`
`
`
`
`
`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
`
`SUPPLEMENTAL 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
`
`
`
`
`
`
`
`
`
`

`

`
`
`TABLE OF CONTENTS
`
`Page
`
`BACKGROUND ............................................................................. 2 
`DISCUSSION ................................................................................. 5 
`CONCLUSION ............................................................................. 12 
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`

`

`
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`Already, LLC v. Nike, Inc.,
`568 U.S. 85 (2013) ................................................. 1, 5, 6, 10
`Amazon Web Services, Inc. v. United States,
`147 Fed. Cl. 146 (2020) ...................................................... 3
`Azar v. Garza,
`138 S. Ct. 1790 (2018) ....................................................... 11
`Kingdomware Techs., Inc. v. United States,
`136 S. Ct. 1969 (2016) ......................................................... 9
`Knox v. Serv. Emps. Int’l Union, Loc. 1000,
`567 U.S. 298 (2012) ............................................................. 5
`Ne. Fla. Chapter of Associated Gen. Contractors of
`Am. v. City of Jacksonville,
`508 U.S. 656 (1993) ............................................................. 9
`New York State Rifle & Pistol Ass’n, Inc. v.
`City of New York,
`140 S. Ct. 1525 (2020) .................................................. 10-11
`Relyant Glob., LLC v. United States,
`No. 20-1526, 2021 WL 831142
`(Fed. Cir. Feb. 1, 2021) .................................................... 11
`United States v. Mississippi Valley Generating Co.,
`364 U.S. 520 (1961) ......................................................... 2, 7
`United States v. Munsingwear, Inc.,
`340 U.S. 36 (1950) ............................................................. 11
`Statutes
`10 U.S.C. § 2304a ................................................................... 6
`18 U.S.C. § 208 ....................................................................... 2
`
`
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`

`

`iv
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`
`
`Other Authorities
`Aaron Gregg, GOP Lawmakers, Citing Pentagon
`Emails, Take Aim at Amazon’s Pursuit of Cloud-
`Computing Business, Wash. Post (July 14, 2021) ......... 7
`C. Todd Lopez, DOD News, DOD Aims for New
`Enterprise-Wide Cloud by 2022 (July 7, 2021) .............. 4
`Department of Defense, Future of the Joint
`Enterprise Defense Infrastructure Cloud Contract
`(July 6, 2021) ....................................................................... 4
`Department of Defense, Required Capabilities
`(July 6, 2021) ....................................................................... 4
`Letter from Sen. Charles E. Grassley, Ranking
`Member, Committee on the Judiciary, to Lloyd J.
`Austin III, Secretary of Defense (June 8, 2021) ............ 7
`Notice of Contract, Joint Warfighting Cloud
`Capability (JWCC) (July 6, 2021) ............................ 3, 6, 8
`
`
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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
`
`SUPPLEMENTAL BRIEF FOR THE PETITIONER
`
`Cases do not become moot simply because a defendant
`issues a press release claiming to have ceased its misconduct.
`Instead, to deprive federal courts of Article III jurisdiction, a
`defendant bears the “formidable burden” of showing not only
`that it has ended the challenged conduct, but also that “it is
`absolutely clear the allegedly wrongful behavior could not
`reasonably be expected to recur.” Already, LLC v. Nike, Inc.,
`568 U.S. 85, 91 (2013) (citation omitted).
`Here, the government asserts that the Department of
`Defense mooted this case by cancelling JEDI, the procurement
`contract that Oracle has challenged. But in the next breath, the
`Department states its intent to replace JEDI with another
`similar cloud-computing contract; to presumptively award the
`contract to Microsoft and respondent Amazon Web Services as
`the “only” eligible competitors; and to exclude other bidders
`based on infected research and requirements drawn directly
`from the challenged procurement. Far from making
`it
`“absolutely clear” that the challenged misconduct will not recur,
`the Department essentially admits the challenged misconduct
`will continue—and will continue to prejudice Oracle.
`
`
`
`
`(1)
`
`

