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Diaz v. Johnson

United States District Court, D. Massachusetts

April 29, 2019

KEVIN DIAZ, Plaintiff,
v.
ASHLEY JOHNSON, United States Navy, Defendant.

          MEMORANDUM AND ORDER ON MOTION TO DISMISS COMPLAINT (#32).

          M. Page Kelley United States Magistrate Judge

         I. Introduction.

         The 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.)[2] In any event, at this juncture, the dispositive motion stands ready for decision.

         II. The Facts.

         According 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[3] submitted a proposal[4] 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.

         Although 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.[5] 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).[6] In the ASBCA case, Mr. Diaz sought $725, 000.00 in monetary damages from the United States; the damages demand[7]was increased to $1, 400, 000.00 in the Court of Federal Claims case. Id. at 667.

         The 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.

         In 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.[8] Id.

         The 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.

         III. The Legal Standards.

         Defendant 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).

         In 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 ‘unsupported ...


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