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United States Court of Appeals, Fourth Circuit
United States Court of Appeals, Fourth Circuit
2d 339
While this appeal was pending, Newberg filed, and the district court denied, a
motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b). Upon this
Court's subsequent remand of the case back to district court, Newberg filed a
motion for summary enforcement of what it considered to be the mandate
established by this Court's first opinion. That motion was also denied. Newberg
now appeals both the district court's order denying its Rule 60(b) motion as
well as its denial of the motion for summary enforcement.
I.
6
During the pendency of Newberg's first appeal to this Court, Newberg filed a
motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b). In essence,
this motion was a request that the district court reconsider its original order of
dismissal in light of what Newberg termed "newly discovered facts." These
facts, Newberg alleged, demonstrated that Newberg was not afforded a hearing
before a disinterested Hearing Examiner as required by Virginia law.1 Finding
that Newberg had failed to reveal any new facts which would justify a change
in the district court's original position that "the administrative process must be
allowed to run its course before the judiciary steps in," the district court denied
Newberg's motion. We agree and hold that the district court did not abuse its
discretion in denying Newberg's motion.2
10 district court granted the County's Rule 12(b)(6) motion to dismiss Counts I, III,
The
IV, and V, finding that Newberg failed to exhaust its administrative remedies as
required by the Contract. We agree. It is undisputed that Article 7.4.2 of the Contract
provides that " [a] party may not institute legal proceedings until all administrative
remedies as set forth herein or as required by the ordinances or resolutions of Fairfax
County have been exhausted." The County's Purchasing Resolution also specifically
provides that "[n]o bidder, offeror, potential bidder or offeror, or contractor shall
institute any legal action until all administrative remedies available under this Article
have been exhausted and until statutory requirements have been met." Furthermore,
Virginia's Procurement Act unequivocally requires that once administrative
procedures are invoked by a contractor, they "shall be exhausted prior to instituting
legal action concerning the same procurement transaction unless the public body
agrees otherwise." Va. Code 11-70.F. (1989). Given the clear language of the
Contract, the County's Purchasing Resolution, and the Procurement Act, we find that
the district court acted properly in requiring that Newberg exhaust its administrative
remedies prior to seeking judicial intervention in this dispute.
11
Our position on this matter has not changed. By Virginia law, as well as by the
express provisions of the parties' own contract, allegations of interest and bias
within the administrative process must be first addressed and exhausted by the
administrative process before any party can seek relief by way of judicial
intervention. Accordingly, we find that the district court properly denied
Newberg's motion for relief from judgment.
III.
12
We now consider Newberg's claim that this Court's opinion of August 15, 1991
established a "mandate" capable of summary enforcement. In its previous
ruling, this Court addressed Newberg's claim that the County's administrative
remedies did not provide a hearing before a "disinterested person or panel" as
required by Virginia law. In so doing, the Court identified several facets of this
case which it found "troubling." However, after conceding that "[w]e are ...
bothered by the fact that no less than five different persons have served as
hearing officers in what is a very confused administrative process," this Court
wrote:
13
While
we specifically refrain from ruling on whether any of the hearing officers in
this case were in fact "interested" in violation of the Procurement Act's mandate, we
find that, in the future, controversy can best be avoided by appointment of new
hearing officers who (1) are not employees of the County, (2) are completely
independent of the parties, and (3) are knowledgeable of the construction business.
14
15
IV.
16
Accordingly, since we find no reversible error upon review of the matters urged
by the appellant, the judgment of the district court is
17
AFFIRMED.
Va. Code Ann. 11-71 (1989). Essentially, the "newly discovered facts" are
alleged as follows:
That the hearing examiner designated to hear Newberg's appeals, Mr. Kramer,
believed that if he ruled in favor of Newberg, his close personal friend, Mr. di
Zerega, would be personally liable for any damages awarded to Newberg as
well as being subject to criminal prosecution
That while Mr. Kramer was evaluating the procurement decisions of Mr. di
Zerega, Mr. di Zerega was simultaneously evaluating the propriety of
procurement decisions made within the department headed by Mr. Kramer
That Mr. Kramer refused to consider whether the above facts made him biased
or interested in the outcome of the administrative hearing process
See Green v. Foley, 856 F.2d 660, 665 (4th Cir. 1988) (denial of relief under
Rule 60(b) is reviewed under the abuse of discretion standard), cert. denied,
490 U.S. 1031 (1989)