Case 1:20-cv-02188 Document 2-1 Filed 08/11/20 Page 1 of 35

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FIGG BRIDGE ENGINEERS, INC. &
WILLIAM DENNEY PATE,
Plaintiffs,

Civil Action No. 20-cv-2188

v.
FEDERAL HIGHWAY ADMINISTRATION
and HARI KALLA, in his official capacity as
the Suspension and Debarment Official,
Associate Administrator for Infrastructure of
the Federal Highway Administration,
Defendants.

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR A
TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Moxila A. Upadhyaya (D.C. Bar # 494373)
Fred R. Wagner (D.C. Bar # 416009)
Dismas N. Locaria (D.C. Bar # 490096)*
MAUpadhyaya@Venable.com
FRWagner@Venable.com
DLocaria@Venable.com
Venable LLP
600 Massachusetts Ave., NW
Washington, DC 20001
Telephone: (202) 344-4690
Fax: (202) 344-8300
Counsel for Figg Bridge Engineers, Inc. and
William Denney Pate
*pro hac vice motion forthcoming

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In further support of their Application for a Temporary Restraining Order and Preliminary
Injunction, Plaintiffs Figg Bridge Engineers, Inc. (“Figg” or “the Company”) and William Denney
Pate (“Pate”) (collectively “Plaintiffs”), state as follows:
INTRODUCTION
Plaintiffs seek a temporary restraining order and preliminary injunction lifting Defendants’
decision to suspend Plaintiffs from participating in any federally-funded government program
and/or contract. As set forth below, the suspensions pose a threat of catastrophic and imminent
harm to Plaintiffs that cannot be reversed if the suspensions are allowed to continue during the
pendency of the proposed underlying debarment process.1 Indeed, the harm to Plaintiffs is so
imminent and great that, on Tuesday, August 11, 2020, Plaintiffs stand to lose an existing contract
which provides almost half of Figg’s revenue. The FHWA suspensions violate the Administrative
Procedure Act (“APA”) given the Agency’s failure to meet the essential element of pointing to
any, let alone sufficient, evidence of an “immediate need” to suspend Plaintiffs. As such, the
suspensions should be lifted pending resolution of this case.
On July 14, 2020, the FHWA issued a notice of suspension and proposal to debar Figg and
one of its engineers, William Denney Pate, (the “Suspensions”) in connection with the Florida
International University pedestrian bridge project (“FIU Bridge”), which collapsed on March 15,
2018 during project construction. Tragically, six people died as a result.
Despite the undisputed facts that there were more than forty different parties involved in
the construction, management and inspection of the FIU Bridge project and, as a matter of law,

The debarment process, when done in accordance with federal regulations, provides
Plaintiffs an opportunity for a fact-finding hearing before a neutral arbiter and likewise provides
the Federal Highway Administration (“FHWA” or “the Agency”) with the prescribed approach for
assessing the present responsibility of an entity and/or individual.
1

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Plaintiffs were not the party responsible for site safety, construction or inspection, Plaintiffs are
the only parties that the FHWA has suspended and proposed to debar as a result of the accident.
Moreover, the FHWA’s proposed 10-year debarment is a significant departure from the applicable
regulatory guidance, specifically, more than three times the generally-imposed debarment term.
These facts, in addition to the FHWA’s failure to substantiate its findings, conduct any of its own
factfinding or consider the responsibility of any other party before imposing such draconian and
punitive measures against Plaintiffs, reflect that the Agency is simply looking for someone to
blame for the FIU Bridge collapse without fairly reviewing the substantial technical engineering
evidence that Plaintiffs have offered to it.
Plaintiffs meet all the elements required for a temporary restraining order and preliminary
injunction.
First, Plaintiffs are likely to succeed on the merits of their case that Defendants violated
the APA in issuing the Suspensions. Significantly, the FHWA fails to make a prima facie case for
suspension.

It offers only a single conclusory sentence purporting to justify the critical

requirement that there be an “immediate need” to suspend Plaintiffs. Underscoring the lack of any
exigency, the FHWA did not suspend Plaintiffs until two and a half years after the March 2018
accident and nine months after the last report on which the Agency bases its conclusions. Nor
does the Agency point to any specific immediate or upcoming project from which Plaintiffs should
be prevented from participating, claiming instead that the immediate suspension is necessary
because Plaintiffs “could” work on federally-funded projects at some unspecified point in the
future. If the Agency could truly support a suspension based on the public’s interest in safety, it
clearly could have acted upon information available to it a long time ago.

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In addition, the Suspensions are not based on the Agency’s independent factfinding and
fail to address in any meaningful way the competing evidence available to it on the face of the
existing administrative record. Indeed, the record reflects a stubborn obstinance on the part of
FHWA to even consider technical information presented by the Plaintiffs’ independent expert.
Instead, the Agency relies wholly on reports from other agencies released between nine and twelve
months ago. The processes that resulted in those reports either excluded or severely limited Figg’s
participation. Figg has legitimately challenged those reports’ central conclusions on the basis of
sound engineering principles and has attempted, without success, to engage the FHWA in a
meaningful dialogue concerning deficiencies in the reports.
The inexplicable delay in the FHWA’s administrative action, the failure of the Agency to
base its suspension on any “immediate need” to protect the public interest, the excessive length of
the proposed debarment, and the disparate treatment of Plaintiffs from other parties with
substantial involvement in the FIU Bridge project reflect that the FHWA is improperly using the
suspension and debarment regime to blame this tragic construction accident on Plaintiffs and to
punish Plaintiffs without any sufficient reason for doing so. This is the very type of agency action
against which the APA is designed to protect.
Second, for a number of reasons, Plaintiffs have established that they will suffer imminent,
irreparable harm if the suspensions are not vacated in the interim. As an initial matter, the harm
to Plaintiffs is, as a matter of law, irreparable per se given that Plaintiffs would not be able to
recover any damages against Defendants, the government. This, alone, is sufficient for Plaintiffs
to make out a showing of irreparable harm. Even assuming the harm were not irreparable per se,
the declaration of Linda Figg (CEO of Figg Engineers, Inc.) establishes that Suspensions no doubt
pose a real and imminent threat to the very existence of the Company – a female-owned family

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business that has been in existence for more than 40 years. Similarly, as set forth in the declaration
of William D. Pate, the Suspensions end his 40-year career as an engineer, leaving him without
any ability to seek a livelihood in the profession to which he has devoted his entire life. Finally,
both Plaintiffs have established the substantial reputational harm that they are currently suffering
on account of the improper Suspensions.
Third, the balance of harms tips overwhelmingly in Plaintiff’s favor. As set forth above,
if they are not vacated pending resolution of this this matter, the Suspensions present a real and
imminent threat to the existence of the Company and would effectively end Mr. Pate’s 40-year
career. In contrast, the harm to Defendants is non-existent. As set forth above, Defendants
themselves cannot point to any immediate need to suspend Plaintiffs and, in fact, only state that
the Suspensions are necessary because Plaintiffs hypothetically “could” work on a federallyfunded project in the future. Moreover, Defendants have a remedy available to them: the
underlying proposed debarment process which is currently ongoing. Defendants’ non-specific
conclusory statement of an “immediate need” simply is not enough to outweigh the crippling harm
Plaintiffs are suffering.
Finally, the public interest will be served by the issuance of injunctive relief. It is in the
public’s interest that the government’s suspension and debarment process is administered in a fair
manner and that an agency is required to follow the law and its own regulations. Moreover, it is
in the public interest to enjoin an agency when it has so far overreached in doling out the type of
catastrophic punishment the FHWA has imposed here in contravention of the intent of the
government’s suspension and debarment rules, based on non-existent evidence demonstrating an
immediate need to suspend Plaintiffs.

