Every v. Department of Veterans Affairs, et al.

2017 DNH 043

• Court: District Court, D. New Hampshire
• Decided: March 6, 2017
• Docket: 15-cv-177-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Every

v. Civil No. 15-cv-177-LM Opinion No. 2017 DNH 043 Department of Veterans Affairs, et al.

O R D E R

Robert Every, proceeding pro se, filed a “Request for

Injunction and Motion to Compel” (doc. no. 1) (the “complaint”),

in which he named the United States Department of Veterans

Affairs (“VA”) and the General Services Administration (“GSA”)

as defendants. Every’s complaint appeared to allege that the VA

is corrupt and lacks effective leadership, and also appeared to

involve a challenge to a bidding process undertaken by the VA to

lease space for a medical facility in Rumford, Maine (the

“Rumford Clinic”). Defendants moved to dismiss the complaint,

and the court granted the motion “without prejudice to Every’s

ability to file an amended complaint setting forth facts

sufficient to state plausible claims against the defendants.”

Doc. no. 15 at 6.

Every filed an amended complaint (doc. no. 17), in which he

adds as defendants five individual employees of the VA and asserts a set of constitutional claims against all of them.1

Every’s claims arise out of alleged actions taken by the VA and

the individual defendants in connection with the VA’s efforts to

lease space for the Rumford Clinic in 2009 and at times

thereafter. Defendants move to dismiss the amended complaint,

asserting that the court lacks subject matter jurisdiction to

hear Every’s claims and, alternatively, that the claims fail on

the merits. Every objects.

Standard of Review

In evaluating a motion to dismiss for lack of subject

matter jurisdiction under Federal Rule of Civil Procedure

12(b)(1), this court must “accept as true all well-pleaded

factual averments in the plaintiff’s complaint and indulge all

reasonable inferences therefrom in his favor.”2 Katz v.

1 The individual employees named as defendants in the amended complaint are Michael Mayo-Smith, Ryan Lilly, Keith Waye, Salvatore Voter, and Edwin Lee. Every does not name the VA, the GSA, or the individual defendants in their official capacities as defendants in the amended complaint. However, he appears to intend to allege the same constitutional claims against the entities and the individual defendants in their official capacities. In light of Every’s pro se status, the court will assume that Every intended to name as defendants in the amended complaint the VA, the GSA, and the individual defendants in their official capacities.

2 The same standard applies to a motion under Federal Rule of Civil Procedure 12(b)(6). See Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir. 2006).

2 Pershing, LLC, 672 F.3d 64, 70 (1st Cir. 2012) (internal

quotation marks and citation omitted). When the court’s

jurisdiction is challenged, as it is here, the burden lies with

the plaintiff, as the party invoking the court’s jurisdiction,

to establish that it extends to his claims. Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

Because Every is proceeding pro se, the court construes his

complaint liberally. See Erickson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam).

Background3

In 2004, the VA began leasing a space for the Rumford

Clinic from Every’s company, Esterhill Boat Service Corporation

(“Esterhill”). The VA and Esterhill entered into a five-year

lease, which expired on December 31, 2009. The Rumford Clinic

is part of the Togus VA Medical Center.

Sometime in 2008, certain VA employees, including defendant

Keith Waye, “the former lead contracting officer for Togus VA

Medical Center, and current contracting officer for the” Small

Business Administration, doc. no. 17 at ¶ 4, and defendant Ryan

Lilly, the Director of the Togus VA Medical Center, decided that

3 The background is taken from the allegations in Every’s amended complaint. See doc. no. 17.

3 they wanted a new facility for the Rumford Clinic after

Esterhill’s lease expired the following year. In early 2009,

Every learned that the VA was targeting the River Valley Tech

Center (“River Valley”) as its new facility for the Rumford

Clinic. Every felt that River Valley was not suitable for the

Rumford Clinic because, for example, it had an unpaved parking

lot that required patients to walk a lengthy distance from the

lot to the clinic.

