Evers, Hans v. Astrue, Michael ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3796
HANS EVERS, M.D.,
Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 2189—John W. Darrah, Judge.
____________
ARGUED MAY 9, 2008—DECIDED JULY 31, 2008
____________
Before FLAUM, KANNE, and TINDER, Circuit Judges.
KANNE, Circuit Judge. Dr. Hans Evers performed medical
consulting services for the United States Social Security
Administration (SSA) until SSA terminated his contract
following a verbal altercation Evers had with an SSA
supervisor. Evers initially sought administrative relief
for the contract termination and for the subsequent rejec-
tion of three bids he placed on other SSA contracts. Dissat-
isfied with the results, Evers filed suit in the Northern
District of Illinois, alleging constitutional tort claims
against SSA officers for violating his Fifth Amendment
2 No. 07-3796
rights to procedural and substantive due process. Evers’s
complaint also sought judicial review of SSA for vio-
lating his due-process rights and for failing to follow
federal regulations governing the suspension, termination,
and debarment of government employees. The district
court dismissed Evers’s due-process claims and some of
his regulatory claims, finding that the Contract Disputes
Act, 41 U.S.C. § 601 et seq., divested it of jurisdiction over
those claims because they “related to” Evers’s contract
with SSA. Two years later, after a bench trial, the district
court dismissed the remainder of the case as moot. Because
the district court lacked jurisdiction, we affirm both
dismissals.
I. HISTORY
Dr. Hans Evers, a board-certified neurologist, worked as
a medical consultant for SSA pursuant to a contract
awarded in December 1998. The initial contract period
ran from January 1 through December 31, 1999, and
the contract carried four one-year renewal options. SSA
exercised all four options, and Evers began work under
the final renewal term in January 2003.
On August 1, 2003, a verbal altercation took place
between Dr. Evers and Lillie Brown, an SSA employee
who was responsible for monitoring and training con-
tractors. Brown concluded that Evers had erred by com-
menting on a non-medical issue in a case, and went to
discuss the matter with Evers. When Brown explained
her observation to Evers, he confronted her in a loud
voice—Evers shouted to Brown that she was incom-
petent to address the issue, that she should leave his
work area, and that her interference with his work should
No. 07-3796 3
be investigated. Brown immediately reported Evers’s
outburst, and later that day an SSA director told Evers to
leave the building because Brown feared for her personal
safety. Evers left, and sent Brown an e-mail that apolo-
gized for his “angry acting-up.” Three days later, Evers
received a letter from an SSA contract specialist, advising
him that his work under his contract was being “stopped”
while SSA investigated the incident. Around the same
time, Evers sent a letter to SSA explaining his version of
the events.
On August 14, 2003, Dr. Evers met with SSA officials to
discuss what had transpired. The next day, Reggie
Poskocimas, a contracting officer for SSA, wrote Evers a
letter stating that SSA was terminating Evers’s contract
for cause due to the incident with Brown. Poskocimas’s
letter referred to the termination and removal-from-
duty clauses in Evers’s contract, which permitted SSA
to remove Evers if SSA determined him unfit to perform
due to “[d]isorderly conduct, use of offensive language,
quarreling, intimidation by words or actions or
fighting . . . . [or] participating in disruptive activities
which interfere with the normal and efficient operations
of the Government.” The letter also cited a clause that
made all disputes “subject to the Contract Disputes Act,”
and advised Evers that he could either appeal his con-
tract termination to the General Services Administration
Board of Contract Appeals (GSABCA) within 90 days, or
he could file an action on his claim in the United States
Court of Federal Claims within 12 months. See 41 U.S.C.
§§ 606, 609(a)(1).
A few weeks later, Dr. Evers elected to appeal
Poskocimas’s termination decision to the GSABCA. In his
complaint to the GSABCA, Evers alleged tort claims for
retaliatory discharge and intentional interference with an
4 No. 07-3796
existing contract, violations of his constitutional rights to
substantive and procedural due process, and a failure by
SSA to follow federal regulations when terminating him.
