Petition for Writ of Certiorari — Jean Frantz Guillaume, Petitioner v. United States, et al.

APPENDIX TABLE OF CONTENTS

. Jean Guillaume v. USA, et al,

No. 24-13584 (11th Cir. 2025) Date:

September 10, 2025

. Guillaume v. United States of America et

al (Case No. 1:23-cv-23287)

. Guillaume v. United States of America et al

(Case No. 1:23-cv-23287) -Previous (1:23-CV-

23287-ALTMAN/Reid)

. Relevant Statutory and Agency Excerpts

Required for

Program Participation

. 114th Congress (2015-2016) - S. 795, The

"Whistleblower Protection Enhancement

Act of 2016” Date: June 7, 2016 App. 45

App. 1

Al

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

JEAN FRANTZ GUILLAUME,

Plaintiff-Appellant, Case No. 24-

versus 13584

UNITED STATES OF

AMERICA,

DEPARTMENT OF VETERAN D.C.No. 1:23-

AFFAIRS, cv-23287-MD

OFFICE OF HEARINGS AND

APPEALS - SMALL BUSINESS

ADMINISTRATION,

THOMAS MCGRATH, in his

individual and official capacity,

BENJAMIN WARD, in his

individual and official capacity et

al...

Defendants-Appellees.

OPINION

Appeal from the United States District Court for the

Southern District of Florida

Before ROSENBAUM, NEWSOM, and ABUDU,

Circuit Judges.

App. 2

OPINION OF THE COURT

PER CURIAM:

Jean Guillaume, proceeding pro se, appeals the

district court’s dismissal of his amended complaint

against the U.S. Department of Veterans Affairs, U.S.

Small Business Administration, and various officials

in both agencies for removing his application as a

service-disabled veteran-owned small business under

38 U.S.C. §8127, with prejudice. First, he argues that

his claims are not barred by sovereign immunity and

that the complaint plausibly states claims on which

relief could be granted. Second, he disputes that

various claims in his amended complaint constitute

shotgun pleadings. Finally, he asserts that the district

court erred in failing to review his amended complaint

under the liberal pleading standard afforded to pro se

litigants. For the reasons below, we reject these

contentions and affirm the district court’s dismissal of

his amended complaint with prejudice.

I

We first consider Guillaume’s argument that Counts I

and XII that the federal government violated his First

Amendment rights and res judicata, and that

Guillaume is entitled to a declaratory judgment

against the federal government are not barred by

sovereign immunity. "Sovereign immunity is

jurisdictional in nature,” FDIC v. Meyer, 510 U.S. 471,

475 (1994), and we review a district court’s grant of a

motion to dismiss for lack of subject matter

jurisdiction de novo. McHimurray v. Consol. Gov't of

Augusta-Richmond Cnty., 501 F.3d 1244, 1250 (11th

Cir. 2007). A dismissal for lack of subject matter

App. 3

jurisdiction is entered "without prejudice.” Stalley

exrel. U.S. v. Orlando Reg’ Healthcare Sys., Inc., 524

F.3d 1229, 1232 (11th Cir. 2008). We agree with

Guillaume that the district court erred in dismissing

Counts I and XII with prejudice, but, for reasons we

will explain below, we nevertheless affirm the

dismissal because they fail to state a plausible claim.

We may affirm for "any reason supported by the

record, even if the district court did not rely on that

reason.” Wright v. City of St. Petersburg, Fla., 833

F.3d 1291, 1294 (11th Cir. 2016) (citation modified).

"Specifically, where we determine that a district court

has erroneously dismissed a complaint on a particular

ground, but abandoned because he raises the issue for

the first time on appeal. See Sapuppo v. Allstate

Floridian Ins. Co., 739 F.3d 678, 683 (11th Cir. 2014).

OPINION OF THE COURT

The dismissal of the complaint must nevertheless be

affirmed if the complaint fails to state a claim.”

Silberman v. Miami Dade Transit, 927 F.3d 1128,

1137 (11th Cir. 2019) (citation modified). Because we

conclude that Counts I and XII fail to state a claim, we

affirm the district court’s dismissal of Counts I and

XII.

We "review de novo [al district court’s grant of a

motion to dismiss for failure to state a claim under

Fed. R. Civ. P. 12(b)(6), accepting the allegations in

the complaint as true and construing them in the light

most favorable to the plaintiff.” 7imson v. Sampson,

518 F.3d 870, 872 (11th Cir. 2008).

Counts I and XII fail to state a plausible claim on

App. 4

which relief can be granted. In Count I, Guillaume

alleges that the United States violated his First

Amendment right of redress and disregarded the

principles of res judicata. His First Amendment claim

amounts to a conclusory allegation regarding "a

violation of his First Amendment right of redress

against the Defendant, the United States” that fails to

provide enough facts to state a claim to relief that is

facially plausible. First Am. Compl. * 24 Under res

judicata, a claim is barred by a prior suit if: "(1) there

is a final judgment on the merits; (2) the decision was

rendered by a court of competent jurisdiction; (3) the

parties, or those in privity with them, are identical in

both suits; and (4) the same cause of action is involved

in both cases.” Griswold v. Cnty. of Hillsborough, 598

F.3d 1289, 1292 (11th Cir. 2010). Guillaume’s case

does not qualify for res judicata treatment because his

introduction of facts pertaining

OPINION OF THE COURT

To his prior suits involving "Afily8 Government

Solutions” indicates that the parties in this lawsuit

are not identical to those in his prior suits, and he fails

to explain how the cause of action is identical between

the current and prior suits. First Am. Compl. 22-27.

