M. Nicolas Enterprises, Llc.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
NOT FOR PUBLICATION
_____________________________________
)
M NICOLAS ENTERPRISES, LLC, )
d/b/a WORLD WIDE HEALTH SERVICES, )
)
Plaintiff, )
)
v. ) No. 20-691C
)
THE UNITED STATES, ) Filed: February 23, 2022
)
Defendant. )
_____________________________________)
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s Motion to Transfer this matter back to the U.S. District Court
for the Southern District of Florida where the case was initially filed. Pl.’s Mot. to Transfer, ECF
No. 84. The facts alleged are familiar to the parties. Plaintiff World Wide Health Services, an
adult day care facility in West Palm Beach, Florida, submitted a proposal to provide adult day care
services in response to a solicitation issued by the Department of Veterans Affairs (“VA”). Op. &
Order at 1–2, ECF No. 77. As part of the solicitation process, a VA employee inspecting Plaintiff’s
facility indicated that the facility’s fire alarm system was substantially deficient. Id. at 2. Although
it disagreed that it was necessary, after further communication with the VA, Plaintiff spent about
$10,000 to install a new fire alarm system. Id. at 3. Once Plaintiff completed this upgrade, along
with correction of all other identified deficiencies, the VA conducted a second inspection of
Plaintiff’s facility. Id. at 3–4. A lack of follow up in the wake of the second inspection prompted
Plaintiff to email the VA’s named contact for the solicitation, who in response implied that
Plaintiff’s difficulties with its bid were due to the skin color of Plaintiff’s owner and president,
Michelle Nicolas. 1 Id. at 4. Plaintiff ultimately was not awarded a contract under the solicitation.
Id. It also alleges that subsequent notices from and communications with VA officials contained
many inaccuracies regarding Plaintiff’s facility and that a subsequent solicitation promised by a
VA senior official was never issued. Id. at 4–5.
The original complaint filed in the district court alleged civil rights violations under 42
U.S.C. § 1981 and a breach of implied-in-law contract claim under the Tucker Act. Pls.’ Compl.
¶¶ 46–59, ECF No. 1. In response to the VA’s motion to dismiss based, in part, on lack of
jurisdiction and sovereign immunity, Plaintiffs 2 filed an amended complaint, this time raising their
claims under the Administrative Procedure Act (“APA”) and Contract Disputes Act (“CDA”).
Pls.’ Am. Compl. ¶¶ 51–65, ECF No. 35. The VA again moved to dismiss, asserting that, among
other things, jurisdiction was proper only in this Court and that any APA claims were precluded
by the availability of remedies under the CDA and/or the Tucker Act. Def.’s Mot. to Dismiss Pls.’
Am. Compl. at 8–11, 15–19, ECF No. 36. The district court found that “[t]he crux of Plaintiffs’
claims is that the VA discriminated against them on the basis of race by not awarding them a
contract to provide day care services for veterans.” Order Transferring Venue at 1, ECF No. 40.
Explaining that the Court of Federal Claims has exclusive jurisdiction over “contract claims
seeking more than $10,000” and that district courts lack jurisdiction under 28 U.S.C. § 1346(a)(2)
to hear contract claims against the United States, the court concluded that it lacked subject matter
jurisdiction and transferred the case to this Court. Id. at 2.
1
Ms. Nicolas is African American. Pls.’ Am. Compl. Pursuant to R. 3.1 ¶ 5, ECF No. 57.
2
Ms. Nicolas was previously a co-plaintiff in this action. The Court has since dismissed
her for lack of standing. ECF No. 77 at 24–26.
2
Upon transfer, Plaintiffs filed an Amended Complaint Pursuant to RCFC 3.1, asserting
their claims under Tucker Act §§ 1491(a)(1) and (b)(1), the APA, and the CDA. See ECF No. 57.
This Court recently dismissed all claims save for the bid protest claim under § 1491(b)(1), finding
that it lacked jurisdiction over (1) any implied-in-fact contract, illegal exaction, or constitutional
claims alleged under § 1491(a)(1); (2) any standalone APA claim; and (3) the CDA claim. ECF
No. 77 at 9–24. As such, the only remaining claim in this suit is Plaintiff’s § 1491(b)(1) bid protest
claim. Plaintiff subsequently moved to transfer this case back to the district court pursuant to 28
U.S.C. § 1631. ECF No. 84. At the same time, it also filed a notice of voluntary withdrawal of its
bid protest, “pending and subject to” the Court’s ruling on its Motion to Transfer. Pl.’s Notice of
Voluntary Dismissal with Prejudice at 1, ECF No. 85.
