Opinion
03 Civ. 1614 (RJH)
December 10, 2003
Memorandum Opinion and Order
Pro se plaintiff Myung-Ja C. Melton ("Plaintiff) filed this action against defendant James B. Comey, United States Attorney for the Southern District of New York ("U.S. Attorney"), to recover money allegedly owed to her for interpretation services she rendered. The U.S. Attorney has moved to dismiss Plaintiffs complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. For the reasons stated below, the U.S. Attorney's motion is granted and Plaintiffs complaint is dismissed. Any claim Plaintiff possesses should be brought in the United States Court of Federal Claims.
Background
The following facts are alleged in substance in the complaint and are presumed true for the purposes of this motion. In February 2002, an agent of the U.S. Attorney contacted Plaintiff to request three days of "stand-by" interpretation services. (Compl. ¶ 4.) Plaintiff explained that she was an independent contractor and was unfamiliar with the term "stand-by". ( Id.) Plaintiff was then hired to perform three days of services at the rate of $600 per day. ( Id.) As the time of service drew near, the U.S. Attorney made a series of adjournments with less than 24-hour notice and finally cancelled the services. ( Id.) Despite the short notice for the adjournments and cancellation, Plaintiff courteously billed the U.S. Attorney for only two days of services. ( Id.) However, the U.S. Attorney refused to pay Plaintiff because the contracted services were cancelled and thus never performed. ( Id.)
Plaintiff was hired again in July, and this time the services were not cancelled. ( Id.) However, when Plaintiff submitted a bill for $6000 based on a previously agreed upon rate, Plaintiff was asked to submit a revised bill with lower rates. Plaintiff declined the request and filed this suit instead. ( Id.)
Plaintiff claims this Court has jurisdiction pursuant to 28 U.S.C. § 1402(a) and seeks compensatory damages of $7,200, as well as treble punitive damages. (Compl. ¶¶ 3, 5.)
Discussion
When a complaint is challenged under Fed.R.Civ.P. 12(b)(1), the court must accept as true all factual allegations in the complaint and must draw all reasonable inferences in favor of the plaintiff. See Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003). In addition, when dealing with a pro se plaintiff, the court must read her supporting papers liberally and interpret them to raise the strongest arguments that they suggest. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, the plaintiff still has the burden of showing by a preponderance of the evidence that subject matter jurisdiction exists. See Lunney, 319 F.3d at 554.
A suit against an officer or agent of the United States government is considered to be a suit against the United States itself if the relief sought would be obtained, in effect, from the United States. See Larson v. Domestic Foreign Corp., 337 U.S. 682, 688 (1949). The sovereign United States cannot be sued without its consent. See United States v. Sherwood, 312 U.S. 584, 586 (1941). This sovereign immunity also applies to officers and agents of the United States acting within the scope of their official duties. See Barr v. Matteo, 360 U.S. 564, 570 (1959). Thus, a suit against the sovereign can only proceed before the district court if there was both a grant of subject matter jurisdiction and a valid waiver of sovereign immunity. See C.H. Sanders Co. v. BHAP Hous. Dev. Fund Co., 903 F.2d 114, 117 (2d Cir. 1990). The sovereign immunity of the United States may only be waived by federal statute. See Presidential Gardens Assocs. v. United States, 175 F.3d 132, 139 (2d Cir. 1999). A waiver of sovereign immunity is to be construed strictly and limited to its express terms. See Lunney, 319 F.3d at 554.
Plaintiffs complaint references 28 U.S.C. § 1402(a), which in turn references 28 U.S.C. § 1346, as the basis for this Court's jurisdiction over Plaintiffs claim. (Compl. ¶ 3.) The Tucker Act, 28 U.S.C. § 1346, 1491, originally provided both subject matter jurisdiction and a waiver of sovereign immunity for contract claims against the U.S. government when the amount sought was $10,000 or less. See C.H. Sanders, 903 F.2d at 119. However, the Contract Disputes Act (CDA) of 1978, 41 U.S.C. § 601 et seq., amended the Tucker Act and removed district court jurisdiction over actions or claims; against the U.S., regardless of the amount in controversy, when founded upon an express or implied in fact contract with the federal government. See Chemung County v. Dole, 781 F.2d 963, 967 (2d Cir. 1986). The Tucker Act now states that "the district courts shall not have jurisdiction of any civil action or claim against the United States [in cases] which are subject to . . . the Contract Disputes Act of 1978." 28 U.S.C. § 1346.
This does not mean that a district court may never entertain a contract claim against the U.S., but there must be an independent waiver of sovereign immunity outside the Tucker Act. See C.H. Sanders, 903 F.2d at 119.
The CDA was enacted to simplify the process that had previously governed the adjudication of claims by federal contractors, see Serra v. United States Gen. Servs. Admin., 667 F. Supp. 1042, 1048 (S.D.N.Y. 1987), and to provide one comprehensive, uniform statutory scheme for resolution of such claims. See Flying Horse v. United States, 49 Fed. CL 419, 424 (Fed.Cl. 2001) (citations omitted). To that end, if a contactor desires a court to adjudicate a dispute with, or review a decision of, a contracting officer, the CDA directs the contractor to the United States Court of Federal Claims. See Serra, 667 F. Supp. at 1047-48 (discussing section 10(a)(1) of the CDA).
Barring a few exceptions not relevant to the present case, CDA applies to any express or implied contract entered into by an executive agency for the procurement of services, among other things. See 41 U.S.C. § 602(a). The determination of whether a contract is covered by the CDA is a question of law. See Flying Horse, 49 Fed. Cl. at 424.
Reading Plaintiffs complaint in the best possible light, this Court finds that it does not have jurisdiction under the Tucker Act, as amended by the CDA, to resolve Plaintiffs claim. The complaint clearly alleges a contract entered into by an executive agency (the Office of the U.S. Attorney) for the procurement of (interpretation) services. Plaintiff may have a right of recovery against the U.S. Attorney, but the claim described by Plaintiff is covered by the CDA and must be pursued in the United States Court of Federal Claims. Because this Court finds it does not have subject matter jurisdiction over Plaintiffs action, the Court does not address Plaintiffs argument regarding the timeliness of the U.S. Attorney's answer (Opp. at 3, ¶ 12).
Conclusion
For the foregoing reasons, defendant's motion to dismiss for lack of subject matter jurisdiction [5-1] is GRANTED. Plaintiffs complaint is dismissed in its entirety. The Clerk shall enter judgment in defendant's favor and close this case.