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Umted States Comt of Federal Clalms

No. 18-955 C
Filed: November 2, 2018

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GEORGE ULYSSESS SEARLES, Jr.,
d/b/a OMEGAMAN FIREPROTECTION

Plaintiff,
V.
THE UNITED STATES,

Defendant.

 

George Ulyssess Sear'les, Jr. , Washington, D.C pro se plaintiffl

Rebecca Samh Kruser, United States Department of Justice, Comrnercial Litigation Branch,
Washington, D.C., for defendant.

OPINION AND ORDER
SMITH, Senior Judge

This post»award bid protest comes before the Court on defendant’s Motion to
Dismiss. See generally Defendant’S Motion to Dismiss (hereinafter “D’s MTD”). Plaintiff,
George Searles (“Searles”), proceeding pro se and doing business as Omegaman
Fireprotection, challenges the decision of the Department of Veterans Affairs (“VA”)
awarding Solicitation No. VA256-l7-R-0888 (“Solicitation”) to Big Red Fire Protection.
The Solicitation sought the removal and replacement of fire sprinkler heads for Veterans
Health Care of the Ozarl<s, located in Fayetteville, Arkansas. In his Complaint, Searles
claims that he Was “[d]iscriminated against and treated With [b]ias” during the solicitation
process See Complaint (hereinafter “Compl.”) at l. Plaintiff seeks damages in the amount
of $269,000.00. See id. at 5. On August 8, 2018, defendant filed its Motion to Dismiss
alleging that, pursuant to Rule lZ(b)(l) of the Rules of the Court of Federal Claims
(“RCFC”), this Couit lacks jurisdiction to entertain plaintiffs claims. See D’s MTD at 4.
Alternatively, defendant argues that Searles’ Cornplaint should be dismissed pursuant to
RCFC lZ(b)(é) for failure to state a claim upon Which relief can be granted. See D’s MTD at
13. For the following reasons, defendant’s Motion to Dismiss is granted

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I. Background

The VA issued Solicitation No. VA256-l7~R-0888 on July 2l, 2017. See
Defendant’s Appendix to Motion to Dismiss (hereinafter “D’s App.”) at ApprOl. The
Solicitation Was for a project Which “involved the replacement of fire sprinkler heads in two
buildings located in Fayetteville, Arl<ansas.” Id. lmportantly, “[t]he procurement Was a
100% set aside for Service-Disabled Veteran-Owned Small Business (SDVOSB).” Ia’, “ln
order to compete, the Solicitation required bidders to be verified in the VetBiZ vendor
information pages.” D’s MTD at 3. Additionally, the Solicitation Was a negotiated
procurement falling under the provisions of the Federal Acquisition Regulation (“FAR”) Part
l5. See id.; 48 C.F.R. § 15.000 (“This part prescribes policies and procedures governing
competitive and noncompetitive negotiated acquisitions A contract awarded using other
than sealed bidding procedures is a negotiated contract (see 14.101).”). The VA made an
award based on best value analysis, taking into consideration technical acceptability, past
performance, and price. See id. The VA received six proposals, including Searles’ proposal
See D’s App. at Appx107. Ultimately, the VA’s Contracting Officer awarded the contract to
Big Red Fire Protection for a price of $267,000. See id. at Appxl 07. The VA informed
Searles, via letter, of the award on September l9, 2017, including Within the letter the name
of the awardee and the price of the contract See id at Appx{)99. On September 28, 2017,
the VA and Big Red Fire Protection entered into the contract See id. at Appxl()l. After
extending the period of performance for the contract twice and adding an additional
$54,639.78 Worth of Worl<, the project Was completed and closed out on Aprii 25, 2018. See
id. at Appxl[}§, AppxlO6.