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FACTUAL BACKGROUND
Figg Bridge Engineers, Inc.
Figg has a 42-year history of excellence and specialization in the management of diverse
engineering teams for major bridge projects. Compl. ¶ 19; Declaration of Linda Figg (hereinafter
“Figg Decl.”), attached hereto as Exhibit A, at ¶ 9. Figg has designed some of the most iconic
bridges in the United States, and it and its related entities have received more than 420 awards,
three National Endowment for the Arts Presidential Awards, and many other accolades. Compl.
¶¶ 19, 20; Figg Declaration ¶¶ 9-12. In fact, the FHWA has awarded Figg numerous awards for
its design and engineering work and, as of the date of this filing, still touts several Figg-designed
bridges on its website. Compl. ¶ 20.
The Florida International University Pedestrian Bridge
The Florida International University (“FIU”) Board of Trustees entered into a design-build
contract with prime contractor, Munilla Construction Management (“MCM”), to construct a
pedestrian bridge that would cross over SW Eighth Street. Compl. ¶ 17. The funding sources for
the bridge included federal, state and local agencies, as well as the FIU. Compl. ¶ 25. Among the
federal contributors was the U.S. Department of Transportation’s Federal Highway Administration
(“FHWA”). Compl. ¶ 25.
MCM entered into a subcontract with Figg to provide design and engineering services
associated with the bridge. Compl. ¶ 18. Mr. Pate, an employee of Figg, served as the designated
Engineer of Record (“EOR”). Compl. ¶ 18. Figg also entered into a sub-subcontract with Louis
Berger to conduct the required peer review of the design. Compl. ¶ 22. In total, there were
approximately 41 parties involved in the FIU pedestrian bridge project. Compl. ¶ 112.
The FIU bridge was cast adjacent to the permanent bridge location and then moved to its
final position. Compl. ¶ 27. The main span was cast above ground level and supported by
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temporary falsework. Compl. ¶ 28. Importantly, under FDOT rules, EORs such as Figg are not
permitted to serve as the Construction Engineering Inspector during construction of the bridge.
This task was contracted to Bolton Perez and Associates, Inc. (“BPA”). Compl. ¶ 34.
The Collapse of the FIU Bridge
From February 6, 2018 to the morning of the collapse, various parties identified cracks at
varying locations of the main truss. Compl ¶¶ 28, 30, 37-42. The first known indication of distress
to the Member 11/12 region was documented in BPA’s February 28, 2018 report. Compl. ¶ 30.
While the cracks were often documented, they were not always timely reported to Figg, nor were
they provided with any useful commentary, such as the size, length or growth of such cracks.
Compl. ¶ 41. In fact, on March 10, 2018, after the main truss was moved into place, MCM, BPA,
and Figg employees walked the bridge and did not notice a change from before the move. Compl.
¶ 31. Further, despite the cracking, the team on-site opened the road underneath the bridge to
traffic and demobilized the equipment that was used to move the span. Compl. ¶ 37. Figg was
not on site on March 10 and did not return to the site until the morning of March 15. Compl. ¶¶
37, 42. Figg was not responsible for site safety or security and the decisions regarding street
closure. Compl. ¶ 36.
On March 15, 2018, at approximately 1:45 PM, the main span collapsed as post-tensioning
bars in the northernmost diagonal (Member 11) were being re-stressed. Compl. ¶ 44. The collapse
was triggered by failure of the connection between the Members 11 and 12 and the deck. Compl.
¶ 45. As a consequence of the collapse, six people died and ten people were injured. Compl. ¶
46.

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The OSHA Investigation and Report
As a result of the collapse, several federal agencies, including the Occupational Safety and
Health Administration (“OSHA”) and the National Transportation Safety Board (“NTSB”)
launched investigations into the cause of the collapse. Compl. ¶ 47. Despite each review taking
more than a year, neither agency performed testing on replicas of the key portions of the bridge.
Compl. ¶ 48.
In July 2019, OSHA issued a report summarizing its investigation into the cause of the
collapse. Compl. ¶ 50. Based on this review, OSHA made eleven findings, including findings
that: (i) the bridge had structural design deficiencies; (ii) the cracks forming in the bridge warranted
a closure of SW Eighth Street; (iii) Figg, though not onsite, failed to recognize that the bridge was
in danger of collapsing; (iv) BPA, which served as the Construction Engineering Inspector and
was onsite, failed to classify the cracks as structural in nature with the FDOT; (v) BPA also failed
to recognize that the bridge was in danger of collapsing and did not recommend to FIU, MCM or
others to close SW Eighth Street and shore the bridge; (vi) MCM was aware that the cracks were
getting larger and failed to immediately inform Figg’s EOR; and (vii) MCM failed to exercise its
own independent judgment in implementing safety measures. Compl. ¶ 52.
The FHWA’s Assessment
On October 19, 2018, the FHWA submitted a report to the NTSB. Compl. ¶ 54. In this
report, the FHWA examined the cold joint between the deck concrete pour and the truss member
pour, and also assessed the roughness of the interface created at the cold joint. Compl. ¶ 54. The
FHWA found that the failure interface coincided with the original cold joint and that the cold joint
was not intentionally roughened. Compl. ¶ 55. This was in contrast to the FDOT Standard

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Specifications for Construction that were applicable to the project which required that the joint be
intentionally roughened. Compl. ¶ 55.
On September 12, 2019, the FHWA submitted its assessment to NTSB. Compl. ¶ 56. In
this report, among other items, the FHWA claimed that the root cause of the collapse was a
deficiency in the bridge’s design, including an inability of the structure to resist interface shear
demands in the critical nodal region at the north end of the bridge. Compl. ¶ 57. The Agency
claimed that, in the days leading up to the accident, the structure behaved in a manner that provided
warning of the failure, through the development of significant and visible distress that grew over
time. Compl. ¶ 57.
Figg’s Independent Investigation into the Cause of the FIU Pedestrian Bridge Collapse
Figg retained Wiss, Janney, Elstner Associates, Inc. (“WJE”), a preeminent forensic
structural engineering firm, to conduct an independent, forensic investigation of the accident.
Compl. ¶ 61. The scope of WJE’s investigation included, among other things, an evaluation of the
failure pattern, a structural analysis (including an evaluation of adherence to design code), an
examination of the construction of joint conditions, and physical testing of interface shear and the
deck connection. Compl. ¶ 62. Among the many forensic tasks WJE performed in undertaking
this independent investigation, WJE performed full-sized specimen tests. Compl. ¶ 63. In other
words, WJE reconstructed aspects of the bridge, such as the concrete members, in the same manner
as called for in the design plans and specifications and tested them against the same stresses.
Compl. ¶ 63. Neither FHWA, OSHA nor NTSB investigations included tests or analysis of fullsized specimens. Compl. ¶ 63.
On September 18, 2019, WJE issued its independent report. Compl. ¶ 64. Contrary to the
findings in the NTSB report, among WJE’s various findings, it determined that: i) considering the

