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`No. 20-1057
`In the Supreme Court of the United States
`ORACLE AMERICA, INC.,
`PETITIONER,
`v.
`UNITED STATES AND AMAZON WEB SERVICES, INC.
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`REPLY BRIEF FOR PETITIONER
`
`R. REEVES ANDERSON
`ARNOLD & PORTER
`KAYE SCHOLER LLP
`1144 Fifteenth Street
`Suite 3100
`Denver, CO 80202
`(303) 863-1000
`
`
`
`ALLON KEDEM
`Counsel of Record
`CRAIG A. HOLMAN
`SALLY L. PEI
`SEAN A. MIRSKI
`NATHANIEL E. CASTELLANO
`ARNOLD & PORTER
`KAYE SCHOLER LLP
`601 Massachusetts Ave., NW
`Washington, DC 20001
`(202) 942-5000
`allon.kedem@arnoldporter.com
`
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`

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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`Brownback v. King,
`141 S. Ct. 740 (2021) ........................................................... 2
`Godley v. United States,
`5 F.3d 1473 (Fed. Cir. 1993) .............................................. 2
`Long Island Savings Bank, FSB v. United States,
`503 F.3d 1234 (Fed. Cir. 2007).......................................... 2
`United States v. Arthrex, Inc.,
`No. 19-1434 (U.S. June 21, 2021) .................................. 5, 6
`United States v. Mississippi Valley Generating Co.,
`364 U.S. 520 (1961) ..................................................... 1, 2, 3
`Statutes
`18 U.S.C. § 208 ....................................................................... 2
`
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`
`In the Supreme Court of the United States
`
`ORACLE AMERICA, INC., PETITIONER,
`v.
`UNITED STATES AND AMAZON WEB SERVICES, INC.
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`REPLY BRIEF FOR THE PETITIONER
`
`
`Amazon Web Services, Inc.’s brief in opposition underscores
`the need for this Court to grant certiorari to protect fundamental
`separation-of-powers principles. Amazon does not dispute that
`this Court should review the first question presented; nor does
`it deny that the second question presented is timely, important,
`and recurring. Instead, Amazon argues (at 1) that this case is a
`poor vehicle because the conflicts of interest at issue in the
`second QP are “highly fact-bound” and “not outcome-
`determinative.” Three points are worth emphasizing in response.
`1. Oracle’s petition does not ask this Court to decide any
`fact-bound issue. Rather, in evaluating Oracle’s conflict-of-
`interest challenge, the Federal Circuit made two serious legal
`errors.
`First, rather than follow this Court’s holding in United
`States v. Mississippi Valley Generating Co., 364 U.S. 520
`(1961), that a criminal conflict of interest “alone” renders a
`government contract unenforceable, id. at 525, the Federal
`Circuit instead imposed an additional materiality test. See Pet.
`27-28. Second, the Federal Circuit compounded the error by
`deferring to the agency’s own materiality determination, rather
`than deciding the issue itself. See Pet. 29-31. Both of those
`(1)
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`

`2
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`errors are mistakes of law, not fact. Correcting them would
`thus provide great “value in other cases,” AWS Opp. 7,
`especially because these errors are central to the Federal
`Circuit’s approach in every procurement case involving a
`conflict of interest. See, e.g., Long Island Sav. Bank, FSB v.
`United States, 503 F.3d 1234, 1250 (Fed. Cir. 2007); Godley v.
`United States, 5 F.3d 1473, 1476 (Fed. Cir. 1993). Notably,
`Amazon does not defend either aspect of the Federal Circuit’s
`approach.
`Indeed, the supposed “intensely fact-bound” nature of the
`Federal Circuit’s materiality inquiry, AWS Opp. 7, is a reason
`to grant review, not deny it. Oracle’s point is that such an
`inquiry is entirely unnecessary—and inappropriate—under
`Mississippi Valley. And even if this Court were to hold (per
`Oracle’s alternative argument) that the lower courts should
`have conducted a materiality inquiry themselves, rather than
`deferring to a conflicted agency, articulating that governing
`legal principle would complete this Court’s role: The Court
`would presumably remand the case rather than conduct the
`inquiry in the first instance. See Brownback v. King, 141 S. Ct.