Count XII fails to state a plausible claim for relief

under the Declaratory Judgment Act. The Declaratory

Judgment Act allows federal courts to issue

declaratory judgments “upon the filing of an

appropriate pleading.” 28 U.S.C. § 2201. Because none

of his other claims entitle him to relief, as we will

explain below, Guillaume does not state a claim under

the Declaratory Judgment Act

App. 5

II

We next consider whether Counts II—III, VI-VII, and

IX-X state a claim on which relief can be granted.

Counts II and III allege violations of Guillaume’s

rights under the Whistleblower Protection Act:

Counts VI and IX allege Bivens violations; Count VII

alleges a conspiracy under 42 U.S.C. §§ 1985, 1986,

and the FCA; and Count X alleges that the removal of

documents from his application violated double

jeopardy.

Counts II and III do not state a claim on which relief

can be granted because Guillaume is not a federal

employee. Both are asserted under the Whistleblower

Protection Act, which protects federal employees

against agency reprisal for whistleblowing activities,

5 U.S.C. § 2302(b)(8), but Guillaume does not allege

sufficient facts showing that he is a federal employee.

Though he argues that his status as a third-party

beneficiary provides him with standing to sue the

United States for breach of contract, he has not

alleged sufficient facts to establish standing.

Counts VI and IX fail to provide sufficient facts to

plausibly state Bivens violations. In Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics,

the Supreme Court recognized an implied private

action for damages against federal officers alleged to

have violated a citizens constitutional rights. 403 U.S.

388, 397 (1971). Count VI fails to state a plausible

Bivens violation under the First Amendment because

the Supreme Court has been cautious about

expanding Bivens to new contexts and has

consistently rejected the application of Bivens to the

App. 6

First Amendment. See, e.g., Bush v. Lucas, 462 U.S.

367, 390 (1983), Reichle v. Howards, 566 U.S. 658, 663

n.4 (2012) ("We have never held that Bivens extends

to First Amendment claims.”).

Count IX alleges a Bivens violation against McGrath,

Perkins, and Ward for "unreasonably seizing]” four

documents to review his eligibility for a government

contracting program, First Am. Compl. 104-18, but

Bivens actions cannot be brought against federal

officers in their official capacities. See Corr. Servs.

Corp. v. Malesko, 534 U.S. 61, 69-71 (2001).

Count VII fails to state a claim on which relief could

be granted under 42 U.S.C. §§ 1985, 1986, or the False

Claims Act. Section 1985 provides plaintiffs with a

remedy against conspiracies to interfere with their

civil rights. 42 U.S.C. § 1985. Section 1986 is a

derivative claim under § 1985 and, where there is no

underlying conspiracy to support a § 1985 claim, the

derivative § 1986 claim

OPINION OF THE COURT

must also fail. Park v. City of Atlanta, 120 F.3d 1157,

1159-60 (11th Cir. 1997); 42 U.S.C. § 1986. Guillaume

alleges a repetitive and confusing list of actions by

McGrath, Ward, Titus, and Perkins; he fails to state a

claim under § 1985 or § 1986 because his list

comprises conclusory statements that assume the

defendants had conspired with each other without

providing facts that plausibly state such a claim.

Count VII also fails to state a claim under the False

Claims Act because Guillaume’s allegations do not

App. 7

assert any specific fraudulent claim with

particularity. A claim under the FCA "must state with

particularity the circumstances constituting fraud or

mistake.” Hopper v. Solvay Pharms., Inc., 588 F.3d

1318, 1324 (11th Cir. 2009). A claim has sufficient

particularity if it "sets forth facts as to time, place, and

substance of the defendant’s alleged fraud, specifically

the details of the defendants’ allegedly fraudulent

acts, when they occurred, and who engaged in them.”

Id. (citation modified).

Count X fails state a claim under the Double Jeopardy

Clause. The Double Jeopardy Clause applies only to

criminal punishments, and it provides that no "person

[shall] be subject for the same offence to be twice put

in jeopardy of life or limb.” U.S. Const, amend. V;

Hudson v. United States, 522 U.S. 93, 98-99 (1997). A

civil penalty can qualify as a criminal punishment

only if it is "so punitive either in purpose or effect” that

it is transformed into a "criminal penalty.” Cole v.

Deptt of Agric., 133 F.3d 803, 806 (11th Cir. 1998).

Guillaume’s allegation that documents he had

submitted for his application to the Veterans First

Contracting Program

OPINION OF THE COURT

Were removed is not a criminal punishment or

sufficiently punitive to transform into a criminal

penalty and is therefore unrelated to the Double

Jeopardy Clause.