In November 2003, the GSABCA explained that it did not
have jurisdiction to consider constitutional violations or
torts, nor could it decide the asserted regulatory claims
because they had never been submitted to a contracting
officer for decision. As a result, the GSABCA asserted its
jurisdiction over only the challenge to the suspension
and termination of Evers’s contract; the GSABCA dis-
missed the other claims without prejudice. The GSABCA
offered Evers a choice: he could voluntarily withdraw
the appeal of his contract claim without prejudice before
November 18, 2003, or he could continue to litigate the
propriety of his suspension and termination before the
GSABCA. Evers gave untimely notice that he wished to
withdraw, and the GSABCA dismissed Evers’s appeal,
with prejudice, in December 2003.
While Dr. Evers’s GSABCA appeal was pending, he
submitted bid proposals in response to three solicita-
tions for SSA contracts. Poskocimas, who had termi-
nated Evers, was also responsible for awarding these con-
tracts, and rejected Evers’s bids. Poskocimas sent
Evers a letter stating that SSA had awarded the contracts
to other doctors and inviting Evers to submit future bids.
When Evers asked Poskocimas why his bids were re-
jected, Poskocimas sent Evers a second letter, which
explained that Evers’s quotes were rejected “based on
[his] past contract performance, specifically, [his] actions
on August 1, 2003, which led to termination of [the]
contract for cause.”
Dr. Evers filed three protests (one for each rejected bid)
with the General Accounting Office (GAO) in January 2004.
No. 07-3796 5
Evers claimed that SSA had engaged in an unfair and
“secret” process when denying his bids. One month later,
SSA filed a response with the GAO, explaining that it re-
jected Evers’s bids because, pursuant to federal regula-
tions, it presumed him to be “nonresponsible” due to the
termination of his previous contract for cause. See 48 C.F.R.
§ 9.104-3(b). Eventually, Evers and SSA agreed that SSA
should have nonetheless referred his quotes to the Small
Business Administration (SBA) before determining that
he was not a responsible bidder; the GAO dismissed the
protests based on SSA’s representation that it would
refer the quotes to SBA.
In late March 2004, Dr. Evers filed a three-count com-
plaint in the Northern District of Illinois against SSA,
Poskocimas, Brown, and several other SSA officers. Counts
I and II of the complaint alleged constitutional torts
against the SSA officers under Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388,
392 (1971). See also Davis v. Passman, 442 U.S. 228, 242
(1979). Specifically, Count I alleged that the officers vio-
lated Evers’s Fifth Amendment right to procedural
due process by pinning a “badge of infamy” on Evers
without a meaningful opportunity for review. Evers
claimed that he had a property interest in the remaining
five months of his contract with SSA, and he alleged that
he had liberty interests in the renewal of his contract and
“in not having his contract terminated under circum-
stances calling [into] question his good name, reputation,
honor, and integrity”; Evers argued that he was denied
these interests without notice or hearing when the
officers summarily suspended him, terminated his contract,
and denied his bid requests. Count II of the com-
plaint alleged that the SSA officers deprived Evers of his
6 No. 07-3796
Fifth Amendment right to substantive due process be-
cause terminating his contract was an overreaction to the
August 1 incident—Evers claimed that the officers
engaged in “administrative tyranny . . . so arbitrary that it
shocks the conscience.” Count III called for judicial
review of SSA under the Administrative Procedure Act,
5 U.S.C. § 702, for violating Evers’s due-process rights,
and also alleged that SSA failed to follow federal reg-
ulations when it suspended Evers’s contract and excluded
him from receiving future work. Evers requested a
myriad of remedies including, among others, $2.7 million
in damages, review of the administrative record, declara-
tory relief, a reversal of the stop-work order and contract
termination, and that SSA provide “good references” to
potential employers if Evers applied for work in the future.
In late June 2005, the district court ruled on a motion to
dismiss or for summary judgment filed by SSA and its
officers, and on a motion for summary judgment on Count
III filed by Dr. Evers. First, the district court dismissed
all claims “relating to the termination of [Evers’s] con-
tract,” pursuant to the Contract Disputes Act. The district
court explained that the Contract Disputes Act outlines
a distinctive procedure for resolving “ ‘[a]ll claims by
a contractor against the government relating to a con-
tract . . . .’ ” (quoting 41 U.S.C. § 605(a)). The court rea-
soned that Evers’s constitutional due-process claims
“related to” the termination of his contract because “the
source of the rights upon which Evers bases his claim is
his contract with the SSA and the alleged wrongful termi-
nation of that contract.” Consequently, the court held that
it lacked jurisdiction over Counts I and II of the com-
plaint, as well as over Evers’s request in Count III for a
reversal of his suspension and termination, which the
No. 07-3796 7
court deemed was really a request for “specific perfor-
mance on the contract.” Next, the court explained that the
constitutional torts alleged against the SSA officials in
Counts I and II were improper Bivens actions because “the
comprehensive system of remedies for resolving gov-
ernment contract suits via the [Contract Disputes Act]
precludes a private cause of action for an alleged con-
stitutional violation.”
