Adam J. Shirvinski v. United States Coast Guard

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 ADAM J. SHIRVINSKI,
Plaintiff-Appellant,
v.
UNITED STATES COAST GUARD;
STEPHEN HOSHOWSKY; BOOZ ALLEN
HAMILTON, INC.; UNITED STATES OF
No. 10-2424  AMERICA,
Defendants-Appellees,
and
GLOBAL STRATEGIES GROUP,
INCORPORATED,
Defendant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Anthony J. Trenga, District Judge.
(1:09-cv-00896-AJT-TRJ)
Argued: January 24, 2012
Decided: March 12, 2012
Before WILKINSON, DUNCAN, and AGEE,
Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Duncan and Judge Agee joined.

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COUNSEL
ARGUED: Matthew Henry Simmons, SIMMONS & ASSO-
CIATES, CHARTERED, Bethesda, Maryland, for Appellant.
Stephen William Robinson, MCGUIREWOODS, LLP,
McLean, Virginia; Dennis Carl Barghaan, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia,
for Appellees. ON BRIEF: Neil H. MacBride, United States
Attorney, Alexandria, Virginia, for Appellee United States
Coast Guard. Sarah A. Belger, MCGUIREWOODS, LLP,
McLean, Virginia, for Appellee Booz Allen Hamilton, Inc.
OPINION
WILKINSON, Circuit Judge:
In this case, a subcontractor to a subcontractor to a prime
contractor with a federal agency brought a procedural due
process claim against that agency and tort actions against a
separate contractor for allegedly causing the termination of
his at-will consulting agreement. Following discovery, the
district court granted summary judgment to the defendants.
Because permitting these claims to go forward would reward
artful pleading and impermissibly constitutionalize state tort
law, we affirm the district court.
I.
A.
This case arose out of the United States Coast Guard’s
Deepwater Acquisition Project, a collection of acquisition
programs undertaken to modernize the Coast Guard’s deep-
water ships and aircraft. Given the scope and complexity of
the Deepwater Project, this case boasts a large cast of charac-
ters, and we shall do our best to assist the reader in keeping
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them straight. In March 2008, Adam Shirvinski, a retired
United States Coast Guard Captain, entered into a private at-
will consulting agreement with Mohawk Information Systems
and Consulting, Inc. ("MISC"). According to the contract,
Shirvinski promised to provide consulting services regarding
Configuration Management ("CM") and Quality Assurance
("QA") issues to the Coast Guard regarding the Deepwater
Project. Under its terms, either party could unilaterally termi-
nate the contract by giving thirty days written notice.
MISC, in turn, was a subcontractor to SFA, Inc. ("SFA"),
which had a prime contract with the Coast Guard to work on
the Deepwater Project. The Coast Guard had also hired Booz
Allen Hamilton, Inc. ("Booz Allen") to work on Deepwater
through a separate contract.
Shirvinski began his stint as a private consultant in March
2008 at a Coast Guard facility in Rosslyn, Virginia. Over the
next few months, tensions in the workplace arose between
Shirvinski and a number of Coast Guard and Booz Allen
employees. For example, Shirvinski admitted he told Booz
Allen personnel on March 13 that he "was taking over CM
functions" and that all CM issues should be brought "to [his]
attention." In addition, Shirvinski criticized a CM plan devel-
oped by Booz Allen and Stephen Hoshowsky, a civilian Coast
Guard employee, and recommended that a Booz Allen
employee, Vik Singh, be removed from CM functions on the
Deepwater Project. Commander Richard Fontana, the Deputy
Project Manager, also began to "receive[ ] multiple com-
plaints" about Shirvinski’s "conduct and the way he interacted
with people," including charges that he was "brusque and
abrasive." After hearing concerns over Shirvinski’s behavior,
Commander Fontana instructed Hoshowsky to bring any com-
plaints about Shirvinski to his attention.
In accordance with this directive, Hoshowsky sent an email
containing a list of issues regarding Shirvinski to Fontana and
several other Coast Guard officials on August 6, 2008.
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Hoshowsky copied several Booz Allen employees, including
Singh, on this email as well. Included in this list of complaints
was the charge that Shirvinski "has introduced himself as the
CG-933 CM/QA Division Head reporting directly to [the
Project Manager] at every meeting and telecom I have
attended with him." Several days later, on August 11,
Hoshowsky forwarded a copy of this email to Lieutenant
Christopher Armstrong. The next day, Lieutenant Armstrong
called the office of Lieutenant Commander Michael Gero, the
Contracting Officer’s Technical Representative, to request
Shirvinski’s removal from the Deepwater Project. On the
morning of August 13, Armstrong forwarded Hoshowsky’s
email to Gero’s deputy in support of his request.
