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Evers v. Astrue

July 31, 2008

HANS EVERS, M.D., PLAINTIFF-APPELLANT,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 C 2189-John W. Darrah, Judge.

The opinion of the court was delivered by: Kanne, Circuit Judge

ARGUED MAY 9, 2008

Before FLAUM, KANNE, and TINDER, Circuit Judges.

Dr. Hans Evers performed medical consulting services for the United States Social Security Administration (SSA) until SSA terminated his contract following a verbal altercation Evers had with an SSA supervisor. Evers initially sought administrative relief for the contract termination and for the subsequent rejection of three bids he placed on other SSA contracts. Dissatisfied with the results, Evers filed suit in the Northern District of Illinois, alleging constitutional tort claims against SSA officers for violating his Fifth Amendment rights to procedural and substantive due process. Evers's complaint also sought judicial review of SSA for violating his due-process rights and for failing to follow federal regulations governing the suspension, termination, and debarment of government employees. The district court dismissed Evers's due-process claims and some of his regulatory claims, finding that the Contract Disputes Act, 41 U.S.C. § 601 et seq., divested it of jurisdiction over those claims because they "related to" Evers's contract with SSA. Two years later, after a bench trial, the district court dismissed the remainder of the case as moot. Because the district court lacked jurisdiction, we affirm both dismissals.

I. HISTORY

Dr. Hans Evers, a board-certified neurologist, worked as a medical consultant for SSA pursuant to a contract awarded in December 1998. The initial contract period ran from January 1 through December 31, 1999, and the contract carried four one-year renewal options. SSA exercised all four options, and Evers began work under the final renewal term in January 2003.

On August 1, 2003, a verbal altercation took place between Dr. Evers and Lillie Brown, an SSA employee who was responsible for monitoring and training contractors. Brown concluded that Evers had erred by commenting on a non-medical issue in a case, and went to discuss the matter with Evers. When Brown explained her observation to Evers, he confronted her in a loud voice-Evers shouted to Brown that she was incompetent to address the issue, that she should leave his work area, and that her interference with his work should be investigated. Brown immediately reported Evers's outburst, and later that day an SSA director told Evers to leave the building because Brown feared for her personal safety. Evers left, and sent Brown an e-mail that apologized for his "angry acting-up." Three days later, Evers received a letter from an SSA contract specialist, advising him that his work under his contract was being "stopped" while SSA investigated the incident. Around the same time, Evers sent a letter to SSA explaining his version of the events.

On August 14, 2003, Dr. Evers met with SSA officials to discuss what had transpired. The next day, Reggie Poskocimas, a contracting officer for SSA, wrote Evers a letter stating that SSA was terminating Evers's contract for cause due to the incident with Brown. Poskocimas's letter referred to the termination and removal-from-duty clauses in Evers's contract, which permitted SSA to remove Evers if SSA determined him unfit to perform due to "[d]isorderly conduct, use of offensive language, quarreling, intimidation by words or actions or fighting . . . . [or] participating in disruptive activities which interfere with the normal and efficient operations of the Government." The letter also cited a clause that made all disputes "subject to the Contract Disputes Act," and advised Evers that he could either appeal his contract termination to the General Services Administration Board of Contract Appeals (GSABCA) within 90 days, or he could file an action on his claim in the United States Court of Federal Claims within 12 months. See 41 U.S.C. §§ 606, 609(a)(1).

A few weeks later, Dr. Evers elected to appeal Poskocimas's termination decision to the GSABCA. In his complaint to the GSABCA, Evers alleged tort claims for retaliatory discharge and intentional interference with an existing contract, violations of his constitutional rights to substantive and procedural due process, and a failure by SSA to follow federal regulations when terminating him. In November 2003, the GSABCA explained that it did not have jurisdiction to consider constitutional violations or torts, nor could it decide the asserted regulatory claims because they had never been submitted to a contracting officer for decision. As a result, the GSABCA asserted its jurisdiction over only the challenge to the suspension and termination of Evers's contract; the GSABCA dismissed the other claims without prejudice. The GSABCA offered Evers a choice: he could voluntarily withdraw the appeal of his contract claim without prejudice before November 18, 2003, or he could continue to litigate the propriety of his suspension and termination before the GSABCA. Evers gave untimely notice that he wished to withdraw, and the GSABCA dismissed Evers's appeal, with prejudice, in December 2003.