The district court then turned to the cross-motions for
summary judgment on the remaining claims in Count
III—that SSA had violated federal regulations when it
denied Dr. Evers’s bids for the three subsequent con-
tracts. On those claims, the district court found that a
“genuine issue of material fact [existed] as to whether
SSA’s actions constituted a de jure suspension and/or
de facto debarment.” The case proceeded to a bench trial
in March 2007.
In September 2007, the district court determined that
the controversy between Dr. Evers and SSA had become
moot. After thoroughly analyzing each of the eleven
forms of relief requested in Count III of the complaint,
the district court concluded: “[e]ven if the Court were to
find that [Evers] was de jure suspended and/or de facto
debarred as alleged, there would be no change in Evers’
present status.” The court added, “if Evers does apply
for contracts in the future and is not awarded such con-
tracts, Evers retains the right to challenge those
actions . . . .” The district court also noted that Evers’s
medical license had been suspended in 2004 for his
failure to complete continuing-medical-education require-
ments, and the court explained that this suspension fur-
ther limited its ability to fashion a remedy. Evers timely
appealed from both the June 2005 and September 2007
orders.
8 No. 07-3796
II. ANALYSIS
On appeal, Dr. Evers argues that the district court
should not have dismissed the majority of his claims
pursuant to the Contract Disputes Act because the
claims were not contractual in nature. Evers also con-
tends that the district court’s decision to dismiss the
Bivens claims was predicated on its erroneous assumption
that the Contract Disputes Act barred jurisdiction. Finally,
Evers disputes the district court’s dismissal of his re-
maining claims as moot.
This case begins and ends with our determination of
subject-matter jurisdiction. See Fed. R. Civ. P. 12(h)(3);
Krueger v. Cartwright, 996 F.2d 928, 930 (7th Cir. 1993). We
review a district court’s dismissal for lack of jurisdiction
under Federal Rule of Civil Procedure 12(b)(1) de novo.
Newell Oper. Co. v. Int’l U.A.W., No. 07-1931, slip op. at 6-7
(7th Cir. July 2, 2008). And we review a district court’s
dismissal on mootness grounds de novo. St. John’s United
Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th
Cir. 2007). “ ‘When reviewing a dismissal for lack of sub-
ject matter jurisdiction, we note that a district court must
accept as true all well-pleaded factual allegations and
draw all reasonable inferences in favor of the plaintiff.’ ”
Id. at 625 (quoting Long v. Shorebank Dev. Corp., 182 F.3d
548, 554 (7th Cir. 1999)). In determining whether to dis-
miss for lack of jurisdiction, “ ‘[t]he district court may
properly look beyond the jurisdictional allegations of
the complaint and view whatever evidence has been
submitted on the issue to determine whether in fact sub-
ject matter jurisdiction exists.’ ” Id. (quoting Long, 182
F.3d at 554).
“ ’Federal courts are courts of limited jurisdiction and
may only exercise jurisdiction where it is specifically
No. 07-3796 9
authorized by federal statute.’ ” Newell Oper. Co., No. 07-
1931, slip op. at 7 (quoting Teamsters Nat. Auto. Transporters
Indus. Negotiating Comm. v. Troha, 328 F.3d 325, 327 (7th Cir.
2003)). It is well-established that “ ‘a precisely drawn,
detailed statute pre-empts more general remedies.’ ” Hinck
v. United States, 127 S. Ct. 2011, 2015 (2007) (quoting
EC Term of Years Trust v. United States, 127 S. Ct. 1763,
1764 (2007)); see also Brown v. GSA, 425 U.S. 820, 834 (1976).
