M.E.S., Inc. v. Snell , 712 F.3d 666 ( 2013 )

12-1657-cv
M.E.S., Inc. v. Snell
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2012
(Submitted: November 7, 2012 Decided: March 19, 2013)
Docket No. 12-1657-cv
M.E.S., INC., GEORGE MAKHOUL,
Plaintiffs-Appellants,
v.
ELLA SNELL, in her individual capacity, RAYNETTE GURNEY, in her
individual capacity, CHRISTOPHER NASTASI, in his individual
capacity, ANTHONY LEVESANOS, in his individual capacity,
Defendants-Appellees.
Before:
B.D. PARKER, RAGGI, and LYNCH, Circuit Judges.
Appeal from a judgment of the United States District Court for the Southern District
of New York (Swain, J.), holding First and Fifth Amendment Bivens claims against U.S.
Army Corps of Engineers personnel, arising from the termination of construction contracts,
precluded by the comprehensive scheme for resolving contract disputes with the federal
government provided by the Contract Disputes Act of 1978, see 41 U.S.C. § 7101 et seq.
AFFIRMED.
Edward T. DeLisle, Cohen Seglias Pallas Greenhall & Furman, PC,
Philadelphia, Pennsylvania, for Plaintiffs-Appellants.
Bertrand Madsen, Sarah S. Normand, for Preet Bharara, United States
Attorney for the Southern District of New York, New York,
New York, for Defendants-Appellees.
REENA RAGGI, Circuit Judge:
Plaintiff M.E.S., Inc. (“MES”), claims that the U.S. Army Corps of Engineers
(“Corps”) unfairly terminated three of its construction/renovation contracts. After its
administrative challenges to these terminations were dismissed without prejudice—to allow
MES and its insurer to determine which of them would manage those proceedings—MES
and its President, George Makhoul, filed this action in the United States District Court for
the Southern District of New York (Laura Taylor Swain, Judge). Invoking Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), MES and
Makhoul sued named Corps personnel in their individual capacities, alleging that their
contracts were terminated in retaliation for criticism by MES of the Corps’ mismanagement
of construction projects, that these terminations negatively impacted MES’s business, and
that, as a result, they were deprived of their constitutionally protected rights to free speech
and substantive due process. MES and Makhoul now appeal from a judgment entered on
March 27, 2012, dismissing their complaint. See M.E.S., Inc. v. Snell, 10 Civ. 9513 (LTS),
2012 WL 1003570 (S.D.N.Y. Mar. 26, 2012). They contend that the district court erred as
2
a matter of law in ruling that their Bivens action was precluded by the Contract Disputes Act
of 1978 (“CDA”), see 41 U.S.C. § 7101 et seq.
As a preliminary matter, we lack jurisdiction to review this claim as advanced by
Makhoul because the text and caption of the original timely notice of appeal, dated April 24,
2012, failed to identify him as a party appealing from the judgment. See generally Fed. R.
App. P. 3(c)(1)(A) (stating that notice of appeal must “specify the party or parties taking the
appeal by naming each one in the caption or body of the notice”). “The requirement that a
party seeking to appeal be specified in the notice of appeal is jurisdictional.” Gusler v. City
of Long Beach, 700 F.3d 646, 648 (2d Cir. 2012) (dismissing appeal by party identified in
caption but not named in body of notice of appeal); see Torres v. Oakland Scavenger Co.,
487 U.S. 312, 314 (1988) (holding that failure to name party in notice of appeal is “more than
excusable ‘informality’; it constitutes a failure of that party to appeal”). An amended notice
naming Makhoul as an appellant was not filed until June 14, 2012, beyond the 60-day limit
prescribed by Fed. R. App. P. 4(a)(1)(B). That time limit is also jurisdictional in civil cases,
see Napoli v. Town of New Windsor, 600 F.3d 168, 170 (2d Cir. 2010) (citing Bowles v.
Russell, 551 U.S. 205, 214 (2007)), and Makhoul’s failure to abide by it or to seek an
extension renders his belated filing inoperative, see Gusler v. City of Long Beach, 700 F.3d
at 650. Accordingly, we hereby dismiss Makhoul’s appeal and hereafter address only MES’s
challenge to the judgment of dismissal.