While Dr. Evers's GSABCA appeal was pending, he submitted bid proposals in response to three solicitations for SSA contracts. Poskocimas, who had terminated Evers, was also responsible for awarding these contracts, and rejected Evers's bids. Poskocimas sent Evers a letter stating that SSA had awarded the contracts to other doctors and inviting Evers to submit future bids. When Evers asked Poskocimas why his bids were rejected, Poskocimas sent Evers a second letter, which explained that Evers's quotes were rejected "based on [his] past contract performance, specifically, [his] actions on August 1, 2003, which led to termination of [the] contract for cause."

Dr. Evers filed three protests (one for each rejected bid) with the General Accounting Office (GAO) in January 2004. Evers claimed that SSA had engaged in an unfair and "secret" process when denying his bids. One month later, SSA filed a response with the GAO, explaining that it rejected Evers's bids because, pursuant to federal regulations, it presumed him to be "non-responsible" due to the termination of his previous contract for cause. See 48 C.F.R. § 9.104-3(b). Eventually, Evers and SSA agreed that SSA should have nonetheless referred his quotes to the Small Business Administration (SBA) before determining that he was not a responsible bidder; the GAO dismissed the protests based on SSA's representation that it would refer the quotes to SBA.

In late March 2004, Dr. Evers filed a three-count complaint in the Northern District of Illinois against SSA, Poskocimas, Brown, and several other SSA officers. Counts I and II of the complaint alleged constitutional torts against the SSA officers under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 392 (1971). See also Davis v. Passman, 442 U.S. 228, 242 (1979). Specifically, Count I alleged that the officers violated Evers's Fifth Amendment right to procedural due process by pinning a "badge of infamy" on Evers without a meaningful opportunity for review. Evers claimed that he had a property interest in the remaining five months of his contract with SSA, and he alleged that he had liberty interests in the renewal of his contract and "in not having his contract terminated under circumstances calling [into] question his good name, reputation, honor, and integrity"; Evers argued that he was denied these interests without notice or hearing when the officers summarily suspended him, terminated his contract, and denied his bid requests. Count II of the complaint alleged that the SSA officers deprived Evers of his Fifth Amendment right to substantive due process because terminating his contract was an overreaction to the August 1 incident-Evers claimed that the officers engaged in "administrative tyranny . . . so arbitrary that it shocks the conscience." Count III called for judicial review of SSA under the Administrative Procedure Act, 5 U.S.C. § 702, for violating Evers's due-process rights, and also alleged that SSA failed to follow federal regulations when it suspended Evers's contract and excluded him from receiving future work. Evers requested a myriad of remedies including, among others, $2.7 million in damages, review of the administrative record, declaratory relief, a reversal of the stop-work order and contract termination, and that SSA provide "good references" to potential employers if Evers applied for work in the future.

In late June 2005, the district court ruled on a motion to dismiss or for summary judgment filed by SSA and its officers, and on a motion for summary judgment on Count III filed by Dr. Evers. First, the district court dismissed all claims "relating to the termination of [Evers's] contract," pursuant to the Contract Disputes Act. The district court explained that the Contract Disputes Act outlines a distinctive procedure for resolving " '[a]ll claims by a contractor against the government relating to a contract . . . .' " (quoting 41 U.S.C. § 605(a)). The court reasoned that Evers's constitutional due-process claims "related to" the termination of his contract because "the source of the rights upon which Evers bases his claim is his contract with the SSA and the alleged wrongful termination of that contract." Consequently, the court held that it lacked jurisdiction over Counts I and II of the complaint, as well as over Evers's request in Count III for a reversal of his suspension and termination, which the court deemed was really a request for "specific performance on the contract." Next, the court explained that the constitutional torts alleged against the SSA officials in Counts I and II were improper Bivens actions because "the comprehensive system of remedies for resolving government contract suits via the [Contract Disputes Act] precludes a private cause of action for an alleged constitutional violation."

The district court then turned to the cross-motions for summary judgment on the remaining claims in Count III-that SSA had violated federal regulations when it denied Dr. Evers's bids for the three subsequent contracts. On those claims, the district court found that a "genuine issue of material fact [existed] as to whether SSA's actions constituted a de ...


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