The Contract Disputes Act is “the paradigm of a ‘pre-
cisely drawn, detailed statute’ that preempts more gen-
eral jurisdictional provisions. It purports to provide final
and exclusive resolution of all disputes arising from
government contracts covered by the statute.” Campanella
v. Commerce Exch. Bank, 137 F.3d 885, 891 (6th Cir. 1998)
(quoting A & S Council Oil Co., Inc. v. Lader, 56 F.3d 234,
241 (D.C. Cir. 1995) (internal citation omitted)); see also
Inter-Coastal Xpress, Inc. v. United States, 49 Fed. Cl. 531,
538 (2001). The Contract Disputes Act applies to any
express or implied contract entered into by an executive
agency for the procurement of services. See 41 U.S.C.
§ 602(a). The statute provides that “[a]ll claims by a
contractor against the government relating to a contract
shall be in writing and shall be submitted to the con-
tracting officer for a decision.” Id. § 605(a) (emphasis
added). “The contracting officer’s decision on the claim
shall be final and conclusive and not subject to review by
any forum, tribunal, or Government agency, unless an
appeal or suit is timely commenced as authorized by this
chapter.” Id. § 605(b). The statute authorizes two such
forms of review: a contractor may appeal the contracting
officer’s decision to the pertinent agency’s board of contract
appeals within 90 days after it receives the decision, see
id. § 606, or the contractor may file a claim in the United
States Court of Federal Claims, see id. § 609(a)(1).
10 No. 07-3796
The parties agree that the Contract Disputes Act applied
to Dr. Evers’s services contract with SSA; in fact, the
contract contained a clause stating all disputes would
be resolved “subject to the Contract Disputes Act,” and
Evers initially pursued relief as contemplated under the
statute by filing an appeal with the GSABCA. We must
therefore determine whether the claims in Evers’s com-
plaint in the district court “related to” his contract with
SSA. If so, the district court properly concluded that
it lacked subject-matter jurisdiction because the Con-
tract Disputes Act is “precisely drawn” to preclude such
claims from being entertained by federal district courts.
The interpretation of the “relating to a contract”
language in the Contract Disputes Act is a question of
first impression in our circuit. Other circuits have deter-
mined whether a claim “relates to a contract” based upon
the source of the plaintiff’s rights and the relief sought
by the plaintiff. See B&B Trucking, Inc. v. U.S. Postal Serv.,
406 F.3d 766, 768 (6th Cir. 2005) (en banc) (“The [Contract
Disputes Act] bars district court jurisdiction if the
court determines that a plaintiff’s claims against a gov-
ernment agency are ‘essentially contractual’ in nature. The
classification of a particular action as one which is or is
not [essentially contractual] depends both on the source
of the rights upon which the plaintiff bases its claim, and
upon the type of relief sought (or appropriate).” (internal
citations and quotation marks omitted)); Lader, 56 F.3d at
240 (“[T]he determination of whether an action is ‘at its
essence a contract action [for purposes of the parallel
provisions of the Tucker Act, 28 U.S.C. §§ 1346(a), 1491]
depends both on the source of the rights upon which
the plaintiff bases its claims, and upon the type of relief
sought (or appropriate)’ ” (quoting Megapulse, Inc. v. Lewis,
No. 07-3796 11
672 F.2d 959, 968 (D.C. Cir. 1982) (alteration in original)));
see also Applied Cos. v. United States, 144 F.3d 1470, 1478
(Fed. Cir. 1998) (“Congress’s decision to limit the ap-
plicability of the Act’s procedures to those claims ‘relating
to’ a contract indicates that the claim at issue must have
some relationship to the terms or performance of a gov-
ernment contract.”); Campanella, 137 F.3d at 892; RMI
Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1136
(6th Cir. 1996). The Sixth Circuit has also explained that,
“ ‘[t]he plaintiff’s title or characterization of its claims is
not controlling. [A] plaintiff may not avoid the jurisdic-
tional bar of the [Contract Disputes Act] merely by
alleging violations of regulatory or statutory provisions.’ ”
B&B Trucking, Inc., 406 F.3d at 768 (quoting RMI
Titanium Co., 78 F.3d at 1136); see also Ingersoll-Rand Co. v.
United States, 780 F.2d 74, 77 (D.C. Cir. 1985).
