Phillips v. Spencer
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Opinion
Emmet G. Sullivan, United States District Judge
Plaintiff Sebastian Phillips ("Mr. Phillips"), a Naval Architect, and his architecture and engineering firm, Plaintiff Marine Design Dynamics, Inc. ("MDD"), allege that they have been effectively debarred from future government contracts with the United States Department of the Navy since 2011. Plaintiffs sued the Secretary of the Navy, the Chief and Deputy Chief of Naval Operations, and four officials of the Naval Sea Systems Command ("NAVSEA") and Operational Logistics Integration Program ("OPLOG") (collectively, the "Federal Defendants"). Plaintiffs contend that the Federal Defendants violated the Fifth Amendment to the United States Constitution by blacklisting MDD from government contracting without due process. The Federal Defendants deny these allegations, listing several contracts and government work awarded by the Navy to MDD as proof against any alleged de facto debarment. Plaintiffs do not dispute that MDD received more than $14 million in contracts, purchase orders, delivery orders, and funding modifications between 2011 and 2016. Rather, Plaintiffs argue that they were de facto debarred from competing for OPLOG work and Military Sealift Command ("MSC") work. Plaintiffs also assert common-law tort claims against four former MDD employees and two Navy officials.
Pending before the Court are the parties' motions: (1) the Federal Defendants' Renewed Motion to Dismiss, or in the alternative, for Summary Judgment as to Counts I, II, and IX; (2) Plaintiffs' Motion for Partial Summary Judgment as to Count I; (3) the parties' cross-motions for summary judgment as to Counts VI and VIII against Defendant Matthew Miller ("Mr. Miller"); and (4) Plaintiffs' Motion for Entry of Order for Summary Judgment. Upon careful consideration of the parties' submissions, the applicable law, and the entire record, the Court concludes that: (1) Plaintiffs have not met the high standard of proving de facto debarment, and Defendants Charles Traugh ("Mr. Traugh") and Michael Bosworth ("Mr. Bosworth") are entitled to qualified immunity; (2) Plaintiffs' tort claims against Defendant William Robinson ("Mr. Robinson") and Mr. Traugh fall under the Federal Tort Claims Act; (3) Plaintiffs have not met their burden of demonstrating that Mr. Robinson and Mr. Traugh were acting outside the scope of *145their employment; thus, the United States will be substituted as the defendant as to the tort claims asserted against Mr. Traugh and Mr. Robinson pursuant to the Westfall Act; (4) the United States has not waived its sovereign immunity for the tort claims against Mr. Robinson and Mr. Traugh; (5) the undisputed facts demonstrate that Mr. Miller did not breach his fiduciary duty owed to MDD; and (6) Plaintiffs' civil conspiracy claim as to Defendant Miller fails as a matter of law. Accordingly, the Court GRANTS the Federal Defendants' Renewed Motion to Dismiss, or in the alternative, for Summary Judgment as to Counts I, II, and IX, and DENIES Plaintiffs' Motion for Partial Summary Judgment as to Count I. The Court DENIES AS MOOT Plaintiffs' Motion for Entry of Order for Summary Judgment. Finally, the Court GRANTS Defendant Miller's Motion for Summary Judgment as to Counts VI and VIII, and DENIES Plaintiffs' Motion for Summary Judgment as to Counts VI and VIII.
I. Background
The Court assumes the parties' familiarity with the factual background and the long history of this litigation, which are set forth in the Court's two prior opinions. See Phillips v. Mabus ,
A. MDD's Work for the Navy
In 2005, Mr. Phillips, a Naval Architect, formed MDD. Am. Compl., ECF No. 42 at 4 ¶ 6.2 MDD is a Naval architecture and marine engineering firm based in the District of Columbia. See, e.g., Phillips I ,
1. MDD and CSC Subcontract
Between 2006 and 2011, MDD was one of the subcontractors for CSC, see Am. Compl., ECF No. 42 at 6 ¶ 23, and CSC was one of the contractors supporting the Navy's OPLOG. Fed. Defs.' SOMF, ECF No. 88 at 4 ¶ 10. The Navy, through its SeaPort-e program, awarded CSC a contract to provide support services to NAVSEA.4 Decl. of Robert C. Beaubien *146("Beaubien Decl."), ECF No. 88-1 at 2-3 ¶¶ 2-3. Under that contract, CSC and MDD entered into "a firm-fixed price, indefinite-delivery, indefinite quantity [sub]contract under which MDD provided services only when it received a task order from CSC to do so."
As CSC's senior program manager, Robert C. Beaubien ("Mr. Beaubien") was CSC's contract monitor for MDD, and his duties consisted of, inter alia , managing its subcontractors' performance and payments under CSC's contract with NAVSEA. Fed. Defs.' SOMF, ECF No. 88 at 4 ¶ 11. The CSC-MDD subcontract provided that "CSC [was] under no obligation to issue any Task Orders" to MDD. Fed. Defs.' Ex. B, ECF No. 88-2 at 6. It also stated that "[t]he value for services to be provided by [MDD] will be specified in each Task Order" and that "in no way obligates CSC to award Task Orders under this Agreement ...." Id. at 5.
Based on NAVSEA's instructions, CSC distributed the OPLOG work to subcontractors like MDD. See Beaubien Decl., ECF No. 88-1 at 3 ¶ 5. Mr. Beaubien oversaw MDD's services to OPLOG. Fed. Defs.' SOMF, ECF No. 88 at 4 ¶ 11. OPLOG's program manager, Mr. Traugh, contacted Mr.
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Emmet G. Sullivan, United States District Judge
Plaintiff Sebastian Phillips ("Mr. Phillips"), a Naval Architect, and his architecture and engineering firm, Plaintiff Marine Design Dynamics, Inc. ("MDD"), allege that they have been effectively debarred from future government contracts with the United States Department of the Navy since 2011. Plaintiffs sued the Secretary of the Navy, the Chief and Deputy Chief of Naval Operations, and four officials of the Naval Sea Systems Command ("NAVSEA") and Operational Logistics Integration Program ("OPLOG") (collectively, the "Federal Defendants"). Plaintiffs contend that the Federal Defendants violated the Fifth Amendment to the United States Constitution by blacklisting MDD from government contracting without due process. The Federal Defendants deny these allegations, listing several contracts and government work awarded by the Navy to MDD as proof against any alleged de facto debarment. Plaintiffs do not dispute that MDD received more than $14 million in contracts, purchase orders, delivery orders, and funding modifications between 2011 and 2016. Rather, Plaintiffs argue that they were de facto debarred from competing for OPLOG work and Military Sealift Command ("MSC") work. Plaintiffs also assert common-law tort claims against four former MDD employees and two Navy officials.
Pending before the Court are the parties' motions: (1) the Federal Defendants' Renewed Motion to Dismiss, or in the alternative, for Summary Judgment as to Counts I, II, and IX; (2) Plaintiffs' Motion for Partial Summary Judgment as to Count I; (3) the parties' cross-motions for summary judgment as to Counts VI and VIII against Defendant Matthew Miller ("Mr. Miller"); and (4) Plaintiffs' Motion for Entry of Order for Summary Judgment. Upon careful consideration of the parties' submissions, the applicable law, and the entire record, the Court concludes that: (1) Plaintiffs have not met the high standard of proving de facto debarment, and Defendants Charles Traugh ("Mr. Traugh") and Michael Bosworth ("Mr. Bosworth") are entitled to qualified immunity; (2) Plaintiffs' tort claims against Defendant William Robinson ("Mr. Robinson") and Mr. Traugh fall under the Federal Tort Claims Act; (3) Plaintiffs have not met their burden of demonstrating that Mr. Robinson and Mr. Traugh were acting outside the scope of *145their employment; thus, the United States will be substituted as the defendant as to the tort claims asserted against Mr. Traugh and Mr. Robinson pursuant to the Westfall Act; (4) the United States has not waived its sovereign immunity for the tort claims against Mr. Robinson and Mr. Traugh; (5) the undisputed facts demonstrate that Mr. Miller did not breach his fiduciary duty owed to MDD; and (6) Plaintiffs' civil conspiracy claim as to Defendant Miller fails as a matter of law. Accordingly, the Court GRANTS the Federal Defendants' Renewed Motion to Dismiss, or in the alternative, for Summary Judgment as to Counts I, II, and IX, and DENIES Plaintiffs' Motion for Partial Summary Judgment as to Count I. The Court DENIES AS MOOT Plaintiffs' Motion for Entry of Order for Summary Judgment. Finally, the Court GRANTS Defendant Miller's Motion for Summary Judgment as to Counts VI and VIII, and DENIES Plaintiffs' Motion for Summary Judgment as to Counts VI and VIII.
I. Background
The Court assumes the parties' familiarity with the factual background and the long history of this litigation, which are set forth in the Court's two prior opinions. See Phillips v. Mabus ,
A. MDD's Work for the Navy
In 2005, Mr. Phillips, a Naval Architect, formed MDD. Am. Compl., ECF No. 42 at 4 ¶ 6.2 MDD is a Naval architecture and marine engineering firm based in the District of Columbia. See, e.g., Phillips I ,
1. MDD and CSC Subcontract
Between 2006 and 2011, MDD was one of the subcontractors for CSC, see Am. Compl., ECF No. 42 at 6 ¶ 23, and CSC was one of the contractors supporting the Navy's OPLOG. Fed. Defs.' SOMF, ECF No. 88 at 4 ¶ 10. The Navy, through its SeaPort-e program, awarded CSC a contract to provide support services to NAVSEA.4 Decl. of Robert C. Beaubien *146("Beaubien Decl."), ECF No. 88-1 at 2-3 ¶¶ 2-3. Under that contract, CSC and MDD entered into "a firm-fixed price, indefinite-delivery, indefinite quantity [sub]contract under which MDD provided services only when it received a task order from CSC to do so."
