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Kesler Enterprises, Inc. v. United States Dep't of Agriculture

November 4, 2010

KESLER ENTERPRISES, INC., PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE; KAREN RUKLIC; DOUG BLADEK, DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

Before the Court is the Defendants' Motion to Dismiss (Dkt. 10). The Court heard oral argument on October 20, 2010, and took the motion under advisement. After fully considering the parties' briefing, the oral arguments of counsel and the full record the Court finds that the motion should be granted. Dismissal is appropriate a Bivens claim, like the one brought by the Plaintiff in this proceeding, may not be maintained against a federal entity or agency and may not be brought against the individual federal actors where there is an alternative remedy for the Plaintiff's alleged harms. Dismissal of the claim for injunctive relief is also appropriate because such relief is inappropriate absent a finding, reached through the appropriate statutory review process, of repeated constitutional violations by a defendant.

BACKGROUND

Plaintiff Kesler Enterprises is a contractor based in Darlington, Idaho. Complaint at ¶¶ 1,6 Dkt. 1. Defendants are the United States Forest Service; Karen Ruklic, a Forest Service Contracting Officer employed by the Nez Perce National Forest; and Doug Bladek, a Forest Service engineer also employed by the Nez Perce National Forest. Id. at ¶ 2-3. In 2007, Kesler, concerned by its failure to win contracting bids awarded by the Nez Perce National Forest when it believed itself to be the low bidder, began requesting a debriefing each time such an "anomalous" bid was awarded. Id. at ¶ 8-10. Kesler characterizes the reasoning given by the Forest Service in the debriefings as "strained," lacking "substantial basis at all in the law." Id. at ¶ 11.

In 2008, Kesler was awarded a contract referred to as the Whitman Creek Restoration. Id. at ¶ 12. In early 2009, Kesler failed to win the Crooked River Road 233 Surfacing Project despite bidding lower than the company to whom the contract was awarded. Id. at ¶ 13. The requested debriefing, authored by Ms. Ruklic, listed six specific reasons Kesler did not win the bid. See Crooked River Road 233 Surfacing Project Debriefing, Dkt. 10-11. These reasons were: (1) an overly optimistic estimated hauling rate of 250 tons per day; (2) the bid's failure to indicate whether a stockpile would be created for the aggregate project material, or if the material would be hauled directly to the site; (3) the proposed equipment was inadequate for the project requirements; (4) the failure of the bid to explain adequately how a specific bridge affected by the project would be reinforced; (5) the listing of crew members already working in the Whitman Creek Restoration, which had a firm, pending deadline; and (6) the bid's failure to provide relevant experience and certifications of all crew members. Id.

Believing the explanations provided in the debriefing were "strained," Kesler filed a formal protest of the Crooked River decision with the Government Accountability Office on July 11, 2009. See Complaint, supra, at ¶ 15; GAO Protest, Dkt. 10-11. Kesler also sent a letter of complaint to United States Senator Mike Crapo. Id. at ¶ 16.

On August 25, 2009, Mr. Bladek filed a Notice of Noncompliance listing Kesler's unfulfilled contractual obligations on the Whitman Creek Restoration. See Work Order and Notice of Noncompliance. Dkt. 10-6. The same day, Kesler received an order from Ms. Ruklic suspending work on the Whitman Creek Restoration. See Notice to Proceed, Suspend, or Resume Work Order, Dkt. 10-7. On September 1, 2009, Ms. Ruklic sent Kesler a Cure Notice specifically listing the steps necessary to obtain a lifting of the suspension order. See Cure Notice, Dkt. 10-8. In a responsive letter, Kesler listed the roads it would fix, stated its belief that the suspension was "unlawful and unjustified," and asked for reimbursement of $2,000 per day of suspension. See Kesler Letter, Dkt. 10-9. Ms. Ruklic denied Kesler's reimbursement request. See Ruklic Letter of September 25, 2009, Dkt. 10-10.

On October 23, 2009, the GAO denied Kesler's protest in a five-page opinion that detailed the reasons Kesler's Crooked River bid was not improperly denied. See GAO Decision, Dkt. 10-12.

Kesler alleges that all unspecified bids it lost from 2007 to the present constituted retaliation for Kesler's request for debriefings. See Complaint, supra, at ¶ 21. More specifically, Kesler alleges that its failure to win the Crooked River bid and the order suspending work on the Whitman Creek Restoration constituted retaliation for its debriefing requests and letter to Senator Crapo. Id. at ¶ 22.

Kesler filed its Complaint in this matter on March 31, 2010. Kesler alleges four causes of action: (1) the order suspending work on the Whitman Creek Restoration constituted retaliatory conduct chilling Kesler's constitutional right to seek redress of grievances; (2) the failure to award Kesler bids, including the Crooked River project, when it believed itself to be the low bidder constituted retaliatory conduct chilling Kesler's constitutional right to seek redress of grievances; and (3) a request for a presumably permanent injunction enjoining Defendants from engaging in further retaliatory conduct chilling Kesler's constitutional right to seek redress of grievances. Id. at ¶¶ 23-39.

LEGAL STANDARD

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While a complaint attacked by a Rule 12(b)(6) motion to dismiss "does not need detailed factual allegations," it must set forth "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id. at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.' " Id. at 557.

In a more recent case, the Supreme Court identified two "working principles" that underlie Twombly. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Id. "Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 1950. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. "Determining whether a complaint ...


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