Bearing this persuasive authority in mind, we will
determine whether each of Dr. Evers’s claims “related to”
his SSA contract by examining the facts alleged in the
complaint to ascertain the source of Evers’s rights and the
forms of relief requested (or appropriate) to vindicate
those rights. In conducting our analysis, we also adopt
the view that the characterization or labeling of claims by
the pleader is not controlling. See B&B Trucking, Inc., 406
F.3d at 768; Ingersoll-Rand, 780 F.2d at 77. So Evers cannot
escape the precisely drawn remedial framework outlined
by the Contract Disputes Act merely by styling his com-
plaint as one for redress of constitutional torts and regula-
tory violations rather than as one for breach of con-
tract—such a tactic, albeit crafty pleading, will not
suffice. See B&B Trucking, Inc., 406 F.3d at 768; RMI Tita-
nium Co., 78 F.3d at 1136.
But Evers claims that, in addition to merely labeling
his claims as non-contractual, the claims he presented did
12 No. 07-3796
not have their genesis in his contract, nor did he seek
contractual remedies. Instead, Evers regards his due-
process claims and his claims for failure to follow federal
regulations against SSA as “only tangentially” involving
his contract.
We agree with the district court’s decision to dismiss
the procedural due-process claims pursuant to the Con-
tract Disputes Act because the claims “related to” Dr.
Evers’s contract with SSA. First, even from a visceral
reading of the complaint, it is clear that the source of the
procedural due-process claims was really Evers’s SSA
contract. In order to make a prima facie showing that SSA
officials deprived him of his right to procedural due
process, Evers first needed to show that the officials
deprived him of a property interest or a liberty interest. See
Domka v. Portage County, 523 F.3d 776, 779-80 (7th Cir. 2008)
(“ ‘An essential component of a procedural due process
claim is a protected property or liberty interest.’ ” (quoting
Minch v. City of Chicago, 486 F.3d 294, 302 (7th Cir. 2007))).
Evers identified three such interests to satisfy this thresh-
old requirement: (1) a property interest in the remaining
five months of his contract with SSA; (2) a liberty interest
in the renewal of the contract; and (3) a liberty interest in
avoiding the “badge of infamy” that SSA pinned on him
when it besmirched his good name and reputation by
terminating the contract and then subjecting him to the
“secret ‘Star Chamber’ ” determination that he was not a
responsible bidder.
The defect in Dr. Evers’s first two predicate interests is
patently obvious—Evers specifically designates the con-
tract as the source of his rights. In his brief, Evers comes
close to conceding that the property interest is “essentially
contractual,” and we have no doubt that it is. To decide
No. 07-3796 13
whether Evers had a “legitimate claim of entitlement” to
his SSA contract, see Town of Castle Rock v. Gonzales, 545
U.S. 748, 756 (2005), a court would need to analyze the
contractual terms and provisions governing termination
and suspension. As for the first alleged liberty interest
in the renewal of Evers’s contract, it is not only essentially
contractual, it is imaginary. For we have explained on
more than one occasion that “ ‘[l]iberty interests can arise
from two sources: the Federal Constitution or state law.’ ”
Domka, 523 F.3d at 780 (quoting Thielman v. Leean, 282
F.3d 478, 480 (7th Cir. 2002)). Evers’s asserted “liberty
interest” in the renewal of his federal contract arises from
neither and is thus not a liberty interest at all—it is merely
an unripe property interest.
Dr. Evers’s other designated liberty interest requires
slightly closer inspection. The Due Process Clause protects
against deprivation, without notice and hearing, of one’s
liberty interest in his good name, reputation, honor, and
integrity. See Wisconsin v. Constantineau, 400 U.S. 433, 437
(1971) (“[C]ertainly where the State attaches ‘a badge of
infamy’ to the citizen, due process comes into play.”); see
also Wroblewski v. City of Washburn, 965 F.2d 452, 456 (7th
Cir. 1992) (“[D]efamation that is incident to the govern-
ment’s refusal to reemploy an individual can implicate a
liberty interest.”). Thus, Evers argues that his liberty
interest in his good name is “completely independent of
his contract rights.”
But that is not necessarily true. For example, if SSA or
its officials had—independent of any work performed
under the contract—defamed Evers by accusing him of
alcoholism, see Larry v. Lawler, 605 F.2d 954, 958 (7th Cir.