Although this court has not previously considered the preclusive effect of the CDA
on Bivens claims, two of our sister circuits have done so and concluded that the statute’s
3
complex procedural and substantive framework is comprehensive, precluding Bivens claims
by aggrieved government contractors that relate to or derive from contract disputes. See
Evers v. Astrue, 536 F.3d 651, 657 (7th Cir. 2008); Janicki Logging Co. v. Mateer, 42 F.3d
561, 564–65 (9th Cir. 1994). District courts appear uniformly to have reached the same
conclusion in published and unpublished decisions. See Aryai v. Forfeiture Support Assocs.,
LLC, No. 10 Civ. 8952 (LAP), 2012 U.S. Dist. LEXIS 125227, at *55 (S.D.N.Y. Aug. 27,
2012); Kesler Enters., Inc. v U.S. Dep’t of Agric., No. 4:10-CV-169-BLW, 2010 WL
4641360, at *5–6 (D. Idaho Nov. 4, 2010); Research Air, Inc. v. Norton, No. 05-623 (RMC),
2006 WL 508341, at *8 n.8 (D.D.C. Mar. 1, 2006); Teel v. DiLeonardi, No. 98 C 2568, 1999
WL 133997, at *3 (N.D. Ill. Mar. 5, 1999); Information Sys. & Networks Corp. v. U.S. Dep’t
of HHS, 970 F. Supp. 1, 10 (D.D.C. 1997); Advanced Materials, Inc. v. Burgess,
No. 94-2808, 1995 WL 25891, at *2 (E.D. La. Jan. 23, 1995), aff’d, 95 F.3d 47 (5th Cir.
1996) (unpublished table decision). We agree with these courts’ analysis of the CDA, as
well as with the district court’s application of that reasoning to MES’s Bivens claims in this
case. Accordingly, we affirm the challenged judgment of dismissal.
4
I. Background
A. Termination of MES’s Contracts
MES is a New York corporation that specializes in building complex structures such
as laboratories, weapons testing facilities, and warehouses for munitions and explosives.
Since 1992, it has performed construction work for the United States Department of Defense,
specifically for the Army Corps of Engineers. Between September 19, 2003, and September
29, 2006, the Corps awarded MES three contracts for work to be performed at the Picatinny
Arsenal in Dover, New Jersey (“Arsenal contracts”).
The first contract, awarded to MES as part of a joint venture, related to the
construction of a High Energy Propellant Formulation Facility, requiring the design and
erection of thirteen new buildings and the renovation of three existing structures at a price
of $16,549,000. The second contract, concerning the construction of an Explosive Research
and Development Loading Facility, required MES to design and erect three new buildings
and to renovate one existing building for a sum of $7,262,975. The third contract, relating
to development of a Pyrotechnics Research and Technology Facility, called on MES to
construct a pyrotechnics research center and flare tunnel for $10,628,832. Each of these
contracts incorporated the “Disputes” provision of the Federal Acquisition Regulations,
which subjected the agreements “to the Contract Disputes Act of 1978, as amended.”
48 C.F.R. § 52.233-1(a).
It is undisputed that none of the Arsenal contracts was performed according to its
specifications. Thus, between March and December 2008, the Corps provided MES with
5
written notice that, as a result of significant and unacceptable delays, it was terminating each
of the contracts for default. Each notice stated that it “constitute[d] the final decision of the
Contracting Officer in accordance with the Disputes Clause of the contract,” and advised
MES that, pursuant to the CDA, it could “appeal[] to the Armed Services Board of Contract
Appeals” or “bring an action directly in the United States Court of Federal Claims.” Mar. 5,
2008 Notice of Termination 19; Nov. 4, 2008 Notice of Termination 17; Dec. 22, 2008
Notice of Termination 25.
B. MES’s CDA Challenges to the Contract Terminations
Invoking the CDA, MES challenged the terminations of its Arsenal contracts before
the Armed Services Board of Contract Appeals (“ASBCA”). See 41 U.S.C. §§ 7104(a),
7105(a). There, MES asserted that the Corps was responsible for the delays attending each
contract due to myriad specifications defects and demands for additional unfunded work
beyond that required by the original agreements. MES charged the Corps with breaching
each of the Arsenal contracts, claimed that the terminations were arbitrary and improper, and
asked that all three terminations for default be converted to terminations for convenience.
