On September 27, 2011, Judge Susan G. Braden of the Court of Federal Claims (COFC) granted a preliminary injunction stopping work on a contract awarded by the government to perform security services for the United States Court of Appeals for the Fourth Circuit. The injunction is to remain in effect until November 15, 2011 by which time Judge Braden will have an opportunity to decide the merits of the case. The government refused to delay the start date for the contract voluntarily.
What is unique about this case? To answer this question, it is important to review the factors the court must consider in granting an injunction. There are four factors the court must weigh: (1) the immediate and irreparable injury to the plaintiff; (2) the plaintiff's likelihood of success on the merits; (3) the public interest; and (4) the balance of the hardship on all parties.
As to the first factor, the court said the lost opportunity to compete was sufficient. As to the second test, Judge Braden said the court is unable to render a judgment about the likelihood of success on the merits. As to the third factor, she said the public interest certainly requires that the court be afforded a reasonable opportunity to review the documents, consider the arguments, determine the merits and write a decision. As to the last factor, she said both parties will be equally inconvenienced but the plaintiff is entitled to the process.
What makes the case unique is that Judge Braden made no determination of the likelihood of success on the merits. All she said was that the weakness of a showing on one factor may be overcome by the strength of others. However, she did not discuss how, in her view, the strength of the other factors outweigh the total absence of any determination on the likelihood of success on the merits. This, in our view, is a fatal flaw. In fact, we fail to see how Judge Braden possibily could make such a determination in this situation. Perhaps that is why she did not discuss the issue.
We should note she left open the possibility that the injunction could be extended past November 15th if the case is not ready for her final decision by that time.
The case is indeed unique. In our opinion, it is unlikely another judge would grant an injunction without any determination of the likelihood of success on the merits. In our experience, the plaintiff has a heavy burden in these cases and most often the merits of the case weigh heavily in the decision to grant relief.
Speaking of our experience, we have practiced before the COFC and the Court of Appeals for the Federal Circuit (CAFC) since our admission in 1965. If you have any questions about cases before those courts, you should contact us. You might also wish to pass this along to any of your friends interested in bid protests or claims.