1978), it would not be an “essentially contractual” claim
merely by virtue of the fact that Evers had a contract with
14 No. 07-3796
SSA (though without an accompanying “alteration of a
legal status,” such as termination of the contract by the
government, the defamation alone would not implicate
a liberty interest, see Townsend v. Vallas, 256 F.3d 661,
669 (7th Cir. 2001); Paul v. Davis, 424 U.S. 693, 708-10
(1976)). A closer case would be if Evers alleged that SSA
defamed him by making negative false statements to
third parties about his work pursuant to the contract—in
the linguistic sense that claim would “relate to” the con-
tract, but a compelling argument could be made that
the claim is not “essentially contractual” because the
source of Evers’s rights would lie in tort. Here, how-
ever, Evers has not advanced a claim that SSA pub-
lished false statements about him to third parties (i.e., a
tort claim for defamation); rather, he claims that SSA
officers “pinned a badge of infamy” upon him by the
mere fact of terminating his contract. Evers’s complaint
unambiguously states, “[SSA] has pinned a ‘badge of
infamy’ on Evers. Evers’ good name, reputation, honor
and integrity is at stake because of what the [SSA] has
done to him in summarily suspending him and termi-
nating his contract and determining that he is unfit to
perform his contract . . . .” Thus, it is apparent that the
source of Evers’s dignitary liberty interest is still the
contract—he is contesting the propriety of SSA’s termina-
tion of his contract by claiming that it adversely affected his
reputation.
A closer reading of the complaint further reveals that
Dr. Evers sought contractual remedies from SSA and its
officers. Nowhere in the complaint did Evers request notice
and hearing—the remedies available for a procedural due-
process violation. See Taake v. County of Monroe, No.
07-2620, slip op. at 7 (7th Cir. June 18, 2008). In Count I
No. 07-3796 15
of the complaint Evers requested monetary damages,
including $50,000 to compensate for his lost earnings.
Evers’s complaint also requested a reversal of the termi-
nation of his contract—a remedy that the district court
aptly described as a request for “specific performance.”
Evers’s counsel may have been misguided in labeling
these claims as procedural due-process claims. See id.;
Goros v. County of Cook, 489 F.3d 857, 860 (7th Cir. 2007)
(“Plaintiffs don’t want process; they want money.”).
In fact, Dr. Evers’s confusion over the remedies avail-
able for procedural due-process claims is evinced by his
litigation strategy in his GSABCA appeal. SSA gave
Evers notice of the termination of his contract through
Poskocimas’s letter and, through the procedure outlined
by the Contracts Disputes Act, SSA afforded Evers with
a formal hearing before either the GSABCA or the Federal
Court of Claims. Thus, we do not understand what Evers
had to gain by presenting his procedural due-process
arguments to the GSABCA in the first instance—by
doing so, he was effectively asking the body designated
to hold a hearing on his contract claims to instead hold
a hearing on whether to grant him a hearing on his con-
tract claims. This circularity is peculiar. Perhaps Evers
believes that the Contract Disputes Act provides con-
stitutionally deficient notice and hearing—a surprising
argument that we do not believe he is advancing. Or
perhaps Evers believes that he was entitled to a pre-
termination hearing from SSA—a process that we are not
convinced would have provided any additional benefit
to Evers given that SSA provided him with notice, gave
him an opportunity to explain his version of the alterca-
tion with Brown, met with him prior to his termination,
and then afforded him a right to a formal hearing under
16 No. 07-3796
the Contract Disputes Act. See Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 547-48 (1985) (“We conclude that
all the process that is due is provided by a pretermina-
tion opportunity to respond, coupled with post-termination
administrative procedures . . . .”). In any case, we
agree with the district court’s decision to dismiss the
procedural due-process claims because the source of
Dr. Evers’s rights was his contract with SSA, and he
requested contractual remedies to vindicate those rights.
Similarly, Dr. Evers’s substantive due-process claims,
asserted in Count II of the complaint, “related to” his
contract. Evers alleged in Count II that SSA officials
overreacted and committed an “administrative tyranny . . .
so arbitrary that it shocks the conscience” when they
terminated his contract in response to his verbal spat
with Brown. But this allegation is really just a histrionic
way of arguing that SSA committed a breach of contract.
