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Every v. Department of Veterans Affairs

United States District Court, D. New Hampshire

March 6, 2017

Robert Every
Department of Veterans Affairs, et al. Opinion No. 2017 DNH 043


          Landya McCafferty United States District Judge.

         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. 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).


         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 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 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. Doc. no. 17 at ¶ 50. 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 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 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 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 ...

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