As CSC's senior program manager, Robert C. Beaubien ("Mr. Beaubien") was CSC's contract monitor for MDD, and his duties consisted of, inter alia , managing its subcontractors' performance and payments under CSC's contract with NAVSEA. Fed. Defs.' SOMF, ECF No. 88 at 4 ¶ 11. The CSC-MDD subcontract provided that "CSC [was] under no obligation to issue any Task Orders" to MDD. Fed. Defs.' Ex. B, ECF No. 88-2 at 6. It also stated that "[t]he value for services to be provided by [MDD] will be specified in each Task Order" and that "in no way obligates CSC to award Task Orders under this Agreement ...." Id. at 5.
Based on NAVSEA's instructions, CSC distributed the OPLOG work to subcontractors like MDD. See Beaubien Decl., ECF No. 88-1 at 3 ¶ 5. Mr. Beaubien oversaw MDD's services to OPLOG. Fed. Defs.' SOMF, ECF No. 88 at 4 ¶ 11. OPLOG's program manager, Mr. Traugh, contacted Mr. Beaubien regarding the OPLOG work, and Mr. Traugh provided "informal" guidance on how CSC should distribute the OPLOG work. Beaubien Decl., ECF No. 88-1 at 3 ¶ 5. In 2011, Mr. Traugh "directed all OPLOG projects, including those which Plaintiffs were subcontractors to, and coordinated directly with the Navy." Pls.' SOMF, ECF No. 107 at 5 ¶ 13. Mr. Traugh and NAVSEA's chief technology officer, Mr. Bosworth, had the authority to manage the programs concerning OPLOG's relationship with Plaintiffs. See, e.g., id. at 5 ¶ 12; Fed. Defs.' Mot. to Dismiss, ECF No. 88 at 40 n.25 (citing Phillips I ,
On behalf of MDD, Mr. Phillips submitted a monthly package of status reports and invoices to Mr. Beaubien, and Mr. Beaubien sent MDD's package to OPLOG's program manager, Mr. Traugh, for his approval. Fed. Defs.' SOMF, ECF No. 88 at 9 ¶ 33. Mr. Traugh and OPLOG's assistant program manager, Mr. Robinson, managed OPLOG's funding, planned the expenditures of those funds for various tasks, and assigned certain tasks to MDD.
Prior to fiscal year 2012, after receiving an e-mail from Mr. Phillips in April 2011 about the status of a "new task" order for OPLOG work, Mr. Beaubien responded that the task was under "[c]ompliance [r]eview."
From March 2011 to June 2011, MDD's three senior-level employees who worked on OPLOG projects under the CSC-MDD subcontract resigned from the firm. E.g. , Pls.' SOMF, ECF No. 107 at 6 ¶¶ 15-16, 7 ¶ 22; Pls.' SOMF, ECF No. 113 at 5 ¶¶ 5, 7; Am. Compl., ECF No. 42 at 5-6 ¶¶ 15-16, 6 ¶ 17. In March 2011, Mr. Mazzocco, MDD's Vice President of Operations, departed the firm to work as an independent subcontractor, see Pls.' SOMF, ECF No. 107 at 6 ¶ 16, and he eventually started his own company, Alytic, Inc., that performed OPLOG work, Beaubien Decl., ECF No. 88-1 at 5 ¶ 7. Mr. Stammnitz left his position as MDD's Vice President of Systems Engineering in June 2011, and Mr. Muras left his position as MDD's Director of Energy Programs, Financial Analysis and Planning in that same month. See Am. Compl., ECF No. 42 at 5-6 ¶¶ 16-17. In August 2011, CSC hired Mr. Stammnitz and Mr. Muras to perform OPLOG work. Beaubien Decl., ECF No. 88-1 at 5 ¶ 8.
Before their departures and at some point in May 2011, "the Navy arranged for a multi-day meeting in Boston[,]" Massachusetts "to discuss the OPLOG energy conservation program ...." Def. Muras' Answer, ECF No. 80 at 9 ¶ 68. MDD's two employees-Mr. Stammnitz and Mr. Muras-and MDD's former employee-Mr. Mazzocco-attended the meeting with the Navy officials.5 An e-mail states that Mr. Bosworth of NAVSEA directed OPLOG's program manager, Mr. Traugh, to end the contract with MDD. Mem. from Steven R. Southard, NAVSEA (July 19, 2011), Pls.' Ex. D, ECF No. 42-1 at 48 ("Southard Memorandum"). That directive was memorialized in a memorandum:
On 13 July 2011, during a review of the Operational Logistics Program, in the presence of Mr. Greg Doerrer, Mr. William Robinson, and me, Mr. Michael Bosworth directed Mr. Charles Traugh to terminate the contract of [MDD] and not to resume it in Fiscal Year 2012. This action is due to reasons discussed at the meeting.
After the filing of this lawsuit, Plaintiffs and the Federal Defendants agreed and stipulated to a consent preliminary injunction, requiring, among other things, "the Navy to allow MDD to compete for new work and to continue performing contracts it was currently performing under the same standards applicable to other contractors." Phillips I ,
2. MSC Contract
In November 2009, MDD entered into a contract with the Navy as the prime contractor for MSC's energy conservation program.6 Pls.' SOMF, ECF No. 107 at 5 ¶ 11. That contract provided for a one-year term with options to renew through November 2012. Phillips I ,
Prior to that renewal, an MSC employee who worked with MDD forwarded Mr. Phillips an e-mail from a NAVSEA employee. See E-mail from Thomas Martin, NAVSEA, to René Fry, MSC (Sept. 15, 2011), Pls.' Ex. R, ECF No. 42-1 at 79 ("Martin E-mail"). It states that "my boss [Mr.] Bosworth has dictated that no funding be sent to MDD in support of OPLOG in FY12. Apparently there was a problem with tracking the money. The work itself was fine."
Between 2012 and 2014, MDD avers that it submitted seven bids for competitive solicitations for contracts with the Navy and MSC, and that MDD was awarded one of those contracts after it filed a post-award protest. Pls.' SOMF, ECF No. 107 at 10 ¶ 36. Following MDD's protest of MSC's refusal to issue a solicitation as a "single-award, small-business set-aside,"
Despite MDD's setbacks in government contracting with MSC, MSC awarded MDD an indefinite-delivery, indefinite quality contract with a maximum value of more than $2 million in September 2012. Fed. Defs.' Reply, ECF No. 104-1 at 6. In June 2013, MSC awarded MDD a task order under MDD's SeaPort-e contract *149with NAVSEA.
3. MDD's Contracts from the Navy and Its Components
MDD has continued to receive work and funds from the Navy over the course of this litigation. Beginning in 2011, the Navy and its components awarded MDD new contracts, contract options, modifications, task orders, and payments. See, e.g. , Fed. Defs.' SOMF, ECF No. 88 at 5, 7 ¶¶ 16, 23, 25-26; Fed. Defs.' Reply, ECF No. 104-1 at 5-6. MDD also received work from MSC and OPLOG's parent activity. See Fed. Defs.' Opp'n, ECF No. 124 at 5-10 (listing work awarded to MDD from November 2013 to July 2016). On August 21, 2014, MDD was awarded a NAVSEA contract in the amount of $14,483,912.86. Fed. Defs.' Notice to the Court, ECF No. 118 at 1; see also Def. Miller's Opp'n, ECF No. 123 at 14.7 On that same day, MDD received work under a contract from the Naval Surface Warfare Center, Carderock Division-OPLOG's parent activity. Fed. Defs.' Opp'n, ECF No. 124 at 6-7.
B. MDD and Defendant Matthew Miller
In February 2010, MDD hired Mr. Miller, and he performed OPLOG and MSC work as a Marine Engineer until his resignation in July 2011. See, e.g. , Pls.' SOMF, ECF No. 113 at 5 ¶¶ 6-7; Decl. of Matthew Miller ("Miller Decl."), ECF No. 123-1 at 1 ¶¶ 1-2, 2 ¶ 6; Am. Compl., ECF No. 42 at 6 ¶ 18. Most of Mr. Miller's work at MDD consisted of providing engineering and program management services to MSC's Energy Conservation Program. Def. Miller's SOMF, ECF No. 87 at 15 ¶ 5. Mr. Miller devoted a small percentage of his time to the CSC subcontract, providing services to OPLOG.
Mr. Miller was an "at-will" employee who never signed MDD's employee handbook (the "MDD Employee Handbook").8 See Def. Miller's Mot. for Summ. J., ECF No. 87 at 8; see also Miller Decl., ECF No.
*15098 at 4 ¶ 3. Mr. Miller admits that he signed the "Terms and Conditions of Employment," which contains a confidentiality provision. Def. Miller's Reply, ECF No. 99 at 6; see also Pls.' Ex. 1, ECF No. 113-1 at 2 ("[W]hile serving as a MDD employee, we request that you not assist any person or organization in competing with MDD, in preparing to compete against MDD or in hiring any employees away from MDD.").