III

We next consider the district court’s determination

App. 8

that Counts IV and XI constitute shotgun pleadings.

"We review a dismissal on Rule 8 shotgun pleading

grounds for an abuse of discretion.” Vibe Micro, Inc. v.

Shabanets, 878 F.3d 1291, 1294 (11th Cir. 2018). The

abuse-of-discretion standard requires us to "affirm

unless we find that the district court has made a clear

error of judgment, or has applied the wrong legal

standard.” United States v. Frazier, 387 F.3d 1244,

1259 (11th Cir. 2004).

A shotgun pleading is a complaint that fails "to give

the defendants adequate notice of the claims against

them and the grounds upon which each claim rests.”

Wetland v. Palm Beach Cnty. Sherifts Off 792 F.3d

1313, 1823 (1th Cir. 2015) (citation modified).

Shotgun pleadings "waste scarce judicial resources,

inexorably broaden the scope of discovery, wreak

havoc on appellate court dockets, and undermine the

public’s respect for the courts.” Vibe Micro, Inc., 878

F.3d at 1295 (citation modified). One category of

shotgun pleading “asserts] multiple claims against

multiple defendants without specifying which of the

defendants are responsible for which acts or

omissions, or which of the defendants the claim is

brought against.” Wetland, 792 F.3d at 1323. But a

complaint is not a shotgun pleading if it "can be fairly

read to aver that all defendants are responsible for the

alleged conduct.” Kyle K. v.

OPINION OF THE COURT

Chapman, 208 F.3d 940, 944 (11th Cir. 2000). If a

court identifies that a complaint is a shotgun

complaint, it generally must give the litigant one

chance to replead, with instructions on _ the

App. 9

deficiencies. Vibe Micro, Inc., 878 F.3d at 1296-97.

The district court didn’t abuse its discretion in

dismissing Counts IV and XI as shotgun pleadings.

Count IV is a shotgun pleading because it failed to

specify which defendants were liable for the alleged

wrongdoing, which in turn fails to give the defendants

adequate notice of the claims against them. Welland,

792 F.3d at 1323.

Count XI is a shotgun pleading because, even though

Guillaume identified particular defendants, he failed

to identify which defendants are responsible for which

claims, and his allegations in this claim alternately

target "Defendant” and "Defendants,” creating

confusion as to whom he intended to sue for each

claim. Wetland, 792 F.3d at 1323. Furthermore, the

district court had provided Guillaume with

instructions on the deficiencies of his initial

complaint, but he failed to cure the deficiencies when

given the opportunity to amend.

IV

We next consider whether the district court failed to

construe Guillaume’s complaint liberally under the

liberal pleading standards afforded to pro se litigants.

When "a more carefully drafted complaint might state

a claim, a [pro se] plaintiff must be given at least one

chance to amend the complaint before the district

court dismisses the action with prejudice.” Woldeab v.

Dekalb Cnty. Bd. Of Educ., 885 F.3d 1289,1291 (11th

Cir. 2018) (citation modified).

10 Opinion of the Court 24-13584

App. 10

But a court needn’t grant leave to amend when doing

so would be futile. Marrachev. Bacardi U.S.A., Inc.,17

F.4th 1084, 1091 (11th Cir. 2021).

We conclude that the district court construed

Guillaume’s complaint liberally, as it referenced the

liberal pleading standards for pro se plaintiffs four

times in its dismissal order. Because Guillaume has

already had two bites at the apple, further

opportunities to amend are unlikely to uncover

plausible claims upon which relief can be granted.

Thus, granting him another chance to amend his

complaint would be futile, and dismissal with

prejudice is appropriate.

Accordingly, we affirm the district court’s dismissal of

Guillaume’s first amended complaint with prejudice.

AFFIRMED.

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS

BUILDING

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

David J. Smith

September 10, 2025

App. 11

A2

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT, SOUTHERN

DISTRICT OF FLORIDA

JEAN FRANTZ GUILLAUME,

Plaintiff-Appellant,

versus

UNITED STATES OF D.C.No. 1:23-

AMERICA, cv-23287-MD

DEPARTMENT OF VETERAN

AFFAIRS,

OFFICE OF HEARINGS AND

APPEALS - SMALL BUSINESS

ADMINISTRATION,

THOMAS MCGRATH, in his

individual and official capacity,

BENJAMIN WARD, in his

individual and official capacity et

al...

Defendants-Appellees.

ORDER GRANTING DEFENDANTS' MOTION TO

DISMISS AND DISMISSING WITH PREJUDICE

UNITED STATES DISTRICT COURT SOUTHERN

DISTRICT OF FLORIDA

Case No. 23-cv-23287-DAMIAN

Document 65 (Entered October 24, 2024)

App. 12

ORDER GRANTING DEFENDANTS MOTION TO

DISMISS

[ECF NO. 531 THIS CAUSE is before the Court on

Defendants, U.S. Department of Veterans Affairs;

U.S. Small Business Administration; Kenneth M.