Transfer to another court, including to a district court, is appropriate where the transferring
court determines that “(1) it lacks subject matter jurisdiction; (2) at the time the case was filed, the
case could have been brought in the transferee court; and (3) transfer is in the interest of justice.”
Wickliffe v. United States, 102 Fed. Cl. 102, 110 (2011) (citing 28 U.S.C. § 1631); see Zoltek Corp.
v. United States, 672 F.3d 1309, 1314 (Fed. Cir. 2012). A motion to transfer is not “in the interest
of justice” where the associated claims clearly lack merit. See Bey v. United States, 153 Fed. Cl.
814, 820 (2021) (citing Spencer v. United States, 98 Fed. Cl. 349, 359 (2011)). Nor may a case be
transferred if the transferee court lacks subject matter jurisdiction. See Jan’s Helicopter Serv., Inc.
v. Fed. Aviation Admin., 525 F.3d 1299, 1303 (Fed. Cir. 2008).
The impetus for Plaintiff’s Motion is its apparent concern that the scope of relief available
in this Court on the remaining bid protest claim is “most unlikely to reach the practical relief
sought” and that judicial review confined to the administrative record may prevent it from
demonstrating the racial discrimination it alleges. ECF No. 84 at 2–3. Plaintiff asserts that an
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action “for equal protection and due process violation under the [Fifth] Amendment” pursuant to
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971),
is available in the district court and also suggests that the APA authorizes relief on its claims. ECF
No. 84 at 3–4. It explains that, upon a decision granting transfer, it will dismiss with prejudice its
bid protest claim, foregoing “any monetary relief for the value of the contract award sought, [and]
for the allowable bid preparation costs that may be sought in the bid protest,” so that it can pursue
in district court the “constitutional rights and remedies remaining, which would include those
claims and associated injuries that occurred outside the scope of [the] solicitation . . . .” Id. at 5.
In response, Defendant argues that transfer is inappropriate because neither of Plaintiff’s proposed
freestanding APA or Bivens claims are available in the district court where there already exists in
this Court a comprehensive system that affords remedies to disappointed bidders in the
procurement process. Def.’s Resp. in Opp’n to Pl.’s Mot. to Transfer, ECF No. 86.
The Court finds that transfer to the district court is not warranted. As an initial matter,
Plaintiff’s Motion fails to appreciate that the district court transferred the case to this Court
because, notwithstanding the allegations of discrimination, its claims and alleged injuries all stem
from and relate to the VA’s procurement process and are thus within the exclusive jurisdiction of
the Court of Federal Claims. ECF No. 40 at 1 (“The crux of Plaintiffs’ claims is that the VA
discriminated against them on the basis of race by not awarding them a contract to provide day
care services for veterans.”) (emphasis added)). This Court agrees. The allegations in the
Amended Complaint, properly construed, challenge the VA’s consideration and denial of
Plaintiff’s proposal in response to the VA’s solicitation. Although the Court dismissed any
independent APA or constitutional claims, including those related to Plaintiff’s allegations of
racial discrimination, the Court specifically acknowledged that Plaintiff “may assert such
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allegations in connection with [its] bid protest claim.” ECF No. 77 at 19. Despite Plaintiff’s
attempt to characterize any dismissed claims as viable in the district court because “those claims
and associated injuries . . . occurred outside the scope of [the] solicitation,” ECF No. 84 at 5
(emphasis added), Plaintiff simply does not have any grievance against the VA that is independent
of the procurement process.
Regardless, the Court also agrees with Defendant that transfer is not in the interest of justice
because Plaintiff cannot state separate APA or constitutional claims that would be within the
district court’s jurisdiction. As Defendant correctly notes, a plaintiff may bring a claim under the
APA in district court challenging “[a]gency action made reviewable by statute and final agency
action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. The Federal
Circuit has explained that “[t]he availability of an action for money damages under the Tucker Act
or Little Tucker Act is presumptively an ‘adequate remedy’ for § 704 purposes.” Telecare Corp.
v. Leavitt, 409 F.3d 1345, 1349 (Fed. Cir. 2005) (citing Christopher Village, L.P. v. United States,
360 F.3d 1319, 1327–29 (Fed. Cir. 2004)). Thus, a plaintiff cannot merely cite to the APA to
avoid the § 1491(b)(1) statutory scheme entirely because district courts do not have “APA-based
jurisdiction” in bid protest cases. See Emery Worldwide Airlines, Inc. v. United States, 264 F.3d
1071, 1080 (Fed. Cir. 2001) (citing Novell, Inc. v. United States, 109 F. Supp. 2d 22, 24–25 (D.D.C.
