By Albuquerque Mayor Martin J. Chávez and Advisory Board member of the United States Conference of Mayors
August 30, 2004

Recently the United States Court of Appeals (Tenth Circuit) granted a legal victory to the City of Albuquerque, but I think it may have great significance for many your communities as well. The remand opinion gives cities the right to sue the federal government in United States District Court over the process of meeting Federal space needs in cities.

Two years ago the City of Albuquerque filed a complaint against the United States Department of the Interior, in United States District Court, because the Interior's selection process violated Executive Order 12,072 and its accompanying regulations. "[e]xcept where such selection is otherwise prohibited, the process for meeting Federal space needs in urban areas shall give first consideration to centralized community business area and adjacent areas of similar character, including other specific areas which may be recommended by local officials."

In response to the City's complaint, Interior filed a motion to dismiss, arguing the district court lacked subject matter jurisdiction to hear the case. The Department asserted the City of Albuquerque complaint amounted to nothing more than a bid protest which, under the Administrative Dispute Resolution Act, must be brought in the United States Court of Federal Claims rather than federal district court. The Department of Interior further argued the City lacked standing and was untimely in bringing the suit.

After allowing Albuquerque to respond to Interior's motion, the district court granted Interior's motion to dismiss, determining it did not have subject matter jurisdiction to adjudicate bid protests under either the Administrative Dispute Resolution Act or the Administrative Procedure Act.

On appeal, the City of Albuquerque challenged the district court's dismissal of the City's claim for lack of subject matter jurisdiction. The City of Albuquerque argued its cause of action challenging improper agency action was properly brought in federal district court under the Administrative Procedure Act.

The Tenth Circuit Court in rendering its opinion stressed two points, one:

"there is sufficient law for the court to apply in this case. For the foregoing reasons, we think Executive Order 12,072 may be enforced under the Administrative Procedure Act. Having determined the Executive Order is enforceable in the courts, it is easy to conclude the City is within the zone of interests protected by the Executive Order."

And two "Interior's argument the City's complaint must be dismissed because the City no longer has a legally cognizable interest in the outcome. Interior argues the City's claim is moot because two other federal agencies have since filled "the only [central business area] site that the City identified as available for selection." Interior asserts that since "the site the City really wanted Interior to build upon ... is no longer available and no other known site exists," any alleged harm the City suffered can no longer be redressed...We conclude the City's claim is not moot. In this case, the parties disagree as to whether there is any available property within the central business area. As we explained in Part B of this opinion, Interior asserts there are no appropriate sites within the central business area, while the City's complaint can reasonably be read as alleging there are several sites available. Accepting the City's allegations as correct, if Interior issued a new solicitation of offers for its new space and followed the applicable executive order and regulations, it may very well select a site within the central business area. Thus, the City's asserted injury related to the development and revitalization of this area could be remedied. We, therefore, conclude the City's challenge is not moot."

l sites available. Accepting the City's allegations as correct, if Interior issued a new solicitation of offers for its new space and followed the applicable executive order and regulations, it may very well select a site within the central business area. Thus, the City's asserted injury related to the development and revitalization of this area could be remedied. We, therefore, conclude the City's challenge is not moot."

This remand opinion by the United States Court of Appeals affirms the right of cities to sue federal agencies, if the elected chief executive officer of the local government feels that the federal government is not meeting space needs in urban areas. This case should be helpful to you in planning the future of your urban areas.

Here is the link to the complete text of the opinion: http://www.kscourts.org/ca10/cases/2004/07/02-2214.htm