Hyde, Administrative Judge, Small Business

Administration; Christopher Holleman,

Administrative Judge, Small Business

Administration; Thomas McGrath, former Deputy

Director, Program and Resource Management for SBA

and former Director of the Center for Verification and

Evaluation for Veterans Affairs; Benjamin Ward,

former Chief of Risk and Compliance of the Center for

Verification and Evaluation for Veterans Affairs; and

John Perkins, former Director of the Center for

Verification and Evaluation for Veterans Affairs’

(collectively, “Defendants”), Motion to Dismiss First

Amended Complaint, filed April 12, 2024. [ECF No. 53

(the “Motion”)].

THE COURT has considered the Motion, the Parties’

memoranda [ECF Nos. 54 and 55], the pertinent

portions of the record, and all relevant authorities and

is otherwise fully advised in the premises. For the

reasons that follow, the Court grants the Motion to

Dismiss and dismisses the Amended Complaint with

prejudice.

BACKGROUND

PRO SE Plaintiff, Jean Frantz Guillaume, initiated

this lawsuit by filing his original Complaint on August

28, 2023. [ECF No. 1], The Court dismissed the

Complaint, without prejudice, for lack of jurisdiction

on March 4, 2024. [ECF No. 37], The case was

App. 13

reassigned to the undersigned on March 138, 2024.

[ECF No. 38], Guillaume then filed his Amended

Complaint on March 19, 2024. [ECF No. 42 (the

“Amended Complaint”)]. The Amended Complaint is

the operative pleading. As the Court explained in its

March 4, 2024 Order regarding the original

Complaint, Guillaume’s Amended Complaint also

asserts “a long litany of constitutional, statutory, and

common-law claims” arising from the Department of

Veterans Affairs’ decision to remove Guillaume’s

application as a Service-Disabled Veteran Owned

Small Business in the U.S. SEE ECF No. 37 at 1.

In the Motion to Dismiss now before the Court,

Defendants argue that many of the causes of action

asserted in the Amended Complaint are barred by

sovereign immunity and that the causes of action

which are not barred by sovereign immunity each fail

to state a claim.

In response, Guillaume argues that “individual

defendants have been sued in their personal capacity,

not in their official capacity alone” and that otherwise

he has a “Right of review pursuant to 5 U.S. Code

section 702[.]” Resp. at 3-4. He also argues that the

United States is liable through the Federal Tort

Claims Act, that he is fully entitled to pursue all

claims in the district court, that the term “employee”

in the context of the Whistleblower Protection Act

must be interpreted broadly to include him, and that

he has stated a valid BIVENS claim. ID. at 8-14.

In reply, Defendants aver that these arguments are

irrelevant, misleading, and mistaken. See generally

Reply.

App. 14

LEGAL STANDARD

Rule 12(b)(6) provides that a defendant may move to

dismiss a complaint that does not satisfy the

applicable pleading requirements for “failure to state

a claim upon which relief can be granted.” Fed. R. Civ.

P. 12(b)(6). In considering a Rule 12(b)(6) motion to

dismiss, the court’s review is generally “limited to the

four comers of the complaint.” Wilchombe v. TeeVee

Toons, Inc., 555 F.8d 949, 959 (11th Cir. 2009)

(quoting St. George v. Pinellas County, 285 F.3d

1334,1337 (11th Cir. 2002)). The Court must review

the complaint in the light most favorable to the

plaintiff, and it must generally accept the plaintiffs

well-pleaded facts as true. Hishon v. King & Spalding,

467 U.S. 69, 73 (1984). However, pleadings that “are

no more than conclusions are not entitled to the

assumption of truth. While legal conclusions can

provide the framework of a complaint, they must be

supported by factual allegations.” Ashcroft, 556 U.S.

at 679. Dismissal pursuant to a Rule 12(b)(6) motion

is warranted “only if it is clear that no relief could be

granted under any set of facts that could be proved

consistent with the allegations of the complaint.”

Shands Teaching Hosp. & Clinics, Inc. v. Beech St.

Corp., 208 F.3d 1308, 1310 (11th Cir. 2000) Ginternal

quotation marks omitted) (quoting Aishon, 467 U.S.

at 73).

Federal Rule of Civil Procedure 8(a)(2) also requires

that a pleading contain a “short and plain statement

of the claim” showing the pleader is entitled to relief.

Fed. R. Civ. P. 8(a)(2). The complaint must “give the

defendant fair notice of what the claim is and the

grounds upon which it rests.” Twombly, 550 U.S. at

App. 15

555 (cleaned up).

“In reviewing a ruling on a motion to dismiss, [courts]

typically consider only the face of the complaint and

documents attached thereto.” KUCHENMEISTER V.

FDEALTHPORT TECHS., LLC, 753 F. App'x 794, 796

(11th Cir. 2018) Gnternal citations omitted).

DISCUSSION

As an initial matter, this Court notes that Plaintiff

appears to have filed versions of the instant case at

least twice before in this District. SEE GUILLAUME

V. UNITED STATES DEPARTMENT OF

VETERANS AFFAIRS ET AL, No. 0:20-cv-60276-

RKA (S.D. Fla. February 10, 2020), GUILLAUME V.

DEPARTMENT OF VETERANS AFFAIRS ET AL,

No. 0:21-cv-80485-DMM (S.D. Fla. March 4, 2021).

