Haytham: I have been continuing to research a Memo of Points and Authorities that is required to accompany Motion for Injunction in the DC Circuit Court. I have also been thinking about the Complaint. I have attached the injunction cases that I have found and think they may have some influence on rewording the Complaint:
1. Agree we could remove Lisa as a Plaintiff, and reword the Complaint to eliminate referring to her as the Plaintiff. I think I would go another step further and delete the US as a defendant. I think it's enough to sue the VA and CVE. I don't think we have to include the US but want to know what you think.
2. I think I want to clarify that the Complaint is for both injunctive relief and for de novo review of the administrative denial letters. I think we need to make it clear that there is no remedy at law for the damage that Lisa/CSSS have suffered at the hands of the CVE. I also want to add a reference to 28 USC 1361 which explains when a writ for mandamus is appropriate (it's discussed in Nat. Federation for Blind v Spellings.)
3. We need to bring out the point that the administrative process is so flawed that it's pointless to wait any longer for the third and final response to Lisa's latest request for reconsideration because it appears the Agency is just looking for ways to deny her access to BIZNET. (See Gardner and Randolf Sheppard cases attached). The prior denials appear pretextual. Also at some point I think I want to add the statement from CVE's own website admitting that their computers could not handle all the applications they got for VETBIZ under the new regulations, that their system crashed, and they are now in the process of cleaning up the mess. In the meantime, everybody just got de-listed, most likely by mistake, but they have not corrected all the mistaken de-listings, such as what happened to CSSS.net. Consequently, they appear to be looking for reasons to deny CSSS access to VETBIZ to justify their prior mistake.
4. We might want to try a Constitutional Claim (denial of property right without due process of law) because the BIZNET status was removed without the appropriate notice required by the VA's own regulations. The question will become whether anybody has a property right in being listed as a SDVOSB. I haven't researched this, but noticed a similar argument made without success in the Randolf Sheppard case at page 15.
5. I don't know if this is just too much, but I want to further emphasize that the Public Law that created VETBIZ and the regulations that implement it contain safeguards to prevent the unscrupulous from masquerading as service disabled vets in order to get "easy" access to government contracting partners. My point would be that if they de-list someone who has been previously listed, there is at least an intimation that there has been fraudulent behavior. I am considering that this insinuation is potentially libellous.
I also agree with you that working on trial prep has to take priority over this lawsuit. I will keep working on this (have the motion/memo of points and authorities mostly drafted), but I am wondering what Lisa's expectations are as to when we are going to file this. I think it's a pretty complicated set of legal issues and want to make sure we are on the same page before anything goes out. Maybe it has to wait till Wuterich is over??
Mary Jo Provenzano
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