`

`2
`
`Oracle respectfully submits that the government has not
`met its heavy burden of establishing mootness and that Oracle’s
`certiorari petition should be granted. At minimum, this Court
`should hold the petition until the Department of Defense
`establishes that the new procurement does not reproduce the
`legal defects of the old one. But if the Court agrees with the
`government that its voluntary change in behavior has mooted
`this case, then the Court should vacate the decision below and
`remand in accordance with its ordinary practice.
`BACKGROUND
`1. Oracle asks this Court to review the judgment of the
`Federal Circuit, which raises two legal questions relating to the
`JEDI procurement. First, Oracle argues that the Department
`of Defense unlawfully structured the contract as a single-
`source award rather than a multiple-award solicitation. Both
`courts below agreed with that contention, but nevertheless held
`that the contract should remain in place under the doctrine of
`harmless error. The Federal Circuit reasoned that Oracle did
`not meet the contract’s threshold requirements, even though
`the record did not indicate the agency would retain those same
`threshold requirements if forced to restructure the contract as
`a multiple-award solicitation.
`Second, Oracle argues that the JEDI procurement was
`void under this Court’s decision in United States v. Mississippi
`Valley Generating Co., 364 U.S. 520 (1961), because multiple
`employees who worked on the procurement had conflicts of
`interest that violated criminal law. See 18 U.S.C. § 208. The
`courts below did not dispute either the existence of those
`conflicts or the employees’ violation of criminal law. But they
`nevertheless deferred to the agency’s determination that the
`conflicts had not sufficiently “tainted” the contract.
`Separately, Amazon filed its own bid protest after the
`JEDI contract was awarded to Microsoft in October 2019. The
`
`
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`

`3
`
`Court of Federal Claims enjoined the contract award pending
`resolution of Amazon’s suit. See Amazon Web Services, Inc. v.
`United States, 147 Fed. Cl. 146, 150 (2020).
`2. On July 6, 2021, the Department of Defense announced
`it was cancelling JEDI and replacing it with another cloud-
`computing contract, called the Joint Warfighter Cloud
`Capability (JWCC). In
`its official Notice of Contract
`Opportunity, the Department stated it “anticipated” making
`“multiple” awards under JWCC. Notice of Contract, Joint
`Warfighting Cloud Capability (JWCC) (July 6, 2021).1 At the
`same time, however, the Department expressed a specific view
`regarding who those multiple awardees would be. Based on the
`same preexisting “[m]arket research” that infected the JEDI
`procurement challenged in Oracle’s pending petition for
`certiorari, the Department stated that
`it “anticipate[d]
`awarding two [such] contracts—one to Amazon Web Services,
`Inc. (AWS) and one to Microsoft Corporation (Microsoft).”
`Other cloud service providers would not qualify, the
`Department of Defense stated, because only “a limited number
`of sources are capable of meeting the Department’s
`requirements.” Ibid. In particular, “only two of those
`hyperscale [cloud service providers]—AWS and Microsoft—
`appear to be capable of meeting all of the DoD’s requirements
`at this time.” Ibid. The Department again reiterated the point
`in a press release issued the same day:
`
`The Department intends to seek proposals from a limited
`number of sources, namely the Microsoft Corporation
`(Microsoft) and Amazon Web Services (AWS), as available
`market research indicates that these two vendors are the
`
`
`1 https://sam.gov/opp/54ce941a25a14932809b5d83ac52a09a/view.
`
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`4
`
`only Cloud Service Providers (CSPs) capable of meeting
`the Department’s requirements.
`
`Department of Defense, Future of the Joint Enterprise
`Defense Infrastructure Cloud Contract (July 6, 2021).2
`Despite publicly stating its expectation that only Amazon
`and Microsoft would satisfy the requirements for JWCC, the
`Department of Defense did not reveal what those requirements
`would be. Instead, the Department released “a high level
`summation,” promising “[a]dditional details” when it formally
`seeks proposals in October 2021. Department of Defense,
`Required Capabilities (July 6, 2021).3
`The next day, a Defense Department spokesperson
`admitted that the agency had adopted JWCC as a stopgap.
`JWCC will not itself resolve the Department’s cloud-computing
`needs, but only serve as “a bridge to our longer term
`approach.” C. Todd Lopez, DOD News, DOD Aims for New
`Enterprise-Wide Cloud by 2022 (July 7, 2021).4 Unlike JWCC,
`he explained, that “next step” will entail a “full and open,
`competitively awarded multi-vendor contract.” Ibid. He said
`the Department “hopes” to initiate that process “by early
`2025.” Ibid.
`Just two days after the Department of Defense announced
`JEDI’s nominal cancellation, Amazon, Microsoft, and the
`government informed the Court of Federal Claims that they
`had collectively agreed to dismiss Amazon’s bid protest.
`
`
`2 www.defense.gov/Newsroom/Releases/Release/Article/2682992/future-
`of-the-joint-enterprise-defense-infrastructure-cloud-contract.
`3 https://sam.gov/api/prod/opps/v3/opportunities/resources/files/22b16a
`96b6434e518a897adfa5c01e9f/download?&status=archived&token=.
`4 www.defense.gov/Explore/News/Article/Article/2684754/dod-aims-for-
`new-enterprise-wide-cloud-by-2022.
`
`
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`