The Court also notes that the Amended Complaint is

largely incomprehensible. Although the Court reviews

the Amended Complaint under the liberal pleading

standards afforded to PRO SE litigants, the Court

cannot ignore the fact that the allegations are more of

a rambling stream of thoughts than a claim for relief

under any particular legal theory and _ that

substantially similar complaints have been dismissed

twice before in this District. SEE KETRA V. UNITED

STATES, 400 Fed. Appx. 477, 479 (11th Cir. 2010)

(finding that “federal courts have both the inherent

power and the constitutional obligation to protect

their jurisdiction from conduct which impairs their

ability to carry out Article IIJ functions, and have a

responsibility to prevent single litigants from

unnecessarily encroaching on the judicial machinery

needed by others.”) (citing PROCUP V.

App. 16

STRICKLAND, 792F.2d1069, 1073 (11th Cir. 1986)

(enbanc)); TRUESDALE V. FLORIDA, 18-22286-CIV,

2018 WL 11302939, at *3 (S.D. Fla. June 21, 2018)

(White, Mag. J.) (recommending dismissal of

complaint), REPORT AND RECOMMENDATION

ADOPTED, 18-22286-CIV, 2018 WL 11302938 (S.D.

Fla. Oct. 29, 2018) (Martinez, J.) (“[E]ven when

construed most liberally, as afforded PRO SE

litigants, this complaint... is a hodgepodge of

incomprehensible allegations and legalistic

gibberish”).

Count I Is Barred On Sovereign Immunity Grounds.

Count IJ is asserted against “the defendant United

States” for “a violation of [Plaintiffs] First

Amendment right of redress... through the actions of

various agencies and individuals. ” Am. Compl. 24.

However, absent waiver, sovereign immunity shields

the federal government from suit. SEE FDIC. V.

MEYER, 510 U.S. 471 (1994). Guillaume provides no

valid basis for a waiver of sovereign immunity for this

cause of action. Therefore, Count I is due to be

dismissed on the grounds that the named Defendant,

the United States, is immune from suit under the

doctrine of sovereign immunity.

Count II Fails To State A Claim.

Count II is asserted, at least in part, under the

Whistleblower Protection Act (the “WPA”). SEE Am.

Compl. 29. The WPA prohibits any employee in a

position of authority to take, fail to take, or threaten

to take a personnel action “with respect to any

employee or applicant for employment” because of a

disclosure by that “employee or applicant” that the

App. 17

employee or applicant reasonably believes evidences a

violation of law, rule, or regulation, or gross

mismanagement, a gross waste of funds, an abuse of

authority, or a substantial and specific danger to

public health or safety. 5 U.S.C. § 2302(b)(8)

(emphasis added).

Guillaume does not allege facts indicating that he

qualifies as an employee, or even an applicant for

employment. Therefore, he cannot state a claim under

the WPA. SEE HO V. US., 49 Fed. Cl. 96, 106 (Fed.

Cl. 2001).

To the extent that Count II asserts a claim for breach

of action, because Guillaume is a_ third-party

beneficiary to the contract at issue, he must

demonstrate that the contract he seeks to enforce is

intended to benefit him personally in order to have

standing to sue in this Court, rather than the United

States Court of Federal Claims. SEE ANDERSON V.

UNITED STATES, 344 F.3d 1348 (Fed. Cir. 2003). He

does not meet this heavy burden. Therefore,

Guillaume fails to state a claim under the WPA or for

breach of contract, and therefore Count II is due to be

dismissed.

Count III Fails To State A Claim.

Count ITI seeks to hold “the United States of America

and the Department of Veterans’ Affairs” “vicariously

liable’ under the doctrine of RESPONDENT

SUPERIOR. SEE Am. Complaint 48-49.

Nevertheless, this Count only asserts a claim under

the Whistleblower Protection Act. ID. If 57. For the

same reasons articulated above with respect to Counts

App. 18

I and II, Count III is also due to be dismissed on

sovereign immunity grounds and failure to state a

claim for relief under the WPA.

Count IVIs Barred On Sovereign Immunity And

Shotgun Pleading Grounds.

Count IV is asserted against “Defendants” (plural) but

also repeatedly asserts claims against “Defendant”

(singular). ID. 58-60. It is unclear which Defendants,

if any, Guillaume intends to assert claims against in

this Count. This renders this Count an impermissible

shotgun pleading which is due to be dismissed. SEE

JACKSON V. BANK OF AM, N.A., 898 F.3d 1348,

1357 (11th Cir. 2018). To the extent this Count is

intended to assert claims against solely the federal

government, Guillaume provides no valid basis for a

waiver of sovereign immunity. For these reasons,

Count IV is also due to be dismissed.

Count V Lacks A Cause Of Action.

Despite a reference to the ADA, the Small Business

Act, Executive Order 13360, and “the Federal

Acquisition Regulation,” Am. Compl. at 15, Count V

proceeds under no discernible cause of action. In the

absence of an identifiable cause of action, Count V

fails to state a claim. SEE LOMAX V. CAPITAL

RENTAL AGENCY, 20-CV-23821,2020 WL 5819350,

at *2 (S.D. Fla. Sept. 30, 2020) (Gayles, J.). Count V is

therefore due to be dismissed.