`740, 747 n.4 (2021) (“[W]e are a court of review, not of first
`view.”) (citation omitted).
`If anything, this case is remarkable in how cleanly it
`presents the relevant legal questions. Conflict-of-interest cases
`will generally be thorny vehicles because they involve fights
`over the threshold issue of whether the conflict-of-interest
`statute was violated at all. But here, no one disputes that at
`least one Department of Defense employee, Deap Ubhi,
`violated 18 U.S.C. §  208. (It would be hard to argue otherwise,
`given that the Department itself listed Ubhi as having been
`“personally and substantially involved” in the procurement,
`C.A. App. 104,862, which is the test for a Section 208 violation.)
`And, unlike many other government contracting cases, the
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`3
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`contract at issue here is not at risk of being fully performed
`before this Court weighs in, see AWS Opp. 2 n.* (noting
`Amazon’s own active bid protest), and neither the government
`nor Amazon has suggested that their ongoing (but unrelated)
`litigation over the JEDI Cloud contract presents any obstacle
`to this Court’s review.
`2. The question presented is also outcome-determinative.
`Amazon does not dispute that if Mississippi Valley prohibits
`enforcement of a conflicted contract, the disposition of this case
`would change—indeed, such a holding would require reversal
`of the judgment below. Instead, Amazon merely argues that if
`this Court rejects Oracle’s argument under Mississippi Valley,
`then it would not matter whether primary responsibility for
`conducting the materiality inquiry rested with the lower courts
`or with the conflicted agency. But that is plainly wrong as well.
`See Pet. 31-33.
`As Oracle explained in its reply to the government (at 11),
`both courts below applied a deferential standard in evaluating
`the agency’s determination that its own conflict had not tainted
`the procurement. The Court of Federal Claims agreed that the
`facts were “certainly sufficient to raise eyebrows,” App. 107a,
`and
`it
`found
`some
`of
`the
`contracting
`officer’s
`“characterizations” of those facts to be “a bit generous,” id. at
`110a. It nonetheless explained that “the limited question” was
`“whether any of the actions called out ma[d]e a difference to
`the outcome,” and “in particular, the even narrower question
`before the court is whether the [contracting officer]’s
`conclusion of no impact is reasonable,” id. at 108a (emphasis
`added). Accord ibid. (“We review the [contracting officer]’s
`determinations for a rational basis”). The court then applied
`that deferential standard, holding that the contracting officer’s
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`4
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`conclusions were not “irrational,” id. at 112a, “unsatisfactory,”
`id. at 113a, or “objectionable,” id. at 114a.*
`The Federal Circuit’s judgment similarly rested on
`deference. It explained that “[t]he standard for Claims Court
`review of a contracting officer’s decision with regard to a
`conflict of interest is highly deferential,” id. at 26a, and that
`“[a]s the Claims Court explained,” the question was only
`“whether the contracting officer’s conclusion of no impact was
`reasonable,” id. at 27a. “In light of the deferential standard of
`review for contracting officers’ findings regarding conflicts of
`interest,” id. at 35a, the Federal Circuit found “no reversible
`error in the Claims Court’s decision,” id. at 39a. For both courts,
`the deferential standard of review was central to the analysis.
`In arguing that the standard of review did not matter,
`Amazon gestures (at 9) at the government’s misguided
`argument that none of the conflicted employees helped develop
`the minimum security requirements in Gate 1.2. But no court
`has accepted that prejudice argument, see Reply 9-10; and
`
`
`* Amazon suggests (at 9) that the Government Accountability Office
`independently “concluded
`that Mr. Ubhi’s
`involvement was …
`immaterial.” But at the time of the GAO’s review, the extent of Ubhi’s
`misconduct was unknown; the GAO evaluated his involvement under the
`misimpression that Ubhi had stopped working on the JEDI project when
`Amazon contacted him about purchasing a company he previously had
`started, rather than long after his employment negotiations had begun.