Under the contract, SSA could terminate Evers for
“[d]isorderly conduct, use of offensive language, quarrel-
ing, intimidation by words or actions or fighting . . . . [or]
participating in disruptive activities which interfere
with the normal and efficient operations of the Govern-
ment.” SSA and the contracting officer, Poskocimas,
determined that the incident with Brown qualified as
legitimate grounds for SSA to terminate the contract
under the termination and removal-from-duty clauses
in the contract. Evers’s substantive due-process argu-
ment requires a determination of whether SSA “overre-
acted”—in other words, a determination of whether SSA
acted ultra vires to its contractual authority when it termi-
nated Evers. Thus, the source of Evers’s rights (or lack
thereof) is the contract, and the only possible remedy
for SSA’s actions would be contractual. Count II does not
No. 07-3796 17
raise an independent constitutional claim, but merely
argues vociferously that the contract was breached. Cf.
Taake, No. 07-2620, slip op. at 6 (“Our caselaw al-
ready explains that mere breaches of contract by the
government do not support substantive due process
claims under the Constitution.”). We will therefore
affirm the district court’s dismissal of Count II pursuant
to the Contract Disputes Act.
Before turning to Count III of the complaint, we briefly
note that we also agree with the district court’s dismissal
of Counts I and II as improper Bivens actions. Congress
has provided government contractors with adequate
relief for breaches of governmental contracts under the
Contract Disputes Act. As such, a government contractor
need not resort to constitutional tort suits against fed-
eral officers to vindicate his rights when he feels his
contract has been unfairly terminated. See Wilkie v. Robbins,
127 S. Ct. 2588, 2598 (2007) (“In the first place, there is
the question whether any alternative, existing process for
protecting the interest amounts to a convincing reason
for the Judicial Branch to refrain from providing a new
and freestanding remedy in damages.”).
Finally, we review the district court’s decisions to
dismiss the majority of Count III under the Contract
Disputes Act, and then to dismiss the remaining claims as
moot. To the extent that Count III of Dr. Evers’s com-
plaint, which claimed violation of federal regulations,
reiterates many of the same due-process claims and seeks
an investigation into and “reversal” of SSA’s termination
and suspension of Evers, it too falls within the jurisdic-
tional purview of the Contract Disputes Act—the source
of rights is the contract, and the remedies sought are to
declare invalid or “reverse” a contractual action. See B&B
18 No. 07-3796
Trucking, 406 F.3d at 770 (“That the fuel plan might
violate USPS regulations does not transform a claim into
one that is regulatory and not contractual.”); Ingersoll-Rand
Co., 780 F.2d at 78 (“The question presented by the com-
plaint could be phrased as whether the contract forbids
termination under these conditions. That the termination
also arguably violates certain other regulations does not
transform the action into one based solely on those reg-
ulations.”). Indeed, if the district court had proceeded to
evaluate Evers’s regulatory claims, which related to his
contract termination, it would have allowed Evers to
circumvent the Contract Disputes Act; “because every
government agency is bound to follow some set of reg-
ulations, every government contractor could recast its
contract claims as regulatory claims, thereby nullifying
the Contract Disputes Act.” B&B Trucking, 406 F.3d at
770. The district court properly dismissed these claims.
But we also agree with the district court that the claims
alleged in Count III that related to Dr. Evers’s subse-
quent bids for SSA contracts do not fall under the Con-
tract Disputes Act. Although his bids were rejected be-
cause of his prior contract termination, the sources of
Evers’s right to be fairly considered as a potential bidder
are the federal regulations governing the rights of those
who bid for government contracts. Moreover, for these
claims Evers sought regulatory remedies—such as the
right to be fairly considered for future contracts.