After receiving Hoshowsky’s email, Gero passed it along to
another Coast Guard official, Contract Specialist Gwendolyn
Scott, who was the assistant to Coast Guard Contracting Offi-
cer Cheryl Ellis. Gero, Ellis, and Scott then convened to dis-
cuss the request to remove Shirvinksi from Deepwater.
Following their meeting, Scott notified SFA by email that
It has come to our attention that Adam Shirvinski, a
subcontractor on HSCG23-05-F-TTV002 has vio-
lated Sections 1.3.3 and 1.3.4 of the Task Order Per-
formance Work Statement on a number of occasions.
We have received reports Mr. Shirvinski has improp-
erly introduced himself as the CG-933 CM/QA Divi-
sion Head and failed to adhere to the task order
requirement to properly identify himself as a con-
tractor. . . . We ask[ ] that you take corrective action
immediately and update us regarding the outcome of
this matter. Please contact us if you have any ques-
tions.
SFA’s Vice President of Business Administration, Shirley
Place, responded, "I am immediately looking into this, and I
will be back with you shortly. We apologize in advance, we
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will perform an investigation, and we will rectify the situation
asap!"
Later that day, SFA sent a letter to MISC stating that
because the "Coast Guard has advised us that Mr. Shirvinski
. . . has violated Coast Guard policy," he "should be termi-
nated immediately and will no longer be allowed to perform
on any [SFA] contract or subcontract." That evening, MISC’s
Operations Vice President, Captain Joseph Ryan, informed
Shirvinski that "SFA directed MISC to terminate your ser-
vices" on the Deepwater Project and that "[i]n accordance
with SFA’s direction, your services are terminated on that
task."
B.
On August 11, 2009, Shirvinski filed a complaint in federal
court against Hoshowsky, the Coast Guard, Booz Allen, and
SFA’s successor, Global Strategies Group (North America),
Inc., containing state law claims of defamation, conspiracy,
and tortious interference. His sole cause of action against the
Coast Guard was a defamation claim seeking a declaratory
judgment ordering it to amend its records to show that the
allegations against him were false.
The district court permitted the United States to substitute
itself for Hoshowsky under the Federal Employees Liability
Reform and Tort Compensation Act, see 28 U.S.C. § 2679(d),
and then dismissed Shirvinski’s claims against the United
States because he had failed to pursue administrative remedies
as required by the Federal Tort Claims Act ("FTCA"). See id.
§ 2675(a). The court also dismissed his defamation claim
against the Coast Guard because it lacked jurisdiction under
the FTCA to hear common law tort suits for equitable relief,
see id. § 1346(b)(1), and his claims against SFA’s successor
because his allegations were either legally insufficient or
barred by Virginia’s statute of limitations.
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After the bulk of his original claims had been rejected by
the district court, Shirvinski decided to pursue a new strategy.
To that end, he filed a second amended complaint on March
30, 2010.* This time, he brought a federal procedural due pro-
cess claim against the Coast Guard seeking similar equitable
relief and state tort claims against Booz Allen for damages.
Following discovery, both defendants moved for summary
judgment.
The district court granted their motions on all counts. It dis-
missed Shirvinski’s procedural due process claim against the
Coast Guard because it found that he was unable to show a
constitutional injury. With regard to Booz Allen, the court
dismissed Shirvinski’s common law and statutory conspiracy
claims because he could not show that Booz Allen conspired
to remove him from Deepwater "through unlawful means." It
also dismissed his tortious interference with contract claim
because this cause of action did not extend to an at-will con-
tract and his claim for tortious interference with prospective
economic advantage because it found that Booz Allen did not
employ any improper methods.
Shirvinski appeals the district court’s ruling on all counts
except for his tortious interference with contract claim. We
review a grant of summary judgment de novo and apply the
same standards as the district court. Nader v. Blair, 549 F.3d
953, 958 (4th Cir. 2008). We shall take up the claims against
the Coast Guard and Booz Allen in turn.
II.
We first address Shirvinski’s procedural due process claim
against the Coast Guard. In order to prevail, appellant must
show "(1) a cognizable liberty or property interest; (2) the
deprivation of that interest by some form of state action; and
*Shirvinski had filed his first amended complaint a few months after the
case began.
