Shahir Mehdi GHAFFARI, Plaintiff, v. The UNITED STATES, Defendant.
No. 15-1151 T
United States Court of Federal Claims.
Filed April 22, 2016
126 Fed. Cl. 665
Finally, plaintiff argues that, had the agency conducted reasonable discussions, REO would have known that its past performance ratings were lower than anticipated and may have lowered its price to bring it closer to Sage and the rest of the field. As defendant notes, however, HUD did notify REO during discussions that its price was the highest among all the technically acceptable offers. AR 2394. Once all bids were submitted, REO was still the most expensive offeror. It is simply too speculative to say that REO might have lowered its price, and if it had, would have lowered it to an amount more competitive with Sage.
In sum, the court cannot conclude that the plaintiff stood a substantial chance of award absent HUD‘s alleged errors. The sheer number of “but for” scenarios stretches plaintiff‘s argument to the breaking point. Simply put, the court does not believe that REO, with an offer over $8 million higher than that of Sage, stood a substantial chance of receiving the award, even given an equivalent adjectival rating to Sage, whether REO‘s rating was adjusted upward or Sage‘s rating was adjusted downward. Thus, even if the agency erred in their past performance ratings of the offerors, there could have been no prejudice to REO.
CONCLUSION
For the reasons set forth above, the court finds that plaintiff does not have standing to bring its claim against defendant. Accordingly, the court grants defendant‘s motion to dismiss. The clerk shall enter judgment for defendant. No costs.
Blaine G. Saito, United States Department of Justice, Tax Division, with whom were Caroline D. Ciraolo, Acting Assistant Attorney General, David I Pincus, Chief, Court of Federal Claims Section, and G. Robson Stewart, Assistant Chief, Court of Federal Claims Section, Washington, DC, for defendant.
Subject Matter Jurisdiction; Privacy Act; Bivens Actions;
OPINION
Merow, Judge.
On October 8, 2015, plaintiff filed a complaint alleging various instances of mistreatment by the Internal Revenue Service. See Doc. 1. Plaintiff asserts three claims: “(1) damages for violation of
The government contends that this court lacks jurisdiction to entertain any of plaintiff‘s claims, and moves the court to dismiss the case in its entirety. See Doc. 7. For the following reasons, the court agrees with the government‘s position.
ANALYSIS
The Court of Federal Claims is a court of limited jurisdiction, the scope of which is set out by the Tucker Act:
The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.
The first claim over which the plaintiff asks the court to assert jurisdiction allegedly arises from the Privacy Act. Plaintiff takes the position that he is entitled to both injunctive relief and monetary damages as a result of the government‘s unduly-burdensome or improper requests for documents and information relating to past tax years. See Doc. 1 at 15-20. The Federal Circuit has clearly held, however, that this court lacks jurisdiction to consider Privacy Act claims. See Bush v. United States, 627 Fed. Appx. 928, 930 (Fed. Cir.2016) (citing Treece v. United States, 96 Fed.Cl. 226, 232 (2010)). See also Conner v. United States, Case No. 1:15-cv-5107, 2016 WL 125289, at *2 (Fed. Cir. Jan. 12, 2016). Therefore, plaintiff‘s Privacy Act claim is dismissed for lack of jurisdiction.
II. Bivens Actions
[4-6] Plaintiff alleges, in the second count of his complaint, that certain federal officials are personally liable to him for violations of his constitutional rights on the theory established by the Supreme Court of the United States in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Doc. 1 at 20-23. As the Federal Circuit has clearly explained, this court lacks jurisdiction to consider Bivens claims:
In Bivens, the Supreme Court held that a party may, under certain circumstances, bring an action for violations of constitutional rights against Government officials in their individual capacities. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The Tucker Act grants the Court of Federal Claims jurisdiction over suits against the United States, not against individual federal officials.
28 U.S.C. § 1491(a) . Thus, the Bivens actions asserted by appellants lie outside the jurisdiction of the Court of Federal Claims.
Brown v. United States, 105 F.3d 621, 624 (Fed.Cir.1997). On this basis, plaintiff‘s Bivens claims alleged against any individual for violating his constitutional rights are dismissed for lack of jurisdiction.
In the penultimate paragraph of this second count, plaintiff also states that “the Internal Revenue Service, the department of Treasury, committed the same constitutional violations,” and seeks declaratory and injunctive relief pursuant to
(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1986, a proceeding under section 505 or 1146 of title 11, or in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of merchandise of a free trade area country (as defined in section 516A(f)(10) of the Tariff Act of 1930), as determined by the administering authority, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
(b) For limitations on actions brought with respect to drug patents see section 505 or 512 of the Federal Food, Drug, and Cosmetic Act, or section 351 of the Public Health Service Act.
And
Not only does the court fail to see how these sections relate to the allegations in plaintiff‘s complaint, long-standing precedent establishes this court lacks jurisdiction to act under them. See Pub. Serv. Co. of Colorado v. United States, 2 Cl.Ct. 380, 382 (1983) (“[T]he Claims Court lacks the power to award declaratory judgments under
III. Violations of 26 U.S.C. § 6103
In the final count of the complaint, plaintiff alleges that the government violated
IV. Claims asserted on behalf of plaintiff‘s company
Throughout the complaint, plaintiff repeatedly asserts claims on behalf of himself and “his associated startup company,” or “his associated company.” See, e.g., Doc. 1 at 1, 3, 8, 15, 22. He also, at one point, states that he is bringing this lawsuit on his own behalf and “for the putative class.” See id. at 5. Because he makes no mention of other potential class members, or any sort of general injury, the court assumes that plaintiff refers to himself and his company together as the “putative class.” As the court has explained, it has no jurisdiction to hear plaintiff‘s claims. The court also notes that, as a pro se litigant, plaintiff is not entitled to assert claims on behalf of a corporation or other entity. See RCFC 83.1(a)(3) (“An individual who is not an attorney may represent oneself or a member of one‘s immediate family, but may not represent a corporation, an entity, or any other person in any proceeding before this court.“).
CONCLUSION
For the foregoing reasons, plaintiff‘s complaint is, hereby, DISMISSED in its entirety.
SO ORDERED.
JAMES F. MEROW
Judge
* OPINION ORIGINALLY FILED UNDER SEAL ON MARCH 16, 2016