While these ASBCA proceedings were pending, Safeco Insurance Company of
America (“Safeco”), MES’s surety on the three Arsenal contracts, filed suit in the United
States District Court for the Eastern District of New York, alleging that MES had breached
the parties’ indemnity agreements and that Safeco was thus entitled to assume ownership of
MES’s affirmative claims relating to the Arsenal contracts, including those before the
6
ASBCA. After the district court awarded Safeco partial summary judgment—a decision we
affirmed, see Safeco Ins. Co. of Am. v. Hirani/MES, JV, 480 F. App’x 606 (2d Cir. 2012)
(summary order)—MES requested that the ASBCA stay the administrative proceedings
pending resolution of the rights and intentions of Safeco, which MES feared might not
vigorously press its claim that the Corps had breached the Arsenal contracts. Instead, but for
the same purpose, on September 10, 2010, the ASBCA dismissed MES’s appeals without
prejudice. See ASBCA R. 30 (effective May 11, 2011), http://www.asbca.mil/Rules/
forms/Rules11May2011.pdf (authorizing dismissal without prejudice in Board’s discretion,
which “shall be deemed with prejudice” if neither party seeks reinstatement within three
years).
C. District Court Proceedings
MES did not seek to reopen proceedings before the ASBCA. Rather, on December
22, 2010, MES and Makhoul commenced this action in the Southern District of New York
against defendants Ella Snell, a contracting officer in the Corps’ New York District; Raynette
Gurney, the Corps’ Chief of Contracting for the North Atlantic Division; Christopher
Nastasi, an administering contracting officer in the New York District; and Anthony
Levesanos, a Corps program manager. In the Second Amended Complaint, the pleading
pertinent to this appeal, MES and Makhoul claimed that by terminating the Arsenal contracts
for default, these defendants had (1) deprived plaintiffs of substantive due process under the
Fifth Amendment by causing “permanent injury to MES’ reputation and the complete loss
7
of MES as a going concern,” Compl. ¶ 82; (2) infringed MES’s and Makhoul’s First
Amendment rights to free speech by using the terminations to retaliate for Makhoul’s
complaints that the Corps had violated the Anti-Deficiency Act in demanding that MES
perform additional unfunded work, see 31 U.S.C. § 1341(a)(1); and (3) subjected Makhoul
to injurious falsehood under New York law. Plaintiffs sought compensatory and punitive
damages and attorney’s fees.
By Opinion and Order dated March 26, 2012, the district court granted defendants’
motion to dismiss the case for lack of subject matter jurisdiction. See M.E.S., Inc. v. Snell,
2012 WL 1003570, at *9. The district court held that plaintiffs could not maintain a Bivens
action based on allegations that termination of the Arsenal contracts violated their rights to
free speech and due process, because the CDA afforded them a comprehensive remedial
scheme for complaints relating to the termination of government contracts. See id. at *5–8
(citing Bush v. Lucas, 462 U.S. 367, 388 (1983) (declining to recognize Bivens action for
alleged First Amendment violation where plaintiff’s claim arose out of employment
relationship governed by comprehensive procedural and substantive scheme affording
meaningful remedies against United States)).
This appeal followed.
8
II. Discussion
A. Standard of Review
Courts appear divided on whether preclusion of a Bivens action by the CDA warrants
dismissal for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1), see Evers v. Astrue, 536 F.3d
at 657; Information Sys. & Networks Corp. v. U.S. Dep’t of HHS, 970 F. Supp. at 4, or for
failure to state a claim under Fed. R. Civ. P. 12(b)(6), see Janicki Logging Co. v. Mateer, 42
F.3d at 563. We need not decide that question here, as the result would be the same under
either approach. In both cases, we review the district court’s legal determination de novo,
accepting as true all material factual allegations in the complaint, see Gibbons v. Malone, 703
F.3d 595, 599 (2d Cir. 2013) (failure to state claim); Ford v. D.C. 37 Union Local 1549, 579
F.3d 187, 188 (2d Cir. 2009) (per curiam) (lack of jurisdiction); under Rule 12(b)(1), we are
permitted to rely on non-conclusory, non-hearsay statements outside the pleadings, see J.S.
ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004), which we cannot consider
under Rule 12(b)(6) unless they are incorporated within or integral to the complaint, see
Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). Here, although MES submitted a sworn
declaration by Makhoul further detailing the circumstances surrounding his claim, those
additional facts make no difference to the pure question of law as to whether the CDA
precludes a Bivens claim relating to a federal contract. We turn to that question.
9
B. Implying Constitutional Claims under Bivens
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (“Bivens”), the Supreme Court recognized as implicit in certain constitutionally
protected rights a federal claim for money damages against federal officials, sued in their
individual capacities, for violations of those rights. Precisely because Bivens is a judicially
created remedy, however, federal courts have been reluctant to recognize such implied relief.
See Arar v. Ashcroft, 585 F.3d 559, 571–72 (2d Cir. 2009) (en banc) (characterizing Bivens
remedy as “extraordinary thing that should rarely if ever be applied in new contexts” and
observing that, after Bivens, Supreme Court has recognized implied constitutional causes of
action only twice (internal quotation marks omitted)). As the Supreme Court recently
explained, “consideration of a Bivens request follows a familiar sequence” that involves two
inquiries: (1) whether there is “any alternative, existing process for protecting the” affected
interest that “amounts to a convincing reason for the Judicial Branch to refrain from
providing a new [damages] remedy”; and (2) whether, “even in the absence of [such] an
alternative, . . . any special factors counsel[] hesitation before authorizing a new kind of
federal litigation.” Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (internal quotation marks
omitted); accord Arar v. Ashcroft, 585 F.3d at 572.
With respect to the first of these inquiries, the Supreme Court has stated that if the
conduct at issue already is “governed by comprehensive procedural and substantive
provisions [of law] giving meaningful remedies against the United States,” then it is
10
“inappropriate” for courts “to supplement that regulatory scheme with a new judicial
remedy.” Bush v. Lucas, 462 U.S. at 368. The fact that such a remedial scheme does “not
provide complete relief for the plaintiff” warrants no different conclusion. Id. at 388.
Indeed, in such circumstances, courts will generally assume that Congress’s omission of the
particular relief sought by the plaintiff “has not been inadvertent.” Schweiker v. Chilicky,
487 U.S. 412, 423 (1998) (explaining that assumption derives from “appropriate judicial
deference to [considered] congressional inaction”); see also Dotson v. Griesa, 398 F.3d 156,
169–76 (2d Cir. 2005) (construing Civil Service Reform Act of 1978 to evince Congress’s
decision to exclude judicial branch employees from statutory review procedures). Nor will
allegations of “illegitimate motives” support recognition of a Bivens claim for conduct
subject to a comprehensive remedial scheme. Western Radio Servs. Co. v. U.S. Forest Serv.,
578 F.3d 1116, 1125 (9th Cir. 2009). In sum, in the face of a comprehensive scheme, federal
courts will decline to infer “new substantive legal liability without legislative aid,” mindful
“that Congress is in a better position to decide whether or not the public interest would be
served by creating it.” Bush v. Lucas, 462 U.S. at 390 (internal quotation marks omitted).
11
C. The CDA Creates a Comprehensive Scheme for Reviewing Claims Relating
to Federal Contracts that Precludes MES’s Bivens Action
In conferring original jurisdiction on federal district courts to hear civil claims against
the United States, Congress expressly excluded “any civil action or claim against the United
States founded upon any express or implied contract with the United States” that is subject
to review under the CDA. 28 U.S.C. § 1346(a)(2). Congress thereby identified the CDA
review process as the sole means for resolving contract disputes against the federal
government. To be sure, § 1346 does not speak to civil actions that contractors might bring
against United States employees in their individual capacities for alleged constitutional
violations relating to government contracts.1 Nevertheless, where, as here, a plaintiff’s
constitutional claims originate in contract obligations for which the comprehensive
procedural and substantive provisions of the CDA afford meaningful—and
exclusive—remedies against the United States, “we conclude that it would be inappropriate
for us to supplement that regulatory scheme with” new judicial remedies against United
States employees pursuant to Bivens. Bush v. Lucas, 462 U.S. at 368.