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(3) that the procedures employed were constitutionally inade-
quate." Kendall v. Balcerzak, 650 F.3d 515, 528 (4th Cir.
2011). To that end, he argues that without providing him pro-
cedural protections, the Coast Guard deprived him of his lib-
erty interest in his reputation by "requesting his removal
from" the Deepwater Project "while spreading defamatory
statements about him as a reason for this request." Appellant’s
Br. at 40. For two reasons, we reject this claim.
A.
The first problem with Shirvinski’s argument is that even
if the Coast Guard did request his removal from the Deep-
water Project, he has not suffered a constitutionally cogniza-
ble injury. Appellant assumes that he "need only show . . .
removal from [a] contract" accompanied by "an untrue gov-
ernment statement about him alleging serious character
defect" to demonstrate a deprivation of a protected liberty
interest. Id. at 44. However, a government’s allegedly "de-
famatory" request that its prime contractor no longer assign
one of its subcontractors to a particular government contract
fails to rise to the level of a constitutional injury.
The Supreme Court’s consistent guidance in this area coun-
sels against finding constitutional injury here. Since Paul v.
Davis, 424 U.S. 693, 701 (1976), the Court has repeatedly
admonished judges to be wary of turning the Due Process
Clause into "a font of tort law" by permitting plaintiffs to con-
stitutionalize state tort claims through artful pleading. See,
e.g., Daniels v. Williams, 474 U.S. 327, 332 (1986). For that
reason, the Supreme Court has required plaintiffs in cases
involving allegedly defamatory statements by the government
to show more than reputational injury in order to prevail on
a constitutional claim. "[I]njury to reputation by itself [is] not
a ‘liberty’ interest protected under the [Due Process Clause]."
Siegert v. Gilley, 500 U.S. 226, 233 (1991). Instead, a plaintiff
must demonstrate that his reputational injury was accompa-
nied by a state action that "distinctly altered or extinguished"
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his legal status if he wants to succeed. See Paul, 424 U.S. at
711.
In the context of public employment, this change in status
occurs when the government acting as an employer discharges
one of its employees. See id. at 705 (noting that an "effect on
the legal status of . . . a person" includes the "loss of govern-
ment employment"). As appellant points out, we have recog-
nized that a loss of government employment accompanied by
a public employer’s stigmatizing remarks constitutes a depri-
vation of a liberty interest. See Ridpath v. Bd. of Governors
Marshall Univ., 447 F.3d 292, 309 (4th Cir. 2006). But Shir-
vinski was neither an employee of nor in a direct contractual
relationship with the Coast Guard. Nor, as he concedes, did
the Coast Guard "formally bar[ ]" him "from government con-
tracting." Appellant’s Br. at 46. Because Shirvinski did not
suffer a loss of public employment, this line of cases is not
germane to our analysis.
To be sure, the Coast Guard’s action may have affected
Shirvinski’s private employment prospects with SFA and
MISC. But unlike the loss of a government job, that injury
does not work a change in legal status. Once again, Paul v.
Davis is instructive. The plaintiff in that case was a private
employee who was reprimanded by his supervisor after local
police departments published a list of shoplifters that included
his name. 424 U.S. at 694-96. Although he contended that the
government’s action "would seriously impair his future
employment opportunities," id. at 697, the Supreme Court
rejected his claim, noting that it "has never held that the mere
defamation of an individual, whether by branding him dis-
loyal or otherwise, was sufficient to invoke the guarantees of
procedural due process absent an accompanying loss of gov-
ernment employment." Id. at 706.
Like the published list of shoplifters at issue in Paul, the
Coast Guard’s concerns may have restricted Shirvinski’s pri-
vate employment opportunities by causing MISC to terminate
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his consulting agreement and SFA to refuse to work with him
again. But even if the Coast Guard’s concerns "undoubtedly
. . . impair[ed] his future employment prospects," that fact
alone does not amount to a constitutional injury. See Siegert,
500 U.S. at 234; see also Randall v. United States, 30 F.3d
518, 522 (4th Cir. 1994) ("[A]ction which inflicts a stigma on
the reputation of a plaintiff causing that plaintiff hardship in
obtaining employment is harm to reputation that does not rise
to the level of a constitutional deprivation."). The Supreme
Court’s repeated admonitions prevent us from concluding that
an agency’s request that a prime contractor no longer assign
a subcontractor to a particular government project amounts to
an adjudication of legal status.