2000)); see also Fisher-Cal Indus., Inc. v. United States, 839 F. Supp. 2d 218, 224 (D.D.C. 2012),
aff’d, 747 F.3d 899 (D.C. Cir. 2014); Combat Med., LLC v. Esper, No. 19-1609, 2020 WL
2115447, at *6 (E.D. Va. May 4, 2020); Hi-Tech Bed Sys. Corp. v. United States Gen. Servs.
Admin., No. 11-293, 2012 WL 12871622, at *8 (D. Wyo. Mar. 8, 2012).
Plaintiff’s intent to dismiss with prejudice its bid protest claim, subject to transfer, does not
eliminate this bar to judicial review. The APA provides a cause of action only to the extent that
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another adequate remedy is not available—i.e., where “no other adequate remedy” exists. 5 U.S.C.
§ 704; see Christopher Village, 360 F.3d at 1327. Plaintiff cannot expand the scope of the APA’s
waiver of sovereign immunity simply by choosing to forego a remedy that it could (but would
rather not) pursue. See Telecare Corp., 409 F.3d at 1349 (“Because Telecare can bring an action
under the Tucker Act or Little Tucker Act to redress the alleged improper exaction, there is no
waiver of sovereign immunity under the APA.” (emphasis added)).
Plaintiff also has failed to demonstrate the availability of its proposed Bivens claims. As
with APA claims, Bivens claims are unavailable where alternative remedies exist. See Wilkie v.
Robbins, 551 U.S. 537, 550 (2007) (citing Bush v. Lucas, 462 U.S. 367, 378 (1983)). “Thus, where
the ‘design of a Government program suggests that Congress has provided what it considers
adequate remedial mechanisms for constitutional violations that may occur in the course of its
administration,’ the court should not allow a Bivens cause of action to proceed.” Every v. Dep’t
of Veterans Affs., No. 15-177, 2017 WL 899972, at *3 (D.N.H. Mar. 6, 2017) (quoting Schweiker
v. Chilicky, 487 U.S. 412, 423 (1988)), aff’d, No. 17-1493, 2017 WL 8217645 (1st Cir. Dec. 14,
2017).
In Every, for example, the owner of a company that contracted with the VA alleged due
process and equal protection violations arising out of an unfair bidding process, naming the VA,
the General Services Administration, and five agency officials as defendants. Id. at *1. The Court
dismissed the complaint, explaining that because there existed “comprehensive remedial
mechanisms” in the Court of Federal Claims for “challeng[ing] alleged improprieties in a federal
bid solicitation process,” establishing a new remedy for claims for damages arising out of that
process would be inappropriate. Id. at *4; see Info. Sys. & Networks Corp. v. U.S. Dep’t of Health
& Hum. Servs., 970 F. Supp. 1, 10 (D.D.C. 1997) (holding CDA/ADRA remedy provided
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comprehensive government contracts dispute regime such that Bivens action was barred).
Plaintiff’s proposed Bivens claim is no different, nor does Plaintiff provide contrary case law or
other authority establishing such a claim’s viability upon transfer to the district court. 3
This Court undisputedly has jurisdiction over Plaintiff’s bid protest claim, including any
allegations challenging the VA’s consideration and denial of Plaintiff’s proposal that are
constitutional in nature. Plaintiff presents no claims independent of its bid protest that it could
advance in the district court and thus fails to demonstrate that transfer is in the interest of justice.
For these reasons, Plaintiff’s Motion to Transfer (ECF No. 84) is DENIED. The parties shall
confer and file by no later than March 25, 2022, a proposed schedule for future proceedings. In
that proposal, Plaintiff shall confirm whether it seeks to withdraw its Notice of Partial Voluntary
Dismissal with Prejudice (ECF No. 85) in light of the Court’s ruling.
SO ORDERED.
Dated: February 23, 2022 /s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge
3
Plaintiff’s brief also invokes 42 U.S.C. § 1983, asserting that “[a] Bivens § 1983 action
for equal protection and due process violation under the [Fifth] Amendment is available” in district
court. ECF No. 84 at 3. A § 1983 claim similarly does not justify a transfer, as § 1983 applies to
actions taken under color of state law, not federal law, and Plaintiff only alleges wrongdoing by
federal officials administering a federal program. Settles v. U.S. Parole Comm’n, 429 F.3d 1098,
1104 (D.C. Cir. 2005) (collecting cases) (“To recover under § 1983, the plaintiff must show that
the defendant was acting ‘under color’ of state law. Section 1983 does not apply to federal officials
acting under color of federal law.”).
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