Hope v. Dep’t of Veterans Affairs, 2018 U.S. Dist. LEXIS 28479 (E.D. Ark. Feb. 22, 2018)
This matter involved a motion for temporary restraining order and preliminary injunction (the “Motion”) filed by Richard Alan Hope (“Hope”) and his HVAC company, Powers of Arkansas (“Powers”), asking the District Court to prohibit the Department of Veterans Affairs (“VA”) from continuing debarment proceedings against them. In 2012, Federal agents began investigating Hope for fraudulently presenting DAV Construction Company, Inc. as a legitimate service-disabled, veteran-owned small business in order to obtain government construction contracts. Hope was indicted in 2016 for conspiracy to defraud, among other things. The VA thereafter suspended Hope and Powers from government contracting based on the indictment. The indictment was ultimately dismissed after the Court declared a mistrial. In January of 2018, the VA lifted the suspensions, but issued notices of proposed debarment to Hope and Powers. While debarment proceedings are pending, a contractor may not be awarded government contracts.
The Court first analyzed jurisdiction. Absent waiver, sovereign immunity shields the VA from suit.
However, the Administrative Procedure Act (“APA”) waives sovereign immunity to allow judicial review of final agency actions. The Court held that it lacked jurisdiction here because there was no final agency decision as to the proposed debarment. Indeed, the VA has established procedures for debarment decisions and the proposal for debarment is only the first step. The Court found that because the VA’s decision-making process had only just begun, and there had been no final agency action, the APA did not authorize the Court to review the merits of the proposed debarment at this time.