M.E.S., Inc. v. Snell
2013 U.S. App. LEXIS 5415
| 2d Cir. | 2013Background
- MES, Inc. contracted with the Army Corps of Engineers for three Arsenal construction/renovation projects at Picatinny Arsenal, with contract values totaling about $34 million.
- All three contracts were terminated for default between March and December 2008 due to significant delays and alleged performance failures.
- MES challenged the terminations through the CDA with ASBCA proceedings, while Safeco Insurance sought to take over MES’s claims via separate litigation; ASBCA later dismissed MES’s appeals without prejudice.
- MES and its president Makhoul filed a civil action in the SDNY in December 2010 alleging First Amendment retaliation and due process harms arising from the terminations, seeking damages and fees.
- The district court dismissed the case for lack of subject-matter jurisdiction, holding that the CDA provides a comprehensive remedial scheme and forecloses a Bivens action against federal employees.
- On appeal, the court dismissed Makhoul as an appellant for failure timely to amend the notice of appeal, and proceeded to address MES’s challenge to the district court’s dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CDA precludes MES’s Bivens claims. | MES argues the CDA does not foreclose constitutional claims against individuals. | Defendants contend the CDA provides exclusive remedies for contract disputes and bars Bivens actions. | Precluded; CDA bars Bivens claims arising from contract terminations. |
| Whether the district court lacked jurisdiction to hear MES's Bivens claims. | MES asserts jurisdiction exists because the claims are constitutional harms. | CDA’s comprehensive scheme deprives courts of jurisdiction to hear such Bivens claims. | Yes, district court properly dismissed for lack of jurisdiction under the CDA. |
| Whether the Makhoul appeal was properly before the court given notice deficiencies. | Makhoul should be considered an appellant and his claims preserved. | Amended notice naming Makhoul was filed late beyond the 60-day limit, depriving appellate jurisdiction. | Makhoul’s appeal was dismissed; MES’s challenge remains the basis for the court’s decision. |
Key Cases Cited
- Bush v. Lucas, 462 U.S. 367 (U.S. Supreme Court 1983) (comprehensive remedial schemes preclude new Bivens actions)
- Schweiker v. Chilicky, 487 U.S. 412 (U.S. Supreme Court 1988) (courts should not expand Bivens where a comprehensive remedial scheme exists)
- Hartman v. Moore, 547 U.S. 250 (U.S. Supreme Court 2006) (Bivens availability limited; context matters for retaliation claims)
- Janicki Logging Co. v. Mateer, 42 F.3d 561 (9th Cir. 1994) (CDA embodies a comprehensive remedial scheme for contract disputes)
- Evers v. Astrue, 536 F.3d 651 (7th Cir. 2008) (preclusion of Bivens under CDA in contract-related contexts)
- A&S Council Oil Co. v. Lader, 56 F.3d 234 (D.C. Cir. 1995) (describes CDA as paradigmatic comprehensive contract-remedies statute)