United States District Court, District of Columbia
BERMAN JACKSON United States District Judge
Bannum, Inc. has brought this action against defendants,
seven current or former employees of the Federal Bureau of
Prisons ("BOP"), alleging that "[defendants
have engaged in a pattern of conduct over the past several
years that has had the effect of debarring Bannum from
receiving any new contracts from the BOP, Bannum's sole
customer." Am. Compl. [Dkt. # 37] ¶¶2, 9-15.
Plaintiff predicates its claims on this alleged "de
facto debarment" and interference with contractual
relations, and it seeks a declaratory judgment, injunctive
relief, and monetary damages in excess often million dollars.
Id. ¶¶ 166-87, 189-95. On behalf of the
individually named defendants, the United States moved to
dismiss the amended complaint pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). Def.'s Mot. to
Dismiss Am. Compl. [Dkt. # 38] ("Def.'s Mot.").
It argues that the only proper defendant in this action is
the United States, that the government has not waived its
sovereign immunity in this instance, that plaintiff has
failed to exhaust its administrative remedies, and that
plaintiff has failed to state a plausible claim for relief in
any event. Mem. in Supp. of Def.'s Mot. [Dkt. # 38-1]
("Def.'s Mem.") at 2-3.
defendants are correct that the only proper defendant in this
action is the United States, and so the government will be
substituted as the sole defendant pursuant to the Westfall
Act. 28 U.S.C. § 2679. The Court also finds that it
lacks subject matter jurisdiction over plaintiffs tort claims
because the government has not waived its sovereign immunity,
plaintiffs tort claims are barred under the FTCA, and
plaintiff has not exhausted its administrative remedies.
Further, to the extent plaintiff attempts to raise a claim
under the Due Process Clause of the Fifth Amendment, it has
failed to allege sufficient facts to state a claim.
Therefore, for the reasons set forth in more detail below,
the Court will grant defendants' motion and dismiss this
case in its entirety.
is a Kentucky corporation with its principal place of
business in Odessa, Florida. Am. Compl. ¶ 8. The seven
individual defendants are Charles E. Samuels, Jr., the
Director of the BOP; Catherine Scott, Chief of the BOP
National Acquisitions and Systems Section; Timothy R.
Barnett, a BOP Residential Reentry Manager; Cheryl Dennings,
a Community Corrections Administrator for BOP; Lola
Lee-Brown, a BOP Contracting Officer; Osoria Toston, a former
Contract Oversight Specialist for BOP; and Andrea Johnson, a
former Community Corrections Regional Coordinator for BOP.
Id. ¶¶ 9-15.
operates Residential Reentry Centers ("RRCs") for
federal offenders throughout the United States pursuant to
contracts with the BOP. Am. Compl. ¶ 8. Although
plaintiff alleges that it currently operates six RRCs, it
claims that "at one point [it] had as many as seventeen
different RRCs" and that this was "prior to the
[defendants' attempts to eliminate Bannum from BOP
contracting ” Id. Plaintiff states that it was
under contract with BOP for eleven RRCs as recently as 2009
but that its bids for new RRC contracts since 2009 have been
unsuccessful. Id. ¶¶ 23-26. Plaintiff
concedes, however, that during the same time period, the BOP
has exercised options and extended some of its existing
contracts with plaintiff. Id. ¶¶ 25, 38.
allegations in the complaint are long and detailed, but
essentially, it maintains that the individual defendants
"gave Bannum a very difficult time" in the contract
solicitation process, engaged in a "scheme ... to put
Bannum out of business and ensure that it does not receive
any new government contracts, " "treat[ed] Bannum
differently than other contractors, " and conspired to
deprive Bannum of contracts when other competitors were
involved in the bidding process. Am. Compl. ¶¶ 32,
35, 39, 43.
example, plaintiff claims the BOP "raided" Bannum
Place of Tupelo, one of plaintiff s RRCs, "during the
bidding evaluation period for the follow-up contract" on
that center, and as a result, "Bannum's current
contract files were confiscated by the BOP" and
"the facility was damaged." Am. Compl. ¶¶
72, 75-76. Further, Plaintiff claims that it was forced by
defendants to suspend or improperly terminate its employees
at various RRCs and that the subsequent contracts for those
RRCs were awarded to plaintiffs competitor. Id.