In reaching that conclusion, we begin with the CDA itself, which by its terms applies
broadly “to any express or implied contract . . . made by an executive agency for . . . the
procurement of construction, alteration, repair, or maintenance of real property.” 41 U.S.C.
1
It is beyond dispute that such claims cannot be brought against the federal
government. See Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994) (“[T]he United
States has not waived its sovereign immunity with respect to claims that its employees have
committed constitutional torts.”); see also FDIC v. Meyer, 510 U.S. 471, 485–86 (1994).
12
§ 7102(a)(3). This language certainly reaches the Arsenal contracts that MES complains
defendants wrongfully terminated. The CDA provides for persons aggrieved in connection
with such contracts to submit “[e]ach claim . . . against the Federal Government” to a
contracting officer, id. § 7103(a)(1)–(2), who “shall issue a decision in writing,” id.
§ 7103(d). A “contracting officer’s decision on a claim is final and conclusive and is not
subject to review by any forum, tribunal, or Federal Government agency,” except as
authorized by the CDA itself. Id. § 7103(g). The CDA provides that within 90 days of
receipt of a contracting officer’s decision, an aggrieved contractor may either appeal to the
ASBCA, see id. § 7104(a), or “bring an action directly on the claim in the United States
Court of Federal Claims,” id. § 7104(b)(1). In each instance, further review may be had in
the United States Court of Appeals for the Federal Circuit. See id. § 7107(a)(1)(A).
Courts have characterized this remedial scheme as “the paradigm of a precisely drawn,
detailed statute,” which “purports to provide final and exclusive resolution of all disputes
arising from government contracts” that fall within its ambit. A&S Council Oil Co. v. Lader,
56 F.3d 234, 241 (D.C. Cir. 1995); accord Evers v. Astrue, 536 F.3d at 657; Campanella v.
Commerce Exch. Bank, 137 F. 3d 885, 891 (6th Cir. 1998); see also Janicki Logging Co. v.
Mateer, 42 F.3d at 564–65 (observing that CDA embodies “precisely the kind of . . . complex
procedural and substantive remedial scheme” referenced by Supreme Court and Ninth Circuit
in identifying circumstances not warranting recognition of Bivens action).
13
MES does not quarrel with the general comprehensiveness of the CDA. It
nevertheless insists that constitutional claims against federal employees in their individual
capacities fall outside the purview of a statute that affords relief only as against the federal
government itself. Supreme Court precedent defeats this argument.
In Bush v. Lucas, a federal employee who alleged that he was demoted for publicly
criticizing the agency for which he worked successfully used the “elaborate, comprehensive”
civil service review scheme to secure reinstatement and full back pay from the United States.
462 U.S. at 386. Thereafter, he filed a Bivens action against his supervisor to recover for
uncompensated First Amendment injuries. See id. at 371–72. The Supreme Court declined
to recognize the Bivens claim, even assuming that the plaintiff’s “First Amendment rights
were violated by the adverse personnel action” and that the administrative relief afforded
against the United States was “not as effective as an individual damages remedy” against the
violating supervisor in compensating the employee for the constitutional harm suffered. Id.
at 372. The Court explained:
The question is not what remedy the court should provide for a wrong that
would otherwise go unredressed. It is whether an elaborate remedial system
that has been constructed step by step, with careful attention to conflicting
policy considerations, should be augmented by the creation of a new judicial
remedy for the constitutional violation at issue. That question obviously
cannot be answered simply by noting that existing remedies do not provide
complete relief for the plaintiff.
