Judge Reena Raggi
Since 1992 M.E.S. Inc. (M.E.S.) did construction work for the U.S. Army Corps of Engineers. Between Sept. 19, 2003, and Sept. 26, 2009, the Corps awarded M.E.S. three contracts for work at the Picatinny Arsenal in New Jersey. The Corps terminated the contracts, none of which was performed to specification. After unsuccessful challenge before the Armed Services Board of Contract Appeals, M.E.S. brought suit in district court. Invoking Bivens v. Six Unknown Named Agents of the Fed’l Bur. of Narcotics, M.E.S. claimed the contracts were terminated in retaliation for criticism of Corps’ mismanagement, negatively impacting its business and depriving it of constitutionally protected free speech and due process rights. Agreeing with the Seventh and Ninth circuits’ reasoning in Evers v. Astrue and Janicki Logging Co. v. Mateer, Second Circuit affirmed district court’s holding that M.E.S.’s First and Fifth Amendment Bivens claims were precluded by the comprehensive scheme for resolving contract disputes with the federal government provided by the Contract Disputes Act (CDA). District courts have uniformly reached the same conclusion. Thus Second Circuit ruled M.E.S.’s Bivens claims precluded by the CDA and correctly dismissed by district court.