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entire construction joint between Member 11/12 and the deck, the design as shown on the released
for construction plans and specifications did meet the AASHTO code; and ii) if the construction
joint were roughened as required by the project specifications, which Figg reconfirmed by email
to MCM, the collapse would not have occurred. Compl. ¶ 64. Further, WJE found several failures
in Louis Berger’s peer review oversight. Compl. ¶ 65. WJE also found that twisting of the span
during the move exceeded the established limits to the structure and caused high stresses in the
Member 11 and 12 deck connection area. Compl. ¶ 66. Therefore, this stress may have contributed
to damage in the region and ultimately to the collapse. Compl. ¶ 66. Finally, WJE also found that,
contrary to Figg’s instructions when implementing remedial measures to address the cracks, no
party responsible for doing so closely monitored cracks in the north-end during the re-stressing of
Member 11. Compl. ¶ 67. WJE’s independent investigation concluded that Figg’s design was to
code, was not flawed, but was improperly executed, and Figg’s guidance on the re-stressing of
Member 11 was not followed. Compl. ¶ 68. On September 20, 2019, Figg submitted WJE’s
findings to the NTSB. Compl. ¶ 69.
NTSB’s Investigation and Report
On May 23, 2018, the NTSB issued a Preliminary Report that outlined the investigation
that it would be performing. Compl. ¶ 70. However, the NTSB did not follow its usual practices
and processes for this sort of investigation and report. Compl. ¶ 71. For example, while the NTSB
allowed industry to provide comments, it did not allow industry to observe or participate in the
questioning of witnesses. Compl. ¶ 71. Rather, from August to November 2018, the NTSB issued
a series of preliminary investigative reports providing updates on its investigation and its initial
findings and conclusions. Compl. ¶ 72. In one such preliminary report, released November 15,
2018, the NTSB stated that it found design errors in load and resistance calculations pertaining to

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the portion of the bridge that ultimately failed – where truss members 11 and 12 connected to the
bridge deck. Compl. ¶ 73. This finding from the NTSB’s Preliminary Report mirrored what was
contained in the final report. Compl. ¶ 73.
Figg presented information to the NTSB and FHWA in a meeting on March 13, 2019 that
demonstrated that if the Member 11 and 12 construction joint with the deck had been built in
accordance with the FDOT Standard Specifications as required, the collapse would not have
occurred. Compl. ¶ 74. The NTSB asked FHWA to review and provide a response to Figg’s
presentation and information. Compl. ¶ 74. The FHWA admittedly performed a “cursory review”
of Figg’s submission, but found two alleged deficiencies. Compl. ¶ 75. The FHWA concluded
that Figg’s presentation only added confusion to FHWA’s understanding of the accident. Compl.
¶ 76.
With this information in hand, on October 22, 2019, the NTSB issued its report. Compl. ¶
77. At the outset it stated that NTSB does not assign fault or blame for an accident or incident.
Compl. ¶ 78. The NTSB stated that the probable cause of the collapse was the load and capacity
calculation errors made by Figg and contributing to the collapse was the inadequate peer review
by Louis Berger. Compl. ¶ 81. The NTSB explained that the severity of the outcome of the
collapse was the failure of MCM, Figg, BPA, FIU and FDOT. Compl. ¶ 81. The NTSB made
eleven recommendations to the FHWA, FDOT, AASHTO and Figg to implement new safety
measures for future bridge projects. Compl. ¶ 81. Only two of the recommendations were for
Figg and both have been acted upon. Compl. ¶ 81.
Figg’s Efforts to Present the Results of WJE’s Independent Investigation
On November 13, 2019, Figg and WJE met with the FHWA for the first time to present
Figg’s and WJE’s findings. Compl. ¶ 82. In this meeting, WJE explained its conclusions that

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were contrary to the NTSB report. Compl. ¶ 81. WJE also expressed its disagreement with a
FHWA submission that was made to NTSB. Compl. ¶ 81. Regarding the FHWA submission,
WJE found an error in FHWA’s horizontal shear calculations, and the exclusion of cohesion and
reinforcement that contributes to capacity. Compl. ¶ 83. When accounting for these excluded
items, WJE found the calculation actually satisfied the AASHTO code. Compl. ¶ 84. WJE also
found that the FHWA failed to reconcile, or even calculate, load and resistance at the time of
collapse. Compl. ¶ 85. Instead, FHWA inappropriately labeled calculations as a root cause
without considering design as reflected in the construction plans and specifications. Compl. ¶ 85.
Finally, WJE pointed out that the FHWA ignored WJE’s full-size specimen tests, which neither
OSHA, NTSB nor the FHWA had gone through the effort to perform. Compl. ¶ 86.
In light of the disagreement between FHWA and WJE, Figg requested an opportunity to
meet again with FHWA representatives to discuss these technical points of disagreement. Compl.
¶ 87. Over the next several months, despite Figg’s numerous attempts, FHWA repeated that there
was no data Figg had provided that would alter FHWA’s view and refused to meet and deemed
the matter “closed.” Compl. ¶¶ 87-96. This of course did not stop Mr. Hartmann from publicly
blaming Figg, as he did on June 1, 2020 during a webinar presentation at the virtual General
Session for the 2020 Annual Meeting of the AASHTO Committee on Bridges and Structures.
Compl. ¶ 98. Again, Mr. Hartmann and FHWA refused to provide Figg with a technical meeting
to discuss their disagreement.
FHWA’s Action to Suspend and Propose to Debar Figg and Mr. Pate
On July 14, 2020, two and a half years after the incident, a year after the issuance of the
OSHA report, nearly a year since FHWA provided its submission to NTSB, nearly 9 months after
the issuance of the NTSB report, eight months since FHWA declared the investigation of the FIU

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bridge collapse “closed” by FHWA, nearly six months after Figg’s last letter to FHWA seeking a
technical meeting, which was ignored, and nearly two months after the FHWA’s Director, Office
of Bridges and Structures, publicly stated that the Agency believed Figg was the “probable cause”
of the FIU pedestrian bridge collapse, the FHWA took the unprecedented step of suspending and
proposing Figg and Mr. Pate for a debarment of ten (10) years. Compl. ¶ 99; see Notices of
Suspension and Proposal to Debar Figg Bridge Engineers, Inc. and William Pate, attached hereto
as Exhibit B and C, respectively. As outlined in the Memorandum of Suspension and Proposal to
Debar, attached hereto as Exhibit D, the FHWA set forth two alleged grounds to support the
suspension and proposed debarments of Plaintiffs, specifically that adequate evidence showed: (i)
a willful failure to perform in accordance with the terms of one or more public agreements or
transactions, as well as a willful violation of a statutory or regulatory provision or requirement
applicable to a public agreement or transaction; and (ii) a cause so serious or compelling a nature
that it affects a person’s present responsibility. With respect to these grounds, the FHWA relied
almost exclusively on the NTSB report. Compl. ¶ 102.
To address the “immediate action” requirement of a suspension, however, FHWA simply
provided that “[s]ince Figg and Mr. Pate could work on Government projects in the future, I find
immediate action is necessary to protect the public interest and preserve the integrity of future
Government contracts.” (emphasis added). Compl. ¶ 105. In support of its bases for proposed
debarment and immediate action, in its memorandum, FHWA cited to the NTSB report as
supporting a conclusion that Figg acted “willfully” and in “reckless disregard for the safety of the
traveling public.” Compl. ¶ 106. However, the NTSB never arrived at the conclusion that Figg or
Mr. Pate acted willfully or in reckless disregard. Compl. ¶ 107. In fact, the NTSB never uses the
words “reckless” or “reckless disregard.” Compl. ¶ 107.

