The COFC ordered the contractor’s counsel to show cause as to why they should not be sanctioned for asserting a frivolous argument. Counsel withdrew the argument, acknowledging it lacked a legal basis. But then counsel reasserted the argument in a subsequent filing. The court was not amused. The court fined counsel and ordered them to take CLE classes on COFC practice.
Federal Realty Partners, LP v. United States, COFC NO. 22-1888C
- First Injunction Request – The contractor sued the government under the CDA, alleging breach of a lease. As part of the suit, the contractor moved for an order to evict the government from the property. The COFC issued an order to show cause as to why the contractor should not be sanctioned for the eviction motion. The court noted the COFC may not order specific performance or provide injunctive relief under the CDA.
- Contractor Withdraws Injunction Request– In response to the show cause order, the contractor withdrew the motion. The contractor stated that after a review of the caselaw, counsel now understood that requesting injunctive relief was inappropriate. The contractor vowed it would not repeat the argument in future filings.
- Injunction Request Redux – Despite its promise not to repeat the argument, the contractor reasserted the request for injunctive relief in a motion for summary judgment.
- Renewed Request Didn’t Sit Well with Court – The court said it was “gobsmacked” to see the reappearance of the injunction request. The court invoked “Hanlon’s razor”—that is, never attribute to malice that which can be adequately explained by incompetence. The court opined that the only reason it would not infer malice from the reasserted argument is that the request for injunctive relief was so without foundation the court had a hard time believing counsel tried to persuade the court into granting injunctive relief.
- Relevant Law – The court reiterated the COFC cannot grant specific performance or injunctive relief when the government holds over as tenant after expiration of a lease. Rather, the government can only be held liable for damages based on (1) breach of the lease, or (2) a taking with just compensation.
- Sanctions – The court sanctioned the contractor’s counsel under Rule 11. The court ordered counsel to take five hours of CLE on COFC practice, pay a $1000 fine to the court, and pay the government’s costs for reviewing and responding to the frivolous injunction argument.
The contractor is represented by Thomas S. Onder and Marshall T. Kizner of Stark & Stark, PC. The government is represented by Joseph Alan Pixley, Brian M. Boynton, Patricia McCarthy, and L. Misha Preheim of the Department of Justice and Wendy A. Harris of the U.S. Postal Service.
–Case summary by Craig LaChance, Senior Editor
