UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SEBASTIAN PHILLIPS, et al.,

Plaintiffs, v. No. 11-cv-02021 (EGS) RICHARD V. SPENCER, 1 Secretary of the Navy, et al.,

Defendants.

MEMORANDUM OPINION

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

1 Richard V. Spencer has been automatically substituted as the lead defendant in this case. See Fed. R. Civ. P. 25(d). 1 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

2 Mr. Robinson and Mr. Traugh were acting outside the scope of

their 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,

(D.D.C. 2012) (“Phillips I”); see also

Phillips v. Mabus,

(D.D.C. 2016) (“Phillips II”).

The following facts—drawn from the parties’ submissions—are

3 undisputed, except where indicated.

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,

. Mr. Phillips serves as

MDD’s president and chief executive officer. Fed. Defs.’

Statement of Material Facts Not in Genuine Dispute (“SOMF”), ECF

No. 88 at 3 ¶ 2. The firm specializes in ship energy

conservation, and it primarily serves as a government contractor

and subcontractor for the Navy and its components. Phillips I,

; see also Def. Miller’s Opp’n, ECF No.

133 at 1-2 (noting that MDD’s website lists contracts valued at

more than $44 million). 3 Relevant here is MDD’s government

contracting work under a subcontract with Computer Sciences

Corporation (“CSC”) and a contract with the MSC.

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

2 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 3 The Court takes judicial notice of the representations made on MDD’s website at www.marinedd.com. See Mundo Verde Pub. Charter Sch. v. Sokolov,

, 381 n.3 (D.D.C. 2018) (“The court may take judicial notice of representations made on Plaintiff’s website.”). 4 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 (“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.”

at 3 ¶ 4.

In turn, MDD subcontracted AirClean Technologies, Inc.

(“AirClean”), a company based in Seattle, Washington, to assist

MDD with its work under the CSC-MDD subcontract. Decl. of

Sebastian Phillips (“Phillips Decl.”), ECF No. 94-1 at 3 ¶¶ 13-

15. The period of performance for the CSC-MDD subcontract

commenced on June 18, 2009 and ended on April 4, 2014. Fed.

Defs.’ Ex. B, ECF No. 88-2 at 12.

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

4 NAVSEA is “the largest of the Navy’s five system commands. With a fiscal year budget of nearly $30 billion, NAVSEA accounts for nearly one quarter of the Navy’s entire budget.” About NAVASEA, Naval Sea Systems Command, U.S. Navy, https://www.navsea.navy.mil/Who-We-Are/ (last visited May 28, 2019). 5 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,

n.5).

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

6 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.

at 9 ¶¶

31-32. MDD’s three employees—Defendants Michael Mazzocco

(“Mr. Mazzocco”), Volker Stammnitz (“Mr. Stammnitz”), and

William Muras (“Mr. Muras”)—performed the OPLOG work, and they

discussed task assignments with Mr. Traugh and Mr. Robinson. See

Fed. Defs.’ SOMF, ECF No. 88 at 9 ¶ 34.

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.”

at 5 ¶ 14. Mr. Beaubien also

stated that Mr. Traugh “wants me to reduce [MDD’s] allocation by

$700[,000]” in order “to fund these other new start-ups.” E-mail

from Mr. Beaubien, CSC, to Mr. Phillips (Apr. 13, 2011), Pls.’

Ex. G, ECF No. 42-1 at 58. In May 2011, CSC issued MDD a task

order modification for OPLOG work in the amount of $1,707,522,

noting that it reflected a “$700,000 deobligation underway.”

Fed. Defs.’ SOMF, ECF No. 88 at 5-6 ¶ 17. In June 2011, CSC

issued MDD another task order modification for OPLOG work in the

amount of $1,192,522, which established the final funding for

fiscal year 2011.

at 6 ¶ 18. CSC disbursed the remainder of

the $700,000 reallocation to its own employees and other

7 subcontractors, such as Gryphon Technologies and D&K

Engineering. Beaubien Decl., ECF No. 88-1 at 5 ¶ 7.

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—

8 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.

Soon thereafter, litigation ensued.

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,

Mr. Mazzocco, Mr. Stammnitz, and Mr. Muras admit that the meeting in Boston took place in May 2011. E.g., Def. Muras’ Answer, ECF No. 80 at 6 ¶ 40 (“Muras admits that he and others attended a meeting held in Boston on May 2011 convened by the Navy to discuss a variety of issues” and that Mr. Phillips did not attend the meeting.); Def. Mazzocco’s Answer, ECF No. 81 at 5 ¶ 40 (“[I]t is admitted that a meeting took place in May of 2011 in Boston attended by the defendants Mazzocco, Stammnitz, and several OPLOG employees.”); Def. Stammnitz’s Answer, ECF No. 82 at 2 (admitting that “[Mr. Stammnitz] attended a meeting of OPLOG in Boston in May 2011 . . . .”). 9 78. As a result, the Navy appointed an OPLOG employee as a

technical point of contact between CSC and OPLOG so that MDD

could receive OPLOG work under the CSC-MDD subcontract.

. In December 2011, counsel for the Navy issued a

memorandum, stating that “the Court’s [O]rder require[s] all

personnel of this Command to . . . neither encourag[e] nor

interfer[e] with: (1) the efforts of MDD to obtain work from

prime contractors; or (2) prime contractors’ decisions whether

or not to subcontract with MDD.” Mem. from Sophie A. Krasik,

Counsel, U.S. Dep’t of the Navy (Dec. 16, 2011) (footnote

omitted), Pls.’ Ex. K, ECF No. 54-3 at 18; see also Fed. Defs.’

SOMF, ECF No. 88 at 7 ¶ 24. At Plaintiffs’ request, the Navy

eventually appointed Mr. Doerrer, an OPLOG employee, as the

technical point of contact for any OPLOG work because Plaintiffs

had not charged him with any wrongdoing. 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

6 MSC is “the leading provider of ocean transportation for the Navy and the Department of Defense, operating approximately 125 ships daily around the world.” Organization, Military Sealift Command, U.S. Navy, https://www.msc.navy.mil/organization/ (last visited May 28, 2019). 10 one-year term with options to renew through November 2012.

Phillips I,

; see also Fed. Defs.’ Ex. G,

ECF No. 88-7 at 3. In October 2011, MSC ultimately exercised the

second and final option, extending the contract with MDD to

November 1, 2012. Fed. Defs.’ Ex. G, ECF No. 88-7 at 2-3; see

also Fed. Defs.’ SOMF, ECF No. 88 at 6 ¶¶ 21-22.

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.”

In October 2011, the same MSC employee forwarded Mr.