During his employment with MDD, Mr. Miller and Mr. Mazzocco, at some point in 2010, created two versions of a PowerPoint presentation for the formation of a new company. E.g. , Miller Decl., ECF No. 123-2 at 2 ¶ 6; Pls.' SOMF, ECF No. 113 at 6 ¶¶ 12-13. The new company aimed to provide energy conservation products to prospective partners in the industry. Pls.' Ex. H, ECF No. 94-8 at 21; see also Pls.' Ex. G, ECF No. 94-7 at 15. The first version was a business proposal for "East Coast Energy Engineering," and the revised version was a business proposal for "East Coast Energy Management, Inc." Compare Pls.' Ex. H, ECF No. 94-8 at 1, with Pls.' Ex. G, ECF No. 94-7 at 1. Both versions listed the "Government" and "Commercial" as bullet points for the new company's "Long Term (1 Year)" goals. Compare Pls.' Ex. H, ECF No. 94-8 at 6, with Pls.' Ex. G, ECF No. 94-7 at 6.
Touting the education and work experience of Mr. Miller and Mr. Mazzocco, the revised version of the business proposal (the "Proposed Business Plan") states that the new company will be "founded by two graduates from United States Military and Merchant Marine Academies. [Mr. Miller and Mr. Mazzocco] have over 20 years of engineering experience and have been applying [their] skills to reducing the US Navy's fuel consumption." Pls.' Ex. H, ECF No. 94-8 at 21. The Proposed Business Plan estimates that forty hours per week would be devoted to MDD, and a total of fifty-six hours per week would be spent on the new company. Id. at 11. The new company never operated as a business enterprise or generated any revenue. Suppl. Decl. of Matthew Miller ("Miller Suppl. Decl."), ECF No. 100-1 at 1 ¶¶ 2-3.
At MDD, Mr. Miller worked with Mr. Mazzocco, Mr. Stammnitz, and Mr. Muras. While Mr. Mazzocco, Mr. Stammnitz, and Mr. Muras attended the meeting in Boston in May 2011 with the Navy officials, Mr. Miller did not attend that meeting because he was working on an assignment for MDD. Miller Decl., ECF No. 123-2 at 2 ¶ 11. After resigning from MDD in July 2011, Mr. Miller worked for AirClean for four months, and AirClean solicited CSC to work as a subcontractor for Merrill-Dean Consulting, Inc. ("Merrill-Dean"), based on Merrill-Dean's pre-existing contract with CSC. See Miller Decl., ECF No. 98 at 6 ¶¶ 16-18; see also Pls.' SOMF, ECF No. 113 at 7 ¶ 21. At some point, Mr. Miller drafted a SOW for AirClean to provide services to CSC, relying on a version of MDD's SOW for OPLOG work from the bidding process. See, e.g. , Pls.' SOMF, ECF No. 113 at 7 ¶¶ 22-23; Miller Decl., ECF No. 123-2 at 3 ¶ 17. As an AirClean employee, Mr. Miller did not perform any work for MSC, Def. Miller's SOMF, ECF No. 87 at 16 ¶ 19, and he left AirClean in December 2011, id. at 16 ¶ 21.
In January 2012, CSC hired Mr. Miller, and he worked there before joining MSC. Beaubien Decl., ECF No. 88-1 at 5 ¶ 8. Mr. Miller worked as a Mechanical Engineer at CSC from January 2012 until March 2012. Pls.' SOMF, ECF No. 113 at 8 ¶ 27. On March 12, 2012, he accepted a position at MSC as a Mechanical Engineer. Miller Decl., ECF No. 123-2 at 3 ¶ 20; see also Def. Miller's SOMF, ECF No. 87 at 17 ¶ 25.
*151C. Procedural History
On November 16, 2011, Plaintiffs filed the present action against seven Navy officials and four former MDD employees. See generally Compl., ECF No. 1. Following a hearing on Plaintiffs' emergency motions for a temporary restraining order and preliminary injunction, the Court granted the parties' Stipulated Preliminary Injunction on December 7, 2011. Phillips I ,
On January 3, 2012, Plaintiffs filed the Amended Complaint, asserting nine claims against the eleven defendants. See Am. Compl., ECF No. 42 at 29-49 ¶¶ 99-199. Count I asserts that the Federal Defendants violated Plaintiffs' constitutional right to due process under the Fifth Amendment by blacklisting them from government contracting without procedural safeguards, and it seeks declaratory and injunctive relief.
On September 30, 2012, the Court denied the following motions: (1) the Federal Defendants' motion to dismiss, or in the alternative for summary judgment, (2) Plaintiffs' motion to enforce the Stipulated Preliminary Injunction, and (3) the motions to dismiss filed by Mr. Mazzocco, Mr. Stammnitz, and Mr. Muras. Phillips I ,
Thereafter, the parties engaged in full rounds of briefing on the pending motions: (1) Plaintiffs' motion for partial summary judgment as to Count I, see generally Pls.' Mot. for Partial Summ. J., ECF No. 107; (2) the Federal Defendants' renewed motion to dismiss, or in the alternative, for summary judgment as to Counts I, II, and IX, see generally Fed. Defs.' Renewed Mot. to Dismiss or, in the Alt. for Summ. J. ("Fed. Defs.' Mot. to Dismiss"), ECF No. 88; and (3) Plaintiffs' Motion for Entry of Order for Summary Judgment, see generally Pls.' Mot. for Entry of Order for Summ. J., ECF No. 132. Mr. Miller and Plaintiffs filed cross-motions for summary judgment as to Counts VI and VII. See Def. Miller's Mot. for Summ. J., ECF No. 87; see also Pls.' Mot. for Summ. J., ECF No. 113.9 These motions are ripe and ready for the Court's adjudication.
II. Legal Standard
A. Motion to Dismiss under Rule 12(b)(1)
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) "presents *152a threshold challenge to the Court's jurisdiction," and thus "the Court is obligated to determine whether it has subject-matter jurisdiction in the first instance." Curran v. Holder ,
A motion to dismiss for lack of jurisdiction may be presented as either a facial or factual challenge. Achagzai v. Broad. Bd. of Governors ,
B. Motions for Summary Judgment under Rule 56
Under Federal Rule of Civil Procedure 56, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett ,
In ruling on cross-motions for summary judgment, the court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed. See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice ,
III. Analysis
As stated by Plaintiffs, the "crux of this lawsuit" is whether Plaintiffs have been de facto debarred from competing for any OPLOG and MSC work. Pls.' Surreply, ECF No. 109 at 3; see also Pls.' Opp'n, ECF No. 101 at 21 ("MSC has implemented the de facto debarment and has refused to allow MDD to be awarded or perform any new contracts.") (emphasis added).10 In moving for summary judgment as to Counts I and II,11 the Federal Defendants argue that Plaintiffs cannot establish de facto debarment with respect to the OPLOG and MSC work, and that, without a showing of de facto debarment, there is no violation of their constitutional rights to due process under the Fifth Amendment. See Fed. Defs.' Mot. to Dismiss, ECF No. 88 at 16. For the reasons explained below, the Court agrees with the Federal Defendants.12
Next, the Federal Defendants move to dismiss Count IX-the tort claims asserted against Mr. Traugh and Mr. Robinson-for lack of jurisdiction on four grounds: (1) those claims fall under the Westfall Act,
Finally, Mr. Miller moves for summary judgment with respect to Counts VI and VIII, arguing that he did not breach his fiduciary duty owed to MDD because he had a right to compete with MDD after his resignation, and that Plaintiffs' failure to demonstrate that he breached his fiduciary duty means that Plaintiffs cannot establish his liability under a theory of civil conspiracy. See generally Def. Miller's Mot. for Summ. J., ECF No. 87. The Court agrees.
The Court examines each motion separately, first considering the alleged de facto debarment, next considering the tort claims asserted against Mr. Robinson and Mr. Traugh, and concluding with the torts claims asserted against Mr. Miller.
A. The Federal Defendants Are Entitled to Summary Judgment as to Count I (De Facto Debarment); Mr. Bosworth and Mr. Traugh Are Entitled to Summary Judgment as to Count II (Violation of Clearly Established Rights)
In the first round of briefing, Plaintiffs argue that genuine issues of material fact exist as to Count I and II, see Pls.' Opp'n, ECF No. 101 at 5-6, because, inter alia : (1) Plaintiffs have continued to be effectively debarred from receiving OPLOG work, see
In the second round of briefing, Plaintiffs contend that they are entitled to summary judgment as a matter of law with respect to Count I because no genuine issue of material fact exists, Pls.' Mot. for Partial Summ. J., ECF No. 107 at 1, arguing that "they continue to be the subject of de facto debarment by [the] Federal Defendants[,]"
1. Plaintiffs Have Failed to Meet the High Standard to Prove De Facto Debarment
De facto debarment occurs when a contractor or a subcontractor has, for all practical purposes, been suspended or blacklisted from working with a government agency without due process, namely, adequate notice and a meaningful hearing. Phillips I ,
[W]hen the Government effectively bars a contractor from virtually all Government work due to charges that the contractor lacks honesty or integrity, due process requires that the contractor be given notice of those charges as soon as possible and some opportunity to respond to the charges before adverse action is taken.