Diluting the requirement of a change in legal status would
needlessly court conflict with a sister circuit as well. The Dis-
trict of Columbia Circuit has made clear that the removal of
a subcontractor from a particular government contract need
not be an injury of constitutional magnitude. In Kartseva v.
Department of State, 37 F.3d 1524, 1525 (D.C. Cir. 1994), the
court faced a procedural due process claim brought by a sub-
contractor who lost her job with a prime contractor after a
government agency declared her ineligible to work on a par-
ticular contract for counterintelligence reasons. As the court
noted, a subcontractor in this situation must show that the
government altered his "status under law" by either (1) "for-
mally or automatically exclud[ing]" him from a "category of
future [government] contracts or from other government
employment opportunities," or (2) "largely precluding" him
from pursuing his "chosen career." Id. at 1527-28. In other
words, Shirvinski must show that his "skills were . . . rendered
largely unmarketable as a result of the agency’s acts." See
Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1507 (D.C.
Cir. 1995).
Shirvinski cannot meet this demanding test. Rather than
being "foreclosed from reentering the field," he has "merely
lost one position in [his] profession." See Kartseva, 37 F.3d
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at 1529. He concedes he is not formally excluded from gov-
ernment contracts, and indeed multiple sources—including
the Coast Guard’s Chief for Formal Contracts Division I,
Captain Joseph Ryan of MISC, and one of Shirvinski’s con-
tacts at another government subcontractor—each confirmed
that he can still operate as a government subcontractor. Like
the district court, we believe that "Shirvinski has failed to
present evidence sufficient for a reasonable fact finder to con-
clude that he is effectively barred from pursuing his chosen
trade." Were we to subject appellant’s claim to a less demand-
ing standard, we would create a circuit split in an area of law
where uniformity is particularly desirable. The law of govern-
ment contracts requires a modicum of stability across jurisdic-
tions, and we do no one a service by creating unnecessary
divergences in this field.
The facts of this case also make clear that allowing Shirvin-
ski’s constitutional claim to go forward would do exactly
what the Supreme Court has warned us not to do: transform
the Fifth Amendment’s Due Process Clause into "a font of
tort law" in the field of government contracts. See Paul, 424
U.S. at 701. As the history of this lawsuit illustrates, Shirvin-
ski’s procedural due process claim is nothing more than an
ordinary defamation action dressed in constitutional garb. In
his initial complaint, Shirvinski brought a defamation suit
against the Coast Guard pursuing the same equitable relief—
a declaratory judgment ordering it to amend its records—that
he seeks today. The district court dismissed that suit because
it could not hear common law tort claims seeking equitable
relief under the FTCA. See 28 U.S.C. § 1346(b)(1); Talbert v.
United States, 932 F.2d 1064, 1065-66 (4th Cir. 1991). And
even if Shirvinski had sought damages from the Coast Guard,
his claim would have been barred by the FTCA’s preservation
of sovereign immunity against defamation actions. See 28
U.S.C. § 2680(h).
After learning that the FTCA barred him from pursuing this
common law defamation action, Shirvinski repackaged his
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case against the Coast Guard as a procedural due process suit.
This overlooks the fact that "[o]ur Constitution deals with the
large concerns of the governors and the governed." Daniels,
474 U.S. at 332. It does not "purport to supplant traditional
tort law in laying down rules of conduct to regulate liability
for injuries that attend living together in society." Id. Appel-
lant’s claim for relief is more appropriately the subject of
common law remedies than constitutional guarantees. For
instance, he might have brought a breach of contract action
against MISC but chose not to do so, perhaps because the at-
will nature of his contract limited the prospect of available
relief. Alternatively, he could have brought—and indeed did
bring—defamation and tortious interference claims against
SFA’s successor, but these were dismissed as untimely or
insufficiently pled. Whether Shirvinski actually has a remedy
in contract against MISC or a remedy in tort against SFA’s
successor is of course beyond the purview of this appeal. But
the fact that he either did not bring or fruitfully pursue these
other forms of relief does not give him the right to move
against the government on constitutional grounds.
Allowing this claim to proceed would only reward artful
pleading to the detriment of public-private partnerships. The
government "has a legitimate interest in promoting efficiency
and integrity in the discharge of official duties, and in main-
taining proper discipline in the public service," Engquist v.