On June 29, 2013, plaintiff filed his Complaint With this Court, seeking $269,000 in
damages See generally Compl. ln response, defendant filed its Motion to Dismiss on
August 8, 2018. See D’s l\/l'l`D. Plaintiff’s Response to Defendant’s l\/lotion to Dismiss Was
filed on August 16, 2018. See Plaintiff”s Response to Defendant’s Motion to Dismiss
(hereinafter “P’s Resp.”). Defendant submitted its Repiy in Support of its l\/lotion to Dismiss
on September 21, 2018. See Defendant’s Reply in Support of its i\/[otion to Dismiss
(hereinafter “D’S Reply”). Defendant’s Motion is fully briefed and ripe for revieW.

II. Discussion

A. Standard of Review

This Court’s jurisdictional grant is found primarily in the Tucker Act, Which provides
the Court of Federal Claims the power “to render any judgment upon any claim against the
United States founded either upon the Constitution, or any Act of Congress or any regulation
of an executive department, or upon any express or implied contract With the United
States . . . in cases not sounding in tort.” 28 U.S.C. § l49l(a)(l) (2012). Although the
Tucl<er Act explicitly Waives the sovereign immunity of the United States against such
claims, it “does not create any substantive right enforceable against the United States for
money damages.” United States v. Testan, 424 U.S. 392, 398 (1976). Rather, in order to fall

_2_

 

within the scope of the Tucl<er Act, “a plaintiff must identify a separate source of substantive
law that creates the right to money damages.” F:.'sher v. United Sta.tes, 402 F.Bd 1167, l172
(Fed. Cir. 2005) (en banc in relevant part).

Subject-matter jurisdiction is a threshold matter that must be addressed before the
Court evaluates the merits of plaintiff s ciaims. See Deponte lnvs., lnc. v. United Smtes, 54
Fed. Cl. 112, 1l4 (2002) (referencing Sreel Co. v. Citizensfor a Belrer Env’t, 523 U.S. 83,
94495 (l998)). When considering a motion to dismiss for lack of subject»matter jurisdiction,
the Court must accept as true all undisputed facts asserted in plaintiffs Cornplaint and draw
all reasonable inferences in plaintiffs favor. See Trusted Inregration, Inc. v. United Slates,
659 F.3d 1159, 1163 (Fed. Cir. 20l1) (citing Henke v. United Stales, 60 F.3d 795, 797 (Fed.
Cir. 1995)). Furthermore, pleadings from pro se plaintiffs are held to more lenient standards
than pleadings drafted by lawyers Hughes v. Rowe, 449 U.S. 5, 9 (1980); see also Ericlcron
v. Pm‘clus, 551 U.S. 89, 94 (2007).

This leniency, however, does not extend to saving a complaint that lies outside of this
Court’s jurisdiction “Despite this permissive standard, a pro se plaintiff must still satisfy the
court’sjurisdictional requirements.” Trevino v. United Smtes, 113 Fed. Cl. 204, 208 (2013),
aj"’d, 557 F. App’x 995 (Fed. Cir. 2014) (citations omitted). Pro se or not, the plaintiff still
has the burden of establishing by a preponderance of the evidence that this Court has
jurisdiction over its claims. See Kolclconen v. Guarclian Llfe lns. Co. OfAm., 511 U.S. 375,
377 (1994). Accordingly, “[i]f the [C]ourt determines at any time that it lacks subject-matter
jurisdiction, the [C]ouit must dismiss the action.” RCFC l2(h)(3).

B. Subject-Matter Jurisdiction

Defendant claims that “although Mr. Searles’ complaint was docketed as a bid protest
and he expresses dissatisfaction with the outcome of the award of a government contract . . . .
[p]roperly read, Mr. Searles’ complaint does not present a bid protest.” D’s MTD at 7
(referencing Compl. at 3). Defendant cites plaintiff’ s Complaint, which relies on a multitude
of statutes, regulations, and provisions of the Constitution to form a basis for his claims See
D’s l\/ITD at 7. Specifically, plaintiff relies on statutes granting hiring preferences to
veterans, various civil rights acts, the Due Process Clause, and an executive order. See
generally Compl. Plaintiff responds by arguing that this Court has subject~matter jurisdiction
over his claims pursuant to this Court’s bid protest jurisdiction See P’s Resp. at 3. For the
following reasons, the Court finds there is a lack of subject-matter jurisdiction for all claims
found in plaintiffs Complaint.k