Old Dominion Dairy Prods., Inc. v. Sec'y of Def. ,
The standard for proving de facto debarment is high. E.g. , Pub. Warehousing Co. K.S.C. v. Def. Supply Ctr. Phila. ,
As the Federal Defendants observe, see Fed. Defs.' Mot. to Dismiss, ECF No. 88 at 27 n.12, "[p]reclusion from a single contract is insufficient to establish de facto debarment." Highview II ,
The undisputed facts do not demonstrate that Plaintiffs have been de facto debarred on a systematic basis from government contracting work in violation of the Due Process Clause of the Fifth Amendment because Plaintiffs cannot establish that the Navy has effectively debarred MDD from virtually all government work. It is uncontested that Plaintiffs have received millions of dollars in government contracting work from the Navy and its components since 2011, and that MDD has been awarded new contracts, contract options, contract modifications, and task orders through 2016. See, e.g. , Fed. Defs.' Mot. to Dismiss, ECF No. 88 at 15; Pls.' Opp'n, ECF No. 101 at 11; Fed. Defs.' Reply, ECF No. 104-1 at 3-7; Fed. Defs.' Notice, ECF No. 118 at 1-2; Fed. Defs.' Opp'n, ECF No. 124 at 3, 5-10; Pls.' Reply, ECF No. 130 at 3; Def. Miller's Opp'n, ECF No. 123 at 14-15; Pls.' Reply, ECF No. 129 at 4. Plaintiffs do not deny their receipt of this work. See Pls.' Reply, ECF No. 130 at 3. There is also no dispute that a contract modification constitutes government work, and the parties agree that a modification of a contract is not a new contract. See, e.g. , Pls.' Opp'n, ECF No. 101 at 15; Fed. Defs.' Reply, ECF No. 104-1 at 11. Relying on Art-Metal USA, Inc. v. Solomon ,
In Art-Metal USA, Inc. , the General Services Administration ("GSA") summarily cancelled the plaintiff-contractor's file cabinet contract in its entirety following a series of newspaper articles that described the plaintiff-contractor's alleged abuses in its contract dealings with GSA.
Here, the undisputed facts demonstrate the opposite. The Navy and its components *157did not stop doing business with MDD. MDD competed for and received OPLOG and MSC work under additional contracts and contract options that the Navy and its components did not hold in abeyance. See, e.g. , Fed. Defs.' Mot. to Dismiss, ECF No. 88 at 17; Fed. Defs.' Reply, ECF No. 104-1 at 5-7, 10; Fed. Defs.' Opp'n, ECF No. 124 at 5-10. Furthermore, the record does not support Plaintiffs' contention that "MDD has received no work orders or contracts from CSC for OPLOG or any other agency contract ." Pls.' Opp'n, ECF No. 101 at 3-4 (emphasis added). While it is undisputed that CSC did not issue task orders to MDD in fiscal year 2012, see, e.g. , Pls.' Mot. for Partial Summ. J., ECF No. 107 at 12; Fed. Defs.' Mot. to Dismiss, ECF No. 88 at 22-26, the lack of work orders under the CSC subcontract alone is insufficient to prove de facto debarment. See Trifax II ,
Trifax II is instructive. In that case, the D.C. Circuit held that a plaintiff-contractor failed to show that it was effectively debarred from bidding on government contracts where the record demonstrated that the plaintiff-contractor "won some and lost some" in bidding and obtaining government contracts.
The situation here is indistinguishable: "[T]he undisputed facts show that Plaintiff[s] 'won some and lost some ' in retaining and bidding on government contracts" following the Southard Memorandum and the Martin E-mail. Mem. Op., Trifax I , ECF No. 166 at 14 (emphasis added). Furthermore, Plaintiffs have not presented evidence demonstrating that the Navy has "seriously affected" or "destroyed" their ability to obtain contracts in their field. Trifax II ,
Plaintiffs' argument that they were effectively debarred from receiving MSC contracting work is unavailing. See Pls.' Mot. for Partial Summ. J., ECF No. 107 at 28. Plaintiffs argue that modifications of existing contracts do not constitute opportunities for future government contracting work from OPLOG and MSC. Pls.' Opp'n, ECF No. 101 at 15-16. Acknowledging that *158MSC exercised its final option on MDD's contract, id. at 11, Plaintiffs contend that "MSC simply removed the vast majority of planned task orders," id. at 14, and "redirect[ed] work to the other NAVSEA [indefinite delivery, indefinite quantity] contracts[,]" id. at 15. Plaintiffs contend that they continued to be "deprived of access to additional small business opportunities" in 2012 and 2013, id. at 12, because MSC never responded to MDD's inquiry about a certain "single-award, small-business set aside," id. (citing Pls.' Exs. D, E, & F, ECF No. 101 at 136-43). And Plaintiffs point out that the GAO decision, SBA findings, and MSC Ombudsman Report indicate that the Federal Defendants de facto debarred them from government work. See Pls.' Mot. for Partial Summ. J., ECF No. 107 at 30-32. However, Plaintiffs are in the same position as the plaintiff-contractor in Trifax II : they failed to win some contracts, but they also won some. See
Plaintiffs' argument-that the alleged statements made by two individuals prove de facto debarment-is equally unavailing. See Pls.' Mot. for Partial Summ. J., ECF No. 107 at 26. Plaintiffs contend that de facto debarment exists based on the following two statements: (1) "Mr. Michael Bosworth directed Mr. Charles Traugh to terminate the [CSC] [sub]contract of [MDD] and not to resume it in Fiscal Year 2012[,]" Pls.' Mot. for Partial Summ. J., ECF No. 107 at 27; and (2) "Mike Bosworth has dictated that no funding be sent to MDD in support of OPLOG in FY12[,]" id. at 28. "[I]t is true that a statement that the agency will not award a contract to the disappointed bidder in the future will support a claim of de facto debarment ...." Leslie & Elliott Co. ,
The parties agree that individuals cannot debar a contractor. See, e.g. , Fed. Defs.' Mot. to Dismiss, ECF No. 88 at 29 (citing Highview I ,
Both parties rely on Highview II . See Pls.' Mot. for Partial Summ. J., ECF No. 107 at 29-30; see also Fed. Defs.' Mot. to Dismiss, ECF No. 88 at 15, 30. Highview II is not binding precedent, but the Court finds the reasoning in Highview II -a decision granting summary judgment in favor of a federal agency-persuasive. In that case, the plaintiff and his company argued that they were effectively debarred from working with the Army Corps of Engineers without due process. Highview II ,
The court granted the federal agency's motion for summary judgment and found that "[t]here was nothing stated or demonstrated by the Corps indicating that it would not grant [the plaintiff] future contracts, beyond the one contract then before it."
As the present case closely resembles Highview II , the Court reaches the same outcome. Like the details from the meeting between the business partner and the agency's program manager in Highview II , the details from the meeting referenced in the Southard Memorandum are not entirely clear. Compare Pls.' Mot. for Partial Summ. J., ECF No. 107 at 15-16, with Beaubien Decl., ECF No. 88-1 at 4 ¶ 5 ("At no time, however, did Mr. Traugh or any other OPLOG, NAVSEA, or Department of the Navy employee ask me to refuse to permit MDD to quote or perform subtask under CSC's contract with NAVSEA or any other contract."). Even if Plaintiffs could prove that Mr. Bosworth directed the termination of the MDD's *160subcontract relationship with CSC, the record does not support Plaintiffs' contention that "the Southard Memorandum is a statement in writing purporting that Federal Defendants would not use Plaintiffs for FY12 contracts ...." Pls.' Mot. for Partial Summ. J., ECF No. 107 at 29 (emphasis added). The Southard Memorandum states that the single subcontract would be terminated and "not to resume [the subcontract] in Fiscal Year 2012." Id. at 16. As the court indicated in Highview II , a program manager's statement does not mean that the federal agency would no longer grant future contracts to MDD.
Finally, Plaintiffs cannot prove de facto debarment through the Navy's conduct. See Leslie & Elliott Co. ,
MDD's other contracts and work from the Navy and its components are relevant because Plaintiffs must prove a systematic effort by the Navy to reject all of MDD's contract bids. See, e.g., Highview II ,
2. Mr. Traugh and Mr. Bosworth Are Entitled to Qualified Immunity
Having found that the Federal Defendants are entitled to summary judgment *161as to Count I, the Court next turns to the issue of whether Mr. Traugh and Mr. Bosworth are entitled to qualified immunity as to Count II. Plaintiffs sue Mr. Traugh and Mr. Bosworth in their individual capacities for the alleged de facto debarment. Phillips I ,
The Federal Defendants argue that Mr. Traugh and Mr. Bosworth are entitled to qualified immunity because "a reasonable Government employee could not be held to know that the decision to discontinue a subcontracting relationship on a single program would be tantamount to instituting a de facto debarment ... on an agency-wide basis." Fed. Defs.' Mot. to Dismiss, ECF No. 88 at 34. Plaintiffs contend that Mr. Traugh and Mr. Bosworth violated Plaintiffs' "clearly established rights"; therefore, both government employees are not entitled to qualified immunity. See Pls.' Opp'n, ECF No. 101 at 31-32.
Whether a government official may enjoy qualified immunity is a close question to be resolved within this Court's sound discretion. Bame v. Dillard ,
"For a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate." Daugherty v. Sheer ,
The Court is persuaded that Plaintiffs have a "clearly established" constitutional right of freedom from de facto debarment. The D.C. Circuit has recognized that de facto debarment of a government contractor without due process and on grounds of dishonesty, fraud or lack of integrity violates the Fifth Amendment.
