UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Every
v. Civil No. 15-cv-177-LM Opinion No. 2016 DNH 006 Department of Veterans Affairs, et. al.
O R D E R
Robert Every has filed “Request for Injunction and Motion
to Compel,” (the “complaint”), in which he names the United
States Department of Veterans Affairs (“VA”) and the General
Services Administration (“GSA”) as defendants. Defendants move
to dismiss. Every objects.
Discussion
Defendants move to dismiss Every’s complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), arguing that it fails
to state a claim for relief. Defendants further argue that, to
the extent the complaint states any claim for relief, it appears
to challenge a bidding process undertaken by the VA for a new
health clinic in Rumford, Maine, and the court would lack
subject matter jurisdiction to hear such a claim.
Under Federal Rule of Civil Procedure 12(b)(6), the court
must accept the factual allegations in the complaint as true,
construe reasonable inferences in the plaintiff’s favor, and “determine whether the factual allegations in the plaintiff’s
complaint set forth a plausible claim upon which relief may be
granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st
Cir. 2014) (citations and internal quotation marks omitted). A
claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Because Every is
proceeding pro se, the court construes his complaint liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
The central problem with Every’s complaint is that there
are insufficient facts to piece together any sort of coherent
narrative. Every breaks his complaint (doc. no. 1) into several
parts, including a section titled “Complaint” and another
section titled “Relief Sought.”1 The complaint appears to allege
that the VA is corrupt and lacks effective leadership, seeks to
punish people who attempt to rectify the VA’s shortcomings, and
fails to act in the best interest of veterans.2 Beyond these
generalized allegations about the VA, the complaint contains few
1Every also includes a section that summarizes his education, military service and business experience, as well as a conclusion detailing Joshua Chamberlin’s role in the Civil War.
2For example, in support of his complaint, Every cites and attaches as exhibits news articles reporting various types of misconduct on the part of VA officials.
2 facts that clarify how defendants have caused Every any harm,
making it difficult to discern a fact pattern that would support
a theory of liability.
The only legal theories that Every asserts as the basis for
his lawsuit are due process and equal protection. However, even
after construing the complaint liberally in Every’s favor, the
court is unable to discern facts to support such claims. To
state a due process claim, a plaintiff generally must assert
facts showing that he has suffered a deprivation of a protected
interest in life, liberty, or property. See Mathews v.
Eldridge, 424 U.S. 319, 332 (1976) (procedural due process);
Gonzalez-Fuentes v. Molina, 607 F.3d 864, 880 n.13 (1st Cir.
2010) (executive action “that does not shock the conscience does
not infringe substantive due process unless it also deprives an
individual of a ‘protected interest in life, liberty, or
property’” (citation omitted)). To establish an equal
protection claim, a plaintiff generally must demonstrate that,
(1) compared with others similarly situated, he was selectively
treated, and (2) that the selective treatment was motivated by
purposeful discrimination on some improper basis, such as
plaintiff’s membership in a particular race or religion. See
Hernandez v. New York, 500 U.S. 352, 360 (1991). Proof of
discriminatory intent or purpose is required to show a violation
of the Equal Protection Clause. Village of Arlington Heights v.
3 Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977). Every has
not alleged facts sufficient to support a plausible claim that
he has suffered either a deprivation of a protected interest in
life, liberty, or property or that he has suffered from
purposeful discrimination.3
The only specific actions Every alleges that the defendants
have taken against him are as follows: (a) certain VA employees
“made negative comments” about him to unrelated third parties,
and (b) when he attempted under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, to obtain the identities of those
employees, the VA sought an excessive fee ($7,905.79) from him.
To the extent Every intends to assert a defamation claim or a
claim under FOIA, these allegations are insufficient to state a
plausible claim for relief.
The closest thing to a legal claim supported by factual
allegations in the complaint is one that appears to involve a
challenge to a bidding process undertaken by the VA to lease
space in Rumford, Maine. However, certain basic facts are
missing, such as the subject matter of the bid, the nature and
terms of the bid, and Every’s role in the process. Defendants
3Additionally, to the extent Every intends to bring a due process or equal protection claim against the VA or the GSA, the court notes that a plaintiff cannot bring a constitutional claim for damages against a federal agency. See FDIC v. Meyer, 510 U.S. 471, 484-86 (1994).
4 posit that Every is complaining about a specific bidding
process, and, in their brief, they attempt to fill in some of
the missing pieces. In the complaint, however, Every
anticipates and refutes the defendants’ characterization of his
complaint: “The U.S. Attorney will argue that this case is a
contract dispute and belongs in another Court, but in both its
limited and broad essence, it is a case about Due Process and
Equal Protection . . . .” Compl. at 1. To the extent that
defendants’ characterization of Every’s complaint is accurate,
and Every is attempting to assert a claim involving a challenge
to a bidding process and a contract awarded by the defendants,
the court likely lacks subject matter jurisdiction over that
claim. See, e.g., Distrib. Sold., Inc. v. United States, 539
F.3d 1340, 1344 (Fed. Cir. 2008) (noting that under 28 U.S.C. §
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Every
v. Civil No. 15-cv-177-LM Opinion No. 2016 DNH 006 Department of Veterans Affairs, et. al.
O R D E R
Robert Every has filed “Request for Injunction and Motion
to Compel,” (the “complaint”), in which he names the United
States Department of Veterans Affairs (“VA”) and the General
Services Administration (“GSA”) as defendants. Defendants move
to dismiss. Every objects.