Id. at 388. Among the concerns identified by the Supreme Court that counseled against
supplementing civil service relief against the government with a Bivens action against an
14
individual government employee was the probability that “if management personnel face the
added risk of personal liability for decisions that they believe to be a correct response to
improper criticism of the agency, they would be deterred from imposing discipline in future
cases.” Id. at 389. This special circumstance only reinforced the conclusion that “Congress
is in a far better position than a court to evaluate the impact of a new species of litigation
between federal employees on the efficiency of the civil service.” Id.The Supreme Court relied on similar reasoning in Schweiker v. Chilicky to hold that
the wrongful denial of Social Security disability benefits, allegedly resulting from due
process violations by program administrators, did not give rise to a Bivens action for money
damages against those administrators, even though the remedial process created by Congress
as against the government had afforded claimants only the belated restoration of past-due
benefits. See 487 U.S. at 414, 428–29 (acknowledging that improper denial of funds that
afforded “very necessities of life” could not be fully remedied by belated restoration of back
benefits, but concluding that action for money damages against responsible officials, “not
having been included in the elaborate remedial scheme devised by Congress, is
unavailable”). Noting that the framework for protecting the rights of Social Security
disability claimants was, in fact, “considerably more elaborate than the civil service system
considered in Bush,” id. at 425, the Court declined judicially to “revise” the policy
“compromises” struck by Congress in providing a specific remedy only against the
government for wrongful termination of benefits within “a massive and complex welfare
15
benefits program,” id. at 429. Echoing Bush, Chilicky further acknowledged a concern with
judicially recognizing claims as against individuals in addition to the congressionally
authorized relief against the government: “The prospect of personal liability for official acts .
. . would undoubtedly lead to new difficulties and expense in recruiting administrators for
the programs Congress had established.” Id. at 425. Accordingly, the Court left it to
Congress to create such claims.
As in Bush and Chilicky, we here confront a Bivens claim that government officials
violated constitutional rights when they took action—the termination of government
contracts—that is the subject of an existing comprehensive remedial scheme, the CDA.
Indeed, because the only retaliation alleged is termination of government contracts in
response to MES’s Anti-Deficiency Act complaints, the injury underlying MES’s First
Amendment claim is certainly cognizable—even if not fully compensable—under the CDA.
See Bush v. Lucas, 462 U.S. at 388; Schweiker v. Chilicky, 487 U.S. at 427 (noting that
Bush neither distinguished “between compensation for a ‘constitutional wrong’ and the
restoration of statutory rights that had been unconstitutionally taken away” nor “suggest[ed]
that such labels would matter”).2 Further, any harm to MES resulting from defendants’
2
In its ASBCA complaints, MES alleged facts similar to those undergirding its First
Amendment claim, i.e., that the Corps breached the parties’ contracts by requiring MES to
perform additional unfunded work, prompting MES to complain and seek adjustments.
Insofar as Makhoul conclusorily asserted in opposition to dismissal that, even before MES
was awarded the Arsenal contracts, he voiced concerns about the Corps’s violation of the
Anti-Deficiency Act to “just about anyone who would listen,” Makhoul Decl. ¶ 8, the only
retaliation alleged against MES remains the contract terminations, for which relief is afforded
by the CDA.
16
alleged violations of due process in terminating the Arsenal contracts cannot realistically be
separated from the harm to its statutorily vindicable rights. See Schweiker v. Chilicky, 487
U.S. at 427–28; see also Evers v. Astrue, 536 F.3d at 659 (holding Bivens claim that
defendants “‘pinned a badge of infamy’ upon [plaintiff] by the mere fact of terminating his
contract” to be “essentially contractual” and thus fall within CDA (emphasis in original)).
These circumstances prompt us to conclude that it would be “inappropriate” to
supplement the CDA’s remedial scheme with a new judicial remedy for alleged constitutional
violations relating to the termination of federal government contracts. Bush v. Lucas, 462
U.S. at 388. Rather, we defer to Congress, mindful that it is in a better position than are the
courts to decide whether the public interest would best be served by the creation of “a new
species of litigation.” Id. at 389.
As we note at the outset of this opinion, our conclusion finds support in the decisions
of other courts refusing to recognize Bivens claims in circumstances governed by the CDA.
See Evers v. Astrue, 536 F.3d at 657 [7th Cir.]; Janicki Logging Co. v. Mateer, 42 F.3d at564–65 [9th Cir.]; Aryai v. Forfeiture Support Assocs., LLC, 2012 U.S. Dist. LEXIS 125227,
at *55 [S.D.N.Y.]; Kesler Enters., Inc. v U.S. Dep’t of Agric., 2010 WL 4641360, at *5–6
[D. Idaho]; Research Air, Inc. v. Norton, 2006 WL 508341, at *8 n.8 [D.D.C.]; Teel v.