*162See, e.g., Taylor v. Resolution Trust Corp. ,
Here, discovery has not "uncover[ed] evidence sufficient to create a genuine issue as to whether" Mr. Traugh and Mr. Bosworth violated Plaintiffs' constitutional rights.
The qualified immunity analysis ends with Plaintiffs' failure to demonstrate that Mr. Bosworth and Mr. Traugh's conduct violated Plaintiffs' rights. See Gallup Org. v. Scully , No. CIV.A. 03-849 CKK,
B. Dismissal Is Warranted as to Count IX (Interference with Contractual Relations, Prospective Contractual Relations and Prospective Advantageous Economic Relationship) against Mr. Robinson and Mr. Traugh
The Court next considers the issue of whether Plaintiffs have met their burden of proving that Mr. Robinson and Mr. Traugh were acting outside of the scope of their employment to rebut the Federal Defendants' certification under the Westfall Act,
*163Mot. to Dismiss, ECF No. 88 at 37. In its prior Opinion, the Court permitted limited discovery on the scope-of-employment issue, finding that Plaintiffs met their burden for such discovery. Phillips I ,
1. The United States Will Be Substituted as the Defendant Pursuant to the Westfall Act Since Mr. Traugh and Mr. Robinson Acted Within the Scope of Their Employment
"The Federal Employees Liability Reform and Tort Compensation Act of 1988,
As this Court explained in Phillips I :
The Attorney General's certification constitutes prima facie evidence that the employee was acting within the scope of his employment, and once the certification has been made, the plaintiff challenging the certification has the burden of "alleging facts that, if true, would establish that the defendants were acting outside the scope of their employment."
To determine whether Mr. Robinson and Mr. Traugh were acting within the scope of their employment, the Court will apply District of Columbia law, the location in which the alleged torts occurred. Phillips I ,
To qualify as conduct of the kind they were employed to perform, Mr. Robinson and Mr. Traugh's actions must have either been "of the same general nature as that authorized" or "incidental to the conduct authorized." Restatement (Second) of Agency § 229(1). Here, the Federal Defendants point to Mr. Traugh and Mr. Robinson's annual performance evaluations, job descriptions, and e-mail communications with MDD's employees to show that their conduct was the kind that they were employed to perform. Fed. Defs.' Mot. to Dismiss, ECF No. 88 at 38-40. As OPLOG's program manager, Mr. Traugh was expected to "demonstrate[ ] [an] ability to identify, plan, resource, staff, monitor and support technical programs in the areas of technology assessment, development, selection and transition to Navy/Marine Corp craft, ships and ship systems." Fed. Defs.' Ex. L, ECF No. 88-12 at 2 (emphasis added). An assessment from Mr. Traugh's supervisor states, in part, that "he provided direction to all OPLOG projects and provided direct interface with the OPNAV N42 customer." Id. at 3. And Mr. Robinson's role involved "[leading] several efforts within the Operations Logistics (OPLOG) program and act[ing] as the Deputy Program Manager." Fed. Defs.' Ex. M, ECF No. 88-13 at 3. Mr. Robinson "led the OPLOG EnCon program, defining and refining investment and execution plan projected to save the customer $350M over the FYDP." Id. (emphasis added).
Plaintiffs do not dispute Mr. Traugh and Mr. Robinson's annual performance evaluations and job descriptions. See generally Pls.' Opp'n, ECF No. 101. Neither do Plaintiffs contest that the e-mail communications among Mr. Traugh, Mr. Robinson, and MDD's employees demonstrate that Mr. Traugh and Mr. Robinson managed OPLOG's funding. See Fed. Defs.' Reply, ECF No. 104-1 at 21; see also Pls.' Resp. to Fed Defs.' SOMF, ECF No. 101-1 at 12 ¶ 31. Rather, Plaintiffs argue that Mr. Traugh and Mr. Robinson's statements indicate that "they redirected funds allocated for MDD contracts and interfered with said contracts, to ensure MDD did not receive subcontracts from prime contractors." Pls.' Opp'n, ECF No. 101 at 39. Plaintiffs contend that Mr. Traugh and Mr. Robinson "actively discouraged people from working with Plaintiffs on Navy subcontracts, by making false and defamatory statements to OPLOG and MSC to the effect that MDD's billing reflected a lack of transparency and responsiveness." Id. at 40. Plaintiffs reiterate that Mr. Robinson and Mr. Traugh "published false statements regarding MDD's billing practices to ensure MDD did not receive subcontracts from prime contractors." Id. But Plaintiffs' own assertions regarding Mr. Traugh and Mr. Robinson's statements regarding MDD's purported funding and billing issues fall squarely within the scope of Mr. Traugh and Mr. Robinson's employment as OPLOG's program manager and assistant program manager, respectively, *165because they were tasked with monitoring the funds for the various programs. See, e.g. , Fed. Defs.' Ex. L, ECF No. 88-12 at 2-3; Fed. Defs.' Ex. M, ECF No. 88-13 at 3.
Plaintiffs' contention-that Mr. Robinson and Mr. Traugh "communicated the false statements to OPLOG prime contractors and directed that they not work with MDD"-misses the mark. Pls.' Opp'n, ECF No. 101 at 40. Plaintiffs focus on the "nature of the tort." Weinberg v. Johnson ,
In Ballenger , the D.C. Circuit affirmed a district court's decision that a Member of Congress acted within the scope of his employment when he made certain statements about a non-profit organization to a reporter during a telephone conversation. Id. at 661. There, the plaintiff-organization argued that the congressman's "allegedly defamatory statement itself was not conduct of the kind he is employed to perform." Id. at 664 (emphasis in original). In rejecting that argument, the D.C. Circuit made clear that "[t]he appropriate question, then, is whether that telephone conversation-not the allegedly defamatory sentence-was the kind of conduct [the congressman] was employed to perform." Id. The D.C. Circuit held that "[s]peaking to the press during regular work hours in response to a reporter's inquiry falls within the scope of a congressman's 'authorized duties' " and the congressman's "allegedly defamatory statement was incident to the kind of conduct he was employed to perform." Id. at 664-65. The same is true here.
The Court is persuaded that Mr. Robinson and Mr. Traugh's involvement in managing OPLOG's budget and work fell within the scope of their duties. As in Ballenger , Mr. Robinson and Mr. Traugh's "allegedly defamatory statement[s] [about MDD were] incidental to the kind of conduct they were employed to perform" as OPLOG's program manager and assistant program manager, respectively.
*1662. The Court Lacks Jurisdiction Over Plaintiffs' Tort Claims
Having substituted the United States as the defendant with respect to Count IX, "the suit is governed by the Federal Tort Claims Act ('FTCA') and is subject to all of the FTCA's exceptions for actions in which the [g]overnment has not waived sovereign immunity." Wuterich ,
The claims in Count IX of the Amended Complaint as to Mr. Robinson and Mr. Traugh fall under an exception to the FTCA. See, e.g. ,
*167motion to dismiss Count IX, and that count is DISMISSED .
C. Cross-Motions for Summary Judgment as to Count VI (Breach of Fiduciary Duty) and Count VIII (Civil Conspiracy) against Defendant Matthew Miller
Plaintiffs assert two claims against Mr. Miller: (1) breach of fiduciary duty and (2) civil conspiracy. Am. Compl., ECF No. 42 at 43-44 ¶¶ 169-78, 46 ¶¶ 187-92. According to Plaintiffs, Mr. Miller breached his fiduciary duty to MDD by: (1) leaving MDD to work for AirClean to compete with MDD, Am. Compl., ECF No. 42 at 43 ¶ 174; (2) using "confidential and proprietary information of [MDD] he obtained while still employed at [MDD] in violation of his non-compete/non-solicitation agreement with [MDD],"
Before the Court addresses each tort claim in turn, the Court must determine the threshold issue of whether the MDD Employee Handbook created a binding employment contract between Mr. Miller and MDD.
1. The MDD Employee Handbook Did Not Create a Binding Contract
Plaintiffs argue that Mr. Miller was bound by the clauses contained in the MDD Employee Handbook. See, e.g. , Pls.' Opp'n, ECF No. 94 at 13; Pls.' Statement of Genuine Issues of Material Fact ("SOMF"), ECF No. 94 at 18 ¶ 4; Am. Compl., ECF No. 42 at 10-11 ¶¶ 34-36. Specifically, Plaintiffs argue that the MDD Employee Handbook was binding on "employees who wished to remain employed to its terms, and the non-compete/non-solicitation agreement contained therein ...." Pls.' SOMF, ECF No. 94 at 18 ¶ 4. Mr. Miller contends that he had no contractual obligations to MDD because: (1) he never signed the MDD Employee Handbook; (2) he was not subject to the clauses contained therein; and (3) MDD disclaimed any express or implied contract therein. Def. Miller's Mot. for Summ. J., ECF No. 87 at 10; see also Def. Miller's Reply, ECF No. 99 at 5-6.