Or. Dep’t of Agric., 553 U.S. 591, 598 (2008) (internal quota-
tion marks omitted), and this need for "broad authority in
managing . . . operations does not turn" on whether govern-
ment contractors or civil servants are involved. NASA v. Nel-
son, 131 S. Ct. 746, 758-59 (2011). But if the government
faces constitutional liability whenever it informs a prime con-
tractor of allegations against one of its subcontractors, its abil-
ity to manage those who carry out its mission would be
imperiled. The threat of liability would deter public officials
from communicating their concerns to contractors about the
conduct of subcontractors, even if those concerns were
entirely well-founded. This chilling effect would over time
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inhibit frank assessments of a contractor’s work and insulate
even poor contractual performance from appropriate correc-
tion.
The imposition of needless burdens on communication nec-
essary for the functioning of government is what the FTCA’s
defamation exception was designed to prevent. That exception
was added to the FTCA to ensure "that government officials
should not be hampered in their writing and speaking by the
possibility that their actions would give rise to government
liability." Quinones v. United States, 492 F.2d 1269, 1280 (3d
Cir. 1974). Permitting Shirvinski to use the Due Process
Clause to do an end run around this exception would thus
work the precise harms Congress sought to avoid in the FTCA
and fly in the face of Paul v. Davis and its progeny.
B.
Shirvinski has not only failed to allege a constitutionally
cognizable injury. His claim also fails because the Coast
Guard did not deprive him of a liberty interest without provid-
ing due process. Instead, SFA—a private entity—instructed
MISC—another private entity—that Shirvinski "should be
terminated immediately" and MISC complied by promptly
ending his consulting agreement. This absence of state action
is fatal to his constitutional claim. For "[u]nless there has been
a ‘deprivation’ by ‘state action,’ the question of what process
is required and whether any provided could be adequate in the
particular factual context is irrelevant." See Stone v. Univ. of
Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988).
To surmount this hurdle, Shirvinski contends that the Coast
Guard requested his immediate removal from the Deepwater
Project and is therefore responsible for the termination of his
contract. But assigning constitutional liability to government
agencies for the conduct of private parties is not something
we do lightly. The government "normally can be held respon-
sible for a private decision only when it has exercised coer-
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cive power or has provided such significant encouragement,
either overt or covert, that the choice must in law be deemed
to be that of the State." Blum v. Yaretsky, 457 U.S. 991, 1004
(1982).
Shirvinski cannot make this showing. As the district court
noted, there is no admissible evidence that "shows an actual
request or directive from the Coast Guard to SFA that Shir-
vinski be removed." Instead, the record indicates that the
Coast Guard expected SFA to conduct an investigation into
the allegations against him before taking action. According to
Gwendolyn Scott, the assistant to Contracting Officer Ellis,
she did not contact Shirvinski upon learning of the allegations
because he "wasn’t an employee of the Coast Guard and we
did not have a direct contractual relationship with [him]." As
she pointed out, the Coast Guard "paid SFA to manage their
employees and subcontractors, and it was their job to investi-
gate these allegations and let us know what they were going
to do to correct them if they were true, or tell us if they
weren’t true."
The Coast Guard’s contractually-based expectation that
SFA would provide some procedural safeguards before termi-
nating Shirvinski was hardly unreasonable. After Scott
informed SFA of the allegations against Shirvinski and asked
it to "take corrective action," SFA’s Vice President of Busi-
ness Administration, Shirley Place, promised to "perform an
investigation." And once Contracting Officer Ellis learned of
SFA’s decision, she sent an email to Place to "confirm[ ]" that
Place had "indicated that [she] understood that the govern-
ment did not direct the removal of SFA’s employee" and that
SFA had performed its "own investigation and determined
that removal was appropriate." The Coast Guard thus had
every reason to believe that SFA provided Shirvinski with
adequate procedures before removing him from the Deep-
water Project.
In fact, this was appellant’s consistent position until the dis-
trict court dismissed SFA’s successor from the suit. In his ini-
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tial complaint, Shirvinski alleged that there "was no doubt . . .
that SFA was the ultimate decision maker, whereas the Coast
Guard had merely requested some form of unspecified ‘cor-
rective action.’" Shirvinski similarly asserted in his first
amended complaint that the "Coast Guard did not intend its
email to be dispositive," but instead "communicated to SFA
that it was not directing Mr. Shirvinski’s removal." (emphasis
in original). But as soon as SFA’s successor was dismissed
from the suit, Shirvinski changed his story. In his second
amended complaint, he contended that the Coast Guard
requested his removal and then "attempted to cover up its
actions by laying groundwork to claim that the decision to ter-
minate [him] originated from SFA." This strategic shift in
narratives only undermines the credibility of his present
claim.