`5
`
`DISCUSSION
`The government has failed to bear its burden of showing
`that either question presented by this case has become moot
`(much less both of them). Oracle’s petition for a writ of
`certiorari should accordingly be granted. At minimum, the
`government’s mootness argument is premature: This Court
`should hold Oracle’s petition until the Department of Defense
`screens bidders under the JWCC solicitation—or at least
`clarifies its parameters, which the Department anticipates
`doing in October 2021—to establish that JWCC does not simply
`reproduce JEDI’s legal infirmities under a new name. Finally
`and in any event, if the Court concludes that the case has indeed
`become moot as a result of the government’s unilateral actions,
`then the Court should vacate the decision below in accordance
`with its ordinary practice.
`1. In its supplemental brief, the government argues (at 5-
`8) that the Federal Circuit’s judgment became moot when the
`Defense Department cancelled JEDI in favor of JWCC. But
`the government has failed to demonstrate that the questions
`presented by this case no longer implicate a live controversy.
`a. “The voluntary cessation of challenged conduct does not
`ordinarily render a case moot because a dismissal for mootness
`would permit a resumption of the challenged conduct as soon
`as the case is dismissed.” Knox v. Serv. Emps. Int’l Union, Loc.
`1000, 567 U.S. 298, 307 (2012). Instead, the party claiming
`mootness “bears the formidable burden of showing that it is
`absolutely clear the allegedly wrongful behavior could not
`reasonably be expected to recur.” Already, 568 U.S. at 91
`(citation omitted). Here, the government’s showing—based
`largely on press releases issued by the offending agency—falls
`far short of that necessary clarity.
`The first question presented concerns the Federal
`Circuit’s “harmless error” rule, under which JEDI’s unlawful
`
`
`
`
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`

`

`6
`
`single-source award was insulated from judicial review based
`on screening requirements “that only two offerors, [Amazon]
`and Microsoft, could satisfy.” App. 19a. The Department of
`Defense has announced that JWCC, unlike JEDI, could involve
`“multiple” awards. But the Department has already indicated
`that it “anticipates awarding two [such] contracts—one to
`Amazon Web Services, Inc. (AWS) and one to Microsoft
`Corporation (Microsoft).” Ibid. The Department of Defense’s
`own statements accordingly indicate strongly that JWCC is not
`likely to involve the open competition for a multiple-source
`award that Congress mandated, see 10 U.S.C. § 2304a, and that
`Oracle has sought all along. Instead, the Department has taken
`the highly unusual step of declaring (at least presumptively)
`that JWCC will involve a “multiple”-award competition only in
`the sense that the Department has pre-selected two particular
`cloud providers as the winners.
`Worse still, the Department has indicated its expectation
`that other cloud service providers will be excluded based on
`security “requirements” like the ones used to exclude Oracle
`from consideration for JEDI, and later used by the Federal
`Circuit to insulate the challenged procurement from judicial
`review. Notice of Contract Opportunity, supra. The
`Department has thus stated its belief that Amazon and
`Microsoft are the “only two” cloud service providers that are
`“capable of meeting” JWCC’s requirements—even though it
`has yet to announce what those requirements are. Ibid. Far
`from making “absolutely clear” that Oracle will be allowed to
`compete for JWCC free from JEDI’s improper limitations,
`Already, 568 U.S. at 91 (citation omitted), the Department has
`suggested that Oracle will continue to be fenced out from
`consideration based on the same “requirements” underlying
`the Federal Circuit’s harmless-error ruling. App. 12a.
`
`
`
`
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`