Every raised these concerns to Lilly and Waye via letters

in July 2009. Every also submitted a Freedom of Information Act

(“FOIA”) request to the Togus VA Medical Center, seeking any

communications reflecting political pressure to move the Rumford

Clinic to River Valley. Although the Togus VA Medical Center

told Every that it did not have any documents responsive to his

FOIA request, Every alleges that he later discovered two emails

showing political pressure to move the Rumford Clinic to River

Valley.

In 2009, the VA advertised a bid for a new facility for the

Rumford Clinic, seeking a lease with a term of five years.

Every, who submitted a bid on behalf of Esterhill in response to

the advertisement, alleges that there were several

irregularities with the bid, the majority, if not all, of which

were designed to punish him and deprive him of an opportunity to

4 win the bid.4 These irregularities include: (1) creating bid

specifications that were unnecessary, such as a much larger

space than needed, in order to exclude Every from the bidding;

(2) changing the bid specifications from a term of five years to

a term of 10 years without re-advertising the bid; (3) rating

Every’s facility differently from all other applicants, which

negatively impacted Every’s bid; and (4) making misleading

characterizations of Every’s conduct during the bidding process.

Feeling that he was being treated unfairly, Every met with

members of the VA, including Waye, “to try to resolve what

[Every] perceived as a very hostile attitude” toward him. Doc.

no. 17 at ¶ 50. Every alleges that at the meeting, Waye said

Waye could handle the bidding process however Waye wanted.

Every alleges that the VA awarded the contract to Federated

Realty, despite Every submitting a more competitive bid. On

September 19, 2009, Every contacted the Secretary of the VA and

requested a change in contracting officers because of concerns

about “the contracting officer’s impartiality and the general

impropriety of the whole [bidding] process.” Id. at ¶ 64.

Every alleges that after he contacted the Secretary, members of

4 Every alleges that the VA views veterans like Every and their companies “as one entity.” Doc. no. 17 at ¶ 11. For simplicity, the court will refer to Every and Esterhill interchangeably in this portion of the factual summary.

5 the Togus VA Medical Center, including the individual

defendants, increased their hostility toward him.

Federated Realty subsequently defaulted on its contract

with the VA, and the VA advertised another bid for the Rumford

Clinic. Every alleges that defendant Salvatore Voter, the

Assistant Contracting Officer, informed Every that he was pre-

disqualified from the bidding process and that the VA would not

be inspecting his facility. Every subsequently made a formal

complaint to Brian Stiller and defendant Michael Mayo-Smith

regarding remarks the VA inspection team allegedly made about

him. Every did not receive a response to his complaint.

Eventually, Every and the VA entered into a one-year

extension on their lease for the Rumford Clinic facility. Every

and the VA have continued to enter into one-year extensions on

their lease for each year from at least 2010-2016.5

Every alleges that he was singled out during the bidding

process “to punish [him] for speaking out and raising issues.”

Doc. no. 17 at ¶ 49. He also alleges that defendants’ actions

denied him “equal opportunity by writing bid specifications that

excluded the plaintiff from an equal opportunity to bid.” Id.

5 It is unclear whether Every and the VA entered into another one-year extension for 2016-2017.

6 at ¶ 14. In addition, Every alleges that defendants denied him

“Due Process by excluding the Plaintiff from the equal

opportunity a bidding process should afford – a deprivation of a

property interest.” Id. at ¶ 16.

Every seeks four forms of relief “[u]nder 42 U.S.C. 1983”:

(1) “compel the VA to erect a firewall between Togus VA Medical

Center and the bid”; (2) “enjoin the VA to stop the current bid

process by Togus VA Medical Center and GSA”; (3) judgment

against the individual defendants in the amount of $1 each; and

(4) “enjoin input into the Rumford . . . Clinic bid by” Lilly,

Voter, Lee, Waye, and Jacqueline Edgecomb.6 Doc. no. 17 at

¶¶ 83-86.

