REASSESSING THE ROLE OF THE REILLY'S WHOLESALE FACTORS IN OVERRIDE PROTESTS FOLLOWING THE FEDERAL CIRCUIT'S DECISION IN SAFEGUARD BASE OPERATIONS

After Judge Allegra set forth factors that agencies should consider when overriding stays in Reilly's Wholesale Produce v. United States, a split in authority formed in the United States Court of Federal Claims (COFC): a majority of judges held that an agency must consider the Reilly's Wholesale factors when overriding a stay, while others concluded that the Reilly's Wholesale factors should not be considered at all. In a recent appeal, the United States Court of Appeals for the Federal Circuit had the opportunity to resolve this long-standing split. While the Federal Circuit dismissed the appeal as moot, the Court briefly addressed the Reilly's Wholesale factors, indicating that the COFC's focus in evaluating an agency's override decision should be on whether the decision had a rational basis. This guidance sets up another split regarding whether or not the Reilly's Wholesale factors should be used as an "analytical tool" for evaluating override determinations. While the COFC should continue to use the Reilly's Wholesale factors as a non-binding guide to evaluating agency override decisions premised on urgent and compelling circumstances, the factors overstate the requirements for overrides premised on the best interests of the United States.