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The timing of the FHWA suspension notices were curious as well, as they were issued just
six days before the United States Department of Transportation’s Office of Inspector General
issued a letter to Congress acknowledging that, of the 41 firms involved in the FIU pedestrian
bridge project, the FHWA suspended and proposed Figg and Mr. Pate for debarment. Compl. ¶
112. Given the timing, the immediacy of the FHWA’s action appeared more closely associated
with congressional pressure, rather than the alleged findings of the OSHA and NTSB reports.
Compl. ¶ 112. Moreover, the suspension notices were issued well after the FHWA had already
awarded a contract to Figg. Compl. ¶ 113. Specifically, FWHA selected Figg for a load rating
project of the Natchez Trace Parkway Arches in September of 2018. Compl. ¶ 113. This is hardly
the action of an agency concerned that Figg’s participation would create an imminent risk to the
public interest or public health or safety. Compl. ¶ 113. In 2019, Figg was also retained on a
federally-funded project for the Montana Department of Transportation to study a new highway
alignment for Bad Rock Canyon. Compl. ¶ 114.
Figg and Mr. Pate’s Response to the Notices of Suspension and Proposed Debarment
The undersigned counsel for Plaintiffs contacted the FHWA on July 24, 2020 to notify the
agency that it represented Figg and Mr. Pate, to seek a copy of the administrative record, and to
request a telephone call for a preliminary discussion regarding the matter. Compl. ¶ 114. During
a July 30, 2020 video conference call, counsel for Figg and Mr. Pate, among other topics, explained
its concern regarding the legality of the suspension and requested that, at a minimum, a fact-finding
inquiry be conducted. Compl. ¶ 118. FHWA requested that any such concerns or requests be
placed in writing for the agency’s consideration. Compl. ¶ 118. Counsel for Figg explained it was
clear that there was a genuine dispute over material facts and a factfinding hearing was a necessity.

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Compl. ¶ 118. The FHWA counsel stated that the information was “overwhelming” and that a
formal request for such an inquiry would be required. Compl. ¶ 118.
On August 4, 2020, counsel for Figg and Mr. Pate submitted a letter to FHWA, attached
hereto as Exhibit E, explaining the concerns regarding the legality of the suspension, particularly
as it related to the “immediate action” prong necessary to support a suspension. Compl. ¶ 119.
The letter requested that, given the suspension’s legal deficiencies and considering the harm being
imposed upon Figg, the FHWA withdraw the suspension immediately or, at the latest, by Friday,
August 7, 2020 close of business. Compl. ¶ 119. On August 7, 2020, Figg offered several options
to FHWA to resolve the matter short of litigation, while committing to an expedited debarment
process to ensure that FHWA could protect the public interest. Compl. ¶ 121. A copy of Figg’s
August 7, 2020 e-mail is attached hereto as Exhibit F. Despite counsel for Figg and Mr. Pate
following up with the FHWA, aside from responding that FHWA received the notification that
this filing would be made within 24 hours, no further correspondence has been received from
FHWA. Compl. ¶ 122.
Notably, and notwithstanding the fact that OSHA and NTSB found fault with the actions
and conduct of other involved parties, such as FDOT, MCM, BPA and Louis Berger, as of the date
of this filing, FHWA has taken no suspension or debarment action against these parties. Compl.
¶ 123. In fact, when questioned on this point by counsel for Figg during its July 30, 2020 video
conference, counsel for FHWA stated that no action had been taken against any other party and
confirmed that the FHWA was placing the entire blame of the construction accident on Figg and
Mr. Pate. Compl. ¶ 123.

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ARGUMENT
I.

Standard of Review
A.

Temporary Restraining Order/Preliminary Injunction

In order to obtain a preliminary injunction, the moving party must show: (1) a likelihood
of success on the merits of the party’s claims, (2) a likelihood of irreparable harm in the absence
of preliminary relief, (3) a balance of equities in the party’s favor; and (4) that preliminary relief
is in the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Doe
v. Mattis, 889 F.3d 745, 751 (D.C. Cir. 2018). The standard is the same for temporary restraining
orders as it is for preliminary injunctions.2 See Council on Am.-Islamic Relations v. Gaubatz, 667
F. Supp. 2d 67, 74 (D.D.C. 2009) (quoting Hall v. Johnson, 599 F. Supp. 2d 1, 3 n. 2 (D.D.C.
2009)).
B.

Administrative Procedure Act

The APA provides that when an administrative agency’s action is “arbitrary,” “capricious,”
or “otherwise not in accordance with law,” the courts “shall” vacate the action. 5 U.S.C. § 706;
see also 5 U.S.C. §§ 701-05. An agency’s action is arbitrary and capricious when, among other
things, the agency “entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of agency expertise.” Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The agency action
must be upheld, if at all, using only the basis articulated by the agency itself and should not rely

2

The only procedural difference between temporary restraining orders issued pursuant to
Fed. R. Civ. P. 65(b)(1) and preliminary injunctions issued pursuant to Fed. R. Civ. P. 65(a)(1),
is in the notice requirements to adverse parties. See Sterling Commercial Credit--Michigan, LLC
v. Phoenix Indus. I, LLC, 762 F. Supp. 2d 8, 13 (D.D.C. 2011).

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on an agency’s post hoc rationalization for its action. Id. at 50. Therefore, a reviewing court’s
inquiry focuses on whether the “agency examine[d] the relevant data and articulate[d] a
satisfactory explanation for its action including a ‘rational connection between the facts found and
the choice made.’” Id. at 43 (quoting Burlington Truck Lines, Inc. v, United States, 371 U.S. 156,
168 (1962)); see Sloan v. Dep’t of Housing and Urban Development, 231 F.3d 10, 15 (D.C. Cir.
2000). In doing so, “[t]he reviewing court should not attempt itself to make up for [an agency’s]
deficiencies” and the court “may not supply a reasoned basis for the agency’s action that the agency
itself has not given.” State Farm, 463 U.S. at 43 (citing SEC v. Chenery Corp., 332 U.S. 194, 196
(1947)). Although deference is given to agency decision making, courts are not, however, required
“to countenance an agency’s failure to consider relevant factors or clear errors of judgment.”
Sloan, 231 F.3d at 15 (internal citation, quotations, and alterations omitted). If an agency fails to
“cogently explain why it has exercised its discretion in a given manner[,]” its action will be
invalidated. State Farm, 463 U.S. at 48.
II.

Plaintiffs Have Demonstrated a Substantial Likelihood of Success on the Merits
The D.C. Circuit has held that “[t]o justify a temporary injunction it is not necessary that

the plaintiff's right to a final decision, after a trial, be absolutely certain, . . . it will ordinarily be
enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult
and doubtful, as to make them a fair ground for litigation . . . ” Washington Metro. Area Transit
Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977) (quoting Hamilton Watch Co.
v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir.1953)); Citizens for Responsibility & Ethics in
Washington v. Cheney, 577 F. Supp. 2d 328, 335 (D.D.C. 2008).
A.

Legal Standard

The Federal Highway Administration’s suspension and debarment program is governed by
the Office of Management and Budget’s (“OMB”) Guidelines to Agencies on Governmentwide
17

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Debarment and Suspension (Nonprocurement), commonly referred to as the Common Rule, see 2
C.F.R. § 180 et seq.; 2 C.F.R. 1200.10 (adopting the Common Rule to the FHWA). However,
there is a parallel regulatory scheme under the Federal Acquisition Regulation, which governs the
acquisition of supplies and services by all federal agencies. 48 C.F.R. Subpart 9.4. These
regulatory schemes are largely similar and work in concert with one another as a suspension and/or
debarment under one regime has reciprocal effect under the other program.

