United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTION TO DISMISS COMPLAINT
Page Kelley United States Magistrate Judge
complaint in this case was filed on August 31, 2017, by
plaintiff Kevin Diaz, who is proceeding pro se. (#1.) On
August 30, 2018, defendant Ashley Johnson, identified as
Technical Director, Naval Surface Warfare Center, Indian Head
- Explosive Ordnance Disposal Technology Division (NSWC
IHEODTD) in Indian Head, Maryland, filed a motion to dismiss.
(#1-1 at 4; #32.) It is unclear if Mr. Diaz has filed an
opposition, but he has submitted a so-called Memorandum for
Facts in Cause. (#34.) In any event, at this juncture, the
dispositive motion stands ready for decision.
to the allegations of the complaint, this is an action
brought under the Tucker Act, 28 U.S.C. § 1491, and the
Administrative Procedure Act, 5 U.S.C. §§ 551, 702.
(#1 ¶ 6.) On or about September 17, 2015,
plaintiff submitted a proposal for a
“Hybrid Chassis Breaching System” to NSWC
IHEODTD. (#1-2.) Over a period of months thereafter, Mr. Diaz
was in communication with Navy personnel concerning the
proposal which, according to plaintiff, implied that the Navy
had “de facto approved [the proposal] for technology
development” and funding. Id. ¶¶ 1,
8, 11-12. By letter dated November 2, 2015, from the Deputy
of the Contracting Office of NSWC IHEODTD, Mr. Diaz was
advised that “the information submitted to NSWC IHEODTD
did not include sufficient detail to permit a determination
that Government support could be worthwhile.” (#1-5 at
4.) Plaintiff responded to the letter, providing more
information, id. at 6-13, but “the
Government's determination remain[ed] unchanged.”
Id. at 5. In a November 19, 2015 letter, the Deputy
Chief of the Contracting Office advised Mr. Diaz that
“[t]his letter does not constitute a request for a
formal proposal, and the Government will not be responsible
for any costs associated with unsolicited proposal
preparation and submittal.” Id.
not referenced in the complaint, this case has a history.
Before commencing the present action, Mr. Diaz filed a
complaint with the United States Armed Services Board of
Contract Appeals (ASBCA), and then the United States Court of
Federal Claims, pleading essentially the identical material
facts as alleged here. See Diaz v. United States, 127
Fed.Cl. 664 (2016), aff'd, 853 F.3d 1355 (Fed.
Cir.), cert. denied, 138 S.Ct. 216
(2017). In the ASBCA case, Mr. Diaz sought $725,
000.00 in monetary damages from the United States; the
damages demandwas increased to $1, 400, 000.00 in the
Court of Federal Claims case. Id. at 667.
Court of Federal Claims viewed plaintiff's complaint as
alleging three specific claims: 1) that defendant
“failed to comply with Federal Acquisition Regulation
(FAR) Subpart 15.6 when reviewing the proposal for
requirements”; 2) that defendant “failed to
provide any opportunity for funding Research, Development,
and Acquisition for the Plaintiff, a Small Business, as
delineated in Federal Acquisition Regulation §
15.602”; and 3) that defendant failed to comply with
the mandate of DoD Directive 5160.62. Id. at 668.
Defendant moved to dismiss for lack of jurisdiction under
Fed.R.Civ.P. 12(b)(1), and for failure to state a claim under
Fed.R.Civ.P. 12(b)(6). Id. at 668-69.
ruling on the dispositive motion, the court explained that,
“in order to have standing to sue as an interested
party under the Tucker Act, 28 U.S.C. § 1491(b)(1), a
protestor must establish that it is (1) an actual or
prospective bidder and (2) that it has a direct economic
interest in the contract award, or failure to award a
contract.” Id. at 673 (internal citations and
quotation marks omitted). In turn,
to demonstrate the requisite direct economic interest, a
disappointed bidder must show that it suffered a competitive
injury or was “prejudiced” by an alleged error in
the procurement process. In order to establish what one Judge
on this court has called “allegational prejudice,
” the bidder must show that there was a
“substantial chance” it would have received the
contract award, but for the alleged procurement error.
Id. at 673 (internal citations omitted). The court
concluded that the agency had, in fact, undertaken a serious
review of Mr. Diaz's unsolicited proposal as required by
FAR Subpart 15.603(c), and had offered a full explanation as
to why the unsolicited proposal would not be subject to a
more comprehensive review. Id. at 675. Having failed
to establish that he “had a substantial chance of
receiving a contract award, ” Mr. Diaz's complaint
was dismissed. Id.
Court of Appeals for the Federal Circuit affirmed the Court
of Federal Claims decision, concluding that Mr. Diaz did not
have standing because “he cannot demonstrate that he
had a substantial chance of winning the contract because, at
the very least, his proposal did not conform to the
requirements of FAR Subpart 15.6, which governs unsolicited
proposals.” Diaz, 853 F.3d at 1359 (internal
citations omitted). The Supreme Court denied plaintiff's
petition for certiorari. Diaz, 138 S.Ct. 216.
The Legal Standards.
has moved to dismiss under Rules 12(b)(1) and (b)(6) of the
Federal Rules of Civil Procedure. Pursuant to Rule 12(b)(1),
a defendant may move to dismiss an action based on lack of
federal subject matter jurisdiction. “‘Because
federal courts are courts of limited jurisdiction, federal
jurisdiction is never presumed.' The party asserting
jurisdiction has the burden of demonstrating the existence of
federal jurisdiction.” Fabrica de Muebles J.J.
Alvarez, Incorporado v. Inversiones Mendoza, Inc., 682
F.3d 26, 32 (1st Cir. 2012) (quoting Viqueira v. First
Bank, 140 F.3d 12, 16 (1st Cir.1998) (internal citation
omitted)). Once a defendant challenges the jurisdictional
basis for a claim under Rule 12(b)(1), the plaintiff bears
the burden of proving jurisdiction. Thomson v.
Gaskill, 315 U.S. 442, 446 (1942); Johansen v.
United States, 506 F.3d 65, 68 (1st Cir. 2007).
ruling on a motion to dismiss for lack of jurisdiction, the
court must “‘credit the plaintiff's well-pled
factual allegations and draw all reasonable inferences in the
plaintiff's favor.'” Sanchez ex rel.
D.R.-S. v. U.S., 671 F.3d 86, 92 (1st Cir. 2012)
(quoting Merlonghi v. United States, 620 F.3d 50, 54
(1st Cir. 2010)). The “court may also ‘consider
whatever evidence has been submitted, such as the depositions
and exhibits submitted.'” Merlonghi, 620
F.3d at 54 (quoting Aversa v. United States, 99 F.3d
1200, 1210 (1st Cir. 1996)); Carroll v. U.S., 661
F.3d 87, 94 (1st Cir. 2011) (internal citation and quotation
marks omitted) (“In evaluating a motion to dismiss
under Rule 12(b)(1) for lack of subject matter jurisdiction,
we construe plaintiffs' complaint liberally and
ordinarily may consider whatever evidence has been submitted,
such as . . . depositions and exhibits.”). A plaintiff
cannot assert a proper jurisdictional basis “merely on