and engneecing activities, or have

not in themselves traditionally been considered architectual and engineering smices" should not

be procured using Brooks Act procedures. 134 Cong. Rec. H 10606-03 (Oct. 20, 1998); see

Woodwork Mfrs. Ass 'n v. NLRB, 386 U.S. 6 12,640, (1 967) ( "[q t is the sponsors that we look to

when the meaning of the slatutory words is in daub t ." ); Federal Energy Admin. v. Algonqui71

SNG, Iric., 426 U.S. 548, 564 (1 975) ( "[A] statement of one of the legislation's sponsors . . . '

deserves to be accorded substantial weight in interpreting the statute." ).

The Court should thus reject Plaintiffs' contention that the Brooks Act unambiguously

forecloses the final sentence of 48 C.F.R. 5 36.601 -4(a)(4). To the contrary, Congress left open for

FAR Council interpretation the question of what types of surveying and mapping qualify far

Brooks Act under § 1 102(2)(C).

2. Subsequent Congressional Enactments and Committee Reports Do Not Foredose the FAR Council's Interpretation of 40 U.S.C. 11 02.

Although Plaintiffs have not argued that subsequenl legislative developments foreclose 48

C.F.R. $ 36.60 1 -4(a)(4), their lengthy-and otherwise irrelevant-recitation of the "Factual

Background" suggests that they [nay try to make such an argument in their reply brief. P1. Mem. at

3-6. While the Court should reject any such attempt because it has not been made as a11 alternative

argument it1 Plaintiffs' opening brief, even if Plaintiffs were p m i t t e d to change their theory mid-

stream, subsequent legislative developments would not aid their cause.3z

Before the FAR Council had an opportunity to issue its final regulation in 1991, Congress

stepped in to provide supplemental guidance on what types of surveying and mapping it intended

to be procured using Brooks Act pr~cedures.~~ A provision of the Small Business Administration

Reauthorization Amendments Act of 1990 stated: "modifications to Part 36 of the Federal

Acquisition Regulation (48 C.F.R. Part 36) shall specify that the definition of architsctural and

engineering services includes surveying and mapping services to which the selection procedures of

32 The United States will address these arguments anticipatoril y because the Order of November 14,2006 does not give the United States a reply brief in support of its cross-motion.

I3As noted supra, this legislation was passed bdore the FAR Co~urcil promulgated its frnal regulation, not after, as Plaintiffs state. PI. Mem. at 4.