2 C.F.R. §

180.10(b)(2); see also 48 C.F.R. § 9.401.
The Common Rule’s and FHWA’s suspension and debarment program intends to prevent
waste, fraud, and abuse in federal contracting by providing for the exclusion of those contractors
whom the government deems not “presently responsible,” and therefore not entitled to continue
doing business with the government. See 2 C.F.R. § 180.125; see also DOT Website Suspension
and Debarment. The regulations and caselaw interpreting them consistently emphasize that
suspensions and debarments are “serious action[s]” that the government may take only in the
interest of protecting the government and not for the purposes of punishment. See 2 C.F.R.
§180.125(c); see also 48 C.F.R. § 9.407-1(b); Sloan v. Dep’t of Housing and Urban Development,
231 F.3d 10, 14-15 (D.C. Cir. 2000); Inchcape Shipping Servs. Holdings v. United States, 2014
U.S. Claims LEXIS 1570, *6 (Fed. Cl. 2014) (granting temporary restraining order lifting agency’s
suspension because suspension was more punitive than protective). As such, suspension and
debarment proceedings are forward-looking by nature – designed to ensure that the government
conducts business with presently responsible contractors, rather than focused on doling out
punishment for past transgressions (the purview of criminal law). See Uzelmeier v. U.S. Dept. of
Health and Human Services, 541 F.Supp.2d 241, 248 (D.D.C. 2008) (“[T]he relevant question is

18

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whether or not one could or should be entrusted with public funds… at the present time or going
forward.”).
Under the Common Rule, a suspending official may impose a suspension only when that
official determines:




There is:
o an indictment for an offense listed under § 180.800(a), or,
o adequate evidence to suspect any other cause for debarment listed under §
180.800(b) through (d); and,
Immediate action is necessary to protect the public interest.

2 C.F.R. § 180.700; see also Sloan, 231 F.3d at 14-15 (D.C. Cir. 2000). In determining whether
there is “adequate evidence” to support the “serious action” of suspension, the suspending official
must consider “how much information is available, how credible it is given the circumstances,
whether or not important allegations are corroborated, and what inferences can reasonably be
drawn as a result” and must examine all relevant documents. 2 C.F.R. § 180.705(a). With respect
to the second prong of the test, commonly referred to as “immediate need,” the government must
show there is a “real need for immediate action to protect the public interest,” or a time-sensitive,
“ongoing threat” that necessitates immediate action. See Sloan, 231 F.3d at 17; Inchcape Shipping
Servs, at *6 (finding that the absence of an ongoing threat, as evidenced by significant time gap
between suspension and underlying conduct, showed that there was no immediate need justifying
the suspension and thus it was improperly punitive, rather than protective). As discussed in further
detail below, FHWA has failed to meet the second prong of a prima facie case for suspension.3

3

Although Plaintiffs do not believe the FHWA has met the “adequate evidence” prong to
support a suspension, for purposes of this Motion, Plaintiffs focus on the more egregious
inadequacy: the failure to demonstrate the need for “immediate action.”
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B.

FHWA Fails to Demonstrate the Need for Immediate Action

As a matter of law, FHWA’s Notice fails to make a prima facie case for suspension because
it completely glosses over the “immediate action” prong of the test. While the memorandum in
support of the Notice devotes several pages to copying findings from the NTSB Report (and
embellishing them as though the intent of Figg was evident and supported by the record
information, which it was not), it offers only a single paragraph in support of a need for “immediate
action.” See Memorandum in Support of Suspension and Proposed Debarment (“Memorandum”),
at 19. The crux of the Agency’s “immediate action” reasoning boils down to a single sentence at
the end of the paragraph: “since FIGG and Mr. Pate could work on government projects in the
future, I find immediate action is necessary to protect the public interest and preserve the integrity
of future Government contracts.” Id. (emphasis added).
The FHWA’s overbroad reasoning essentially reads the “immediate action” prong out of
the regulations. Indeed, the FHWA’s reasoning would equate the second prong of a prima facie
case for suspension with the most basic threshold jurisdictional question of whether a suspension
and/or debarment action should even be considered in the first instance under the Common Rule
(2 C.F.R. Part 180).4 The Rule obviously only applies to recipients or contracting parties who
work on federally-funded projects and “could” receive such awards. Thus, by equating the
“immediate need” prong to the notion that the party “could” receive a federal award, the Agency
is saying that there is a basis to suspend every party that meets the first prong (adequate evidence),
since all parties considered for a suspension or debarment action, inherently “could” receive a

4

“[A]n exclusion under this part, a Federal agency may exclude any person who has been,
is, or may reasonably be expected to be a participant or principal in a covered transaction.” 2
C.F.R. § 180.150; see also 48 C.F.R. § 9.403 (“Directly or indirectly (e.g., through an affiliate),
submits offers for or is awarded, or reasonably may be expected to submit offers for or be awarded,
a Government contract,”).
20

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federal award. In essence, FHWA says: “FIGG must be immediately suspended from receiving
federally-funded awards because it might receive federally-funded awards.”

The flimsy

justification is a thinly-veiled attempt to do precisely what the Rule aims to prevent – punish an
entity for alleged past actions that have no bearing on the need for immediate action. This
backward-focused analysis was roundly rejected in Sloan as “specious” reasoning that “ignore[d]
the requirement that there must be a real need for immediate action to protect the public interest
in order to justify a suspension.” Sloan, 231 F.3d at 17 (emphasis added).
Other cases interpreting the “immediate action” prong of the government’s case for a
suspension have repeatedly held that a time gap between the underlying conduct and the sanction
can be strong evidence that there is no “immediate need” and no “immediate action” is necessary
to protect the government’s interest, and thus the suspension is invalid. This principle comports
with both the plain language of the regulations and common sense: if immediate action is
“necessary” – i.e., is critical – to protect the public interest, then, by its very nature, such
“immediate” action should have been taken as quickly as possible – very soon after the agency
becomes aware of the underlying conduct. There is ample precedent for overturning suspensions
where the agency’s actions run counter to this common-sense principle.
For example, in Lion Raisins, a contractor challenged a one-year suspension that was
imposed because the contractor had allegedly falsified three USDA certificates. Lion Raisins, 51
Fed. Cl. at 238. The agency knew of the company’s conduct in May of 1999, but did not suspend
the contractor until January 2001, and awarded the plaintiff five contracts in the interim. Id. at
247-48. The court rejected the agency’s argument that this delay was necessary due to the
pendency of other government investigations and held that USDA could not reasonably claim that

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there was an “immediate need” to suspend the contractor when it waited so long to do so and
awarded contracts to it in the interim. Id.
More recently, in 2014, the U.S. Court of Federal Claims followed similar reasoning to
grant a contractor’s temporary restraining order lifting a suspension in the case of Inchcape
Shipping Servs. Holdings v. United States. In Inchcape, a contractor who provided shipping
services for the U.S. Navy discovered overpayments from the government after conducting an
internal financial audit in March 2008. Inchcape, at *2. Despite knowing of the overpayments,
Inchcape did not disclose them to the government until it was ordered by the United States District
Court for the District of Columbia to provide the audit report to the government in November
2012. Id. Approximately one year later, in November 2013, the agency suspended Inchcape. Id.
On review, the Court held that the time delay between the government’s awareness of Inchcape’s
actions and the suspension “casts serious doubt on the government’s claim that immediate action
was necessary.” Id. at *6. After reiterating the suspension\debarment regime’s focus on present
responsibility and prohibition on punitive actions, the Court found:
It is not clear that there is any evidence of an ongoing threat against which the
Government needed to be protected. There is no explanation in the record as to
why this matter became an emergency in November 2013. As such, even though
the SDO stated that her findings affected Inchcape’s present responsibility, the
suspension looks much more like a punishment than a protective measure.
Id. at *6-7. See also Sloan, 231 F.3d at 17 (emphasizing that the regulations require a “real need
for immediate action to protect the public interest in order to justify a suspension” and holding
that where plaintiff’s improper disposal of debris under a HUD contract had ceased years prior,
before the issuance of the suspension, the agency’s suspension improperly relied on past actions
without any colorable assertion of immediacy) (emphasis in original).