The record is thus replete with evidence that the Coast
Guard never requested Shirvinski’s immediate removal but
instead expected SFA to investigate the allegations. The dis-
trict court nevertheless refused to grant summary judgment on
this basis largely because Lieutenant Armstrong had asked
Lieutenant Commander Gero to remove Shirvinski from
Deepwater and then claimed credit for his removal in a later
email. The problem with this analysis is that Armstrong
lacked authority to order SFA to remove one of its subcon-
tractors on behalf of the Coast Guard. That power was instead
vested in Contracting Officer Ellis, who had notified SFA
early on that she was "the Contracting Officer responsible for
the contract" and that except for technical issues, SFA should
"contact [her] . . . on all other matters pertaining to the con-
tract."
Thus, even though Lieutenant Armstrong sought Shirvin-
ski’s removal, the ultimate decision was not his to make.
Unless appellant can provide evidence that Contracting Offi-
cer Ellis asked SFA to remove him, he cannot prove that the
Coast Guard was responsible. As MISC’s Captain Ryan
observed, in the field of government contracts, "if the state-
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ment [did] not come from the contracting officer . . . it didn’t
happen." Appellant’s failure to provide evidence that Ellis
requested his removal requires the dismissal of his procedural
due process claim.
In sum, we cannot find fault with the Coast Guard’s con-
duct in this case. It neither provided "significant encourage-
ment" to nor "exercised coercive power" over SFA in that
contractor’s decision to order the removal of Shirvinski. See
Blum, 457 U.S. at 1004. Nor did it request Shirvinski’s imme-
diate removal from the Deepwater Project, but instead gave
SFA time to look into the allegations. See Merritt v. Mackey,
827 F.2d 1368, 1370-72 (9th Cir. 1987) (holding that an
employee of a government contractor who was fired after
government officials demanded his immediate termination
could state a procedural due process claim). The Coast Guard
was in fact at several removes from the dismissal decision. To
hold it constitutionally liable here would penalize the agency
for making a rather innocuous and wholly understandable
request. The agency could hardly be expected to do nothing
when serious concerns about subcontractor performance were
brought to its attention. What the Coast Guard did was to ask
its prime contractor to investigate allegations against one of
its subcontractor’s subcontractors. That the prime contractor
subsequently took action leading to the termination of that
subcontractor’s employment contract does not render the
Coast Guard constitutionally liable.
We cannot casually sweep the Coast Guard into every
interaction between two privately contracting parties. Shirvin-
ski was not a government employee. He had no contractual
relationship with the Coast Guard either. To seek to affix
responsibility here on the Coast Guard would not only expand
the scope of state action, but burden the government contract-
ing process with additional transaction costs. For "the mere
fact that state action sets in motion a chain of events that ulti-
mately leads to loss of a plaintiff’s protected interest does not
of itself establish that there has been a ‘deprivation by state
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action’ in the constitutional sense." Stone, 855 F.2d at 173.
Both because Shirvinski has failed to allege infringement of
a constitutionally cognizable liberty interest and because he
has failed to show that the government denied him adequate
process, we affirm the district court’s dismissal of his consti-
tutional claim.
III.
We now turn to Shirvinski’s state tort claims against Booz
Allen. On appeal, he pursues three business tort actions
against Booz Allen under Virginia law—common law civil
conspiracy, statutory conspiracy, and tortious interference
with prospective economic advantage—for its alleged
involvement in removing him from the Deepwater Project. As
the district court found, however, "there is no evidence that
Booz Allen had any interactions with MISC or SFA" or "par-
ticipated in the Coast Guard’s decision" to contact SFA or
even "requested that the Coast Guard terminate Shirvinski’s
involvement" in Deepwater. To shore up his claims, Shirvin-
ski contends that Booz Allen, primarily through its employee
Vik Singh, worked with Coast Guard civilian employee Ste-
phen Hoshowsky to remove him from Deepwater by spread-
ing defamatory allegations. This argument fails in all three of
its forms.
A.
We first address Shirvinski’s civil conspiracy claim under
Virginia common law. To succeed, appellant must show that
"two or more persons combined to accomplish, by some con-
certed action, some criminal or unlawful purpose or some
lawful purpose by a criminal or unlawful means." Commer-
cial Bus. Sys., Inc. v. BellSouth Servs., Inc., 453 S.E.2d 261,
267 (Va. 1995). Like the district court, we acknowledge that
there is evidence suggesting that Hoshowsky and Singh
believed Shirvinski should be removed from Deepwater. Spe-
cifically, on August 7, 2008, Hoshowsky sent an email to
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Singh declaring, "We need to have Mr. S fired! He is way out
side of his CM box!" Soon thereafter, Singh replied, "Ya."