 

1 Plaintiff has failed to invoice this Court’s bid protest jurisdiction under 28 U.S.C. §
l49l(b)(1). This Court agrees with defendant’s argument that if plaintiffs claims invoked
bid protest jurisdiction, plaintiffs action would be dismissed for failure to state a claim for
which relief can be granted pursuant to RCFC l2(b)(6). The alleged contract in dispute was
completed on April 25, 2018. Tlierefore, there is no contract for the Court to set aside, and
plaintiff fails to seek bid preparation and proposal costs.

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1. Jobs for Veterans Act and Veteran Employment Opportunities Act of
1998

ln his Complaint, plaintiff cites the l cbs for Veterans Act and the Veteran
Eniployment Opportunities Act of 1998 as statutes applying to this action. See Compl. at 4.
As defendant points out, plaintiff fails to specify which portions of these statutes apply to his
claims See D’s MTD at 8. First, the Jobs for Veterans Act is not a source of substantive law
that creates the right to money damages See generally 38 U.S.C. § 4212 (2012). lnstead,
the Jobs for Veterans Act mandates the hiring of veterans by private entities that enter into a
contract with the United States. See ial 'l`lrerefore, the Jobs for Veterans Act cannot confer
jurisdiction on the Court of Federal Clairns. Correspondingly, the Veteran Employment
Opportunities Act of 1998 does not provide a jurisdictional basis for this Court to hear
plaintiffs claims Indeed, the Veteran Employment Opportunities Act grants exclusive
jurisdiction to the district courts for violations of the Act. See 5 U.S.C. § 3304(i)(l) (2012).
Neither the Jobs for Veterans Act, nor the Veteran Employment Opportunities Act of 1998
establish jurisdiction over plaintiffs case.

2. Civil Rights Acts

Next, plaintiff alleges that the VA violated his civil rights pursuant to the Civil Rights
Act of l866, 42 U.S.C. § 1982 (2012); Title Vi ofthe Civil Rights Act of 1964, 42 U.S.C. §§
2000d~2000d-4a', the Civil Rights Act of 1968, Pub. L. No. 90-284, 82 Stat. 72; and the Civil
Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071. These statutes confer exclusive
jurisdiction on the federal district courts for alleged violations of civil rights See Stamps v.
United States, 73 Fed. Cl. 603, 610 (2006) (citing Elkz'ns v. United States, 229 Ct. Cl. 607
(1981)). Therefore, plaintiffs claims under these statutes are dismissed for lack of
subject-matter jurisdiction

3. Due Process Clause

Plaintiff asserts claims for violations under the “Fifth and Fourteenth Amendments to
the United States Constitution” and the “Due Process clause.” This Court retains jurisdiction
to hear claims under the Takings Clause of the Fifth Amendrnent. See Murray v. United
States, 817 F.2d 1580, l583 (Fed. Cir. 1987). 'l`he Court, however, has no jurisdiction to
entertain violations of the Due Process Clause. See Ja.mes v. Calclera, 159 F.3d 573, 581
(Fed. Cir. 1998) (finding the Court of Federal Claims to lack jurisdiction over claims under
the Due Process Clause and Double Jeopardy Clause of the Fifth Amendment because they
are not money-mandating provisions), in order to establish jurisdiction under the Takings
Clause, a plaintif “must demonstrate that the government took his property and either failed
to compensate him justly or failed to put the property to public use.” Murray, 817 F.2d at
1583. Plaintiff’ s Fifth Amendment argument fails to invoke the Takings Clause of the Fifth
Amendment. See generally Compl. Accordingly, plaintiffs claims under the Due Process
Clause are dismissed for lack of subject-matter jurisdiction