Count VI Fails To State A Bivens Violation.

Count VI purports to assert a BIVENS violation “TO

App. 19

FIRST AMENDMENT” against the Defendants. SEE

AM. COMPL. at 15. There is no doubt that the

invocation of the First Amendment here is not a typo,

as Plaintiff also writes “RIGHT TO FREEDOM OF

SPEECH.” ID. Nevertheless, “the Supreme Court has

repeatedly confirmed that it has not extended a

BIVENS remedy to First Amendment claims.”

JOHNSON V. BURDEN, 781 Fed. Appx. 833, 836

(11th Cir. 2019) (citing ASHCROFT V. IQBAL, 556

U.S. 662, 675 (2009), REICHLE V. HOWARDS, 566

U.S. 658, 663 n.4 (2012); and WOODV. MOSS, 572

U.S. 744 (2014)). Thus, categorically, a plaintiff

cannot state a claim under B/VH'NS based on First

Amendment violations. As such, Count VI fails to

state a claim and is due to be dismissed.

Count VII Fails To State A Claim Under The False

Claims Act.

Count VII asserts claims against certain Defendants

under § 1985, § 1986, and the False Claims Act. SEE

Am. Compl. at 17-22. First, neither 28 U.S.C. § 1985

nor 28 U.S.C. § 1986 provides for a waiver of sovereign

immunity for such claims against the United States,

its agencies, or its officers. SEE DAVIS V. U.S. DEP’T

OF JUSTICE, 204 F.8d 723, 726 (7th Cir. 2000).

Insofar as the False Claims Act claim is concerned,

“the submission of a false claim is the ‘SINE QUA

NON of a False Claims Act violation.” HOPPER YV.

SOLVAY PHARM,, INC., 588 F.3d 1318, 1828 (11th

Cir. 2009) (quoting U.S. EX REL. CLAUSEN V. LAB.

CORP. OF AM,, INC., 290 F.3d 1301, 1311 (11th Cir.

2002)). Guillaume does not allege the submission of

any false claim to the government. As such, there is

no apparent basis for a False Claims Act claim.

App. 20

Count VII is also named Judges Hyde and Holleman.

Judges, however, “are entitled to absolute judicial

immunity from damages for those acts taken while

they are acting in their judicial capacity unless they

acted in the clear absence of all jurisdiction.” BOLIN

V. STORY, 225 F.3d 1234, 1239 (11th Cir. 2000)

(quotations omitted) (citing STUMP V. SPARKMAN,

435 U.S. 349, 356-57 (1978)). Guillaume alleges no

valid basis for any exception to this categorical bar.

For these reasons, Count VII is also due to be

dismissed.

Count VIII Asserts No Basis For Relief.

Count VIII purports to assert a cause of action under

38 U.S.C. § 8127(G). Am. Compl. at 22. That statute

provides the Secretary of Veteran Affairs with the

ability to seek debarment of a veteran-owned business

from participation in contracting:

Any business concern that is determined by the

Secretary to have willfully and _ intentionally

misrepresented the status of that concern as a small

business concern owned and controlled by veterans or

as a small business concern owned and controlled by

service-disabled veterans for purposes of this

subsection shall be debarred from contracting with

the Department for a period of not less than five years.

38 U.S.C. § 8127(G)(1).

This Court agrees with Defendants that the statute

does not “provide a remedy for a debarred business -

much less an individual suing on a derivative basis -

App. 21

or otherwise waive sovereign immunity.” Mot. at 6

n.2. Lacking any basis for relief under the statute and

no waiver of sovereign immunity, Count VIII is due to

be dismissed.

Count IX Fails To State A Bivens Claim.

Count IX asserts a claims against the Defendants

under BIVENS based on a claimed violation of the

Fourth Amendment. Am. Compl. at 22. The Supreme

Court has made it clear that if there is even a single

“reason to pause before applying BIVENS M a new

context,” a court may not recognize a BIVENS

remedy. HERNANDEZ V. MESA, 140 S. Ct. 735, 743

(2020). Here, the reasons to pause are manifold: the

category of defendants here certainly qualifies as a

“new category of defendants,” SEE KEGBERT V.

BOULE, 596 U.S. 482, 492 (2022), Guillaume had an

alternate remedy available to him (appeal pursuant to

38U.S.C.§8127(, which he invoked), and, finally, it is

not clear what, if anything, Guillaume alleges

constitutes the BIVENS violation. Thus, based on the

allegations in Count IX, this Court declines to

recognize a cause of action under BIVENS. Therefore,

Count IX is due to be dismissed.

Count X Fails To Assert A Basis For Relief.

Despite invoking “THE RIGHTS OF DOUBLE

JHOPARDY,” Count X does not identify any clear

basis for a cause of action. SEE Am. Compl. at 25.

Lacking any cause of action, Count V fails to state a

claim. SEE LOMAX, 2020 WL 5819350 at *2.