Phillips another e-mail from the same NAVSEA employee, which

states that “I have been directed by my leadership to not be

involved with any contract that includes MDD. Therefore, I

cannot be the [technical point of contact].” E-mail from Thomas

Martin, NAVSEA, to René Fry, MSC (Oct. 7, 2011), Pls.’ Ex. S,

ECF No. 42-1 at 80. Nonetheless, MSC issued a contract

modification to MDD on October 31, 2011. Fed. Defs.’ SOMF, ECF

No. 88 at 6 ¶ 22.

Between 2012 and 2014, MDD avers that it submitted seven

bids for competitive solicitations for contracts with the Navy

11 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,”

at 9 ¶ 32, the Government Accountability Office (“GAO”) and the

Small Business Administration (“SBA”) concluded that MSC did not

adequately perform market research to determine if the

solicitation should have been set aside for small businesses,

at 9 ¶ 33. In May 2013, the MSC Ombudsman Report concluded

that MSC did not give MDD a “fair opportunity to compete for

this government contract award . . . .”

at 10 ¶ 35; see also

Pls.’ Ex. E, ECF No. 107-5 at 2-7.

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 with NAVSEA. Id.; see also Def. Miller’s Opp’n, ECF No.

123 at 14. Additionally, MDD received a task order from MSC on

May 23, 2014, and MSC awarded MDD another task order on the same

day. Def. Miller’s Opp’n, ECF No. 123 at 14-15.

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

12 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.

7 The Court takes judicial notice of the SeaPort Enhanced Task Order Award Report located on the Navy’s website. See, e.g., SeaPort Enhanced Task Order Award Report, U.S. Navy, https://buy.seaport.navy.mil/SeaPort/rpt CR ViewScheduledReports .asp?ReportName=SeaPortETOAward (last visited May 29, 2019) (listing contracts awarded to MDD and other awardees); Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”); Gerritsen v. Warner Bros. Entm’t Inc.,

(C.D. Cal. 2015) (“[T]he court can take judicial notice of [p]ublic records and government documents available from reliable sources on the Internet, such as websites run by governmental agencies.” (internal quotation marks and citation omitted)). The Court GRANTS Mr. Miller leave to file his Supplemental Reply Memorandum in Support of his Motion for Summary Judgment, ECF No. 106, and his Supplemental Memorandum in Support of His Motion for Summary Judgment, ECF No. 117. See Idas Res. N.V. v. Empresa Nacional De Diamantes De Angola E.P., No. CIV A 06-00570 ESH,

, at *4 n.1 (D.D.C. Oct. 26, 2006) (granting party leave to file certain supplemental submissions). 13 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.

at 15 ¶ 6. His work included creating

MDD’s Statement of Work (“SOW”) for OPLOG work. See Miller

Decl., ECF No. 123-2 at 3 ¶ 17; see also Pls.’ SOMF, ECF No. 113

at 7-8 ¶¶ 22-23.

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. 98 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;

8 Mr. Miller did not sign the two versions of the MDD Employee Handbook. See Pls.’ Ex. A, ECF No. 42-1 at 2-18; see also Pls.’ Ex. B, ECF No. 42-1 at 19-42. The first version was revised in February 2009, Pls.’ Ex. A, ECF No. 42-1 at 5, and the second version was revised in September 2010, Pls.’ Ex. B, ECF No. 42-1 at 20. 14 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

15 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 ¶

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.

C. 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,

; Order, ECF No. 30 (Dec. 7, 2011).

Under the terms of the Stipulated Preliminary Injunction, the

Federal Defendants were enjoined from taking any actions to

implement, enforce, or spread to any federal agency the de facto

debarment of Plaintiffs from government contracting. 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

17 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.

at 29-34 ¶¶ 99–121.

Count II asserts the same claims against Mr. Traugh and Mr.

Bosworth in their individual capacities and it seeks damages of

$2.5 million.

at 34-35 ¶¶ 122–26. Counts III-VIII assert

breach of fiduciary duty and civil conspiracy claims against Mr.

Mazzocco, Mr. Stammnitz, Mr. Muras, and Mr. Miller, and a

common-law defamation claim against Mr. Mazzocco.

at 35-46

¶¶ 127–92. Count IX alleges common-law interference with

contractual relations by Mr. Traugh and Mr. Robinson in their

official and individual capacities.

at 47-49 ¶¶ 193–200.

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,

. After the parties

engaged in settlement discussions and limited discovery on the

issues relevant to Counts II and IX, the parties did not reach a

resolution. Phillips II,

.

Thereafter, the parties engaged in full rounds of briefing

on the pending motions: (1) Plaintiffs’ motion for partial

18 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 a 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,

(D.D.C.

2009) (citation and internal quotation marks omitted). “It is to

9 On November 4, 2016, this Court denied the Federal Defendants’ motion to strike Plaintiffs’ motion for partial summary judgment, and Mr. Miller’s motions to strike Plaintiffs’ summary judgment motion as to the claims against him. Phillips II,

. The Court afforded the parties with the opportunity to fully brief the motions for summary judgment.

19 be presumed that a cause lies outside [a federal court’s]

limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co. of

Am.,

(1994), unless the plaintiff can

establish by a preponderance of the evidence that the Court

possesses jurisdiction, see, e.g., United States ex rel. Digital

Healthcare, Inc. v. Affiliated Comput.,

(D.D.C. 2011) (citation omitted). Thus, the “plaintiff’s factual

allegations in the complaint . . . will bear closer scrutiny in

resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion

for failure to state a claim.”

(citation and internal

quotation marks omitted)).

A motion to dismiss for lack of jurisdiction may be

presented as either a facial or factual challenge. Achagzai v.

Broad. Bd. of Governors,

(D.D.C. 2016).

“A facial challenge attacks the factual allegations of the

complaint that are contained on the face of the complaint, while

a factual challenge is addressed to the underlying facts

contained in the complaint.” Al-Owhali v. Ashcroft,

(D.D.C. 2003) (citation and internal quotations marks

omitted). When a defendant makes a facial challenge, the Court

must accept the allegations contained in the complaint as true

and consider the factual allegations in the light most favorable

to the non-moving party. Erby v. United States,

(D.D.C. 2006). With respect to a factual challenge, the

20 Court may consider materials outside of the pleadings to

determine whether it has subject matter jurisdiction over the

claims. Jerome Stevens Pharms., Inc. v. FDA,

(D.C. Cir. 2005).

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,

(1986). The

movant “bears the initial responsibility of informing the

district court of the basis for its motion, and identifying

those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of

a genuine issue of material fact.” Celotex Corp.,

(internal quotation marks omitted). “To defeat summary

judgment, the non-moving party must ‘designate specific facts

showing that there is a genuine issue for trial.’” James Madison

Project v. CIA,

(D.D.C. 2018) (quoting

Celotex Corp.,

).

