Jean Frantz Guillaume v. U.S. Department of Veterans Affairs, et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12300
Non-Argument Calendar
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D.C. Docket No. 0:20-cv-60276-RKA
JEAN FRANTZ GUILLAUME,
Plaintiff-Appellant,
versus
U.S. DEPARTMENT OF VETERANS AFFAIRS,
U.S. SMALL BUSINESS ADMINISTRATION,
KENNETH M. HYDE,
Administrative Judge of The United States
Small Business Administration,
THOMAS MCGRATH,
Director of the Center for Verification and
Evaluation for The Department of Veterans
Affairs,
MARCUS E. BOARD,
Chief Executive Officer of Premier, et al.,
Defendants-Appellees,
THE PREMIER COMPANY,
Defendant.
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________________________
Appeal from the United States District Court
for the Southern District of Florida
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(February 24, 2021)
Before MARTIN, JORDAN, and BRANCH, Circuit Judges.
PER CURIAM:
Jean Frantz Guillaume appeals the dismissal of his pro se complaint for lack
of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1). He argues that the
district court erred when it dismissed his complaint for lack of standing.1
I
Mr. Guillaume is a disabled United States Navy Veteran and owns AFILY8
Government Solutions (“AFILY8”). Through the United States Department of
Veterans Affairs’ Veterans First Contracting Program, AFILY8 aids other small and
veteran-owned businesses to secure government contracts. As a service-disabled
veteran-owned small business (“SDVOSB”), AFILY8 applied for and received
placement on the “Veterans Administration Vendors List.”
After AFILY8 helped secure nine contracts for its clients, Earl Titus, a
Veterans Affairs Onsite Examiner at the Premier Company, requested that AFILY8
1 Mr. Guillaume filed a motion for summary judgment on November 18, 2020, and a motion for
miscellaneous relief on December 4, 2020. Having reviewed both motions, they are summarily
denied.
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provide certain documents to maintain its status in the program. Mr. Guillaume
provided the documentation to Mr. Titus, who then prepared a report recommending
AFILY8’s removal from the vendors list. The report was shared internally at
Premier, and Marcus E. Board, Chief Executive Officer at Premier, sent a letter to
Thomas McGrath, Director of the Center for Verification and Evaluation for the
United States Department of Veterans Affairs, advising that AFILY8 should be
removed from the vendors list. Mr. McGrath then wrote to the United States
Department of Small Business Administration requesting that AFILY8 be removed
from the vendors list, and the Small Business Administration removed AFILY8 from
the vendors list.
Mr. Guillaume appealed the removal of AFILY8 to Kenneth M. Hyde, an
administrative judge of the Small Business Administration. Judge Hyde denied Mr.
Guillaume’s request for relief.
Mr. Guillaume then brought suit in federal district court against the VA; the
SBA; Judge Hyde; Premier; Mr. Board; Tiana Burnett, Senior Director of Operations
at Premier; David Pearsall, Senior Director of Government Programs at Premier; and
Mr. Titus. Mr. Guillaume alleged that the defendants violated his constitutional right
to contract, his statutory right to contract, and his due process rights. He sought a
declaratory judgment, compensatory damages, and punitive damages.
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The defendants filed a joint motion to dismiss under Rules 12(b)(1), 12(b)(2),
and 12(b)(6) of the Federal Rules of Civil Procedure. The government defendants
asserted that they were immune from suit under the doctrine of sovereign immunity,
and the Premier defendants argued that Mr. Guillaume lacked standing to bring his
claims. The district court found that Mr. Guillaume had failed to establish standing
because the alleged injuries were only suffered by AFILY8, not by Mr. Guillaume,
and because he failed to satisfy the standard for shareholder standing. The district
court dismissed the complaint without prejudice. Though the dismissal was only
based on the question of standing, the district court also noted that the government
is generally immune from the types of claims brought by Mr. Guillaume.
II
Mr. Guillaume appeals the order granting the defendants’ motion to dismiss.
He argues the district court erred when it found he did not have standing to assert
the claims in his complaint. In his brief, he claims he has a private right of action to
bring this suit. Additionally, in a motion he filed on November 18, 2020, Mr.
Guillaume contends that the district court was wrong to find that the diminution in
AFILY8’s value was insufficient for him to have standing. He further argues that
the district court overlooked injuries he suffered personally, including reputational
injuries.
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Standing is a jurisdictional issue that we review de novo. Taylor v. Polhill,
964 F.3d 975, 980 (11th Cir. 2020). Applying that plenary standard, we affirm.
Generally speaking, shareholders may not sue individually for injuries
suffered by their corporations. See KMS Rest. Corp. v. Wendy’s Int’l, Inc., 361 F.3d
1321, 1324–1325 (11 Cir. 2004). See also Stevens v. Lowder, 643 F.2d 1078, 1080
(5th Cir. 1981) (“An action to redress injuries to a corporation cannot be maintained
by a shareholder in his own name but must be brought in the name of the corporation.
The shareholder’s rights are merely derivative and can be asserted only through the
corporation.”). The shareholder standing rule does not apply if a shareholder is able
to show a violation of duty owed directly to him. See Lowder, 643 F.2d at 1080.
The VA has codified its procedure for adding small businesses owned by
veterans to a preferred contracting list in 38 U.S.C. § 8127, which states that it deals
only with the entities owned by veterans and that its goal is “to increase contracting
opportunities for small business concerns owned by veterans.” 38 U.S.C.
§ 8127(a)(1). “If a small business concern is not included in the database because
the [VA] Secretary does not verify the status of the concern as a small business
concern or the ownership of the concern, the concern may appeal the denial of
verification.” § 8127(f)(8)(A).
Here, the district court did not err in dismissing Mr. Guillaume’s complaint
for lack of standing. Mr. Guillaume did not demonstrate that he suffered a distinct
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injury, separate and apart from the diminution in value of his company’s corporate
assets, to support his contention that he has shareholder standing. Although he
argues that he suffered because his name was taken from the VA registry for veteran-
owned small businesses, it was AFILY8 that suffered the damages because the
preferential contracting benefit extended to the business—not to him directly.
Further, he did not allege or demonstrate a violation of duty owed directly to him.
See Lowder, 643 F.2d at 1080.
Mr. Guillaume claims that his right to contract was violated, but it was his
company that received VA authorization, and his company that entered into
contracts with the VA; thus, it was AFILY8 that suffered an injury, and not Mr.
Guillaume himself. Indeed, § 8127 allows for businesses denied verification by the
VA Secretary to appeal, and does not provide for shareholders or owners of those
businesses to sue on their own. See § 8127(f)(8)(A). Simply stated, Mr. Guillaume
did not allege a violation of his statutory right to contract.
III
Mr. Guillaume and the government defendants both make arguments about
the potential applicability of sovereign immunity. The district court, however, only
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dismissed Mr. Guillaume’s complaint on standing grounds, and we affirm on that
basis, so we need not reach the issue of sovereign immunity.2
IV
The district court’s order is affirmed.
AFFIRMED.
2 Mr. Guillaume makes several arguments for the first time on appeal. He alleges that the
defendants invaded his privacy and disclosed personal facts about him in violation of the Privacy
Act of 1974 and other statutes. Mr. Guillaume did not raise claims or these arguments at the district
court. Accordingly, we will not consider them on appeal. See Ferrill v. Parker Group, Inc., 168
F.3d 468, 475 (11th Cir. 1996).
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