E-Alert Case Updates

Termination of Subcontract Agreement Did Not Give Rise to Due Process Claim

Adam J. Shirvinksi v. United States Coast Guard, et al.
Case No.: 10-2424 (U.S. Court of Appeals for the Fourth Circuit)
by Eric M. Leppo, Associate
Semmes, Bowen & Semmes (www.semmes.com)

In this recently issued opinion from the United States Court of Appeals for the Fourth Circuit, the Court affirmed the U.S. District Court for the Eastern District of Virginia’s grant of summary judgment holding that Plaintiff failed to establish any constitutional injury.

The Plaintiff, Adam Shirvinkski, a retired Coast Guard Captain, was party to a private consulting agreement with Mohawk Information Systems and Consulting. Mohawk was a subcontractor to SFA, Inc. the Coast Guard’s prime contractor for a project known as the Deepwater Project. The Deepwater Project was a complex project designed to modernize the Coast Guard’s deepwater ships and aircraft. In addition to SFA, Inc., Booz Allen Hamilton also had a direct contract with the Coast Guard to do consulting work on the Deepwater Project.

Mr. Shirvinksi began work on the project in March 2008 at the Coast Guard facility in Rosslyn, Virginia. As work on the project proceeded, tensions arose between Shirvinski and a number of Coast Guard and Booz Allen employees. Apparently, Shrivinski instructed Booz Allen employees that he was taking over all configuration functions, openly criticized a configuration plan of Booz Allen, and suggested that several Coast Guard and Booz Allen employees be removed from the project.

These actions of Mr. Shrivinski were reported to several high level Coast Guard officials. As a result, the Coast Guard determined that Mr. Shrivinski had violated sections of the Coast Guard policy for such projects, and through an email requested that its prime contractor, SFA, address the situation. As a result, SFA advised Mohawk that Mr. Shrivniski should be removed from the Deepwater Project.

Mr. Shrivinski filed a Complaint in the Eastern District of Virginia alleging state law claims of defamation, conspiracy, and tortious interference. However, the majority of his claims were rejected by the District Court, prompting him to file an Amended Complaint claiming a violation of his procedural due process rights. Essentially, he claimed that he suffered injury to a protected liberty interest when the government made an untrue statement about him “alleging serious character defect” that resulted in his losing the contract.

The Court noted that in order to prevail on a due process claim, a plaintiff must show: "(1) a cognizable liberty or property interest; (2) the deprivation of that interest by some form of state action; and (3) that the procedures employed were constitutionally inadequate." Kendall v. Balcerzak, 650 F.3d 515, 528 (4th Cir. 2011). The Court centered on the fact that Mr. Shrivinski was unable to establish a protected liberty interest, pointing out that the Supreme Court has repeatedly “admonished judges to be wary of turning the Due Process Clause into ‘a font of tort law’ by permitting plaintiffs to constitutionalize state tort claims through artful pleading.” Shrivinksi at *7 (citing Daniels v. Williams, 474 U.S. 327, 332 (1986)).

The Court noted that Mr. Shrivinski was a subcontractor’s subcontractor, and not himself engaged in government employment. “The Coast Guard’s action may have affected Shirvinski’s private employment prospects with SFA and [Mohwak]. But unlike the loss of a government job, that injury does not work a change in legal status.” Shrivinski at *8.

Further, under the circumstances where Mr. Shrivinski first brought an action with state law claims, and turned into a constitutional challenge only as a last resort, the Court was even more convinced he was impermissibly seeking to transform a state tort law action into a constitutional injury. As such, the District Court’s summary judgment holding was affirmed.