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

21 that are not genuinely disputed. See Citizens for Responsibility

& Ethics in Wash. v. U.S. Dep’t of Justice,

(D.D.C. 2009) (citation omitted); see also James Madison

Project,

(“A dispute is ‘genuine’ only if

a reasonable fact-finder could find for the non-moving party; a

fact is ‘material’ only if it is capable of affecting the

outcome of the litigation.” (citations omitted)). The Court

“analyzes the underlying facts and inferences in each party’s

motion in the light most favorable to the non-moving party.”

James Madison Project,

(citing Anderson

v. Liberty Lobby, Inc.,

(1986)).

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

10The Court observes that the Amended Complaint alleges de facto debarment in two ways: (1) the “OPLOG Debarment;” and (2) the “NAVSEA Debarment.” Am. Compl., ECF No. 42 at 30-34 ¶¶ 100-121; see also Pls.’ Reply, ECF No. 130 at 1 (“Plaintiffs allege that the Navy’s [OPLOG] and the [NAVSEA] de facto debarred Plaintiffs from government contracting . . . .”). 11In its previous Opinion, the Court held that Plaintiffs sufficiently stated claims in the Amended Complaint as to Counts 22 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

I and II to survive a motion to dismiss. Phillips I,

. The Court declined to treat the motion as one for summary judgment in the alternative as to those claims because the parties had not developed the factual record at that time.

. The Court concludes that the parties have adequately developed the record, and that the parties’ motions as to Count I and II present no genuinely disputed material facts that would preclude a grant of summary judgment. 12Pursuant to Federal Rule of Civil Procedure 12(b)(6), the Federal Defendants move to dismiss the claims against the Secretary of the Navy, the Chief of Naval Operations, the Deputy Chief of Naval Operations, and the Commander of NAVSEA “to the extent Plaintiffs are attempting to bring Bivens claims against these individuals for the actions of [Mr.] Bosworth and [Mr.] Traugh,” Fed. Defs.’ Mot. to Dismiss, ECF No. 88 at 35-36, arguing that Plaintiffs have not pled any facts demonstrating that these high-level Navy officials were personally involved in the alleged de facto debarment, id. at 36. This Court in Phillips I observed that Plaintiffs do not bring Bivens claims against these four high-level Navy officials.

n.3; see also Bivens v. Six Unknown Fed. Narcotics Agents,

(1971). Plaintiffs make clear that they “do not rely on that theory of respondeat superior as the basis of its claims against these Federal Defendants.” Pls.’ Opp’n, ECF No. 101 at 35. The Court therefore need not address the Federal Defendants’ Bivens argument. See Phillips I,

n.3; see also Liff v. Office of Inspector Gen. for U.S. Dep’t of Labor,

(D.C. Cir. 2018) (concluding that “no Bivens remedy is available for [de facto debarment] claims” because “Congress has provided significant remedies for disputes 23 tort claims asserted against Mr. Traugh and Mr. Robinson—for

lack of jurisdiction on four grounds: (1) those claims fall

under the Westfall Act,

, id. at 36-37; (2) the

evidence shows that both federal employees were acting within

the scope of their employment during the alleged incidents, and

the United States should be substituted as the sole defendant as

the Federal Tort Claims Act (“FTCA”) does not authorize suits

against federal officials, id. at 37-42; (3) Plaintiffs have

failed to exhaust their administrative remedies before bringing

a lawsuit under the FTCA, id. at 42-44; and (4) the United

States has not waived its sovereign immunity for the FTCA

claims, id. at 44-47. For the reasons explained below, the Court

agrees with the Federal Defendants. 13

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

between contractors and the government entities that engage them, as well as for persons aggrieved by the government’s collection, maintenance, and dissemination of information”). 13The Court does not address the issue of whether Plaintiffs are entitled to attorneys’ fees and costs under the Equal Access to Justice Act,

, see Pls.’ Mot. for Partial Summ. J., ECF No. 107 at 39-43, because the Court denies Plaintiffs’ cross-motion for summary judgment as to Count I and grants the Federal Defendants’ motion as to Counts I and II. See United States ex rel. Atlas Copco Compressors LLC v. RWT LLC, No. CV 16-00215 ACK-KJM,

, at *9 (D. Haw. May 17, 2017) (denying plaintiff’s summary judgment motion and declining to address the issue of whether plaintiff was entitled to attorneys’ fees). 24 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 id. at 9-10; and (2) the “OPLOG de

facto debarment of MDD” has extended to NAVSEA and MSC, see id.

at 11. The Federal Defendants respond that Plaintiffs

acknowledge that they received new contracts, contract options,

contract modifications, and contract funding from the Department

of the Navy during the alleged debarment, see Fed. Defs.’ Reply,

ECF No. 104-1 at 2, but “[Plaintiffs] discount their

significance.” Id.

25 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[,]” id. at 2. Plaintiffs’

argument in the first round of briefing that genuine issues of

material fact exist as to Count I is therefore moot. In

response, the Federal Defendants argue that Plaintiffs cannot

demonstrate the existence of de facto debarment, pointing out

that Plaintiffs ignore “twenty-nine contracts, delivery orders,

purchase orders, and funding modifications that the [Department

of the Navy] has awarded [MDD] since . . . September 2013 . . .

.” Fed. Defs.’ Opp’n, ECF No. 124 at 5. The Federal Defendants

point to a NAVSEA contract awarded to MDD in the amount of

$14,483,912.86 on August 21, 2014, see Fed. Defs.’ Notice, ECF

No. 118 at 1, arguing that said contract in addition to other

contracts, options, and modifications serve as further evidence

that there was no de facto debarment, see id. at 2.

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

26 process, namely, adequate notice and a meaningful hearing.

Phillips I,

(citations omitted). The

United States Court of Appeals for the District of Columbia

Circuit (“D.C. Circuit”) has held:

[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.,

,

955–56 (D.C. Cir. 1980) (emphasis added); see also Reeve

Aleutian Airways, Inc. v. United States,

(D.C.

Cir. 1993) (“[T]he typical debarment [is a] ban on contracting

for ‘virtually all government work’ for a fixed period of time .

. . .” (citations omitted)).

The standard for proving de facto debarment is high. E.g.,

Pub. Warehousing Co. K.S.C. v. Def. Supply Ctr. Phila.,

, 45 n.13 (D.D.C. 2007); Highview Eng’g, Inc. v. U.S.