Discussion
Defendants move to dismiss Every’s complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), arguing that it fails
to state a claim for relief. Defendants further argue that, to
the extent the complaint states any claim for relief, it appears
to challenge a bidding process undertaken by the VA for a new
health clinic in Rumford, Maine, and the court would lack
subject matter jurisdiction to hear such a claim.
Under Federal Rule of Civil Procedure 12(b)(6), the court
must accept the factual allegations in the complaint as true,
construe reasonable inferences in the plaintiff’s favor, and “determine whether the factual allegations in the plaintiff’s
complaint set forth a plausible claim upon which relief may be
granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st
Cir. 2014) (citations and internal quotation marks omitted). A
claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Because Every is
proceeding pro se, the court construes his complaint liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
The central problem with Every’s complaint is that there
are insufficient facts to piece together any sort of coherent
narrative. Every breaks his complaint (doc. no. 1) into several
parts, including a section titled “Complaint” and another
section titled “Relief Sought.”1 The complaint appears to allege
that the VA is corrupt and lacks effective leadership, seeks to
punish people who attempt to rectify the VA’s shortcomings, and
fails to act in the best interest of veterans.2 Beyond these
generalized allegations about the VA, the complaint contains few
1Every also includes a section that summarizes his education, military service and business experience, as well as a conclusion detailing Joshua Chamberlin’s role in the Civil War.
2For example, in support of his complaint, Every cites and attaches as exhibits news articles reporting various types of misconduct on the part of VA officials.
2 facts that clarify how defendants have caused Every any harm,
making it difficult to discern a fact pattern that would support
a theory of liability.
The only legal theories that Every asserts as the basis for
his lawsuit are due process and equal protection. However, even
after construing the complaint liberally in Every’s favor, the
court is unable to discern facts to support such claims. To
state a due process claim, a plaintiff generally must assert
facts showing that he has suffered a deprivation of a protected
interest in life, liberty, or property. See Mathews v.
Eldridge, 424 U.S. 319, 332 (1976) (procedural due process);
Gonzalez-Fuentes v. Molina, 607 F.3d 864, 880 n.13 (1st Cir.
2010) (executive action “that does not shock the conscience does
not infringe substantive due process unless it also deprives an
individual of a ‘protected interest in life, liberty, or
property’” (citation omitted)). To establish an equal
protection claim, a plaintiff generally must demonstrate that,
(1) compared with others similarly situated, he was selectively
treated, and (2) that the selective treatment was motivated by
purposeful discrimination on some improper basis, such as
plaintiff’s membership in a particular race or religion. See
Hernandez v. New York, 500 U.S. 352, 360 (1991). Proof of
discriminatory intent or purpose is required to show a violation
of the Equal Protection Clause. Village of Arlington Heights v.
3 Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977). Every has
not alleged facts sufficient to support a plausible claim that
he has suffered either a deprivation of a protected interest in
life, liberty, or property or that he has suffered from
purposeful discrimination.3
The only specific actions Every alleges that the defendants
have taken against him are as follows: (a) certain VA employees
“made negative comments” about him to unrelated third parties,
and (b) when he attempted under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, to obtain the identities of those
employees, the VA sought an excessive fee ($7,905.79) from him.
To the extent Every intends to assert a defamation claim or a
claim under FOIA, these allegations are insufficient to state a
plausible claim for relief.
The closest thing to a legal claim supported by factual
allegations in the complaint is one that appears to involve a
challenge to a bidding process undertaken by the VA to lease
space in Rumford, Maine. However, certain basic facts are
missing, such as the subject matter of the bid, the nature and
terms of the bid, and Every’s role in the process. Defendants
3Additionally, to the extent Every intends to bring a due process or equal protection claim against the VA or the GSA, the court notes that a plaintiff cannot bring a constitutional claim for damages against a federal agency. See FDIC v. Meyer, 510 U.S. 471, 484-86 (1994).
4 posit that Every is complaining about a specific bidding
process, and, in their brief, they attempt to fill in some of
the missing pieces. In the complaint, however, Every
anticipates and refutes the defendants’ characterization of his
complaint: “The U.S. Attorney will argue that this case is a
contract dispute and belongs in another Court, but in both its
limited and broad essence, it is a case about Due Process and
Equal Protection . . . .” Compl. at 1. To the extent that
defendants’ characterization of Every’s complaint is accurate,
and Every is attempting to assert a claim involving a challenge
to a bidding process and a contract awarded by the defendants,
the court likely lacks subject matter jurisdiction over that
claim. See, e.g., Distrib. Sold., Inc. v. United States, 539
F.3d 1340, 1344 (Fed. Cir. 2008) (noting that under 28 U.S.C. §
1491(b)(1), the United States Court of Federal Claims has
exclusive jurisdiction to review all bid claims and challenges
to contract awards against the government).
In sum, even assuming the facts in Every’s complaint are
true and liberally construing them to attempt to piece together
viable claims, the court is unable to find any. The best the
court can do in construing Every’s complaint favorably to him is
to find a claim over which the court would lack subject matter
jurisdiction. The court, therefore, grants the defendants’
5 motion without prejudice to Every’s ability to file a complaint
that states sufficient claims against the defendants.
Conclusion
The defendants’ motion to dismiss (doc. no. 10) is granted
without prejudice to Every’s ability to file an amended
complaint setting forth facts sufficient to state plausible
claims against the defendants, and without prejudice to Every’s
ability to file a separate action in the United States Court of
Federal Claims. Every has until February 8, 2016, to file an
amended complaint. Failure to file an amended complaint within
this time frame will result in dismissal of Every’s complaint
with prejudice.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
January 8, 2016
cc: Robert Every, pro se T. David Plourde, Esq.