`

`7
`
`Thus, even putting aside the troubling timing of the
`Defense Department’s decision
`to cancel JEDI,5
`the
`government has not met its burden to establish that the
`procurement of cloud services is now free of unlawful,
`competition-stifling limitations, or that Oracle will be allowed
`to compete for JWCC on the level playing field that Congress
`envisioned. The government cites no case in this Court in which
`the government’s cancellation of a contract was found to have
`mooted a bid protest under circumstances like these: where the
`relevant agency immediately announced that it would solicit
`bids for a new contract to provide the same services, without
`any guarantee that the basis for the plaintiff ’s challenge to the
`original procurement would not recur.
`The government has similarly failed to show that no live
`controversy remains regarding the second question presented.
`Oracle’s argument is that the JEDI procurement was tainted
`by criminal conflicts of interest that, under this Court’s decision
`in Mississippi Valley, require the procurement to be restarted
`from scratch. See Pet. 25-28. In the alternative, Oracle argues
`that any inquiry into the effect of those conflicts on the
`procurement must be performed by courts, not by the
`conflicted agency. See Pet. 29-31.
`
`
`5 See, e.g., Letter from Sen. Charles E. Grassley, Ranking Member,
`Committee on the Judiciary, to Lloyd J. Austin III, Secretary of Defense
`5 (June 8, 2021) (noting “apparent conflicts of interest regarding the JEDI
`program” and criticizing “the Department’s continued failure to provide
`forthright answers” to congressional inquiries about them), https://www.
`grassley.senate.gov/imo/media/doc/grassley_to_defense_dept.jedicontract.
`pdf; Aaron Gregg, GOP Lawmakers, Citing Pentagon Emails, Take Aim
`at Amazon’s Pursuit of Cloud-Computing Business, Wash. Post (July 14,
`2021) (noting that “newly surfaced Defense Department emails” had led
`lawmakers to “call[] for hearings” on JEDI), https://www.washingtonpost.
`com/business/2021/07/14/jedi-cloud-pentagon-emails-amazon.
`
`
`
`
`
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`

`8
`
`In its supplemental brief, the government argues (at 7-8)
`that the cancellation of JEDI in favor of JWCC means that any
`conflict of interest associated with the former procurement is
`no longer relevant to the latter. In other words, the government
`again purports to judge the taint of its own misconduct. But the
`government has provided no relevant information about JWCC
`that would allow the Court to conclude that the new
`procurement will be untainted by the same illegality. Indeed,
`there are concerning signs that, despite the name change, the
`Department intends for the JWCC procurement to propagate
`JEDI’s unlawful conflicts and to allow Amazon—one of the
`Department’s declared JWCC contractors—to benefit from
`the criminal conduct.
`In its Notice of Contract Opportunity, the Department of
`Defense indicated that it intends to solicit proposals from only
`those service providers that the Department thinks can meet
`its requirements based on existing (i.e., JEDI-related)
`“[m]arket research.” That is a flashing warning sign: The JEDI
`employee with the most serious and pervasive conflicts of
`interest, Deap Ubhi, “was a product manager focused on
`market research.” App. 78a (emphasis added). Ubhi used his
`“market research” to craft parameters used to screen out
`potential bidders, including the requirement used to exclude
`Oracle. See App. 69a, 71a; U.S. Opp. at 26. It is therefore
`especially troubling that the Department has already concluded,
`on the basis of Ubhi’s research, that Amazon—with whom Ubhi
`was negotiating for employment at the time he helped design
`the JEDI procurement, and where he still works—will likely
`win part of the JWCC contract.
`If JWCC’s requirements are based directly or indirectly on
`Ubhi’s conflicted research, then the Department of Defense
`will not have remedied JEDI’s conflicts of interest; it will have
`perpetuated them. At this stage, before JWCC’s specifications
`
`
`
`
`
`

`

`9
`
`have even been announced, the government has not carried its
`burden to demonstrate that the new procurement
`is
`“absolutely certain” to be free of such conflicts. See Ne. Fla.
`Chapter of Associated Gen. Contractors of Am. v. City of
`Jacksonville, 508 U.S. 656, 662 (1993) (“This is an a fortiori
`case. There is no mere risk that Jacksonville will repeat its
`allegedly wrongful conduct; it has already done so.”).
`b. Even where a case would otherwise be moot, courts may
`continue to adjudicate controversies that are “capable of
`repetition, yet evading review.” Kingdomware Techs., Inc. v.
`United States, 136 S. Ct. 1969, 1976 (2016) (citation omitted).
`Such treatment is appropriate “where (1) the challenged action
`is in its duration too short to be fully litigated prior to cessation
`or expiration, and (2) there is a reasonable expectation that the
`same complaining party will be subject to the same action
`again.” Ibid. (cleaned up). The controversy here satisfies both
`of those criteria.
`First, this Court has explained that procurement contracts
`are often “too short to complete judicial review.” Ibid. The
`government asserts (at 8-9) that this principle is inapposite
`here because JEDI was “a long-term procurement … spanning
`up to a decade” and JWCC “anticipates contracts with
`performance periods of up to five years.” But it is now already
`more than three years since the Department of Defense issued
`the JEDI solicitation, App. 60a, and close to another year is
`likely to elapse before this Court has a chance to hear argument
`and decide Oracle’s petition. If Oracle were forced to start
`again with a fresh legal challenge to JWCC, that contract would
`likely be fully or almost fully performed before this Court
`addresses the questions presented—hampering the Court’s
`ability to grant meaningful relief. Indeed, Oracle’s current
`petition is unusual in how cleanly it provides an opportunity for
`review: The JEDI contract has been stayed since February
`
`
`
`
`
`

