The opinion of the court was delivered by: JOHN DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Presently pending before the Court is Plaintiff's Motion to
Enter Final Partial Judgment Pursuant to Federal Rule of Civil
Plaintiff, Hans Evers, M.D., filed suit against Defendants,
alleging: (1) denial of procedural due process (Count I), (2)
denial of substantive due process (Count II), and (3) failure to
follow federal regulations (Count III). Evers' claims pertain to
the suspension and ultimate termination of his medical consult
service contract with the Social Security Administration. Count I
alleges that certain Defendants violated Evers' Constitutional
right to procedural due process because: (1) the suspension and
the termination of his contract constituted a deprivation of his
liberty and property without due process of law; (2) the
suspension and the termination deprived him of the interest in
the remaining five months of the contract; (3) the suspension and
the termination deprived him of the reasonable expectancy that
his contract would be renewed; (4) the SSA pinned a "badge of infamy" on him, putting his name, reputation, honor, and
integrity at stake without providing him an opportunity to review
the evidence against him or make a meaningful response; (5) his
termination deprives him not only of present employment but also
future employment; (6) he was entitled to a pre-termination
hearing; (7) his termination was based upon pretext, and he was
actually terminated because he was a whistle blower; and (8) he
was entitled to the safeguards set forth in 5 C.F.R. Part 731.
Count II alleges that certain Defendants violated Evers'
constitutional right to substantive due process because the
termination of the contract was not an appropriate response to an
incident involving Evers and a SSA employee. Count III alleges
that the SSA failed to follow federal regulations in the
termination of his contract and in the de facto suspension and
debarment of him from future contracts with the Government.
On June 22, 2005, the Court granted Defendants' Motion to
Dismiss as to Counts I and II, finding that the Court lacked
jurisdiction over Evers' claims relating to the termination of
his contract pursuant to the Contract Disputes Act. The Court
also dismissed Evers' Bivens claims against the individual
Defendants, finding that the comprehensive system of remedies for
resolving government contract suits via the CDA precludes a
private cause of action for an alleged constitutional violation.
See Janicki Logging Co. v. Mateer, 42 F.3d 561, 565 (9th Cir.
1994). Lastly, as to Counts I and II, the Court dismissed Evers'
claims that the Defendants failed to follow governmental
regulations found within 5 C.F.R. Part 731 because
5 C.F.R. Part 731 applied to federal employees, not federal contractors. The Court denied both parties' motions for summary judgment as
to Count III, finding that Evers' claim relating to the failure
to follow governmental regulations was moot in light of the
Court's finding that the regulations did not apply to Evers as a
federal contractor. In addition, a genuine issue of material fact
existed as to whether the SSA's actions constituted a dejure
suspension and/or de facto debarment.
Subsequently, Evers filed a Motion to Reconsider the Court's
June 22, 2005 ruling. Evers' Motion to Reconsider was denied.
Evers now moves for a final partial judgment order pursuant to
Federal Rule of Civil Procedure 54(b) to enable Evers to file an
appeal as to the Court's June 22, 2005 ruling.
If all of one party's claims or rights have been fully
adjudicated, the court may enter a partial final judgment upon a
determination that there is no just reason for delay.
Fed.R.Civ.P. 54(b); Lottie v. West American Ins. Co., 408 F.3d 935,
938 (7th Cir. 2005) (Lottie). Partial final judgment is only to
be employed when the subjects of the partial judgment do not
overlap with those that would remain in the district court.
Lottie, 408 F.3d at 938-39. Rule 54(b) allows appeal without
delay of claims that are truly separate and distinct from those
that remain pending in the district court. Lottie,
408 F.3d at 939. "Separate" does not mean that the claims arise under
different legal theories but that there is minimal factual
overlap. Lottie, 408 F.3d at 939.
Evers argues that partial judgment should be entered because
the legal issues between the dismissed claims and the remaining
claim are unrelated, and there is a lack of substantial
relationship between the dismissed claims and the one remaining
claim. While legal issues between the dismissed claims and the
remaining claim arise under different legal theories, the facts
underlying the claims significantly overlap, precluding Rule 54(b) judgment.
Evers' contract with the SSA, the incident with a SSA employee,
and the resulting suspension and termination of Evers' contract
constitute the factual basis for all of Evers' claims. This is
clearly evident by Evers' Complaint in which Evers repleads in
Count III all of the facts in Counts I and II. Accordingly,
Plaintiff's Motion to Enter Final Partial Judgment Pursuant to
Federal Rule of Civil Procedure 54(b) is denied. See Lottie,
408 F.3d at 940 (while evidence for claims was not identical, the
significant evidentiary overlap precluded Rule 54(b) judgment).
For the reasons stated above, Plaintiff's Motion to Enter Final
Partial Judgment Pursuant to Federal Rule of Civil Procedure
54(b) is denied.
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