`See App. 68a-70a. Following the GAO’s determination, the agency
`received an “unsolicited letter from AWS pointing out that some of the
`information provided by Mr. Ubhi to the agency was false.” Id. at 70a.
`Upon discovering Ubhi’s deceptions, the government then asked the Court
`of Federal Claims for a remand to correct the numerous falsities in the
`record, and the ensuing investigation revealed substantial evidence of
`misconduct that the GAO did not have before it. Id. at 71a-73a. If anything,
`the flawed GAO decision shows why agencies should not be afforded
`deference to police the criminal misconduct of their own members.
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`5
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`indeed, even the government now concedes (at 26) that at least
`one conflicted employee, Ubhi, did have an “impact on the
`development of those requirements.” Amazon attempts to
`minimize the size of that “impact,” but its explanation is
`unpersuasive: Even though final decisions on the gate
`requirements were made after “Ubhi had left DoD,” AWS Opp.
`9, the evidence shows that he influenced early discussions in
`ways that materially impacted those later decisions. See Pet.
`32-33. Amazon seems to think that every agency meeting
`begins with a clean slate, when in reality momentum, consensus
`building, and negotiations are key features of the bureaucratic
`process.
`3. Amazon’s role in these conflicts of interest further
`underscores the importance of this Court’s review. Amazon
`notes (at 4-5) that the three Department of Defense employees
`at issue became conflicted due to their connections to “one of
`the offerors” for the JEDI Cloud contract: One employee had
`previously worked at the “offeror,” another had accepted
`employment at the “offeror,” and Ubhi had done both. What
`Amazon omits is that, in each instance, the unnamed “offeror”
`was none other than Amazon itself.
`involvement are
`its
`Amazon’s efforts to downplay
`understandable. But as the Court of Federal Claims observed,
`“the larger impression left is of a constant gravitational pull on
`agency employees by technology behemoths.” App. 107a. That
`pull is “real,” ibid., and it reflects the unfortunate fact that
`“[p]owerful interests are capable of amassing armies of
`lobbyists and lawyers to influence (and even capture) politically
`accountable bureaucracies.” United States v. Arthrex, Inc., No.
`19-1434 (U.S. June 21, 2021), slip op. 10 (Gorsuch, J., concurring
`in part and dissenting in part) (citation omitted); see id. at 10-
`11 (providing examples of “large technology compan[ies]” that
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`6
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`“rotate” their employees “in and out” of supposedly
`independent agencies).
`This dynamic makes plain the need to protect bedrock
`separation-of-powers principles. “Any suggestion that the
`neutrality and independence the framers guaranteed for courts
`could be replicated within the Executive Branch was never
`more than wishful thinking.” Id. at 10. It is time for this Court
`to banish such wishful thinking, to enforce the statutory
`conflict-of-interest prohibition as Congress wrote it, and to
`reaffirm the judiciary’s critical role in protecting accountability
`and integrity in government contracting.
`CONCLUSION
`The Court should grant the petition.
`
`Respectfully submitted,
`
`R. REEVES ANDERSON
`ARNOLD & PORTER
`KAYE SCHOLER LLP
`1144 Fifteenth Street
`Suite 3100
`Denver, CO 80202
`(303) 863-1000
`
`
`ALLON KEDEM
`Counsel of Record
`CRAIG A. HOLMAN
`SALLY L. PEI
`SEAN A. MIRSKI
`NATHANIEL E. CASTELLANO
`ARNOLD & PORTER
`KAYE SCHOLER LLP
`601 Massachusetts Ave., NW
`Washington, DC 20001
`(202) 942-5000
`allon.kedem@arnoldporter.com
`
`JUNE 2021
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