The issue of "[w]hether a contract exists is a question of law for the Court to resolve." Dawson v. Wash. Metro. Area Transit Auth. ,
As a matter of District of Columbia law, "an implied contract may arise from the language of an employee handbook or manual ...." Smith v. Union Labor Life Ins. Co. ,
The law in this District makes clear that employers "may effectively disclaim any implied contracts." Smith ,
The same is true here. The MDD Employee Handbook states: "This handbook is not a contract, express or implied , guaranteeing employment for any MDD specific duration and either you or MDD may terminate this relationship at any time, for any reason with or without cause or notice." Pls.' Ex. A, ECF No. 42-1 at 5 (emphasis added); see also Pls.' Ex. B, ECF No. 42-1 at 19. The unsigned "Acknowledgment Receipt of Employee Handbook" contains the same language. Compare Pls.' Ex. A, ECF No. 42-1 at 2, with Pls.' Ex. B, ECF No. 42-1 at 19. As Mr. Miller points out, "such a proviso renders the handbook 'unenforceable at law.' " Def. Miller's Mot. for Summ. J., ECF No. 87 at 10 (quoting Martin v. Arc of D.C. ,
Further, Plaintiffs fail to argue that the disclaimer is ineffective, nor do they point to any provisions in the MDD Employee Handbook that are "rationally at odds" with the disclaimer. See Grove ,
Here, the MDD Employee Handbook contains similar language that indicates it cannot be construed to be a contract. For example, the MDD Employee Handbook provides that "[t]he policies in this manual are guidelines only and are subject to change at the sole discretion of [MDD], as are all other policies, procedures, benefits, or other programs of MDD." Pls.' Ex. A, ECF No. 42-1 at 5 (emphasis added). It explicitly states that "[l]etters, benefit or policy statements, performance appraisals, employee handbooks or other employee communications should not be interpreted as a contractual relationship ." Pls.' Ex. B, ECF No. 42-1 at 23 (emphasis added). In a letter to MDD employees, MDD's President states: "We encourage you to review this handbook carefully and use it as a valuable resource to understanding the company." Pls.' Ex. A, ECF No. 42-1 at 3 (emphasis added); see also Pls.' Ex. B, ECF No. 42-1 at 20. Viewed as a whole, the language-i.e. "[t ]he policies stated in this manual are guidelines only "-is consistent with the language that disclaims any express or implied contracts in the MDD Employee Handbook. Pls.' Ex. B, ECF No. 42-1 at 19 (emphasis added). The Court therefore finds that the MDD Employee Handbook expressly disclaims any express or implied contracts.
Finally, the Court is not persuaded that Mr. Miller assented to the terms in the MDD Employee Handbook. "Mutual assent to a contract, often referred to as a 'meeting of the minds,' is most clearly evidenced by the terms of a signed written agreement, but such a signed writing is not essential to the formation of a contract." Davis v. Winfield ,
It is undisputed that Mr. Miller never signed the MDD Employee Handbook. See, e.g. , Def. Miller's Mot. for Summ. J., ECF No. 87 at 10; Pls.' Opp'n, ECF No. 94 at 12-13; Pls.' Mot. for Summ. J., ECF No. 113 at 23. Citing no authority to support their position, Plaintiffs argue that Mr. Miller "[a]gree[d] to the clauses contained in the MDD Employee Handbook as "a condition of employment." Pls.' Opp'n, ECF No. 94 at 13; see also Phillips Decl., ECF No. 94-1 at 1 ¶ 4. But that argument has been foreclosed by D.C. Circuit precedent. See Bailey v. Fed. Nat'l Mortg. Ass'n ,
The record does not demonstrate that Mr. Miller's conduct indicates his assent to the provisions in the MDD Employee Handbook. While Plaintiffs do not explicitly raise the "condition of employment" argument in their cross-motion for summary judgment, see generally Pls.' Mot. for Summ. J., ECF No. 113, Plaintiffs argue that "[Mr.] Miller confirmed that he fully read and comprehended the employee handbook, that he understood his obligations to MDD and his contingencies of employment, and that he would abide by the confidentiality covenants provided."
The Court cannot agree with Plaintiffs on this point because the record does not support their contentions. See, e.g. , Pls.' Ex. A, ECF No. 42-1 at 2 (showing an unsigned "Acknowledgement Receipt of Employee Handbook"); Pls.' Ex. B, ECF No. 42-1 at 19 (same); E-mail from Amanda R. Jones, MDD, to Mr. Miller (Apr. 12, 2011), Pls.' Ex. D, ECF No. 94-4 ("You didn't sign the previous handbook."); Miller Decl., ECF No. 98 at 4 ¶ 3 (stating that he never signed the MDD Employee Handbook). Besides a self-serving declaration, see Phillips Decl., ECF No. 94-1 at 1-2 ¶¶ 4-6, there is no evidence demonstrating that Mr. Miller assented to the terms in the MDD Employee Handbook. See, e.g., Gen. Elec. Co. v. Jackson,
2. Mr. Miller Is Entitled to Summary Judgment on the Breach of Fiduciary Duty Claim
The Court next addresses the elements of Plaintiffs' breach of fiduciary duty claim,20 concluding that undisputed material facts support summary judgment in favor of Mr. Miller. Under District of Columbia law, a claim for breach of fiduciary duty requires the Plaintiffs to show that Mr. Miller: "(1) owed plaintiff[s] a fiduciary duty; (2) the defendant breached that duty; and (3) the breach proximately caused injury to the plaintiff[s]." Gadaire v. Orchin ,
a. Mr. Miller Owed a Duty of Loyalty to MDD
The parties do not dispute that Mr. Miller owed a fiduciary duty of loyalty to *171MDD during his employment under the principles of agency law. See, e.g. , Pls.' Mot. for Summ. J., ECF No. 113 at 23; Def.'s Opp'n, ECF No. 123 at 4. In the first round of summary judgment briefing, Plaintiffs argue that Mr. Miller owed a duty to MDD after his resignation based on the MDD Employee Handbook. Pls.' Opp'n, ECF No. 94 at 12. But Plaintiffs did not raise this argument in the second round of summary judgment briefing. See generally Pls.' Mot. for Summ. J., ECF No. 113. Instead, Plaintiffs limit their cross-motion for summary judgment to Mr. Miller's actions while he was employed at MDD. See Pls.' Reply, ECF No. 129 at 1-2.
The Court observes at the outset that the parties agree agency law applies to this claim. See, e.g. , Def. Miller's Mot. for Summ. J., ECF No. 87 at 9; Pls.' Opp'n, ECF No. 94 at 10-11; Pls.' Mot. for Summ. J., ECF No. 113 at 22-25; Def. Miller's Opp'n, ECF No. 123 at 3-8. Under the common law of agency, "it has been established that employees-especially managers, corporate officers, and directors-owe an undivided and unselfish loyalty to the corporation such that there shall be no conflict between duty and self interest." PM Servs. Co. v. Odoi Assocs., Inc. , No. CIV.A. 03-1810 (CKK),
A threshold question is whether Mr. Miller was an "agent" of MDD. See Nat'l R.R. Passenger Corp. v. Veolia Transp. Servs., Inc. ,
As to the evidence of consent, the "facts indicat[e] that [MDD] has manifested a desire for [Mr. Miller] to act on behalf of [MDD]" and that "[Mr. Miller] has consented to act on behalf of [MDD]."
With respect to MDD's control of Mr. Miller, "[r]elevant factors that are *172indicative of control include '(1) the selection and engagement of the servant, (2) the payment of wages, (3) the power to discharge, (4) the power to control the servant's conduct, (5) and whether the work is part of the regular business of the employer.' " Alkanani ,
Here, neither party disputes that Mr. Miller was an at-will employee at MDD. See, e.g. , Def. Miller's Mot. for Summ. J., ECF No. 87 at 8; Pls.' Opp'n, ECF No. 94 at 6; Pls.' Mot. for Summ. J., ECF No. 113 at 23. Despite his employment status, Mr. Miller acknowledges that he signed the "Terms and Conditions of Employment." Def. Miller's Opp'n, ECF No. 123 at 12. That document classified him as an "Employee-Exempt[,]" and it outlined, inter alia , his compensation and pay period. Pls.' Ex. J, ECF No. 94-10 at 1. Mr. Miller avers that he performed work for MDD under certain contracts. Miller Decl., ECF No. 98 at 4 ¶¶ 4-5. Plaintiffs assert that Mr. Miller "was responsible for serving the ENCON needs of ... [MDD's primary customer-OPLOG[,]" and that, at the request of OPLOG, MDD assigned Mr. Miller to "the Carderrock project" where he "served as a marine engineer for OPLOG." Am. Compl., ECF No. 42 at 9 ¶ 33. In 2011, Mr. Miller was on a "ship audit assignment in Cape Canaveral, Florida, which he performed for MDD." Pls.' Mot. for Summ. J., ECF No. 113 at 19 (citing Pls.' SOMF, ECF No. 94 at 19 ¶ 10). Accordingly, the Court is persuaded that the record reflects that there was an agency relationship because Mr. Miller consented to act on behalf of MDD, and MDD had the right to control Mr. Miller's work.
Finally, Plaintiffs cite Amtrak for the proposition that an at-will employee owes a general duty of loyalty to his employer "[w]here a company enacts a 'policy prohibiting its employees from engaging in activities that create a conflict of interest' with the company ...." Pls.' Mot. for Summ. J., ECF No. 113 at 23 (quoting Amtrak ,
*173In their opposition brief, Plaintiffs argue that "Mr. Miller continued to owe a fiduciary duty to MDD after he terminated his employment." Pls.' Opp'n, ECF No. 94 at 12 (emphasis added). Plaintiffs rely on the non-compete clause in the MDD Employee Handbook to support their position.