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In this case, FHWA’s Notice suffers from the same fatal immediacy-related flaws as the
suspensions that were overturned in Inchcape, Lion Raisins, and Sloan. Most significantly, the
key dates in this matter demonstrate that there is no need for “immediate action” to protect the
government interest, notwithstanding FHWA’s conclusory assertions to the contrary. These key
dates here are as follows:









March 15, 2018 – The incident underlying this matter – the FIU pedestrian bridge accident
– occurs;
November 15, 2018 – A preliminary investigative update issued by NTSB alleges
essentially the same design flaws as were ultimately highlighted by the final report, thus
putting FHWA on notice of these alleged issues as early as 22 months ago;5
July 2019 – OSHA issues its report regarding the incident;6
September 12, 2019 – FHWA submits its view to the NTSB on the FIU pedestrian bridge
construction accident;7
October 22, 2019 – The NTSB issues its report regarding the incident;8
October 2019 through January 2020 – FIGG repeatedly (to no avail) requests an
opportunity to meet with FHWA to discuss its submission to NTSB and alleged findings;
June 1, 2020 – FHWA presents at the 2020 Annual Meeting of the AASHTO Committee
on Bridges and Structures, claiming FIGG was the probable cause of the action; and
July 14, 2020 – Nearly nine months after the NTSB report and 20 months after the alleged
findings were known to FHWA, it issues its Notice to Figg and Mr. Pate.
As this brief timeline shows, a substantial gap exists between FHWA becoming aware of

the essential facts and its decision to suspend Figg. The incident giving rise to this matter occurred

5

National Transportation Safety Board, Investigation Update – Collapse of Pedestrian
Bridge
Under
Construction
Miami,
FL
(Nov.
15,
2018),
available
at
https://www.ntsb.gov/investigations/AccidentReports/Reports/HWY18MH009-investigativeupdate2.pdf.
6
OSHA’s report was created without the review and input of the parties involved in the FIU
pedestrian bridge project and is disputed by the facts and sound engineering evidence.
Additionally, Figg has not agreed to the fines and other parties have also contested OSHA’s
findings along with Figg.
7
The FHWA submission to NTSB did not follow the traditional transparency protocol
employed by NTSB, was not subject to input from industry, and is also disputed. In fact, after
numerous requests, FHWA has continually refused to discuss its submission and alleged findings
with FIGG.
8
The forensic analysis performed by outside engineering firm WJE refutes the NTSB
Report’s conclusions.
23

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approximately two and a half years ago. If the government truly believed that allowing any of the
parties involved with this project to continue working on other federally-funded infrastructure
projects posed an imminent threat to the federal interest or public safety, it could have and should
have taken action “immediately” after the incident or after the alleged support for the instant
suspension came to light. Even if the government was waiting to take action until the OSHA and
NTSB investigations were complete, the appropriate time to impose a suspension would have been
late summer of 2019 (if relying on the OSHA report), or, at the latest, shortly thereafter when the
NTSB report was released (October 2019). The delay is particularly egregious given that publiclyreleased investigation updates from NTSB indicated initial determinations of negligence and
responsibility approximately a year before the report was finalized, and thus 20 months before
FHWA issued its Notice. Finally, nearly two months prior to the suspension, FHWA was claiming
during presentation that Figg was to blame, yet, still no action taken. As in Inchcape, the timing
of FHWA’s action “casts serious doubt on the government’s claim that immediate action was
necessary.” See Inchcape, at *6. As a matter of common sense, it is difficult to credibly claim
that one must take “immediate” action when the action was not, in fact, taken immediately.
Moreover, in the intervening years between the incident and the instant letter, FWHA
indicated its belief in Figg’s present responsibility by selecting its team for a project to perform a
load rating of the Natchez Trace Parkway Arches, a signature bridge that Figg designed for FHWA
approximately 25 years ago. This contract was awarded in September of 2018 to Figg’s team
(after the March 15, 2018 incident), which included Short Elliot Hendrickson as the prime
consultant and FIGG as the subconsultant to perform a load rating of the bridge.9 In 2019, Figg
was also retained on a federally-funded project for the Montana Department of Transportation to

9

See Natchez Trace Parkway Project, Contract Number DTFH71-15-D-00004.
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study a new highway alignment for Bad Rock Canyon. On the Bad Rock Canyon project, Figg’s
team includes Kadrmas, Lee and Jackson the primary engineer, with Figg providing the conceptual
bridge design for the study.10 These are hardly the actions of an agency concerned that Figg’s
participation would create an imminent risk to the federal interest or public health or safety. Courts
have held that suspensions are arbitrary when projects are awarded to contractors in the intervening
time period between the time when the underlying conduct arose and the imposition of the
suspension. See Lion Raisins 51 Fed. Cl. at 247-49 (holding that the agency acted arbitrarily when
it found the contractor both responsible [via the award of new contracts] and not responsible based
on the same evidence).
Ultimately, if this matter was the type of public safety emergency that FHWA now
conveniently claims, FHWA would have issued the Notice as soon as soon as it knew of the
reports’ conclusions, which, based on record evidence was many months and even a year or more
prior. That FHWA took so long to impose this suspension suggests that this action is less about
Figg’s present responsibility or “ongoing threats” to the public interest – the appropriate focus of
suspensions and debarments, see Inchcape – and more about punishing Figg for standing up for
its hard-earned and unblemished reputation by disagreeing with findings that were made without
due process and which asserted forensically-disproven conclusions.
In comments to the media following its July 14 Notice, FHWA stated that the Suspensions
were based on “the interest of protecting public safety.” See https://www.enr.com/articles/49821us-dot-proposes-10-year-ban-of-contract-awards-to-design-firm-figg.

Yet,

the

Agency’s

memorandum explaining its rationale lacks any justification of “immediate need” based on
safety. If safety were the actual basis of the decision, most assuredly, the FHWA would have

10

See Bad Rock Canyon Study, MDT Contract Number 110616.
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suspended Plaintiffs immediately after receiving the NTSB report. They did not. In addition, the
Agency maintains a strict and justified policy that if officials determine that a bridge is unsafe,
they close it to traffic immediately. If FHWA believed that Figg bridge designs were inherently
unsafe, they could have shut down all those facilities across the interstate system and
beyond. They could have ordered immediate mass inspections of all bridges designed by
Figg. The FHWA did none of those things. In this case, FHWA appears to be truly upset that
Figg did not “accept responsibility” for the accident and instead stood up for its work and
reputation following the NTSB report. Why else would a simple advertisement for Figg’s bridges
be viewed as an “aggravating circumstance” supporting the draconian 10-year proposed
debarment? Safety is the number one priority for the entire transportation industry. But it is most
definitely not the basis for the challenged Agency action before the court. Alternatively, or in
conjunction, given the fact that the United States Department of Transportation’s Office of
Inspector General issued a letter to Congress, just days after the imposition of the suspension and
proposed debarment, raises serious suspicion that the agency was tagging Figg and Mr. Pate as
political “scapegoats” for this tragic accident.11
C.

Additional Circumstances Surrounding FHWA’s Actions Suggest a Punitive
Motive.

In addition to the legally insufficient basis for the suspension, Figg further notes other
aspects of this matter that suggest that FHWA improperly used the suspension and debarment
program as a vehicle for punishment rather than a means of protecting the Government’s interest.

