FIRE-TROL HOLDINGS LLC, Plaintiff-Appellant, v. UNITED STATES FOREST SERVICE, Defendant-Appellee, 209 F. App'x 625

MEMORANDUM Fire-Trol Holdings, LLC, which manufactures fire retardant chemical products used to fight wildland fires, appeals the district court’s judgment dismissing for lack of jurisdiction its challenge to the United States Forest Service’s adoption and application of new purchase requirements for the chemical content of wildland fire retardant. We reverse as to FireTrol’s claim that the Service failed to comply with the public notice and comment requirements of the Administrative Procedure Act (APA), but otherwise affirm.

Allegations that the Forest Service’s pre-2005 contract cycle decisions are arbitrary and capricious, and that they violate the requirements of the Federal Acquisition Regulation (FAR) for modifying qualification specifications and the open competition requirements of the Competition in Contracting Act (CICA), are “in connection with a proposed procurement” of fire retardant and have already been resolved by the Court of Federal Claims. See Fire-Trol Holdings, LLC v. United States, 68 Fed.Cl. 281 (2005) (rejecting Fire-Trol’s bid protest for the 2005 contract cycle); Fire-Trol Holdings, LLC v.

United States, 66 Fed. Cl. 36 (2005) (holding that the Forest Service decision not to purchase fire retardant containing YP Soda and to purchase fire retardant containing a gum thickener was neither arbitrary and capricious nor contrary to FAR and CICA). We do not have concurrent jurisdiction over those disputes. See Administrative Dispute Resolution Act of 1996, Pub.L. No. 104-320, § 12(d), 110 Stat. 3870, 3875 (jurisdiction of the federal district courts expires).

However, Fire-Trol’s complaint also asserts that the Forest Service’s decision to limit its purchases to retardant with gum thickeners and no YP Soda was a “rule” that required, but did not receive, notice and opportunity for comment pursuant to 5 U.S.C. § 553. Fire-Trol argues that jurisdiction lies in the district court— and not the Court of Federal Claims under the ADRA — because this challenge is to rule-making procedures applicable to procurement generally, not to any particular procurement.

In addition, it points out that there is no forum where a challenge to rule-making can be pursued if the district court lacks jurisdiction. The Forest Service does not dispute that the Court of Federal Claims lacks jurisdiction over a rule-making challenge, but nevertheless maintains that a bid protest is the appropriate way to seek review of agency procurement requirements.

The Court of Federal Claims has held that: [t]he ADRA vests exclusive jurisdiction in the Court of Federal Claims over actions challenging the government’s compliance with its procurement regulations, not over actions regarding the validity of those regulations____Although the ADRA has now removed from the district courts the jurisdiction to hear bid protest cases, there is nothing in the ADRA that takes away the residual authority of the federal district courts to hear challenges to the validity of regulations or statutes. Automated Commc’n Sys., Inc. v. United States, 49 Fed. Cl. 570, 575-76 (2001).

We agree with the Court of Federal Claims and conclude that the ADRA did not divest the district court of jurisdiction over FireTrol’s claim that the Forest Service promulgated a “regulation” and that that regulation is invalid because the Forest Service failed to comply with the rule-making procedures laid out in § 553. We reverse the district court’s decision to the contrary, and hold that the district court has jurisdiction under 28 U.S.C. § 1331 to adjudicate Fire-Trol’s rule-making claim. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.