But as appellant has conceded, the removal of a subcontractor
from a government project is not an unlawful end. Instead, he
argues that Singh and Hoshowsky achieved this goal through
the unlawful means of defamation. According to Shirvinski,
Singh participated in drafting the August 6 email containing
the charge that he had introduced himself as the CM/QA Divi-
sion Head.
We do not agree. Shrivinski offers nothing more than sheer
speculation to support this claim. As he admitted in his depo-
sition, he has no direct evidence that Singh either "played any
role in any part of the drafting of" or "had seen" the August
6 email prior to receiving it that afternoon. Shirvinski conse-
quently attempts to build his case through pure inference. He
first relies on the fact that on August 6, Hoshowsky and Singh
conferred sometime between 10:27 a.m.—when Singh sent an
email to Hoshowsky stating that "Adam is going all over the
place without telling us. . . . I need to talk to you"—and 2:03
p.m.—when Hoshowsky sent out the allegedly defamatory
email. But that sequence of events says nothing about whether
they agreed to draft that email during the conversation. In
fact, Singh and Hoshowsky each testified in their depositions
that they did not discuss this email or its contents before it
was sent.
Shirvinski also contends that correspondence between
Singh and Hoshowsky a few hours after the transmission of
the allegedly defamatory email indicates Singh’s involvement
in the drafting process. As appellant observes, Hoshowsky
emailed Singh at 5:15 p.m. to inquire whether Coast Guard
officials had seen his earlier email and Singh soon replied
with an update about its impact. In his request, Hoshowsky
also noted the possibility of having "one more thing to add to
the list of ‘Issues with Adam.’" Shirvinski believes this
proves that the two men had prepared the list of allegations
contained in Hoshowsky’s afternoon email. But discussing the
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impact of an email does not prove authorship. Nor does
Hoshowsky’s reference to a "list of ‘Issues with Adam’" dem-
onstrate that Singh was responsible for the list’s creation.
In short, the only way we could conclude that Singh helped
draft Hoshowsky’s email is "through mere speculation or the
building of one inference upon another," both of which are
insufficient justifications for proceeding to trial. Othentec Ltd.
v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008). As the district
court found, "there is no direct evidence that Singh . . . partic-
ipated in the composition of the August 6 e-mail, or even
knew about the fact or substance of the e-mail until [he]
received a copy." All Shirvinski is left with is an allegation
that two persons on a government project were dissatisfied
with a third person’s performance. But that sort of thing hap-
pens all the time in any team venture, and to hold that the
communication here formed an actionable civil conspiracy
would be to strain Virginia law to the breaking point. See
Almy v. Grisham, 639 S.E.2d 182, 188 (Va. 2007) ("[I]n Vir-
ginia, a common law claim of civil conspiracy generally
requires proof that the underlying tort was committed."). We
therefore affirm the district court’s dismissal of Shirvinski’s
common law civil conspiracy claim.
B.
Shirvinski’s statutory conspiracy claim fares no better.
Under Virginia’s business conspiracy statute, injured parties
can obtain treble damages against "[a]ny two or more persons
who combine, associate, agree, mutually undertake or concert
together for the purpose of . . . willfully and maliciously injur-
ing another in his reputation, trade, business or profession by
any means whatever." Va. Code Ann. §§ 18.2-499-.2-500.
Appellant’s claim under this statute falters on multiple
grounds.
To start, as with common law civil conspiracy, this statute
requires proof "that the defendants have combined . . . to
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accomplish some purpose, not in itself criminal or unlawful,
by criminal or unlawful means." Potomac Valve & Fitting
Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1284 (4th Cir.
1987) (internal quotation marks omitted). For the reasons dis-
cussed above, Shirvinski cannot make this showing. See supra
Part III.A.
Appellant also cannot demonstrate an injury to a business
interest. Despite its broad language, it is well-settled that this
statute applies only to injuries "to business and property inter-
ests, not to personal or employment interests." Andrews v.
Ring, 585 S.E.2d 780, 784 (Va. 2003). Shirvinski’s injuries,
however, are of a personal dimension. At the time he was
removed from the Deepwater Project, he neither owned a
company, did business as a separate organization, nor had a
separate tax identification number for his contractor status.