11

See also Letter from USDOT Office of Inspector General to U.S. House of Representatives,
Subcommittee on Transportation, Housing, and Urban Development, and Related Agencies (Jul.
20,
2020)
at
3,
available
at:
https://www.oig.dot.gov/sites/default/files/DOT%20OIG%20Correspondence%20%20Firms%20Involved%20with%20the%20FIU%20Pedestrian%20Bridge%5E07-20-2020.pdf
(last visited on August 9, 2020).
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First, the ten-year length of the proposed debarment in a fact-based situation (i.e., without a
conviction or plea) – more than 3 times the standard period for a debarment – shows that the
Agency has no interest in understanding the present responsibility of Figg and Mr. Pate but rather
intends to put Figg out of business and put an end to Mr. Pate’s career. See 2 C.F.R. 180.865
(“Generally, debarment should not exceed 3 years.”). Second, in spite of findings in the NTSB
report that many parties involved in the FIU bridge project other than Figg and Mr. Pate may have
contributed to the bridge construction accident, none of these parties have been suspended or
proposed for debarment.12 Clearly these contractors, like Figg, could receive federal-funded
government contracts in the future as well. By FHWA’s logic – relying solely on the NTSB
report’s findings for factual basis and equating immediate need with the possibility of working on
future projects – those contractors should have been suspended as well. This disparate treatment,
considered in conjunction with the excessive length of debarment, strongly suggests that FHWA
is “making an example” of Figg and Mr. Pate, which, again, is not the purpose of the suspension
and debarment program.
III.

Plaintiffs Will Suffer Irreparable Harm If An Injunction Is Not Issued
To demonstrate irreparable harm, a party must show that the harm is “certain and great,

actual and not theoretical, and so imminent that there is a clear and present need for equitable relief
to prevent irreparable harm.” League of Women Voters of the U.S., 838 F.3d 1, 7-8 (D.C. Cir.
2016) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir.
2006) abrogation on other grounds recognized by Seeger v. U.S. Dept. of Defense, No. 17–639,

12

During a July 30, 2020 video conference between counsel for FIGG and FHWA, the
agency confirmed that no other parties involved in the FIU bridge collapse had been suspended or
proposed for debarment.
27

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2018WL 1568883, at *8 (D.D.C. Mar. 30, 2018)). Here, Plaintiffs have established three,
independent reasons they meet the irreparable harm element required for an injunction.
A.

Plaintiffs’ Harm is Irreparable Per Se

The harm Plaintiffs suffer on account of the Suspensions is irreparable per se because the
government cannot be made to pay damages to redress Plaintiffs. Feinerman v. Bernardi, 558 F.
Supp. 2d 36, 51 (D.D.C. 2008); see also Sottera, Inc. v. FDA, 627 F.3d 891, 898 (D.C. Cir. 2010).
Typically, the repayment or “payment of money is not considered irreparable, . . . because money
can usually be recovered from the person to whom it is paid.” Philip Morris USA Inc. v. Scott,
131 S. Ct. 1, 4 (2010) (Scalia, J., in chambers). “If, [however,] expenditures cannot be recouped,
the resulting loss may be irreparable.” Id; see, e.g., World Duty Free Americas, Inc. v. Summers,
94 F. Supp. 2d 61, 67 (D.D.C. 2000) (court found that plaintiff’s lost sales which may not be
recouped amounted to irreparable harm).
Although monetary loss, in and of itself, generally does not constitute irreparable harm,
Wisconsin Gas Co. v. F.E.R.C., 758 F.2d 669, 674 (D.C. Cir. 1985), here the damage caused to
Plaintiffs is irreparable because it cannot be recovered from the government Defendants. That
Plaintiffs stand to suffer harm that irreparable per se is, on its own, sufficient to meet the
irreparable harm standard.
B.

Plaintiffs’ Harm Is Irreparable Because their Business Will Cease To Exist
and They are Deprived of the Ability to Compete on Contracts

It is also well-settled in this Circuit that “economic harm rises to the level of irreparable
harm where it threatens the ‘very existence of [a] business[.]’” Patriot, Inc. v. United States HUD,
963 F. Supp. 1, 5 (D.D.C. 1997) (quoting Wisconsin Gas,758 F.2d at 674)). Moreover, the Court
of Federal Claims has held that a lost opportunity to compete on contracts constitutes irreparable
harm. See Inchcape, 2014 U.S. Claims LEXIS 1570 at *7-8; Cardinal Maint. Serv., Inc. v. United
28

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States, 63 Fed. Cl. 98, 110 (2004) (“It is well settled that a party suffers irreparable injury when it
loses the opportunity to compete on a level playing field with other bidders.”); CW Gov’t
Travel,Inc. v. United States, 110 Fed. Cl. 462, 494 (2013) (“The Court of Federal Claims has
repeatedly held that a protester suffers irreparable harm if it is deprived of the opportunity to
compete fairly for a contract.”).
As set forth in detail in the attached declarations of Linda Figg, CEO of Figg, and William
Pate, Plaintiffs have shown how the Suspensions cause a certain threat to the very existence of the
business (Figg) and the destruction of an individual’s 40-year career (Pate). Moreover, as reflected
in Ms. Figg’s declaration, the inability of Figg to compete fairly for upcoming contracts will no
doubt cause additional irreparable harm to the Company.
Ms. Figg explains that the Suspension and associated publicity have “severely damaged
FIGG’s business with tangible and wide-ranging impacts on the company’s bottom line.” (Figg
Decl. ¶ 16). Since Figg relies heavily on projects that receive federal funding, FHWA’s action
banning Figg from working on such projects “threatens the very existence of [the] company.”
(Figg Decl. ¶ 32). Absent an injunction, the Company fears that it will not survive. Since the
Suspension was imposed, Figg has lost existing contracts from state partners, suffered reputational
harm, and cannot pursue the many new contract opportunities it was planning to submit bids for
in the near and longer-term future.
Termination of Existing Contracts. Figg has been told that previously-approved contract
services are being put on hold, or that it is likely to lose existing contracts as a result of the
Suspension. (Figg Decl. ¶ 17).


On July 14, 2020, the same day as FHWA’s Suspension was posted to the SAM system,
the Maine Department of Transportation notified Figg that, because of the Suspension, it

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was putting its contract with Figg on hold. (Figg Decl. ¶ 18). Projected revenue for the
project was approximately $800,000. Id.


Since July 15, 2020, Ms. Figg has been in communication with officials from the Harris
County Toll Road Authority (HCTRA) regarding the effect of the Suspension on Figg’s
ongoing contract with HCTRA for on-site field services and design support that, as of July
12, 2020, has a remaining value of approximately $3,821,000. (Figg Decl. ¶ 19). The
HCTRA has concerns about supporting Figg’s services because of FHWA’s challenge to
Figg’s “honesty and integrity” as described in the federal SAM posting. (Figg Decl. ¶ 20).
At a meeting on Tuesday, August 11, 2020, the Harris County Commissioners Court will
discuss a recommendation to terminate Figg’s contract with HCTRA. (Figg Decl. ¶ 22).
Currently, the HCTRA contract is worth approximately $520,000 per month –
approximately 42% of Figg’s total revenue. (Figg Decl. ¶ 23).



On July 29, 2020, the South Dakota Department of Transportation notified Figg that it was
suspending an existing agreement with Figg for professional services because of the
FHWA Suspension. (Figg Decl. ¶ 24).
Elimination of Opportunities for Future Federally-Funded Contracts. In addition to losing

existing contracts, Figg cannot pursue new federally-funded opportunities while the Suspension is
in place. Several bidding teams of which Figg was a part have already been dissolved because of
the Suspension. (Figg Decl. ¶ 26). Figg will also be unable to pursue and develop a proposing
team, or continue discussions with existing partners for numerous projects with RFQ and RFP
submission deadlines in the next 120 days. (Figg Decl. ¶ 26). These projects are collectively
worth almost $100 million in total contract value. (Figg Decl. Exhibit A, at 1-2). In addition to
these immediately-jeopardized projects, Figg is also effectively eliminated from consideration for

