Pub. L. No. 103-160, § 2912(a) (emphasis added). Similarly, 48 C.F.R. § 226.7102 mandates only that businesses located in the vicinity of a military installation . . . shall be provided maximum practicable opportunity to participate in . . . acquisitions for environmental restoration and mitigation" (emphasis added).
Section 1361 creates subject matter jurisdiction for mandamus actions if the government official is required to perform a clear, ministerial, and nondiscretionary duty or if the plaintiffs seek to compel a government official to undertake a duty that requires an exercise of discretion and which the official has neglected. See Kahane v. Carlson, 527 F.2d 492, 497 (2d Cir. 1975)(Friendly, J. concurring); see also Stehney v. Perry, 907 F. Supp. 806, 820 (D.N.J. 1995).
a. Nondiscretionary Duty
Whether Section 2912 creates a nondiscretionary duty is a question of statutory interpretation. To interpret this section, I must start with the language of the statute itself. Lewis v. United States, 445 U.S. 55, 60, 63 L. Ed. 2d 198, 100 S. Ct. 915 (1980). In reading a statute, "[a] court should presume that the statute says what it means." Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993). However, "where ambiguity resides in a statute, legislative history and other tools of interpretation may be employed to determine legislative purpose more perfectly." Motor Vehicle Mfrs. v. New York State Dept. of Envtl. Conservation, 17 F.3d 521, 531 (2d Cir. 1994). In the present case, the statutory language provides that in selecting contractors for work pursuant to a base closure "the Secretary of Defense shall give preference, to the greatest extent practicable, to qualified businesses located in the vicinity of the installation . . . ." Pub. L. No. 103-160 § 2912. Plaintiffs contend that Congress "gave a clear mandate to the Secretary of Defense" and that the by using the words "to the greatest extent practicable," Congress under scored the importance of the mandate. Dkt. No. 14, Pl. Mem. at 2-3. While I agree that the statute creates a duty, I find that the plaintiffs' position is simply not supportable. The statute is clear in that it directs the Secretary to give local contractors a preference. However, the Secretary's implementation of the mandate is discretionary in that it is to be implemented "to the greatest extent practicable."
I find that the Act creates a duty on the part of the Secretary of Defense to undertake a discretionary task. As such, if mandamus jurisdiction exists at all, it exists to "compel an official to undertake a neglected action that requires the exercise of discretion to carry out." Stehney, 907 F. Supp. at 820.
b. Discretionary Duty
Regarding a discretionary duty, "mandamus relief is available only to 'compel [the] action' itself, 'but not to direct the exercise of discretion in a particular way nor to direct the retraction or reversal of action already taken.'" Id., at 820 (quoting ICC v. Humbolt S.S. Co., 224 U.S. 474, 484, 56 L. Ed. 849, 32 S. Ct. 556 (1912); see also United States ex rel. Schonbrun, 403 F.2d 371, 374 (2d Cir. 1968) (quoting the committee reports recommending enactment of 28 U.S.C. § 1361 for the proposition that courts are "not to direct or influence the exercise of discretion of the officer or agency in the making of the decision") cert. denied, 394 U.S. 929, 22 L. Ed. 2d 460, 89 S. Ct. 1195 (1969); Sun Enterprises, LTD. v. Train, 532 F.2d 280, 288 (2d Cir. 1976)(mandamus jurisdiction does not lie to challenge the manner in which an agency official performs his duties, as opposed to his failure to perform a nondiscretionary duty); Kahane, 527 F.2d at 498 (Friendly, J. concurring) (indicating mandamus inappropriate where "the sole question to be litigated in the [Section] 1361 action was whether the [agency] had gone far enough to satisfy its obligations").
In response to Section 2912, the Air Force developed implementing regulations. See 48 C.F.R. pt. 226, subpt. 71. In addition, the Secretary claims that in keeping with the statute and the regulation, the Air Force (1) awarded fourteen of sixteen fiscal year 1996 maintenance and repairs contracts (87.5%) worth an estimated $ 4.2 million to local businesses within a 60 minute radius of Griffiss, dkt. no 21, Lemaire Decl. PP 2-3; (2) the Air Force Small Business Office has actively attempted to notify local contractors about available opportunities at Griffiss, dkt. no. 22, Wesley Decl. PP 3-5; and (3) the Air Force and the Army Corps of Engineers have tentatively identified $ 19.4 million in Griffiss projects as available to local contractors, dkt. no. 23, Rice Decl. P 12.
Moreover, during the pendency of this litigation, Air Force Brigadier General, Timothy P. Malishenko, Deputy Assistant Secretary for Contracting and Assistant Secretary for Acquisition, issued a memorandum concerning local preference under Section 2912 that stated in pertinent part that:
As new contract actions are initiated, we should identify those opportunities that are appropriate for local, small and small disadvantaged businesses. Contracting officials should work with the Air Force Base Conversion Agency (AFBCA), their engineering counterparts and any on-site contracting officer to determine the appropriate contracting approach for individual projects, including the possibility of disaggregating requirements into separate contracting opportunities and using source selection criteria to provide preferences. Preferences for local businesses of any size and set-asides for 8(a) and small businesses located anywhere are authorized by DFARS Subparts 226.7200 and 226.7103, respectively, and are consistent with the Competition in Contracting Act. Additionally, 10 U.S.C. 2323 and DFARS 219.7002 authorize the use of a ten percent factor as an evaluation preference for small disadvantaged businesses in certain types of contracting actions. In situations where the technical requirements, contractor availability or other factors make local, small and small disadvantaged business awards impracticable, contracting officers should document the basis for the decision.
The Secretary of Defense, has therefore fulfilled his duty to establish a preference for local contractors, "to the greatest extent practicable," as required by Section 2912.
Because defendant is performing his discretionary duty, I need not determine whether plaintiffs have a clear right to the relief sought or whether any other adequate remedy is available. Moreover, lacking jurisdiction, I do not reach the governments remaining arguments that (1) plaintiffs lack standing, (2) the agency's construction of the statute is entitled to controlling weight, (3) exclusive jurisdiction for this action rests with the Court of Federal Claims, and (4) they are entitled to summary judgment. See Rhulen Agency, Inc., 896 F.2d at 678.
Based on the above, it is:
ORDERED that, defendant's motion to dismiss for lack of subject matter jurisdiction is GRANTED, and it is further;
ORDERED that, plaintiffs' motions for injunctive relief are DENIED.
IT IS SO ORDERED.
Dated: October 15, 1996
Syracuse, New York
ROSEMARY S. POOLER
United States District Judge