Every v. US Department of Veterans Affairs et al

Filing 30

///ORDER granting without prejudice 23 Motion to Dismiss.The governments 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 by Judge Landya B. McCafferty.(gla)

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.

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.
1

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

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

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

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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.
no. 17 at ¶ 50.

Doc.

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

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.
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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 predisqualified 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.”

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

6

Id.

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.

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

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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.
423 (1988).

Schweiker v. Chilicky, 487 U.S. 412,

Thus, where the “design of a Government program

suggests that Congress has provided what it considers adequate

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.
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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

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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.

The court 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).
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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.
the Tucker Act and ADRA.

As such, his claims fall under

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

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).
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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.

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