                                                            F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                             DEC 12 2001
                         FOR THE TENTH CIRCUIT
                                                         PATRICK FISHER
                                                                  Clerk

ANDRE KIMBOKO,

            Plaintiff-Appellant,

v.                                             No. 00-1480
                                           (D.C. No. 00-M-1126)
UNITED STATES OF AMERICA,                        (D. Colo.)
on behalf of its agencies, now or then
were agency heads and officials, and
other government officials;
DEPARTMENT OF COMMERCE,
Acting Secretary; LARRY IRVING,
Assistant Secretary for
Communications and Information and
Administrator, NTIA; MICHAEL
KANTOR, Acting Secretary,
Department of Commerce; DONNA
SHALALA, Secretary, Department of
Health and Human Services; MARC
R. WEISMAN, Director, Division of
Acquisition Policy and Oversight, via
Donna Shalala, Department of Health
and Human Services; JESSE
BROWN, Secretary, Department of
Veterans Affairs; MARILYN
MARTIN, Acting Director,
Acquisition Operations Service, via
Secretary Jesse Brown, Department
of Veterans Affairs; RODNEY E.
SLATER, Secretary, Department of
Transportation; RICH LIEBER,
Procurement Operation Division,
via Secretary Rodney E. Slater,
Department of Transportation;
AL GORE, Vice President of the
United States of America;
BILL MASON, Director of
Correspondence for the Vice
President, via Al Gore, Vice
President of the United States of
America; MICHAEL R. NELSON,
Special Assistant to the President of
the United States of America, Office
of Science and Technology Policy,
The White House,

               Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, SEYMOUR , Circuit Judge, and           BRORBY ,
Senior Circuit Judge.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff seeks review of a district court order dismissing his civil rights

action brought pursuant to 42 U.S.C. § 1981. He claimed his rights were violated

by various federal governmental officials’ failure to comply with Federal


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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Acquisition Regulations (FARs) governing consideration of unsolicited proposals.

Plaintiff had submitted his unsolicited proposal for an “on-line internal

information retrieval system/network” to then Vice President Al Gore and several

federal government agencies.      He alleged that he is an African American and that

his proposal was not properly evaluated under the regulations. He sought money

damages and equitable and legal relief, and punitive damages, in amount equal to

the full funding of his proposal. R. Vol. I, Doc. 1 at 35-36.

       In an earlier action transferred from the District of Colorado, the Federal

Circuit Court of Appeals determined that the Court of Federal Claims lacked

jurisdiction over plaintiff’s claimed violations of the FARs and the Federal Torts

Claims Act, as well as his civil rights claim.         See Kimboko v. United States ,

No. 99-5020, 2000 WL 628835, at **1 (Fed. Cir. May 5, 2000) (unpublished

disposition). The court further held that plaintiff had failed to establish the

elements of an implied-in-fact contract.         Id.

       Defendants moved to dismiss this action under Federal Rule of Civil

Procedure 12(b)(1) and (b)(6) for lack of subject matter jurisdiction and for

failure to state a claim upon which relief can be granted. Defendants further

argued that the complaint was barred by the statute of limitations. The district

court held that plaintiff had failed to state a claim under § 1981 because he had

set forth no allegations sufficient to support a claim that his race was a motivation


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in any governmental decisions. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.

       On appeal, the government argues that it is protected against suits of this

nature by the doctrine of sovereign immunity.        See Pennhurst State Sch. & Hosp.

v. Halderman , 465 U.S. 89, 99 n.8 (1984) (sovereign immunity deprives federal

courts of jurisdiction to entertain claims against government and may be raised at

any time). Under the doctrine of sovereign immunity, the government is immune

from suit unless it consents to be sued.    See United States v. Richman (In re

Talbot) , 124 F.3d 1201, 1205 (10th Cir. 1997). Moreover, “[t]he United States

consents to be sued only when Congress unequivocally expresses in statutory text

its intention to waive the United States’ sovereign immunity.”       Id. at 1206.

       Plaintiff’s claimed basis of jurisdiction for its claims against the United

States and various federal agencies is § 1981. However, § 1981 is inapplicable to

alleged discrimination under color of federal law.      Davis-Warren Auctioneers,

J.V. v. FDIC , 215 F.3d 1159, 1161 (10th Cir. 2000).        See also Davis v. United

States Dep’t of Justice , 204 F.3d 723, 725 (7th Cir. 2000);     Lee v. Hughes , 145

F.3d 1272 (11th Cir. 1998). We are, of course, free to affirm the district court’s

decision on any ground on which the record is “sufficient to permit conclusions of

law, even grounds not relied upon by the district court.”      United States v. Sandia ,




                                            -4-
188 F.3d 1215, 1217-18 (10th Cir. 1999) (further quotation omitted). This action

cannot be maintained under § 1981.

      The judgment of the United States District Court for the District of

Colorado is AFFIRMED.

      The mandate shall issue forthwith.


                                                   Entered for the Court



                                                   Wade Brorby
                                                   Senior Circuit Judge




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