Discussion

Defendants move to dismiss Every’s amended complaint

pursuant to Federal Rule of Civil Procedure 12(b)(1), asserting

a lack of subject matter jurisdiction. Defendants contend, in

the alternative, that even if the court had jurisdiction over

Every’s claims, the amended complaint fails to state plausible

claims for relief.

6Although included in the prayer for relief, Edgecomb is not named as an individual defendant.

7 As the court explained in its order granting defendants’

motion to dismiss Every’s original complaint, the United States

Court of Federal Claims has exclusive jurisdiction to review

an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.

28 U.S.C. § 1491(b)(1); see also Red River Holdings, LLC v.

United States, 87 Fed. Cl. 768, 794 (Fed. Cl. 2009) (“Under [the

Alternative Dispute Resolution Act], district court jurisdiction

provided by 28 U.S.C. § 1491(b)(1) terminated on December 31,

2000, leaving the Court of Federal Claims as the exclusive forum

for bid protests.”). Therefore, all bid claims and challenges

to contract awards against the government must be brought in the

Court of Claims, and this court lacks subject matter

jurisdiction to hear any such claims. See Distrib. Sols., Inc.

v. United States, 539 F.3d 1340, 1344 (Fed. Cir. 2008).

Seeking to avoid this jurisdictional bar, Every’s amended

complaint asserts due process and equal protection claims

against the individual defendants, all of whom are VA employees,

invoking Bivens v. Six Unknown Named Agents of Federal Bureau of

8 Narcotics, 403 U.S. 388 (1971).7 Bivens permits suits for

damages against federal officials in their individual capacity

for violations of certain constitutional rights under color of

federal law. See Bivens, 403 U.S. at 389. There are, however,

certain limitations on the availability of a Bivens cause of

action. For example, a plaintiff may not maintain a Bivens

action where a defendant “shows that Congress has provided an

alternative remedy which it explicitly declared to be a

substitute for recovery directly under the Constitution.”

Carlson v. Green, 446 U.S. 14, 18–19 (1980) (emphasis omitted)

(citing Bivens, 403 U.S. at 397). Since Carlson, the Supreme

Court has broadened that exception to include instances where

Congress has not made an explicit declaration, but where other

remedies provide “special factors counselling hesitation” in

allowing a Bivens claim. Schweiker v. Chilicky, 487 U.S. 412,

423 (1988). Thus, where the “design of a Government program

suggests that Congress has provided what it considers adequate

7 Every’s amended complaint brings constitutional claims pursuant to 42 U.S.C. § 1983. Section 1983, however, “authorizes actions against ‘state’ actors, not federal agents.” Breton v. I.R.S., Comm’r, No. 13-cv-136-SM, 2013 WL 1788536, at *4 (D.N.H. Apr. 10, 2013). “[T]he only way in which a suit for damages arising out of constitutional violations attributable to federal action may be brought is under the doctrine of Bivens.” Tapia-Tapia v. Potter, 322 F.3d 742, 746 (1st Cir. 2003). Every does not dispute in his objection or surreply that he has no cause of action under § 1983 and can only proceed under Bivens.

9 remedial mechanisms for constitutional violations that may occur

in the course of its administration,” the court should not allow

a Bivens cause of action to proceed. Id. This is true even

though the congressional remedy may not be as effective as an

individual damages remedy. See Bush v. Lucas, 462 U.S. 367,

372–73 (1983).

Every’s constitutional claims against the individual

defendants arise out of their alleged actions taken in

connection with the bid solicitation process for the Rumford

Clinic facility. Congress has provided comprehensive remedial

mechanisms for a plaintiff to challenge alleged improprieties in

a federal bid solicitation process under the Tucker Act, 28

U.S.C. § 1491(b)(1), the Administrative Dispute Resolution Act

(“ADRA”), Pub. L. No. 104–320, § 12, 110 Stat. 3870, 3874–76

(1996), and the regulations promulgated under the ADRA,

including the Federal Acquisitions Regulations, 48 C.F.R. §§

1.000 et seq.