Count X is, therefore, also due to be dismissed.

App. 22

Count XIs A Shotgun Pleading And Is Barred By

Sovereign Immunity.

Count XI mixes disparate causes of action against

individuals and, separately, against the United

States. SEE Am. Compl. at 26. It is unclear which

Defendants, if any, Guillaume intends to assert

violations against in each paragraph in this Count.

This renders this Count an impermissible shotgun

pleading which is due to be dismissed. SEE

JACKSON, 898 F.3dat 1357. To the extent Guillaume

intends to assert this Count against solely the federal

government, Guillaume provides no valid waiver of

sovereign immunity. For these reasons, Count XI is

due to be dismissed.

Count XIIs Barred By Sovereign Immunity.

In Count XII, Plaintiff invokes the Declaratory

Judgment Act as a basis for a “declaration of rights

with respect to this controversy.” Am. Compl. at 29. A

plaintiff suing the federal government under the

Declaratory Judgment Act must show that the

government has waived its immunity in some other

way. SEE HOUSEHOLD BANK V. JFS' GROUP, 320

F.3d 1249, 1253 (11th Cir. 2003) ““[T]he operation of

the Declaratory Judgment Act is procedural only”).

Again, Guillaume has not shown that the federal

government waived its sovereign immunity. Count

XII is therefore due to be dismissed.

CONCLUSION

For the reasons set forth above, the Court finds that

Guillaume’s claims in the Amended Complaint are

App. 23

barred by sovereign immunity or otherwise foreclosed

by clear authority from the Supreme Court and the

Eleventh Circuit and that otherwise the Amended

Complaint fails to assert any cognizable claim for

relief. While a PRO SE plaintiff ordinarily enjoys a

chance at amendment, SEE VAN TAYLOR V.

MCSWAIN, 335 Fed. Appx. 32, 33 (11th Cir. 2009),

Guillaume has already amended his Complaint, and

failed to meaningfully improve it such that it would

have any chance at surviving a motion to dismiss.

Combined with the fact that Guillaume has already

had two bites at the apple by way of his previous

lawsuits in this District, this Court finds that

dismissal with prejudice is appropriate. See Kiber

Radiology, Inc. v. Toshiba Am. Med. Sys., Inc., 613

Fed. Appx. 925, 930 (11th Cir. 2016) (finding that

permitting another round of amendments after a

plaintiff made previous attempts at amendment to a

complaint would have promoted “judicial

inefficiency”). This Court has expended significant

time and effort liberally construing Guillaume’s

hodgepodge of allegations. The Court now invokes its

inherent authority to foreclose Guillaume from taking

more of the Court’s time where there is no basis for

relief in any of his pleadings thus far.

Accordingly, for the reasons set forth above, it is

hereby ORDERED AND ADJUDGED J that

Defendants’ Motion to Dismiss Plaintiffs Complaint

[ECF No. 53] is GRANTED. It is further ORDERED

AND ADJUDGED that the Complaint is DISMISSED

WITH PREJUDICE

The Clerk of Court is directed to CLOSE the case. Any

pending motions are DENIED AS MOOT.

App. 24

DONE AND ORDERED in Chambers in the Southern

District of Florida, this 24th day of October, 2024. /s/

MELISSA DAMIAN, UNITED STATES DISTRICT

JUDGE

App. 25

A3

UNITED STATES DISTRICT COURT SOUTHERN

DISTRICT OF FLORIDA

JEAN FRANTZ GUILLAUME,

Plaintiff

UNITED STATES OF

AMERICA, et al, Defendants.

App. 26

D.C. No. 1:23-

cv-23287-MD

(Previously 23

CV-23287-

ALTMAN/Reid)

UNITED STATES DISTRICT COURT SOUTHERN

DISTRICT OF FLORIDA

Case No. 23-cv-23287-DAMIAN

(Previously 23-CV-23287-ALTMAN/Reid)

Document 37 (Entered March 4, 2024)

ORDER

Our Plaintiff, Jean Frantz Guillaume, has sued the

U.S. Department of Veterans Affairs (“VA”), the U.S.

Small Business Administration Office of Hearings &

Appeals (“SBA”) (collectively, the “Agency

Defendants”), and five current or former officers of

those agencies (collectively, the “Individual

Defendants”), asserting a long litany of constitutional,

statutory, and common-law claims. Guillaume’s

claims arise from the VA’s decision to “remove] [his]

application as a Service-Disabled Veteran Owned

Small Business in the U.S.” Compl. [ECF No. 1]

1. According to Guillaume, throughout the

application process, he “was subjected to unlawful

conspiratorial retribution, discrimination, retaliation,

a hostile environment based on race, sex, age, and

disabilities, and was wrongfully denied

application/verification from Defendant’s .. . illegal

actionsl.]” Id. 4 (errors in original).

This isn’t the first time Guillaume has been before us.