Army Corps of Eng’rs,

(W.D. Ky. 2012)

(“Highview II”) (“Plaintiffs must meet a high standard when

seeking to prove a de facto debarment claim.”). To prevail on

their motion for partial summary judgment as to Count I,

Plaintiffs must demonstrate that there is no genuine dispute of

a material fact as to: a “systematic effort by the procuring

27 agency to reject all of the bidder’s contract bids.” TLT Constr.

Corp. v. United States,

(2001) (emphasis

added) (citation omitted). The Court can find de facto debarment

based on either: (1) “a statement that the agency will not award

a contract to the disappointed bidder in the future”; or

(2) “the conduct of the agency.” Leslie & Elliott Co. v.

Garrett,

(D.D.C. 1990); see also TLT

Constr. Corp.,

. “A Federal agency may

debar a person . . . .”

; see also Highview

Eng’g, Inc. v. U.S. Army Corps of Eng’rs, No. 3:08-CV-647-S,

, at *5 (W.D. Ky. May 24, 2010) (“Highview I”)

(“[N]o individual person debars a contractor. Rather, the [U.S.

Army] Corps [of Engineers] takes such actions as an entity.”). 14

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.”

14Congress has defined the term “Federal agency” as “the executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but [the term] does not include any contractor with the United States.”

(emphasis added). The Department of the Navy is one of the “military departments.”

(defining the term “Department of the Navy” and listing its operating forces); see also GAF Corp. v. United States,

, 906 n.15 (D.C. Cir. 1987) (noting that the Department of the Navy is a federal agency). 28 Highview II,

. 15 The Court must grant the

Federal Defendants’ motion for summary judgment where Plaintiffs

“though perhaps injured in some respects, cannot demonstrate

broad preclusion from government contracting, as the law of this

[C]ircuit requires . . . .” Trifax Corp. v. District of

Columbia,

(D.C. Cir. 2003) (“Trifax II”)

(emphasis added); see also Mem. Op., Trifax Corp. v. District of

Columbia, No. 98-cv-2824 (GK) (D.D.C. Nov. 2, 2001), ECF No. 166

at 19 (“Trifax I”) (granting defendant’s motion for summary

judgment and finding that “Plaintiff has suffered no broad

preclusion because it cannot demonstrate that its business has

been ‘seriously affected’ or ‘destroyed’”).

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

15Courts agree that a plaintiff cannot establish a systematic effort of de facto debarment from a single incident. See, e.g., Nat’l Career Coll., Inc. v. Spellings,

(9th Cir. 2010) (“This single incident is insufficient to prove a de facto debarment.”); Redondo-Borges v. U.S. Dep’t of Hous. & Urban Dev.,

(1st Cir. 2005) (“A single incident is insufficient to establish a pattern or practice of exclusion (and, thus, to establish even a de facto debarment).”). In TLT Constr. Corp., the court found that the disqualification of two projects did not establish a systematic pattern of de facto debarment where “the Army awarded [the plaintiff] two contracts, “albeit smaller and of a different nature . . . .”

. 29 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,

(D.D.C. 1978), Plaintiffs argue that “[r]eceipt of any

government contract is not proof that Plaintiffs have not been

victimized by a debarment.” Pls.’ Reply, ECF No. 130 at 3

(emphasis in original); see also Pls.’ Surreply, ECF No. 109 at

5. Plaintiffs’ reliance on Art-Metal USA, Inc., however, is

misplaced.

In Art-Metal USA, Inc., the General Services Administration

30 (“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.

. The

plaintiff-contractor also claimed that GSA “suspended all

further contracts[,]” “ceased doing business with [the

plaintiff,]” and failed to issue “purchase orders on existing

contracts . . . .”

at 5 n.7. In granting the plaintiff-

contractor’s motion for preliminary injunction, the court found

that GSA debarred the plaintiff-contractor for an “indefinite

period” because GSA terminated the contract and held in abeyance

the awards of four additional contracts for which the plaintiff-

contractor had submitted bids.

.

Here, the undisputed facts demonstrate the opposite. The

Navy and its components did 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

31 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,

. Indeed, the D.C.

Circuit has made clear that facts showing that a contractor “won

some and lost some” government contracting work is “more than

sufficient to preclude a reasonable jury from finding [that the

contractor was] broadly precluded from government contracting .

. . .”

(citation omitted).

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.

(citation omitted). There, “the District [of

Columbia] declined to renew at least two contracts” with the

plaintiff-contractor after the District’s Office of Inspector

General (“OIG”) issued a report about the plaintiff-contractor’s

alleged misconduct.

. One of the District’s

contracting agencies later awarded the plaintiff-contractor a

new contract, but the plaintiff-contractor subsequently failed

to win two other federal contracts through the bidding process.

For one of the bids, “the United States Comptroller General

32 formally prohibited the contracting agency from penalizing [the

plaintiff-contractor] for the OIG report”; and a local agency

wrote a favorable letter of recommendation about the plaintiff-

contractor for another bid.

The D.C. Circuit concluded that

a reasonable jury could not have found that the plaintiff-

contractor was broadly precluded from government contracting.

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,

.

Notwithstanding the fact that MDD did not receive task orders

under the CSC subcontract in fiscal year 2012, Plaintiffs do not

dispute that the Navy awarded MDD other contracts. Those awards

provide undisputed evidence demonstrating that Plaintiffs were

not de facto debarred. See Nat’l Career Coll., Inc.,

(“When a party is debarred, that party cannot seek

to enter into any contract with any federal agency.” (emphasis

in original)).

Plaintiffs’ argument that they were effectively debarred

33 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

MSC 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

; see also Bannum, Inc. v. Samuels,

(D.D.C. 2016) (“Merely showing that the

plaintiff ‘won some and lost some in retaining and bidding on

government contracts’ is insufficient.” (quoting Trifax II, 314

34 F.3d at 644)).

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.,

. But it is also true

that preclusion from a single contract is insufficient to

establish de facto debarment even if a plaintiff can show a

statement from an agency that the agency would not award the

plaintiff a future contract. Highview II,

.

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,

, at *5); Pls.’ Opp’n,

ECF No. 101 at 28 (same). As such, the Federal Defendants argue

that Mr. Bosworth and Mr. Traugh were two employees who “could

35 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” because, inter

alia, they were program managers and engineers “rather than

warranted contracting officers.” Fed. Defs.’ Mot. to Dismiss,

ECF No. 88 at 33-34. Plaintiffs disagree. Pls.’ Opp’n, ECF No.