These laws and regulations establish a process for

protecting the interests of an individual who believes that

federal law has been violated in the bid solicitation and award

process. Therefore, there is no adequate reason for the court

to establish a new remedy under Bivens for claims for damages

10 arising out of that process.8 See Wilkie v. Robbins, 551 U.S.

537, 550-62 (2007) (deliberate misconduct, including malicious

prosecution, trespass, and wrongful denial of government

permits, which were intended to coerce an easement from the

plaintiff without just compensation, were insufficient to

warrant a Bivens remedy in light of available administrative

remedies).

Every argues that he is entitled to maintain a Bivens

action against defendants in their individual capacities because

the remedies available under the Tucker Act and ADRA are not

available to him personally, but only to Esterhill, with whom

the VA contracted to lease facilities for the Rumford Clinic.

He argues that defendants’ actions were intended to violate his

due process and equal protection rights as an individual, and

that he is entitled to vindicate those rights in this court

despite the other available remedies.

8 Thecourt has construed Every’s amended complaint broadly to assume he intended to assert a Bivens claim against the VA, the GSA, and the individual defendants in their official capacities. To the extent Every so intended, those claims fail as well. A Bivens remedy is not available against a federal agency or a federal official in his or her official capacity. See FDIC v. Meyer, 510 U.S. 471, 484-85 (1994) (holding that a Bivens remedy is unavailable against a federal agency); Coggeshall Dev. Corp. v. Diamond, 884 F.2d 1, 3 (1st Cir. 1989) (suit against a federal official in his or her official capacity is a suit against the United States).

11 Every offers no support for his theory that a legal

distinction between himself and his company allows him to avoid

the preemptive effect of the Tucker Act and ADRA. All of

Every’s claims arise out of the bidding process for the Rumford

Clinic facility and defendants’ actions in connection with that

process, and his requested relief seeks to remedy the alleged

errors in the bidding process. As such, his claims fall under

the Tucker Act and ADRA. See, e.g., Science Sys. &

Applications, Inc. v. United States, No. PWG-14-2212, 2014 WL

3672908, at *6 (S.D. Md. July 22, 2014) (“Although [plaintiff]

seeks to characterize its claim in a variety of imaginative

ways, it essentially is seeking review of a contract award under

the Tucker Act, 28 U.S.C. § 1491(b)(1) . . . [and] this Court no

longer can entertain such a claim.”).9

In short, Every’s claims arise out of perceived

deficiencies in the bid solicitation process for the Rumford

Clinic facility. To the extent Every has any claims arising

9 Every also raises, for the first time in his surreply, that the “Little Tucker Act,” 28 U.S.C. § 1346(a)(2), grants this court concurrent jurisdiction over his claims because he seeks less than $10,000 in monetary damages. Even if the amended complaint relied on the Little Tucker Act, the more specific, exclusive jurisdictional provisions of ADRA deprives this court of jurisdiction under the Little Tucker Act where, as here, ADRA applies. See Validata Chem. Servs. v. United States Dep’t of Energy, 169 F. Supp. 3d 69, 90 (D.D.C. 2016).

12 from defendants’ actions during that process, he may avail

himself of the remedial measures discussed above. As noted

above, those claims must be brought in the United States Court

of Federal Claims, and this court lacks subject matter

jurisdiction over those claims.

Accordingly, defendants’ motion to dismiss is granted

without prejudice to Every’s ability to file a separate action

in the United States Court of Federal Claims.

Conclusion

For the reasons stated above, the government’s motion to

dismiss (doc. no. 23) is granted without prejudice to Every

filing an action in the United States Court of Federal Claims.

The clerk of court shall enter judgment accordingly and close

the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

March 6, 2017

cc: Robert Every, pro se T. David Plourde, Esq.