¶¶ 83, 85, 93, 103, 109(e). Plaintiff also asserts
that defendants "would issue unilateral modifications
[to its contracts], thereby increasing the amount of wages
that Bannum was required to pay its employees" and that
the BOP "refuse[d] to timely reimburse Bannum" for
these expenses. Id. ¶¶ 122, 124
initiated this action on July 31, 2015, Compl. [Dkt. # 1],
and it filed its amended complaint on March 9, 2016. Am.
Compl. In Count I, plaintiff alleges that defendants
subjected it to a "de facto debarment" by
"engag[ing] in a campaign to sabotage [plaintiffs]
operations, harm its ability to act as a contractor, defame
its contract performance history, and damage [its] ability to
obtain new business." Id. ¶¶ 170,
175. Plaintiff insists that what it characterizes as a
debarment "implicates] the due process clause of the 5th
Amendment to the United States Constitution, and requires, at
minimum, proper notice to Bannum of the charges on which the
debarment is based, and that Bannum be afforded an
opportunity to refute those charges." Id.
¶ 177. In Count II, plaintiff brings a claim for
"interference with contractual relations, prospective
contractual relations, and prospective advantageous economic
relationship, " claiming that defendants "have used
and misused their positions and authority as employees of the
BOP to interfere with and disrupt the existing and
prospective business relationships of Plaintiff Bannum, Inc.
to the point of destroying those relationships and
eliminating Plaintiff Bannum, Inc. as a contractor."
Id. ¶ 190. According to plaintiff, defendants
carried out this attack in a number of ways, including by
making false and defamatory statements about Bannum, pursuing
unwarranted investigations into alleged wrongdoing by the
contractor, and forcing the company to fire particular
April 21, 2016, defendants moved to dismiss this case in its
entirety, Def.'s Mot., and plaintiff filed its opposition
to that motion on June 10, 2016. PL's Mem. in Opp. to
Def.'s Mot. [Dkt. # 40] ("PL's Opp").
Defendants filed a reply on July 22, 2016. Reply in Supp. of
Def.'s Mot. [Dkt. #42] ("Def.'s Reply").
evaluating a motion to dismiss under either Rule 12(b)(1) or
12(b)(6), the Court must "treat the complaint's
factual allegations as true . . . and must grant plaintiff
'the benefit of all inferences that can be derived from
the facts alleged.'" Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)
(internal citations omitted), quoting Schuler v. United
States, 617 F.2d 605, 608 (D.C. Cir. 1979); see also
Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139
(D.C. Cir. 2011). Nevertheless, the Court need not accept
inferences drawn by the plaintiff if those inferences are
unsupported by facts alleged in the complaint, nor must the
Court accept plaintiffs legal conclusions. Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
Rule 12(b)(1), the plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence. See
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992);
Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d
59, 63 (D.D.C. 2002). Federal courts are courts of limited
jurisdiction and the law presumes that "a cause lies
outside this limited jurisdiction." Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994);
see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448
(D.C. Cir. 2004) ("As a court of limited jurisdiction,
we begin, and end, with an examination of our
jurisdiction."). "[B]ecause subject-matter
jurisdiction is 'an Art[icle] III as well as a statutory
requirement ... no action of the parties can confer
subject-matter jurisdiction upon a federal court.'"
Akinseye v. District of Columbia, 339 F.3d 970, 971
(D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702
considering a motion to dismiss for lack of jurisdiction,
unlike when deciding a motion to dismiss under Rule 12(b)(6),
the court "is not limited to the allegations of the
complaint." Hohri v. United States, 782 F.2d
227, 241 (D.C. Cir. 1986), vacated on other grounds,
482 U.S. 64 (1987). Rather, "a court may consider such
materials outside the pleadings as it deems appropriate to
resolve the question [of] whether it has jurisdiction to hear
the case." Scolaro v. D.C. Bd. of Elections &
Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000), citing
Herbert v. Nat'l Acad. of Scis., 974 F.2d 192,
197 (D.C. Cir. 1992); see also Jerome Stevens Pharm.,
Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).