DiLeonardi, 1999 WL 133997, at *3 [N.D. Ill.]; Information Sys. & Networks Corp. v. U.S.
Dep’t of HHS, 970 F. Supp. at 10 [D.D.C.]; Advanced Materials, Inc. v. Burgess, 1995 WL
25891, at *2 [E.D. La.], aff’d, 95 F.3d 47 [5th Cir.].
17
Nor is a different result warranted by Hartman v. Moore, 547 U.S. 250 (2006), upon
which MES relies. There, the Supreme Court reiterated the general availability of a Bivens
action to sue federal officials for First Amendment retaliation. See id. at 258–59. But the
Court had no occasion in Hartman to consider the question of whether the CDA’s remedial
scheme foreclosed a Bivens claim for retaliatory termination of a government contract,
because the retaliation there at issue was a criminal prosecution following a company’s failed
attempt to secure such a contract. See id. at 253. The CDA provides no relief with respect
to the latter; by contrast, it comprehensively addresses the former. Thus, Bush v. Lucas,
rather than Hartman, is the relevant precedent.3
The same conclusion obtains with respect to MES’s reliance on Davis v. Passman, 442
U.S. 228 (1979), a case that extended Bivens to Fifth Amendment due process claims. As
we have observed, Davis so ruled in the specific context of an employment discrimination
claim. See Arar v. Ashcroft, 585 F.3d at 571. Since Davis, the Supreme Court has itself
acknowledged that “a Bivens action alleging a violation of the Due Process Clause of the
Fifth Amendment may be appropriate in some contexts, but not in others.” FDIC v. Meyer,
3
MES also invokes Navab-Safavi v. Broadcasting Board of Governors, 650
F. Supp. 2d 40 (D.D.C. 2009), to support its Bivens First Amendment claim. There, a
translator alleged that her government contract was terminated in retaliation for her
participation, outside of work, in an Internet music video protesting the United States’
military involvement in Iraq. See id. at 46. The district court concluded that the claim fell
outside of the CDA because it was not even arguably related to performance of the plaintiff’s
translation contract with the government. See id. at 68–69. We need not here decide whether
we agree with the district court’s view of the CDA in the particular circumstances of
Navab-Safavi because, even if we did, MES’s claims remain dissimilar in that they relate
directly and exclusively to the performance of its government contracts.
18
510 U.S. 471, 484 n.9 (1994). The paradigmatic context in which a Bivens claim is not
appropriate is where Congress has provided a comprehensive scheme for addressing the
actions at issue. See Schweiker v. Chilicky, 487 U.S. at 429. That is this case.
Indeed, the very contracts at issue here incorporated the CDA by reference as the
means for resolving disputes between the parties. Moreover, MES initially complied with
the CDA in pursuing appeals with the ASBCA to undo the challenged terminations. MES
abandoned those appeals not because the CDA failed to afford meaningful relief but because
its surety sought to exert control over the appeals and to claim any proceeds realized
therefrom. In these circumstances, as the Ninth Circuit has observed, “there [i]s neither need
nor reason” to supplement a carefully crafted statutory scheme with a Bivens remedy.
Janicki Logging Co. v. Mateer, 42 F.3d at 565–66 (reaching conclusion where plaintiff had
entered into “contract which was expressly made subject to the CDA” and had initially
brought CDA action that was ruled time-barred).
Accordingly, we conclude that MES’s Bivens claims are precluded by the CDA and,
thus, were correctly dismissed by the district court.
III. Conclusion
To summarize, we conclude that, in enacting the Contract Disputes Act of 1978,
Congress created a comprehensive scheme for securing relief from the United States for any
disputes pertaining to federal contracts. The existence of that statutory scheme precludes
MES from pursuing Bivens claims against federal employees in their individual capacities
19
for alleged violations of due process or the First Amendment in terminating MES’s federal
construction contracts with the U.S. Army Corps of Engineers.
The judgment of the district court dismissing the action is AFFIRMED.
20