101 at 33 (citing Highview Eng’g, Inc. v. U.S. Army Corps of

Eng’rs, No. 3:08-CV-647-S,

, at *2 (W.D. Ky. July

26, 2010) (denying a motion to dismiss because “the statements

alleged in the complaint make out a plausible [de facto

debarment] claim as to the first path to relief” because “[i]f

proved, these statements could plausibly be interpreted to mean

that the Corps would not award any future contracts to Hawkins

or his businesses.”)). Neither party disputes that “courts have

previously held that statements alleged in a complaint to be

made by project managers make out a plausible claim as to

constitute a statement that the agency will no longer awarded a

subcontractor future contracts.” Pls.’ Opp’n, ECF No. 101 at 33

(emphasis in original); see also Pls.’ Mot. for Partial Summ.

J., ECF No. 107 at 28-29. In fact, this Court found that

Plaintiffs met their burden to allege de facto debarment to

survive a motion to dismiss based, in part, on certain

employees’ statements. Phillips I,

. At

the summary judgment stage, however, Plaintiffs must meet the

36 “high standard” to prove de facto debarment. Highview II,

.

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 plaintiff and his business partner

submitted a wetlands mitigation bank proposal to the federal

agency, and the agency’s program manager met with the

plaintiff’s business partner to express her concerns with

working with the plaintiff.

. The business partner

interpreted the program manager’s sentiments as if “she did not

want any wetlands mitigation bank proposals in which [the

plaintiff] played a role.”

The business partner also

interpreted her “comments and mannerisms to indicate that [the

plaintiff] was being ‘blacklisted’ by the [agency].”

.

The plaintiff relied on the program manager’s alleged comments,

along with his business partner’s notes and e-mail about the

meeting, to estblish de facto debarment.

. The court

noted that the details of the meeting were “not entirely

37 clear[,]” but “[the business partner] was not told that ‘the

[agency] wanted no proposals in which [the plaintiff] played a

role.’”

(emphasis in original).

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.”

. The court reasoned that the business

partner admitted that the program manager’s statement was not a

quote, that it was his opinion that the agency was blacklisting

the plaintiff, and that the program manager never told him that

the Corps would not approve the proposal.

. The

court determined that the plaintiff could not establish de facto

debarment through an agency statement that it would not award

future contracts.

. The court explained that even if

the plaintiff could have proven that he was prevented from

obtaining the contract with the Corps because he was removed

from the project with his business partner, “such a finding

would be insufficient to carry the day.”

. The court

concluded that “[t]here [was] simply no evidence . . . of a

systematic effort by the agency to reject all of the plaintiffs’

contract bids.”

(collecting cases).

As the present case closely resembles Highview II, the

Court reaches the same outcome. Like the details from the

38 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 subcontract 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.

. Even if Plaintiffs

could prove that they were precluded from the CSC subcontract in

fiscal year 2012 based on e-mail conversations, see Pls.’ Mot.

for Partial Summ. J., ECF No. 107 at 30, Plaintiffs cannot

establish de facto debarment based on preclusion from the single

39 subcontract. See Highview II,

.

Finally, Plaintiffs cannot prove de facto debarment through

the Navy’s conduct. See Leslie & Elliott Co.,

. The parties do not dispute that MDD has received millions

of dollars in contracts and other government work. See Fed.

Defs.’ Opp’n, ECF No. 124 at 3, 5-11; see also Pls.’ Reply, ECF

No. 130 at 3. Rather, Plaintiffs argue that the “evidence of

contracts awarded to Plaintiffs” is “irrelevant to a

determination of whether Plaintiffs were subject of a de facto

debarment as a result of the OPLOG or MSC Debarments.” Pls.’

Reply, ECF No. 130 at 3. Plaintiffs maintain that the MSC

Ombudsman Report shows that MSC did not provide MDD with a fair

opportunity for awards under proposed MSC contract

solicitations. Pls.’ Opp’n, ECF No. 101 at 23-27. Plaintiffs’

arguments are unavailing.

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,

; TLT Const.

Corp., 50 Fed. Cl. at 215–16. Plaintiffs have failed to do so.

Contrary to Plaintiffs’ assertion, the Federal Defendants have

not admitted that their “conduct has established the continuing

de facto debarment of Plaintiffs” in violation of the Stipulated

Preliminary Injunction. Pls.’ Opp’n, ECF No. 101 at 27. Rather,

40 the record demonstrates that the Federal Defendants have

complied with the Stipulated Preliminary Injunction, requiring

the Federal Defendants to allow MDD “to compete for, and if

awarded, receive and perform contracts, subcontracts, task

orders, task instructions and orders under indefinite quantity

contracts, in the same manner and under the same standards

applicable to other contractors and subcontractors . . . .”

Phillips I,

. The Court therefore finds

that MDD’s receipt of contracts from the Navy and its components

are relevant. Because Plaintiffs cannot establish that they were

de facto debarred on a systematic basis, the Court DENIES

Plaintiffs’ motion for partial summary judgment as to Count I,

and GRANTS the Federal Defendant’s motion for summary judgment

as to Count I. 16

2. Mr. Traugh and Mr. Bosworth Are Entitled to Qualified Immunity

Having found that the Federal Defendants are entitled to

summary judgment as 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

16Because the Court denies Plaintiffs’ Motion for Partial Summary Judgment as to Count I, the Court need not reach Plaintiffs’ requests for: (1) declaratory and injunctive relief; (2) sanctions against the Federal Defendants for alleged violations of the Stipulated Preliminary Injunction; and (3) an award of attorneys’ fees and costs under the Equal Access to Justice Act. 41 Mr. Bosworth in their individual capacities for the alleged de

facto debarment. Phillips I,

. The

parties do not dispute that Mr. Traugh, as OPLOG’s program

manager, and Mr. Bosworth, as NAVSEA’s Acting Chief Technology

Officer, were government employees acting in their discretionary

functions. Indeed, “[g]overnment officials performing

discretionary functions are protected by qualified immunity and

cannot be liable for damages unless they violate ‘clearly

established statutory or constitutional rights of which a

reasonable person would have known.’” Townsend v. United States,

(D.D.C. 2017) (quoting Harlow v.

Fitzgerald,

(1982)).

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

42 discretion. Bame v. Dillard,

(D.C. Cir. 2011).

“Qualified immunity depends upon the answers to two questions:

(1) Did the officer’s conduct violate a constitutional or

statutory right? If so, (2) was that right clearly established

at the time of the violation?” Jones v. Kirchner,

(D.C. Cir. 2016); see also Reichle v. Howards,

(2012) (“[C]ourts may grant qualified immunity on the ground

that a purported right was not ‘clearly established’ by prior

case law, without resolving the often more difficult question

whether the purported right exists at all.”).