4. Executive Order

 

Plaintiff relies, additionally, on a “2004 Executive Order issued by President Bush
that mandated increased contracting and subcontracting for veteran-owned and
service-disabled veteran owned small businesses.” Compl. at 4. Based on the context of
plaintiffs Complaint, the Court assumes that plaintiff is citing Executive Order 13,360. See
generally Compl. While Executive Order l3,360 mandates federal agencies to more
effectively implement the “goal of not less than 3 percent for participation by
service-disabled veteran businesses in Federal contracting,” the Executive Order does not
create a private right enforceable at law against the United States. Exec. Order No. 13,360 §
l, 69 Fed. Reg. 62,549, 62,549 (Oct. 26, 2004). Therefore, any of plaintiffs claims relying
on Executive Order 13,360 are outside of the scope of this Court’s subject-matter
jurisdiction

5. Freedom of Information Act

Plaintiff raises concerns regarding the VA’s reply to plaintiffs request for
information See Compl. at 3. Plaintiff relies on the Freedom of lnformation Act (“FOIA”)
as well as the Arkansas Freedom of lnformation Act. See ial Additionally, plaintiff cites the
Federal Acquisition Regulation (“FAR”) Part 14 as controlling law over his bid protest, and
relies on sections found within Part 14 that require specific information be given to
unsuccessful bidders See Compl. at 3 (citing 48 C.F.R. § 14.409 (2018)). ln its Motion to
Dismiss, defendant argues that this Court does not have jurisdiction over FOIA claims, and
the procurement at issue was not directed under FAR Part 14. See D’s MTD at 11~12 (citing
United States v. Tesl'arl, 424 U.S. 392, 398 (l976)). The Court finds that argument
persuasive

First, the Court of Federal Claims does not retain jurisdiction over violations of the
FOIA. See 5 U.S.C. § 552(a)(4)(B)); Berrzard v. United States, 59 Fed. Cl. 497, 503 (2004).
This Court also does not have jurisdiction over claims based in state law, such as the
Arkansas Freedorn of Inforrnation Act. See 28 U.S.C. § l49l(a)(l); United States v.
Mitcl'lell, 463 U.S. 206, 215-18 (1983) (establishing limits on the Court of Federal Claims’
jurisdiction). Fuithermore, the Court agrees with the government’s argument that the
procurement was not directed under FAR Part 14 because the Solicitation did not utilize
sealed bidding procedures required under Part 14 of the FAR. Compare 48 C.F.R. § 14.101
(defming the elements of sealed bidding) with 48 C.F.R. § l5.000 (providing that FAR Part
l5 covers negotiated acquisitions which are contracts using other than sealed bidding
procedures). Even if FAR Part l4 applied, that provision is not a money-mandating source
of authority. See generally 48 C.F.R. §§ 14.000~14.503. As this Court does not have
subject-matter jurisdiction over plaintiffs FOlA actions, plaintiffs claims relying on this
body of law are dismissed

6. Tort Claims
Finally, plaintiff uses language sounding in tort to describe the nature of harm
inflicted on plaintiff by the VA. See Compl. at 5 (“The loss of the contract, not rightfully

awarded to me and my Company, Omegaman Fireprotection has caused undue Financial and
Emotional Distress.”). lt is clear that this Court lacks jurisdiction to hear claims sounding in

_5_

 

tort. See 28 U.S.C. § 149l(a)(l) (establishing jurisdiction of the Court of F ederal Claims and
excluding cases sounding in tort). Therefore, to the extent plaintiff brings actions under a
theory of tort, those claims are dismissed for lack of subject-matter jurisdiction

III. Conclusion

For the reasons set forth above, defendant’s MOTION to Dismiss is GRAN'I`ED.
The Court directs the Clerk of Court to enter judgment in favor of defendant, consistent with
this Order.

rr ls so oRDERED. %/ / . §

Loren A. Smith,
Senior Judge

 

