HARRISBURG – The United States of America reiterates its argument that litigation from a Black-owned EMS ambulance company in Western Pennsylvania which alleged it faced a conspiracy of racial discrimination on the part of the government, should be dismissed for lack of jurisdiction and failure to state a claim.
Western Star Hospital Authority, Inc. of Monroeville first filed suit in the U.S. District Court for the Middle District of Pennsylvania on March 22 versus Susan McCaffrey of Seven Fields, Barbara Forsha of South Park Township, David Utter of Cranberry Township, Rogert Schollaert, Laura Baumgart, University of Pittsburgh Medical Center, University of Pittsburgh Medical Center Medcall and Myron Rickens, all of Pittsburgh, Medevac Ambulance of Ellwood City, Aaron Rhone of Carlisle, Travis Woodyard of Harrisburg, Brian Shaw of Butler and Amos Cameron of Leesdale.
“In December 2016, the United States Department of Veterans Affairs awarded plaintiff Metro a contract to provide ambulance services to veterans’ hospitals in Pittsburgh. Plaintiff was the first company owned by an African-American to secure a contract for ambulances services of this magnitude with the VA for the Pittsburgh area,” the suit stated.
“Because an African-American owns plaintiff, during the application process and throughout the life of the contract, defendants McCaffrey, Forsha, Schollaert, Utter, Shaw and Cameron, individually and/or in concert, acting in their individual and not official capacities, along with UPMC and Rickens and Darby of defendant UPMC’s PARC program and Heltman and Joseph of MAC, interfered with the contract and/or conspired with one another to undermine plaintiff’s contract with the VA and to deprive plaintiff of its rights under the contract, as well as its Constitutional rights.”
The suit detailed that over a three year-period from March 2016 to March 2019, the plaintiff allegedly had its bid contract applications denied for picayune reasons (before it was later awarded a contract by the VA); were subject to vehicle inspection failures for fabricated reasons; were subject to an arbitrary oversight committee who sought to terminate their contract for racial animus and finally did have their contract terminated, after undue scrutiny resulting from the same racial bias.
“Further, while the precise details of the conspiracy are not yet known, the conclusion is clear from the circumstances pleaded that all defendants were part of, and shared in the objectives of, an agreement to terminate plaintiff’s contract with the VA; and the facts pleaded above demonstrate that this agreement among the defendants was based upon, and motivated by, racial animus, bias and prejudice,” per the suit.
“At this stage, the conspiracy is evidenced by coordinated actions between the VA defendants, and other defendants carrying out state actions, alleged above, that would later be used by the VA defendants, acting in their individual capacities, as a false pretext to terminate the contract when the true reason was race-based animus.”
Defendants Rhone and Woodyard, plus Cameron and Shaw filed separate but simultaneous motions to dismiss on June 28, each charging that the litigation should be dismissed for failure to state a claim. Cameron and Shaw’s counsel filed an accompanying brief with their motion.
“Plaintiff asserts that all 13 defendants to this lawsuit participated in a racially-motivated conspiracy to terminate plaintiff’s contract with the United States Department of Veterans Affairs. Specifically, plaintiff claims that because of defendants’ concerted actions, its contract with the VA was terminated on or before March 21, 2019. But plaintiff did not initiate this lawsuit until March 22, 2021. Therefore, plaintiff’s claims are barred by the applicable statutes of limitations,” the motion stated.
“Even if plaintiff’s claims are not time-barred, plaintiff’s complaint should be dismissed on the following grounds: 1) The complaint fails to state Section 1981, Section 1985(3) and civil conspiracy claims; 2) Plaintiff does not allege state action on behalf of defendants Shaw and Cameron; and 3) The complaint fails comply with the pleading requirements of the Federal Rules of Civil Procedure as well as this Court’s Local Rules.”
Specifically, defense counsel counters that the plaintiff does not specifically allege any conduct demonstrating any alleged racial bias or animus on behalf of Shaw or Cameron.