There is no dispute that Mr. Miller owed a fiduciary duty to MDD while he was employed there. As this Court has already decided, Mr. Miller was not bound by the clauses in the MDD Employee Handbook, including the non-compete clause therein. Mr. Miller correctly points out that "none of [his] post-termination activities can serve as the basis for [the breach of fiduciary duty] claim." Def. Miller's Opp'n, ECF No. 123 at 5; see also Draim ,
b. Breach
Having determined that Mr. Miller owed a duty of loyalty to MDD during his employment, the Court next considers whether Mr. Miller breached that duty. As an initial matter, Mr. Miller could compete with MDD after his resignation. See Def. Miller's Opp'n, ECF No. 123 at 4-5 (collecting cases); see also Pls.' Reply, ECF No. 129 at 1. Under District of Columbia law, "[a]n agent after termination of his employment, in the absence of an agreement to the contrary, may compete with his former principal, and he may take with him all the skill and information he has acquired, excluding only the property of his previous employer." U.S. Travel Agency, Inc. v. World-Wide Travel Serv. Corp. ,
Mr. Miller argues that he is entitled to summary judgment because Plaintiffs' breach of fiduciary duty claim lacks merit as a matter of law. Def. Miller's Mot. for Summ. J., ECF No. 87 at 5. First, Mr. Miller contends that he did not "breach any fiduciary duty owed to MDD[,]" id. at 5-6, because he (1) never attended the meeting in Boston, id. ; (2) did not know about the e-mail with his alleged role in the Proposed Business Plan or the proposed re-allocation funding at the time of his employment at MDD, id. at 9; and (3) "never solicited MDD contracts from OPLOG, CSC, or MSC[,]" id. at 8. Next, Mr. Miller argues that leaving MDD to work for AirClean to compete with MDD cannot constitute a breach of fiduciary duty because, as a matter of law, he was "entitled to make arrangements or plans to go into competition with [his] principal before terminating [his] employment." Id. at 9 (quoting Amtrak ,
To the contrary, Plaintiffs contend that they are entitled to summary judgment because Mr. Miller breached the fiduciary duty by "[1] exposing confidential proprietary information, [2] soliciting MDD clients, and [3] competing directly with MDD, because such activities created a conflict of interest with MDD." Pls.' Mot. for Summ. J., ECF No. 113 at 24. Specifically, Plaintiffs contend that "[o]n departure, [Mr.] Miller essentially took the work he had been performing on behalf of MDD for OPLOG, which was summarized in the MDD [SOW] that [he] previously prepared with OPLOG for MDD's contract prior to the $700,000 reallocation." Id. at 21. According to Plaintiffs, Mr. Miller breached his fiduciary duty to MDD by developing a proposed, "sophisticated business plan aimed at reallocating MDD contract funds and established a competing business, while continuing to be an employee of MDD, and successfully diverted funds allocated for MDD contracts to himself, under the guise of a new subcontractor." Id. at 11.
As the parties correctly observe, "an employee 'is entitled to make arrangements to compete' with his employer-even before terminating his employment-subject to several limitations." Hedgeye Risk Mgmt., LLC v. Heldman ,
In Amtrak , the court stated:
Acts that have been deemed to constitute preparation rather than actual competition include "mere preparation to open a competing business[,] ... [o]pening a bank account and obtaining office space and telephone service," Harllee v. Prof'l Serv. Indus., Inc. ,619 So.2d 298 , 300 (Fla. Dist. Ct. App. 1992), as well as "purchas[ing] a rival business and upon termination of employment immediately compet[ing]" with a former employer, Gov't Relations [Inc. v. Howe], [No. CIV.A. 05-1081 CKK]2007 WL 201264 , at *11 [ (D.D.C. Jan. 24, 2007) ] (quoting Mercer,920 F. Supp. at 233 ); see also Jet Courier Serv., Inc. v. Mulei,771 P.2d 486 , 494 (Colo. 1989).
*175
Guided by the principles of agency law espoused in Amtrak ,22 the Court will examine, in turn, the three separate acts that Plaintiffs contend constitute Mr. Miller's breaches of his fiduciary duty to MDD. See Pls.' Mot. for Summ. J., ECF No. 113 at 25-28. Before turning to those acts, the Court addresses the issue of whether Mr. Miller's role in the development of the Proposed Business Plan itself constitutes a breach of the fiduciary duty.
In Amtrak , the court addressed the issue of whether certain acts of at-will employees constituted "mere preparation" or "actual competition."
In examining the facts and circumstances of that case, the court found that "the employees' conduct was not so egregious that it can be said to have constituted a breach of their fiduciary duties to *176Amtrak as a matter of law, but neither is it so benign to entitle [the competitor] to summary judgment on this issue."
Here, the Proposed Business Plan is "more akin to preparation rather than actual competition." Amtrak ,
i. Confidentiality
Plaintiffs argue that Mr. Miller breached his fiduciary duty by exposing MDD's proprietary and confidential information in violation of the confidentiality agreement in the MDD Employee Handbook and the "Terms and Conditions of Employment." As far as the Court can discern, the MDD Employee Handbook and the "Terms and Conditions of Employment" appear to be separate and distinct documents. Compare Pls.' Ex. A, ECF No. 42-1 and Pls.' Ex. B, ECF No. 42-1, with Pls.' Ex. 1, ECF No. 113-1. It is uncontested that Mr. Miller signed the "Terms and Conditions of Employment," which contains a confidentiality provision. E.g. , Pls.' Ex. 1, ECF No. 113-1 at 2 § 7; Pls.' Ex. J, ECF No. 94-10.23 By *177virtue of his signature, Plaintiffs contend that "Mr. Miller specifically agreed that strategic business plans and competitive type information would not be made available to any person or organization, not used for personal gain." Pls.' Opp'n, ECF No. 94 at 12; see also Pls.' Ex. J, ECF No. 94-10. Plaintiffs argue that Mr. Miller breached his fiduciary duty by failing to keep MDD's proprietary information confidential when he developed the Proposed Business Plan. Pls.' Mot. for Summ. J., ECF No. 113 at 25-26.24 According to Plaintiffs, Mr. Miller improperly used his exposure to MDD's "confidential energy management planning process as his own" because in the Proposed Business Plan he touted his skills and more than "20 years of engineering experience." Id. at 25.
Mr. Miller does not deny that he agreed to the terms in the "Terms and Conditions of Employment," including its confidentiality provision. Def. Miller's Reply, ECF No. 99 at 6. Rather, Mr. Miller argues that "[t]here is no evidence that [he] violated [the confidentiality] provision." Id. According to him, the Proposed Business Plan-"an aborted business plan developed in 2010 to start a company called East Coast Energy Engineering, Inc."-was "a plan that never got off the ground, and certainly caused no harm to Plaintiffs." Def. Miller's Opp'n, ECF No. 123 at 9. Further, Mr. Miller does not deny that the Proposed Business Plan was located on MDD's work computers, which he contends "suggest[s] there was no effort to hide it." Id. at 10; see also Phillips Decl., ECF No. 94-1 at 2 ¶ 9 ("Two business plans were created on MDD's computers and were captured in the course-of-business back-up program.").