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many longer-term projects on which it was intending to bid. (Figg Decl. ¶¶ 27, 28). Figg will also
have difficulty securing contracts even further in the future, because it will have always to answer
in the affirmative when the sponsoring agency asks – as it typically does (and is often required to
do) in the bidding process – whether a bidding party has ever been suspended or proposed for
debarment. (Figg Decl. ¶ 28).
In sum, the wide-ranging consequences of FHWA’s action have threatened the very
existence of the company. (Figg Decl. ¶ 32). Without the current revenue from existing clients
who have put on hold or terminated work, and without the prospect of being able to participate in
submissions for future work, Figg will not be able to meet basic financial obligations such as
employee payroll, health benefits, rental payments, property taxes and other day-to-day expenses.
(Figg Decl. ¶ 34). The consequences of FHWA’s Suspension will be particularly hard to bear
during the COVID-19 pandemic, which has damaged state revenue, and thus made federal funding
even more important. (Figg Decl. ¶ 33). Beginning this month, Figg will be forced to begin laying
off some of the talented men and women who work for the company. (Figg Decl. ¶ 34).
The immediate financial and reputational harm caused by the Suspensions poses a real and
imminent threat to the very existence of the Company. (Figg Decl. ¶ 35). In fact, Figg Bridge
Engineers, Inc. will likely not survive if the Suspension is not lifted in the very short term. Id.
The consequences from FHWA’s Suspension will be just as devastating for Mr. Pate. As
detailed in his declaration, attached hereto as Exhibit G, Mr. Pate has spent his entire career with
Figg-family companies and has worked almost exclusively on bridge projects during his tenure
with Figg. (Pate Decl. ¶¶ 4, 5). As a result, he has heavily specialized in bridge engineering – it
is his “only source of work experience” and he has done “essentially nothing else in [his] 40-year
career.” (Pate Decl. ¶ 14). All bridge engineering firms like Figg rely heavily on projects that

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use federal funding. (Pate Decl. ¶ 11). If the Suspension were kept in place, Mr. Pate would thus
be ineligible to work on projects which comprise the bulk of all work in his highly-specialized
field. Even if Mr. Pate left Figg, he fears that no other engineering firm could afford to hire him
while he remains suspended or proposed for debarment because it is unlikely that there would be
enough non-federal funding to cover his salary. (Pate Decl. ¶ 12). In short, a suspension would
“completely end” his engineering career. (Pate Decl. ¶ 13).
C.

Plaintiffs Have Suffered Reputational Harm From FHWA’s Suspension

Finally, Plaintiffs continue to be irreparably harmed from FHWA’s actions due to the
negative impact on their business reputations. See Beacon Assocs., Inc. v. Apprio, Inc., 308 F.
Supp. 3d 277, 288 (D.D.C. 2018) (finding plaintiff made a strong showing of likely irreparable
harm due to its “reputational injuries”); Patriot, 963 F. Supp. at 5 (noting that the “plaintiffs have
demonstrated irreparable harm in damage to their business reputation”); see, e.g., Alf v. Donley,
666 F. Supp. 2d 60, 70 (D.D.C. 2009), vacated on other grounds (Dec. 13, 2010) (holding that
CEO’s declaration regarding damage to business reputation and negative stigma associated with
his debarment provided proof of irreparable harm);
In addition to the harm outlined above, since the date of the suspension, Figg has received
substantial negative publicity for FHWA’s action that has harmed Figg’s reputation. (Figg Decl.
¶ 29). This has been particularly true in the engineering and construction trade press – for example,
negative articles have been published in “Road & Bridges,” “Engineering News Record,” and
“Constructive Drive.” (Figg Decl. ¶¶ 29, 30). Negative publicity in these publications is especially
damaging to Figg because they are widely read within the industry. (Figg Decl. ¶ 29). As a result
of the negative attention Figg has received since FHWA’s suspension, Figg has been prevented
from creating and\or participating in teams for any future federally-funded projects, making it
virtually impossible for the company to obtain any work. (Figg Decl. ¶ 31).
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In short, the harm from the Suspensions is not theoretical or harm from which Plaintiffs
could recover. It is real, it is great, and it is imminent.
IV.

The Balance of the Equities Weighs in Plaintiffs’ Favor
In determining whether to allow injunctive relief, the Court “must balance the competing

claims of injury and must consider the effect on each party of the granting or withholding of the
requested relief.” Winter, 129 S.Ct. at 376 (quoting Amoco Prod. Co. v. Gambell, 480 U.S. 531,
542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)).
This is not a close case. The balance of harms and equities weighs heavily in favor of
granting an injunction. As set forth above and in Plaintiffs’ declarations, absent an injunction,
Plaintiffs stand to suffer irreparable catastrophic harm to Figg’s business and Pate’s career.
Neither the financial nor reputational harm Plaintiffs suffer is reversible.
In contrast, the FHWA faces little, if any, harm if an injunction is issued. Specifically, the
FHWA’s only stated basis for an immediate need of a suspension is that Plaintiffs could be
awarded contracts in the future. FHWA does not point to any specific harm that it will suffer or a
specific contract about which it is concerned. Indeed, the alleged harm to the Agency is nowhere
near the crippling harm Plaintiffs are facing if an injunction is not issued. See Inchcape Shipping
Servs. Holdings Ltd. v. United States, No. 13-953 C, 2014 WL 12838793, at *3 (Fed. Cl. Jan. 2,
2014) (granting preliminary injunction and holding that “the government risks only a short delay
in suspending [Plaintiff]”). Given that the government can point to no harm, if any injury, during
the course of a fact-finding inquiry, whereas Plaintiffs will face the ongoing substantial and
irreparable harm, the balance of equities tips in Plaintiffs’ favor.
V.

Granting Plaintiffs Preliminary Relief is in the Public Interest
An injunction in this case is also in the public interest for a number of reasons. As an initial

matter, “[t]he public interest is served when administrative agencies comply with their obligations
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under the APA.” N. Mariana Islands v. United States, 686 F. Supp. 2d 7, 21 (D.D.C. 2009).
Indeed, one of those obligations is ensuring “that the government’s suspension and debarment
process is administered in a fair manner.” Inchcape, No. 13-953 C, 2014 WL 12838793, at *3.
Moreover, the public interest would be served in issuing an injunction lifting Plaintiffs’ suspension
because this would ensure that the government only issues suspensions when there is adequate
evidence to do so, there is an immediate need to protect the public interest, and that the sanction
is not being imposed as a punitive measure opposed to its lawful origin as a protective measure.
Issuing Plaintiffs’ injunctive relief request would not only serve the public interest in the fair
administration of the suspension process, but it would help deter the government from further APA
violations.
Thus, the public interest weighs in favor of granting Plaintiffs the injunctive relief they
seek.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court grant their Motion.

Dated: August 11, 2020

Respectfully Submitted,
/s/ Moxila A. Upadhyaya
Moxila A. Upadhyaya (D.C. Bar No. 494373)
Fred R. Wagner (D.C. Bar No. 416009
Dismas N. Locaria (D.C. Bar No. 490096)*
VENABLE LLP
600 Massachusetts Avenue, NW
Washington, D.C. 20001
Tel: (202) 344-4000
Fax: (202) 344-4300
MAUpadhyaya@venable.com
FRWagner@venable.com
DLocaria@venable.com
Counsel for Plaintiffs
*pro hac vice motion forthcoming
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CERTIFICATE OF SERVICE
I hereby certify that on this 11th day of August, 2020, a copy of the foregoing was served
on counsel for Defendants as follows:
Adrienne E. Camire, Esq. (by hand delivery and e-mail)
Lisa MacPhee, Esq. (by e-mail only)
David Sett, Esq. (by e-mail only)
Office of Chief Counsel
Federal Highway Administration
1200 New Jersey Ave. SE
Room E82-328
Washington, DC 20590
Adrienne.Camire@dot.gov
Lisa.MacPhee@dot.gov
David.Sett@dot.gov
/s/ Moxila A. Upadhyaya
Moxila A. Upadhyaya

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