`

`10
`
`2020. There is no reason to expect the stars to align the same
`way in the future.
`Second, Oracle may reasonably expect to find itself
`confronting identical controversies. The Defense Department
`is determining whether other cloud providers (including
`Oracle) will even be invited to compete for JWCC, or whether
`the Department will instead continue to screen out competitors
`based on Ubhi’s conflicted “market research.” In addition, as
`Oracle observed in its petition (at 20-22), the first question
`presented recurs with regularity in the Federal Circuit, a point
`that neither the government nor Amazon has disputed. See
`Claybrook Amicus Br. 5-7. As a large government contractor,
`Oracle can thus expect to face these issues again soon—
`whether with JWCC or another procurement.
`2. Although the government bears the “formidable
`burden” of establishing mootness, Already, 568 U.S. at 91
`(citation omitted), the Court may decide to wait until the
`Department of Defense has screened bidders for JWCC—or at
`least has issued the solicitation identifying its parameters—
`before acting on Oracle’s certiorari petition. The Department
`has indicated its intention to provide more information in
`October 2021, and the government’s supplemental brief states (at
`2) that “the JWCC solicitation … will be conducted afresh in
`the coming months.” Any question regarding whether Oracle’s
`petition has been mooted by the cancellation of JEDI in favor
`of JWCC can be determined at that point, without prejudicing
`the government in the meantime.
`the
`that
`3. If
`this Court nevertheless concludes
`government has established mootness, the Court should vacate
`the judgment below and order the entire case dismissed. This
`Court’s “[o]rdinary practice in disposing of a case that has
`become moot on appeal is to vacate the judgment with
`directions to dismiss.” New York State Rifle & Pistol Ass’n,
`
`
`
`
`
`

`

`11
`
`Inc. v. City of New York, 140 S. Ct. 1525, 1526 (2020) (citation
`omitted); see United States v. Munsingwear, Inc., 340 U.S. 36,
`39-40 (1950). “One clear example where vacatur is in order is
`when mootness occurs through the unilateral action of the
`party who prevailed in the lower court.” Azar v. Garza, 138 S.
`Ct. 1790, 1792 (2018) (cleaned up). It would thus be appropriate
`to vacate the judgment below under this Court’s “established
`practice.” Ibid. (citation omitted); see Relyant Glob., LLC v.
`United States, No. 20-1526, 2021 WL 831142, at *1 (Fed. Cir.
`Feb. 1, 2021) (applying doctrine where the government
`canceled the challenged contract during appeal).
`The government argues (at 10-11) that “[v]acatur under
`Munsingwear is appropriate only if, among other things, the
`petition for a writ of certiorari would have merited this Court’s
`plenary review had it not become moot.” The government
`supports that heightened standard primarily by citing its own
`briefs; the government does not identify a single decision from
`this Court (or any other) adopting its heightened standard. And
`for good reason: Even in the context of a petition for certiorari,
`“[i]t would certainly be a strange doctrine that would permit a
`plaintiff to obtain a favorable judgment, take voluntary action
`that moots the dispute, and then retain the benefit of the
`judgment.” Garza, 138 S. Ct. at 1792 (citation omitted).
`In any event, this case would qualify for Munsingwear
`vacatur even under the government’s proposed standard. The
`questions presented in this case merit plenary review for the
`reasons stated in Oracle’s prior briefs. The government’s
`supplemental submission offers no additional argument (aside
`from mootness) that Oracle’s petition is unworthy of this
`Court’s review. And indeed, the government has never
`disputed the importance, recurrence, or timeliness of the
`relevant issues.
`
`
`
`
`
`
`

`

`12
`
`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
`
`SEPTEMBER 2021
`
`
`
`
`
`
`