There is no evidence supporting Plaintiffs' contention that Mr. Miller exposed MDD's confidential information in the Proposed Business Plan. Mr. Miller was permitted to include the skills and experience that he gained from MDD in the Proposed Business Plan, and he could take all those skills with him to his next position. See *178U.S. Travel Agency, Inc. ,
Here, there is no evidence that Mr. Miller shared the Proposed Business Plan, which allegedly included confidential information, with anyone outside of MDD. Neither party disputes that both versions of the Proposed Business Plan were created and located on MDD's computers. See, e.g. , Pls.' Opp'n, ECF No. 94 at 7; Pls.' Mot. for Summ. J., ECF No. 113 at 16; Def. Miller's Opp'n, ECF No. 123 at 10. Plaintiffs assert that the Proposed Business Plan "was retrieved from MDD email records." Pls.' Opp'n, ECF No. 94 at 7. But Plaintiffs do not present any evidence that Mr. Miller disseminated the two versions of the Proposed Business Plan to anyone other than within MDD to the then-current MDD employees. See generally Pls.' Mot. for Summ. J., ECF No. 113; Pls.'s Reply, ECF No. 129. Furthermore, Plaintiffs do not point to any specific language in the Proposed Business Plan that contains MDD's confidential information. The Court therefore finds that Plaintiffs have failed to demonstrate that Mr. Miller misused MDD's confidential information.25
ii. Non-Solicitation
Next, Plaintiffs argue that the Proposed Business Plan and Mr. Miller's solicitation of MDD's customers prove that Mr. Miller breached his fiduciary duty. Pls.' Mot. for Summ. J., ECF No. 113 at 26-27. Plaintiffs contend that the Proposed Business Plan identifies the federal government as a prospective client, which is "evidence of [Mr.] Miller's solicitation of the government for his own personal gain, rather than soliciting MDD business." Id. at 27. According to Plaintiffs, "[t]he Proposed Business Plan specifically identified the goal of obtaining a major government contract which, in essence, was successfully carried out when a portion of the $700,000 worth of MDD's funds were reallocated from MDD to [Mr.] Miller's subsequent employer, AirClean and the other former MDD employees." Id. at 27. Plaintiffs point out that Mr. Miller solicited MDD's customers, including CSC and OPLOG, before his resignation. Pls.' Opp'n, ECF No. 94 at 9. Plaintiffs contend that Mr. Miller's solicitation and his goal of obtaining a major government contract qualify as "unfair acts" that "injured" MDD. Pls.' Mot. for Summ. J., ECF No. 113 at 27 (quoting Mercer ,
Mr. Miller denies that he solicited MDD's customers during his employment at MDD. See, e.g. , Def. Miller's Opp'n, ECF No. 123 at 12; Miller Decl., ECF No. 98 at 5 ¶¶ 12-13. Mr. Miller maintains that he "never solicited any work from any MDD customer, or anyone else, the entire time he was employed by MDD." Def. Miller's Opp'n, ECF No. 123 at 12. According to him, "[a]ll of the work done by Air[C]lean was solicited by CSC after Mr. Miller resigned." Def. Miller's Reply, ECF No. 99 at 6. Mr. Miller avers that the "future CSC subcontract work worth $700,000 allegedly 'budgeted to MDD', and the $2.7 million budgeted for OPLOG work in 2012, was not confidential or proprietary business information, but rather, matters of public record." Miller Decl., ECF No. 123-2 at 2 ¶ 9. Finally, Mr. Miller argues that "[s]olicitation of MDD's customers alone could never give rise to liability because Miller never agreed not to solicit or compete." Def. Miller's Opp'n, ECF No. 123 at 11 (citing Aetna Cas. & Sur. Co. v. Lee ,
As previously stated, "[i]n preparing to compete, an employee may not commit fraudulent, unfair, or wrongful acts, such as ... solicitation of the firm's customers, or solicitation leading to a mass resignation of the firm's employees." Mercer ,
The Court is not persuaded that Mr. Miller solicited MDD's customers during his employment there. While the Proposed Business Plan states that a long-term goal of the proposed company ("East Coast Energy Management, Inc.") was to secure major governmental and commercial contracts, Pls.' Ex. 2, ECF No. 113-2 at 7, Plaintiffs have not presented evidence that Mr. Miller solicited the federal government while employed by MDD. Neither have Plaintiffs provided facts that would lead to an inference that Mr. Miller solicited the federal government or MDD's other customers while he was employed at MDD. The Court disagrees with Plaintiffs' contention that because a portion of the $700,000 of "MDD's funds" were reallocated from MDD to AirClean, this suggests that the Proposed Business Plan was in fact carried out because there is nothing in the record indicating that the Proposed Business Plan was shared with anyone outside of MDD. Furthermore, Plaintiffs do not contest Mr. Miller's averment that the future CSC subcontract work, which was worth $700,000, was a matter of public record. See generally Pls.' Reply, ECF No. 129. Nor do Plaintiffs dispute that MDD had no right to future subcontracts with CSC. See Def. Miller's Reply, ECF No. 99 at 8; see generally Pls.' Mot. for Summ. J., ECF No. 113. Plaintiffs' allegation-that Mr. Miller conspired with others to influence OPLOG to reallocate $700,000 of work from MDD to competitors-is unsupported by any evidence in the record. Further, Plaintiffs concede that Mr. Miller did not attend the meeting in Boston where government employees allegedly decided to eliminate MDD from OPLOG's fiscal year 2012 budget. See Pls.' Mot. for Summ. J., ECF No. 113 at 18-19.
Plaintiffs' other argument-that Mr. Miller drafted a SOW to redirect the CSC subcontract from MDD to AirClean-also *180fails. See id. at 19-20. Mr. Miller drafted the SOW when he was an employee of MDD in order for MDD to secure the OPLOG work. Miller Decl., ECF No. 123-2 at 3 ¶ 17. After his resignation from MDD, Mr. Miller, as an employee of AirClean, used the public version of MDD's SOW to draft a SOW for AirClean. Def. Miller's Opp'n, ECF No. 123 at 9-11. Analyzing the facts and inferences in Plaintiffs' cross-motion in the light most favorable to Mr. Miller, the Court finds that the undisputed facts do not support a finding that Mr. Miller solicited MDD's customers during his employment at MDD. See James Madison Project ,
iii. Direct Competition
Under the "Terms and Conditions of Employment," "[MDD] request[ed] that [Mr. Miller] not assist any person or organization in competing with MDD" during his employment. Pls.' Ex. 1, ECF No. 113-1 at 2 § 7. Neither party disputes that Mr. Miller was permitted to make arrangements to compete with MDD, see Pl.'s Mot. for Summ. J., ECF No. 113 at 25, and that the "failure to disclose plans to enter into competition is not itself necessarily a breach of fiduciary duty[,]" Pls.' Mot. for Summ. J., ECF No. 113 at 24. Rather, the parties disagree about whether Mr. Miller "was competing with MDD while still employed at the company ." Pls.' Reply, ECF No. 129 at 1 (emphasis in original).
Plaintiffs argue that the Proposed Business Plan shows Mr. Miller's actions to directly compete with MDD. Pls.' Mot. for Summ. J., ECF No. 113 at 28. Mr. Miller contends that "[t]he [Proposed] [B]usiness [P]lan gives no indication of any intent to compete with MDD for government contract work." Def. Miller's Opp'n, ECF No. 123 at 10. Mr. Miller maintains that "the [Proposed] [B]usiness [P]lan never came to fruition" and the proposed company "never performed any work, or earned any revenue."
"To survive a summary judgment motion, [Plaintiffs] need only produce "more than a 'mere existence of a scintilla of evidence' in support of its position," so that a "jury could reasonably find for the non-moving party." Amtrak ,
c. Proximate Cause
The Court's analysis with respect to the breach of fiduciary duty claim ends with the third and final element: proximate cause. Plaintiffs allege that they lost approximately $2.5 million, Am. Compl., ECF No. 42 at 44 ¶ 178, in part, because Mr. Miller "continu[ed] to solicit the business *181of OPLOG for himself and his new employer AirClean."
Plaintiffs' burden is to prove that Mr. Miller's breach proximately caused their injuries. See Gadaire ,
3. Mr. Miller Is Entitled to Summary Judgment on Plaintiffs' Civil Conspiracy Claim
Plaintiffs argue that Mr. Miller conspired with Mr. Muras, Mr. Stammnitz, and Mr. Mazzocco to leave MDD and to take MDD's business for themselves in their new ventures. Phillips I ,
(1) an agreement between two or more persons; (2) to participate in an unlawful act, or in a lawful act in an unlawful manner; and (3) an injury caused by an unlawful overt act performed by one of the parties to the agreement (4) pursuant to, and in furtherance of, the common scheme.
Griva v. Davison ,
Plaintiffs have presented no facts to establish the first element: an agreement between two or more persons. Plaintiffs urge this Court to consider the Proposed Business Plan because it allegedly "evidences the explicit agreement between [Mr.] Miller and [Mr.] Mazzocco to start a new business together and the early conniving with their 'influential' government contracts to redirect MDD contracts." Pls.' Mot. for Summ. J., ECF No. 113 at 29. But Plaintiffs concede that Mr. Miller did not attend the meeting in Boston where Mr. Mazzocco, Mr. Stammnitz, and Mr. Muras allegedly entered into an agreement to conspire to terminate the CSC-MDD subcontract. See id. at 18-19, 29. Thus, the Proposed Business Plan does not *182provide any support for Plaintiffs' contention that Mr. Miller conspired with others to injure MDD.
In the alternative, Plaintiffs argue that Mr. Miller was "complicit." Pls.' Opp'n, ECF No. 94 at 15. While "[p]roof of a tacit, as opposed to explicit, understanding is sufficient to show agreement[,]" Halberstam , 705 F.2d at 476, Plaintiffs have identified no evidence of a tacit understanding. To support their position, Plaintiffs primarily rely on their allegations that Mr. Miller's "behavior in taking advantage of all the opportunities presented to him by the other conspirators, and the roundabout way in which [Mr. Miller] left MDD, and the continued performance of the exact same tasks, under the same contracts that he performed for MDD, at AirClean and MSC ...." Pls.' Mot. for Summ. J., ECF No. 113 at 29 (arguing that Mr. Miller "wrongfully agreed and contributed to MDD's loss of the business reallocated to AirClean and to the success of the entire de facto debarment alleged in the Verified Amended Complaint."); see also Am. Compl., ECF No. 42 at 20-21, 46 ¶¶ 67, 188. However, "allegations in a complaint unsupported by evidence cannot serve as the basis for opposing a motion for summary judgment." Council on Am.-Islamic Relations Action Network, Inc. v. Gaubatz ,
Even assuming, arguendo , that Plaintiffs can prove the first element, Plaintiffs cannot establish the second element. "[C]ivil conspiracy depends on the performance of some underlying tortious act." Griva ,
*183IV. Conclusion
For the reason set forth above, the Court GRANTS the Federal Defendants' Renewed Motion to Dismiss, or in the alternative, for Summary Judgment as to Counts I, II, and IX, ECF No. 88, and DENIES Plaintiffs' Motion for Partial Summary Judgment as to Count I, ECF No. 107. The Court DENIES AS MOOT Plaintiffs' Motion for Entry of Order for Summary Judgment, ECF No. 132. The Court GRANTS Defendant Matthew Miller's Motion for Summary Judgment as to Counts VI and VIII, ECF No. 87, and DENIES Plaintiffs' Motion for Summary Judgment as to Counts VI and VIII, ECF No. 113. A separate Order accompanies this Memorandum Opinion.
SO ORDERED.
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390 F. Supp. 3d 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-spencer-cadc-2019.