“Nor does plaintiff identify any of the specifics of the alleged conspiracy. Instead, plaintiff’s complaint repeatedly references a ‘conspiracy’ between the defendants but does not identify any agreement – or meeting of the minds – between any of the defendants. Indeed, plaintiff avers that ‘the precise details of the conspiracy are not yet known.’ Because no conspiracy is pled, plaintiff theorizes that the allegations show ‘concerted action,’ that ‘must necessarily have been the result of an agreement among the defendants.”
The defense also seeks the striking of the $4.2 million in requested damages.
The United States of America filed notice on Aug. 27, announcing that it was substituting itself for defendants Forsha, McCaffrey, Schollaert, Baumgart and Utter as to all plaintiff’s tort claims in the complaint (Counts III and IV).
“28 U.S.C. Section 2679 provides that the United States is the only proper party to a negligent or wrongful act or omission action – and the improperly-named federal employees are substituted once certified that they were acting within the scope of their employment,” the notice stated.
A motion to dismiss the case with prejudice was filed contemporaneously by the U.S. government.
“The Section 1981, 1983, and 1985 claims against the individual federal defendants fail because these claims cannot be brought against federal employees. Metro EMS has not asserted a proper constitutional claim against any of the individual defendants. Metro EMS’s claims against the individual federal defendants are untimely. The Supreme Court has held that the state statute of limitations for personal injury torts applies to Section 1983 actions,” the motion stated.
“Metro EMS’s claims of intentional interference with contractual relations and civil conspiracy regarding that alleged interference are not cognizable under the Federal Tort Claims Act. See 28 U.S.C. Section 2680(h). This Court should dismiss the complaint because the Contract Disputes Act governs the claims. In the present case, the Contracting Officer issued a Final Decision on Dec. 4, 2019 (the COFD). Though the COFD outlined the appeal rights, Metro EMS did not appeal the COFD. The undersigned contacted all parties to seek their concurrence. Plaintiff’s counsel does not concur in this motion, but the co-defendants have not responded as to whether they concur.”
UPDATE
In an accompanying reply brief filed Nov. 8, the U.S. government supplemented its earlier dismissal motion.
“Metro EMS’s defense to dismissal of its claims – apparently only for Counts I and II – comes down to a simple argument: this Court has jurisdiction over its complaint because the VA allegedly breached the contract for racial animus reasons (but does not state how) and its Section 1981, 1983, and 1985 claims may proceed because these civil rights statutes protect from improper actions of those acting under state law. These arguments hold no water,” the brief stated.
“When a claim is at its heart contractual, no matter what you call it, this Court is deprived of jurisdiction to hear it. Otherwise, a plaintiff could circumvent the administrative and jurisdictional requirements of contracting with a federal agency by stating that the contract was breached based on a civil rights violation. Also, even though this Court has exclusive jurisdiction of civil rights statutes like Sections 1981, 1983, and 1985, Metro EMS has not asserted the federal defendants were acting like state employees in a conspiracy with state actors. Rather, the federal defendants were not acting under the color of state law, but federal law when they entered into a federal contract with Metro EMS and allegedly created oversight committees of the VA, delayed VA action on services, and terminated the federal contract. Hence, this Court should dismiss the complaint with prejudice.”
For counts of civil rights violations, intentional interference with contractual relations and civil conspiracy, the plaintiff is seeking damages of $4,200,000, plus attorneys’ fees, costs, interest, punitive damages and any other relief that this Honorable Court deems just and proper.
The plaintiff is represented by Mary F. Platt and Phinorice J. Boldin of Fineman Krekstein & Harris, in Philadelphia.
The defendants are represented by Jared D. Bayer of Cozen O’Connor in Philadelphia, Charles Kelly and John R. Dixon of Saul Ewing Arnstein & Lehr in Pittsburgh and Harrisburg, Karen Masciano Romano of the Pennsylvania Attorney General’s Office, Allison L. Deibert of the Pennsylvania Treasury Department, Amy Vanderveen Sims, Bruce E. Rende, Dennis St. J. Mulvihill and William C. Robinson III of Robb Leonard Mulvihill in Pittsburgh and Michael J. Butler of the U.S. Attorney’s Office, in Harrisburg.
U.S. District Court for the Middle District of Pennsylvania case 1:21-cv-00524
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com