This is, in fact, his “fourth lawsuit related to the

participation of a business in a VA program providing

preferential treatment to businesses owned by

disabled United States Veterans in the award of

contracts with the agency.” Defendants’ Motion to

Dismiss (“MTD”) [ECF No. 7] at 2 (first citing Afly8

App. 27

Govt Sols. LLC v. United States, No. 19-cv-61698

(S.D. Fla. July 29, 2019) (Bloom, J.); then citing

Guillaume v. Hyde, 2020 WL 3317042 (S.D. Fla. June

18, 2020) (Altman, J.), affd sub nom., Gurllaume v.

U.S. Dep't of Veterans Affs., 847 F. App’x 627 (11th

Cir. 2021); and then citing Guillaume v. Hyde, 2021

WL 7083359 (S.D. Fla. Aug. 9, 2021) (Middlebrooks,

J.)). Those claims all arose from SBA’s decision to

remove Guillaume’s former business, AFILY8, from

the VA’s veteran-owned vendor list—and the

administrative-appeal process that followed. See, e.g.,

Guillaume, 847 F. App’x at 628 (“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.”); see also Guillaume, 2021 WL

7083359, at *2 (“Mr. Guillaume has sued all of the

same defendants, except that in the instant action he

has added the United States of America as a

defendant, and he relies on the same nucleus of facts

that gave rise to his claims in the Altman case.”).

This case, by contrast, arises out of the VA’s decision

to remove Guillaume’s “application for the Veterans

First Contracting Program” through his new business,

“Negro American,” in 2022, “without procedural due

process of law.” Compl. “fill 70—72; see also Plaintiff s

Response (“Resp.”) [ECF No. 15] at 2 (“Plaintiff, now

doing business as ‘Negro American, ... sued... for

repetitive conspiratorial, discriminatory, and

retaliatory conduct by the Defendants in the removal

of Plaintiff s documents and Plaintiffs] application

submitted as a Service-Disabled Veteran Owned

Small Businessl[.]” (cleaned up)). In his Complaint,

Guillaume asserts eleven counts, “sounding in the

App. 28

First, Fourth, and Fifth Amendments of the U.S.

Constitution (Counts I, II, IV, V and VD; the statute

governing the SDVOSB program, 38 U.S.C. § 8127

(Count IID; negligence (Counts VII and VIII);

employment discrimination (Count IX); J

contract/unjust enrichment/fraud and breach of

fiduciary duty (Count X)[; and] ... 38 U.S.C. § 4312

(Count XDI.” MTD at 4—5; see also Compl. * 10—

124.

On November 11, 2023, the Defendants filed their

Motion to Dismiss, arguing that all of Guillaume’s

claims against the Agency Defendants and the

Individual Defendants (in their official capacities) are

barred by sovereign and judicial immunity, see MTD

at 5—9, and that Guillaume failed to properly serve

the Individual Defendants in their individual

capacities under FED. R. Civ. P. 4, id. at 1 nl

(“Plaintiff, however, has not properly served any

individual Defendant in his individual capacity as

required by Rule 4[.]”). The Defendants also contend

that the Complaint should be dismissed as an

impermissible “shotgun pleadingl.]” Id. at 9 (“Plaintiff

s entire Complaint is a shotgun pleading.”). We agree

with that final argument and now dismiss the

Complaint as a shotgun pleading.

THE LAW To comply with federal pleading standards,

a complaint “must contain ... a short and plain

statement of the claim showing that the pleader is

entitled to relief.” FED. R. Civ. P. 8(a)(2). The Federal

Rules also require plaintiffs to “state [their] claims ...

in numbered paragraphs, each limited as far as

practicable to a single set of circumstances.” FED. R.

Civ. P. 10(b). As the Eleventh Circuit has explained, a

App. 29

complaint is a shotgun pleading if it:

(1) contains multiple counts where each count adopts

the allegations of all preceding counts; (2) is replete

with conclusory, vague, and immaterial facts not

obviously connected to any particular cause of action;

(3) fails to separate into a different count each cause

of action; or (4) asserts multiple claims against

multiple defendants without specifying which

defendant is responsible for which act.

Embree v. Wyndham Worldwide Corp., 779 F. App’x

658, 662 (11th Cir. 2019). All shotgun pleadings share

two characteristics. See Dorman v. Palm Beach Cnty.,

2020 WL 2078527, at *1 (S.D. Fla. Apr. 30, 2020)

(Altman, J.). First, they “fail to one degree or another,

and in one way or another, to give the defendants

adequate notice of the claims against them and the

grounds upon which each claim rests.” Weiland v.

Palm Beach Cnty. Sheritfs Off, 792 F.3d 1318, 1323

(11th Cir. 2015). Second, they “waste scarce judicial

resources, inexorably broaden the scope of discovery,

wreak havoc on appellate court dockets, and

undermine the public’s respect for the courts.” 17be

Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th

Cir. 2018) (cleaned up).

“As [tlhe Eleventh Circuit] hals] stated on several

occasions .. . if, in the face of a shotgun complaint, the

defendant does not move the district court to require

a more definite statement, the court, in the exercise of

its inherent power, must intervene sua sponte and

order a repleader.” Byrne v. Neff at, 261 F.3d 1075,

1133 (11th Cir. 2001) (emphasis added), abrogated on

other grounds by Bridge v. Phoenix Bond e>’ Indem.

App. 30

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