Thus, appellant suffered damage only to his personal employ-
ment prospects. But because "injury to personal reputation
ordinarily causes damage to one’s business or profession,
nearly every defamation action would fall within" the stat-
ute’s ambit if we permitted such claims to proceed. See
Moore v. Allied Chem. Corp., 480 F. Supp. 364, 375 n.3 (E.D.
Va. 1979); see also Buschi v. Kirven, 775 F.2d 1240, 1259
(4th Cir. 1985) (rejecting a business conspiracy claim based
on "injury to the professional reputation of the plaintiffs"
because it was "in essence, an action in slander and libel").
Virginia’s business conspiracy statute was not designed to
provide treble damages for defamation suits cloaked as con-
spiracy claims. We affirm the district court on this count as
well.
C.
Finally, Shirvinski challenges the district court’s grant of
summary judgment on his claim for tortious interference with
prospective economic advantage. To succeed on this action
under Virginia law, Shirvinski must at a minimum prove that
Singh "employed improper methods" in interfering with his
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business expectancy. See Duggin v. Adams, 360 S.E.2d 832,
836 (Va. 1987) (emphasis in original) (internal quotation
marks and citation omitted). He cannot make this showing.
Appellant appears to forget that liability for this sort of tor-
tious interference is not casually triggered. Interference
involves improper methods "if it is illegal, independently tor-
tious, or violates an established standard of trade or profes-
sion." Dunn, McCormack & MacPherson v. Connolly, 708
S.E.2d 867, 870 (Va. 2011). Singh did nothing that rises to
this level of misconduct. At worst, his efforts in seeking Shir-
vinski’s termination were "actions solely motivated by spite,
ill will and malice," which cannot constitute improper meth-
ods under Virginia law. Id. at 871.
As previously discussed, there is no evidence indicating
that Singh triggered Shirvinski’s removal through any illegal
or independently tortious activities. It is important to keep in
mind that Singh simply agreed with a co-worker’s assessment
that another contractor should be terminated based on their
shared perception that he was acting outside the scope of
authority. While Shirvinski may be frustrated over his co-
workers’ conclusion, that does not give him the right to hold
them liable in tort. This cause of action provides redress for
acts akin to "violence, threats or intimidation, bribery, [or]
unfounded litigation," Duggin, 360 S.E.2d at 836, not the
ordinary interpersonal conflicts of the workplace. The work-
place is rife with personal conflicts, turf fights, misunder-
standings and disagreements, and the courts cannot be
expected to sort through them all. "[T]he law will not provide
relief to every disgruntled player in the rough-and-tumble
world comprising the competitive marketplace," but "only
where the plaintiff can prove that the third party’s actions . . .
fell so far outside the accepted practice of that ‘rough-and-
tumble world’ as to constitute improper methods." Lewis-
Gale Med. Ctr., LLC v. Alldredge, 710 S.E.2d 716, 722 (Va.
2011).
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For us to expand liability for tortious interference—or con-
spiracy for that matter—to encompass Singh’s conduct would
work inestimable damage to public-private partnerships. The
effective execution of a government contract depends upon
candor and teamwork between public and private employees.
To penalize Singh’s actions here would render unlawful
unpleasant but necessary communications between govern-
ment employees and contractors over problems their co-
workers were causing in the workplace. Artfully pled business
tort actions can threaten valuable speech just as much as defa-
mation claims can. "Authority [and] common sense . . . dic-
tate that if [a] letter is privileged against suit for defamation,
it must also be protected in an action for interference with
business." McLaughlin v. Copeland, 455 F. Supp. 749, 752
(D. Del. 1978); see also Barr v. Matteo, 360 U.S. 564, 569
(1959) (plurality opinion) (acknowledging the "law of privi-
lege as a defense . . . to civil damage suits for defamation and
kindred torts") (emphasis added). We thus decline to expand
the reach of these actions far beyond what Virginia’s highest
court has authorized. The district court was right to dismiss
Shirvinski’s tortious interference claim.
IV.
In the end, Shirvinski’s case involves both the wrong
defendants and the wrong claims. Overlooking the most obvi-
ous parties, he goes after the most peripheral. And rather than
pursue ordinary common law remedies, he spins the termina-
tion of a private at-will consulting agreement into a case
involving conspiracy, treble damages, and constitutional guar-
antees. But plaintiff may not fashion such an extraordinary
lawsuit out of the ordinary happenings of life. The damage to
communications in the government contracting process and to
valuable public-private partnerships this action would cause
has been amply set forth in prior Supreme Court decisions as
well as our own precedent and that of the Virginia Supreme
Court. We shall affirm the judgment of the district court.
AFFIRMED
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