“For a right to be clearly established, existing precedent

must have placed the statutory or constitutional question beyond

debate.” Daugherty v. Sheer,

(D.C. Cir. 2018)

(citations and internal quotation marks omitted), cert. denied,

(2019). “[T]he touchstone remains whether the

‘contours of the right are clear to a reasonable officer.’” Id.

(quoting Reichle,

). “This standard does not

‘require a case directly on point.’”

(quoting Ashcroft v.

al-Kidd,

, 741 (2011)); see also Bame,

(“[W]e look to cases from the Supreme Court and this court,

as well as to cases from other courts exhibiting a consensus

view—if there is one.” (citation and internal quotation marks

omitted)). “The proponent of [the] purported right has the

‘burden to show that the particular right in question . . . was

43 clearly established’ for qualified-immunity purposes.”

Daugherty,

(quoting Dukore v. District of

Columbia,

(D.C. Cir. 2015)).

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. See, e.g., Taylor v. Resolution Trust Corp.,

(D.C. Cir. 1995) (“[G]overnment action

precluding a litigant from future employment opportunities will

infringe upon his constitutionally protected liberty interests

only when that preclusion is either sufficiently formal or

sufficiently broad.”); Old Dominion Dairy Prods., Inc.,

. Accordingly, the question before the Court is whether

the government officials violated Plaintiffs’ clearly

established right. See Phillips I,

n.6.

The United States Supreme Court has instructed that “[e]ven if

the plaintiff’s complaint adequately alleges the commission of

acts that violated clearly established law, the defendant is

entitled to summary judgment if discovery fails to uncover

evidence sufficient to create a genuine issue as to whether the

defendant in fact committed those acts.” Mitchell v. Forsyth,

(1985) (emphasis added).

44 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.

After this Court denied the Federal Defendants’ motion to

dismiss with regard to qualified immunity, the parties engaged

in discovery on the issue of qualified immunity. See Phillips

II,

; see also Phillips I,

. Despite that discovery, Plaintiffs rely heavily on the

allegations in the Amended Complaint to support their contention

that Mr. Bosworth and Mr. Traugh are not entitled to qualified

immunity. See Pls.’ Opp’n, ECF No. 101 at 32-33. However, other

than a self-serving declaration, see Phillips Decl., ECF No. 101

at, 48-52, and the two statements in the Southard Memorandum and

the Martin E-mail, see Pls.’ Mot. for Partial Summ. J., ECF No.

107 at 16-17, Plaintiffs have not uncovered evidence to support

their allegation that Mr. Bosworth or Mr. Traugh ordered the

Navy to blacklist MDD from all future government contracts.

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,

, at *3 (D.D.C. Oct. 5,

2005) (“Because Plaintiffs’ iterated facts do not demonstrate

that Defendant’s actions violated Plaintiffs’ constitutional

rights, the Court shall grant Defendant’s Motion for Summary

45 Judgment without proceeding further with the qualified immunity

analysis.” (footnote omitted)). Because Plaintiffs did not

demonstrate a constitutional violation, the Court need not

assess whether Plaintiffs have presented evidence demonstrating

that Mr. Bosworth and Mr. Traugh would have known that they

violated Plaintiffs’ clearly established rights. See

at *3

n.5. The Court therefore finds that Mr. Bosworth and Mr. Traugh

are entitled to qualified immunity because there is no genuine

issue of material fact as to whether they, in fact, de facto

debarred Plaintiffs. See Mitchell,

. Accordingly,

the Court GRANTS the Federal Defendants’ motion for summary

judgment as to Count II.

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,

. See Fed. Defs.’ Mot. 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,

. The Federal Defendants contend that the

46 evidence from discovery shows that Mr. Robinson and Mr. Traugh

were acting within the scope of their employment because they

were performing their duties as OPLOG’s program manager and

assistant program manager, respectively, when they engaged in

the alleged misconduct. See Fed. Defs.’ Mot. to Dismiss, ECF No.

88 at 37-42.

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,

, commonly referred to

as the Westfall Act, ‘accords federal employees absolute

immunity from common-law tort claims arising out of acts they

undertake in the course of their official duties.’” Bannum,

(quoting Osborn v. Haley,

(2007)). Where, as here, the Attorney General or the Attorney

General’s delegate certifies that “the defendant employee was

acting within the scope of his office or employment at the time

of the incident out of which the claim arose” then the immunity

is triggered, and “any civil action or proceeding commenced upon

such a claim in a United States district court shall be deemed

an action against the United States . . . and the United States

shall be substituted as the party defendant.” 28 U.S.C.

47 § 2679(d)(1); see also Bannum,

(citing

Jacobs v. Vrobel,

, 219–20 (D.C. Cir. 2013)).

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.”

(quoting Stokes v. Cross,

(D.C. Cir. 2003)). Because Plaintiffs have challenged the

certifications filed by United States Attorney’s Office on

behalf of Mr. Robinson and Mr. Traugh, the Court must resolve

the scope-of-employment issue. See Jacobs,

.

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,

(citing Stokes,

). 17 “District of Columbia law,

17The parties rely on District of Columbia law in their submissions to the Court. See, e.g., Fed. Defs.’ Mot. to Dismiss, ECF No. 88 at 37-42; Pls.’ Opp’n, ECF No. 101 at 36; Def. Miller’s Mot. for Summ. J., ECF No. 87 at 10; Pls.’ Opp’n, ECF No. 94 at 11; Fed. Defs.’ Mot. for Summ. J., ECF No. 88 at 41; Pls.’ Mot. for Summ. J., ECF No. 113 at 23, 28. Accordingly, the Court will apply District of Columbia law to Plaintiffs’ common-law claims. See Sabre Int’l Sec. v. Torres Advanced Enter. Sols., LLC,

, 67 n.2 (D.D.C. 2014) (applying District of Columbia law because “[b]oth parties cite 48 which the parties agree applies in this case, defines the scope

of employment in accordance with the Restatement (Second) of

Agency (1958) (‘Restatement’).” Wuterich v. Murtha,

(D.C. Cir. 2009). The first prong of Section 228(1) of

the Restatement is pertinent here: “[c]onduct of a servant is

within the scope of employment if, but only if . . . it is of

the kind he is employed to perform . . . .” Restatement (Second)

of Agency § 228(1)(a); see also Phillips I,

(“The second, third and fourth elements are irrelevant here

because [P]laintiffs do not contest that the alleged events

occurred substantially within authorized time and space limits

or were actuated, in some part, with the purpose to serve the

master, nor do they allege the use of force.”).

