Totolo/king Joint Venture v. United States

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
TOTOLO/KING JOINT VENTURE,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2010-5037,-5167
__________________________
Appeal from the United States Court of Federal
Claims in Case No. 09-CV-104, Judge Christine O.C.
Miller.
___________________________
Decided: June 6, 2011
___________________________
EDWARD J. K INBERG , Kinberg & Associates, LLC, of
Melbourne, Florida, argued for the plaintiff-appellant.
With him on the brief was JAMES E. K RAUSE, James E.
Krause, P.A., of Jacksonville, Florida.
JOHN S. G ROAT, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for the defendant-

-- 1 of 5 --

TOTOLO / KING JOINT VENTURE v. US 2
appellee. With him on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. D AVIDSON , Director,
and ALAN J. LO RE, Assistant Director.
__________________________
Before BRYSON , PLAGER, and PROST, Circuit Judges.
PER CURIAM.
These consolidated appeals are taken from orders of
the Court of Federal Claims in a bid protest case. Plain-
tiff Totolo/King Joint Venture, a general contractor that
was registered as a Service-Disabled Veteran-Owned
Small Business (“SDVOSB”), responded to a “sources
sought notice” relating to a construction contract for the
Department of Veterans Affairs (“DVA”). Although the
solicitation was initially designed to be restricted to
qualifying small businesses, the contracting officer made
a determination that there were not enough qualifying
small businesses to warrant restricting the solicitation
and therefore issued a presolicitation notice announcing
that the DVA planned to procure the construction services
through an unrestricted bidding process that would be
open to all offerors. Totolo/King then filed this action in
the Court of Federal Claims, claiming that the contract
should have been set aside for limited competition. The
Court of Federal Claims denied relief and dismissed a
subsequent motion for relief from judgment as moot.
Totolo/King has appealed both orders to this court.
While the appeal from the bid protest action was
pending, William Totolo died. Mr. Totolo was the dis-
abled veteran who provided the Totolo/King Joint Venture
with its status as a SDVOSB. The government argues
that, based on Mr. Totolo’s death, the Totolo/King Joint
Venture now lacks standing to contest the DVA’s failure
to set the procurement aside for qualifying small busi-

-- 2 of 5 --

TOTOLO / KING JOINT VENTURE v. US 3
nesses. Totolo/King resists the suggestion of mootness.
Although it acknowledges that it has lost its status as a
SDVOSB, it contends that the action is not moot because
(1) it is entitled to an award of attorney fees and costs; (2)
it is entitled to unspecified damages; and (3) the action
should continue for the benefit of other SDVOSBs that
might be subject to similar treatment in the future.
The action in this case became moot not simply be-
cause a principal of one of the parties died, but because of
the effect that Mr. Totolo’s death had on the eligibility of
Totolo/King to seek relief on the merits of its claim.
Because Mr. Totolo’s death deprived Totolo/King of its
status as a qualifying small business, Totolo/King can no
longer benefit from a judicial decree limiting the bidding
to qualifying small businesses. For that reason, there is
no longer a live controversy between the parties, and the
action must be dismissed as moot. See DeFunis v. Ode-
gaard, 416 U.S. 312, 316 (1974) (“federal courts are
without power to decide questions that cannot affect the
rights of litigants in the case before them”); Arizonans for
Official English v. Arizona, 520 U.S. 43, 64, 67-68 (1997)
(requirement that a litigant “possess ‘a direct stake in the
outcome’ . . . must be met by persons seeking appellate
review, just as it must be met by persons appearing in
courts in the first instance”; when a party ceases to have
such an interest, the action is moot).
None of the three grounds invoked by Totolo/King is
sufficient to avoid dismissal of these appeals for moot-
ness. First, as to damages, the statute on which this bid
protest action was predicated, 28 U.S.C. § 1491(b)(1),
permits the court to grant declaratory and injunctive
relief, but provides that “any monetary relief shall be
limited to bid preparation and proposal costs.”
Totolo/King did not submit a bid on the DVA contract and

-- 3 of 5 --

TOTOLO / KING JOINT VENTURE v. US 4
therefore never incurred those costs. There is therefore
no continuing claim for damages that would serve to keep
this dispute alive.
Second, Totolo/King’s intention to seek attorney fees
is not a viable basis for avoiding mootness. The Equal
Access to Justice Act, id. § 2412(d), provides in certain
circumstances for fee awards to private parties who
litigate against the government, but the Act specifically
requires that the party be a “prevailing party.”
Totolo/King was not a prevailing party in this case and
therefore is not entitled to a fee award. When the case
became moot with Mr. Totolo’s death, Totolo/King lost the
prospect of ultimately becoming a prevailing party and
accordingly it lost the possibility of obtaining an EAJA fee
award. See Buckhannon Bd. & Care Home, Inc. v. W. Va.
Dep’t of Health & Human Res., 532 U.S. 598 (2001) (hold-
ing that mootness of action on the merits precluded award
of attorney fees because petitioners could never be pre-
vailing parties).
Finally, there is no force to Totolo/King’s suggestion
that this case should be continued because of its impor-
tance to other, future SDVOSBs, even though Totolo/King
has no ongoing interest in the litigation. It is well settled
that a party’s desire to press a particular legal position in
order to benefit others is not enough to prevent a case
from being moot when there is no continuing case or
controversy between the parties before the court. See
Alvarez v. Smith, 130 S. Ct. 576, 580-81 (2009) (dismiss-
ing abstract legal dispute as moot where law was no more
likely to impact plaintiffs in the future than any other
citizens).
Accordingly, we dismiss the appeals and remand for
the Court of Federal Claims to dismiss the complaint.

-- 4 of 5 --

TOTOLO / KING JOINT VENTURE v. US 5
DISMISSED and REMANDED

-- 5 of 5 --