United States District Court, D. New Hampshire
McCafferty United States District Judge.
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.
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.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.
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.” Katz v. 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).
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.
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 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.
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.
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 win the bid. 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.
that he was being treated unfairly, Every met with members of
the VA, including Waye, “to try to resolve what [Every]
perceived as a very hostile attitude” toward him. Doc.
no. 17 at ¶ 50. Every alleges that at the meeting, Waye
said Waye could handle the bidding process however Waye
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 the
Togus VA Medical Center, including the individual defendants,
increased their hostility toward him.
Realty subsequently defaulted on its contract with the VA,
and the VA advertised another bid for the Rumford Clinic.
Every alleges that defendant Salvatore Voter, the Assistant
Contracting Officer, informed Every that he was
pre-disqualified from the bidding process and that the VA
would not be inspecting his facility. Every subsequently made
a formal complaint to Brian Stiller and defendant Michael
Mayo-Smith regarding remarks the VA inspection team allegedly
made about him. Every did not receive a response to his
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 ...