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

District of Columbia law and thus appear to agree that such law applies.”); see also Young v. District of Columbia,

, 82 n.8 (D.D.C. 2015) (“The Court applies the law of the forum state—in this instance, the District of Columbia—when adjudicating common law claims.”). 49 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,

50 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, because 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

51 tort.” Weinberg v. Johnson,

(D.C. 1986)

(citation omitted). The D.C. Circuit has instructed that “[t]he

proper [scope-of-employment] inquiry . . . ‘focuses on the

underlying dispute or controversy, not on the nature of the

tort, and is broad enough to embrace any intentional tort

arising out of a dispute that was originally undertaken on the

employer’s behalf.’” Council on Am. Islamic Relations v.

Ballenger,

(D.C. Cir. 2006) (quoting Weinberg,

).

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

52 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.

. It is undisputed that

Mr. Robinson and Mr. Traugh oversaw OPLOG funding. See Pls.’

Resp. to Fed. Defs.’ SOMF, ECF No. 101-1 at 12 ¶ 31.

Furthermore, Mr. Robinson and Mr. Traugh’s participation in the

tasks assigned to MDD and their attendance at the meeting in

Boston were consistent with their roles of managing OPLOG’s

relationships with contractors and subcontracts, and addressing

any issues with OPLOG’s budget. See

at 12 ¶ 32. Indeed, it

is undisputed that Mr. Traugh approved MDD’s work as part of his

duties to monitor the programs. See

at 13 ¶ 33; see also

Fed. Defs.’ Ex. L, ECF No. 88-12 at 2-3. The Court therefore

finds that Plaintiffs have failed to rebut the presumption in

the Westfall Act certifications, and the Court also finds that

the record demonstrates that Mr. Robinson and Mr. Traugh were

acting within the scope of their employment. Accordingly,

53 pursuant to the Westfall Act, the Court substitutes the United

States as the sole defendant as to Count IX. 18

2. 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,

. Under the FTCA,

Plaintiffs cannot assert certain claims against the government,

see

, and the FTCA imposes administrative

exhaustion and filing requirements for administrative claims,

(b). The Federal Defendants correctly state that

“the exhaustion requirement mean[s] that Plaintiffs were

required to submit an administrative claim to the Department of

the Navy” and “Plaintiffs have offered no evidence, nor have

they even asserted, that they have presented a claim under the

FTCA to the Department of the Navy regarding the alleged conduct

of [Mr.] Robinson and [Mr. Traugh].” Fed. Defs.’ Mot. to

18In a footnote, the Federal Defendants argue that Mr. Robinson and Mr. Traugh are entitled to “official immunity” for their discretionary acts. See Fed. Defs.’ Mot. to Dismiss, ECF No. 88 at 42 n.28. Plaintiffs do not respond to this argument. See generally Pls.’ Opp’n, ECF No. 101. The Court need not address the Federal Defendants’ “official immunity” argument because the United States will be substituted as the defendant with respect to Count IX pursuant to the Westfall Act.

54 Dismiss, ECF No. 88 at 43. Plaintiffs argue that the FTCA is

“inapplicable.” Pls.’ Opp’n, ECF No. 101 at 41. The Court

disagrees.

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.,

(h); Am. Compl., ECF No. 42 at 47-48

¶ 195; Fed. Defs.’ Mot. to Dismiss, ECF No. 88 at 46-47

(summarizing the tort allegations as to Mr. Robinson and Mr.

Traugh: “(a) induced employees to work for OPLOG; (b) prevented

Plaintiff MDD from having the opportunity to quote or perform

any task orders; (c) redirected funds on the [CSC] contract; and

(d) interfered with other contracts such as Plaintiff MDD’s

contract with the [MSC]”). 19 As stated by the Federal Defendants,

“these claims ‘arise out of’ the interference with prospective

contract rights and, therefore, fall squarely within the scope

of Section 2680(h).” Fed. Defs.’ Mot. to Dismiss, ECF No. 88 at

19Section 2680(h), in relevant part, provides: Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, [t]hat, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.

(h) (emphasis in original). 55 47 (collecting cases); see also Simpkins v. Shalala,

(D.D.C. 1998) (“The common law torts alleged by

plaintiff arise out of the actions of federal employees

performing their official duties.”). The United States has not

waived its sovereign immunity with respect to Plaintiffs’ tort

claims. See Upshaw v. United States,

(D.D.C. 2009) (dismissing tort claim for lack of subject matter

jurisdiction because it “[arose] out of . . . libel, slander,

misrepresentation, [or] deceit” (quoting

(h)));

see also Fed. Defs.’ Mot. to Dismiss, ECF No. 88 at 47 (stating

that “the United States has not waived its sovereign immunity”).

The Court therefore finds that it lacks subject matter

jurisdiction over Plaintiffs’ tort claims. Accordingly, the

Court GRANTS the Federal Defendants’ motion 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

56 employed at [MDD] in violation of his non-compete/non-

solicitation agreement with [MDD],” id.; (3) “failing and

refusing to act in the best interest of [MDD],”

at 44 ¶ 175,

and (4) “acting . . . in his own personal interest in matters

relating to his employment by [MDD][,]”

Plaintiffs also

allege that Mr. Miller conspired with MDD’s former employees—Mr.

Muras, Mr. Stammnitz, and Mr. Mazzocco—by eliminating MDD from

OPLOG’s fiscal year 2012 budget and soliciting MDD’s principal

client, OPLOG “during the period of their non-solicitation/non-

compete obligation.”

at 46 ¶ 188. Plaintiffs maintain that

Mr. Miller’s actions were inconsistent with the confidentiality,

non-solicitation, and non-compete clauses contained in the MDD

Employee Handbook. See, e.g., Am. Compl., ECF No. 42 at 9-11 ¶¶

34-36, 44 ¶ 177; Pls.’ Mot. for Summ. J., ECF No. 113 at 12-15,

27.

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

57 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.,

(D.D.C. 2017). Under

District of Columbia law, “[f]or an enforceable contract to

exist, there must be both (1) agreement as to all material

terms; and (2) intention of the parties to be bound.” Georgetown

Entm’t Corp. v. District of Columbia,

, 590 (D.C.

1985). “[T]he party asserting the existence of a contract has

the burden of proof on that issue.” Jack Baker, Inc. v. Office

Space Dev. Corp.,

(D.C. 1995).

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.,

265, 269 (D.C. 1993) (citing Wash. Welfare Ass’n, Inc. v.

Wheeler,

(D.C. 1985)); see also Strass v.

Kaiser Found. Health Plan of Mid-Atl.,

(D.C.

2000) (recognizing that “contractual rights may arise from

language in employee manuals” and “employers can effectively

disclaim any implied contractual obligation arising from such

provisions”). “[I]n the absence of an express contract, a court

may imply a contract from the course of the parties’ conduct.”