Yet these remaining claims in Count III encounter
other jurisdictional hurdles. First, some of the remaining
claims fail because they are not ripe. See Nat’l Park Hos-
pitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003); see
also Ind. Right to Life, Inc. v. Shepard, 507 F.3d 545, 549 (7th
Cir. 2007). For example, Dr. Evers requested that his
No. 07-3796 19
prospective employers be given good references “in the
event Dr. Evers secures employment with another branch of
[SSA], another governmental agency, or in the private
sector . . . .” (emphasis added). Evers has not indicated that
he has or will pursue such employment, and SSA has
not stated that it will fail to provide adequate refer-
ences—this claim rests upon “ ‘contingent future events
that may not occur as anticipated, or indeed may not occur
at all.’ ” Texas v. United States, 523 U.S. 296, 300 (1998)
(quoting Thomas v. Union Carbide Agric. Prods. Co., 473
U.S. 568, 580-81 (1985)). Evers also requested that his
“name be removed from the List of Parties Excluded
from Federal Procurement and Nonprocurement Pro-
grams in the event that [SSA] has already complied with
[federal regulations].” (emphasis added). Again, this
claim raises an unripe claim because SSA explained that
it has not placed Evers on any such list. See id. at 300.
Second, we agree with the district court that many of
Dr. Evers’s remaining claims have become moot. Mootness
is a threshold jurisdictional question that insures that
the court is faithful to the case or controversy limitation
in Article III of the Constitution. See Protestant Mem’l
Med. Ctr., Inc. v. Maram, 471 F.3d 724, 729 (7th Cir. 2006). A
case becomes moot when a party’s legally cognizable
interest in the litigation ceases to exist, and the case must
be dismissed for lack of jurisdiction. See St. John’s United
Church of Christ, 502 F.3d at 626; see also Powell v.
McCormack, 395 U.S. 486, 496 (1969). A case may become
moot if the court “can no longer ‘affect the rights of liti-
gants in the case.’ ” Worldwide Street Preachers’ Fellowship v.
Peterson, 388 F.3d 555, 558 (7th Cir. 2004) (quoting North
Carolina v. Rice, 404 U.S. 244, 246 (1971)).
Among his non-contractual requests for relief, Dr.
Evers asked that “an honest and fair consideration be
20 No. 07-3796
given by SSA to the renewal of [his] contract with [SSA]
and to the other bids which Dr. Evers has submitted . . . .”
But the district court noted that the contracts for which
Evers bid have long since expired. Thus, Evers lacks a
legally cognizable interest in the contracts and the
court cannot affect his rights. See id.; St. John’s United
Church of Christ, 502 F.3d at 626. Moreover, the district
court noted a further obstacle—Dr. Evers caused his
medical license to be suspended in 2004 by failing to
complete continuing-medical-education requirements
and is therefore no longer qualified to bid on medical
consultant contracts—a second reason why the court
cannot affect his rights.
And there is yet another impediment to jurisdiction
over the regulatory claims in Count III of Dr. Evers’s
complaint. The Administrative Dispute Resolution Act
vested concurrent jurisdiction in the federal district
courts and the United States Court of Federal Claims
for actions “by an interested party objecting to a solicita-
tion by a Federal agency for bids or proposals for a pro-
posed contract or to a proposed award or the award of
a contract or any alleged violation of statute or regula-
tion in connection with a procurement or a proposed
procurement.” 28 U.S.C. § 1491(b)(1). However, Con-
gress enacted a sunset provision that, absent further
congressional action, would terminate the jurisdiction of
district courts to hear claims under the Administrative
Dispute Resolution Act filed after January 1, 2001; Con-
gress never acted, and the jurisdiction of the federal district
courts lapsed. See Administrative Dispute Resolution Act
of 1996, Pub. L. No. 104-320, § 12(d), 110 Stat. 3870, 3874-
75 (codified at 28 U.S.C. § 1491(b)(1)); Galen Med. Assocs.,
Inc. v. United States, 369 F.3d 1324, 1329 n.2 (Fed. Cir. 2004);
No. 07-3796 21
Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071,
1079 (Fed. Cir. 2001); Balt. Gas & Elec. Co. v. United States,
290 F.3d 734, 737 (4th Cir. 2002).
In Count III, Dr. Evers argued that SSA violated fed-
eral regulations by rejecting his bids on subsequent con-
tracts. This is clearly a claim “in connection with” the
procurement of SSA contracts. So in addition to the consti-
tutional ripeness and mootness barriers to jurisdiction,
Congress has placed another statutory roadblock in
Evers’s path to the Northern District of Illinois. For this
reason, and the others, the district court was on very
solid ground when it dismissed the remainder of the
case for lack of jurisdiction.
III. CONCLUSION
We AFFIRM the dismissals by the district court.
USCA-02-C-0072—7-31-08