Grunseth v. Marriott Corp.,

(D.D.C.

1995), aff’d,

(D.C. Cir. 1996).

The law in this District makes clear that employers “may

effectively disclaim any implied contracts.” Smith, 620 A.2d at

269 (quoting Goos v. Nat’l Ass’n of Realtors,

(D.D.C. 1989)). “The legal effect of such a disclaimer is, in

the first instance, a question for the court to decide.” Id.;

see also Grove v. Loomis Sayles & Co., L.P.,

(D.D.C. 2011) (“[H]andbook language that is ‘rationally

at odds’ with a disclaimer can render a disclaimer ineffective .

. . .” (quoting Strass,

)). In Goos, the court

found that an employee handbook did not create an implied

contract between an employee and her employer where the

disclaimers stated “[t]his handbook does not constitute an

employment contract in whole or in part” and “you are considered

to be an employee-at-will.”

.

59 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.,

(D.D.C. 2008) (citation omitted)). Plaintiffs take issue with

this statement of the law, arguing that Mr. Miller’s cited

“cases apply to the characterization of an employee as either

at-will or for-cause.” Pls.’ Opp’n, ECF No. 94 at 12-13, n.13

(citing Martin, 541 F. Supp. 3d at 85; United States ex rel.

Yesudian v. Howard Univ.,

(D.C. Cir. 1998)).

Contrary to Plaintiffs’ position, however, employment status is

relevant to the question of whether the language in a handbook

establishes contractual obligations: “Even if the employer has

provided its employees with an employee handbook, the handbook

is not enforceable as an employment contract if it disclaims the

establishment of contractual obligations and explicitly provides

60 that employment may be terminated at-will.” Grove,

(collecting cases).

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,

. In Grove, the

court found that a handbook did not give rise to enforceable

contractual rights where there was an express disclaimer.

. There, a certain provision in the handbook was “expressly

made subject to ‘management’s reasonable discretion’ . . . and

the word ‘encourages’ [was] permissive, not mandatory language.”

. The court found that the provision could not be

considered as “rationally at odds” with the disclaimer because

“such permissive language in a personnel manual is, as a matter

of law, insufficient to create contractual rights.”

at 151

(citing Perkins v. Dist. Gov’t Emps. Fed. Credit Union,

(D.C. 1995)).

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

61 “[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,

(D.C. 1995). “The purpose of a signature is simply to

demonstrate mutual assent to a contract, but that may be shown

instead, or in addition, by the conduct of the parties.”

It is undisputed that Mr. Miller never signed the MDD

62 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,

(D.C. Cir. 2000)

(holding that “[t]here was no ‘meeting of the minds’” where an

employee never said anything to his employer to indicate his

assent to a policy and never signed any agreement). In Bailey,

the D.C. Circuit rejected an employer’s argument that an

employee showed his assent to a policy when he continued to work

for the employer because the employee “did nothing whatsoever to

embrace the employer’s proposal.”

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

63 that he would abide by the confidentiality covenants provided.”

at 12 (citing Phillips Decl., ECF No. 94-1 at 1-2 ¶¶ 4-6).

Plaintiffs then repeat that argument: “[Mr. Miller] was

presented with MDD’s employee handbook advising him of the

fiduciary capacity and he confirmed he understood its terms,

which required confidentiality of proprietary information and

prohibited solicitation and direct competition.” Id. at 23-24.

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,

(D.D.C. 2009)(observing that when a

“declaration is self-serving and uncorroborated,” it is “of

little value at the summary judgment stage”); Fields v. Office

of Johnson,

(D.D.C. 2007) (“Self-

serving testimony does not create genuine issues of material

64 fact, especially where that very testimony suggests that

corroborating evidence should be readily available.”).

Accordingly, the Court finds that the MDD Employee Handbook was

not a binding contract, and that Mr. Miller was not bound by the

clauses contained therein.

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

20Plaintiffs assert that an “agent owes a duty of good faith” to a principal. Pls.’ Opp’n, ECF No. 94 at 11 (citation omitted). Mr. Miller acknowledges that “[u]nder District of Columbia law, every contract is deemed to contain an implied covenant of good faith and fair dealing that means that neither party shall do anything that would deny the right of the other party to receive the fruits of the contract.” Def. Miller’s Opp’n, ECF No. 123 at 4 (citing Paul v. Howard Univ.,

(D.C. 2000)). “[S]uch a claim cannot be made by an at-will employee because there is no contract to provide a basis for the covenant.” Paul,

n.28. Mr. Miller argues that “[P]laintiffs cannot proceed against [him] on the basis that any of his conduct breached this implied covenant of good faith and fair dealing.” Def. Miller’s Opp’n, ECF No. 123 at 4. To the extent that Plaintiffs seek to assert a claim for breach of the implied covenant of good faith and fair dealing, this Court will not address the claim because Plaintiffs do not assert that claim in the Amended Complaint. See Coulibaly v. Tillerson,

, 39 n.30 (D.D.C. 2017) (declining to address a claim that was not asserted in the complaint); see also District of Columbia v. Barrie,

(D.D.C. 2010) (“[A] party may not amend its complaint or broaden its claims through summary judgment briefing.”).

65 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,

(D.D.C.

2016) (quoting 3M Co. v. Boulter,

, 118–19

(D.D.C. 2012)); see also Mawalla v. Hoffman,

(D.D.C. 2008) (Sullivan, J.) (“A cause of action for

breach of fiduciary duty includes breaches of the duty of

loyalty . . . .”).

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 MDD 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.

66 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),

, at *27 (D.D.C.

Jan. 4, 2006) (citations and internal quotations marks omitted);

see also Restatement (Third) of Agency § 8.01 (2006) (“An agent

has a fiduciary duty to act loyally for the principal’s benefit

in all matters connected with the agency relationship.”).

A threshold question is whether Mr. Miller was an “agent”

of MDD. See Nat’l R.R. Passenger Corp. v. Veolia Transp. Servs.,

Inc.,

(D.D.C. 2011) (“Amtrak”).

Plaintiffs bear the burden to prove the existence of an agency

relationship. See Henderson v. Charles E. Smith Mgmt., Inc.,

(D.C. 1989) (“The existence of an agency

relationship is a question of fact, for which the person

asserting the relationship has the burden of proof.”). “This

jurisdiction has established a two-part test for determining

whether such a relationship exists: (1) ‘the court must look for

evidence of the parties’ consent to establish a principal-agent

relationship,’ and (2) ‘the court must look for evidence that

67 the activities of the agent are subject to the principal’s

control.’” Alkanani v. Aegis Def. Servs., LLC,

(D.D.C. 2013) (emphasis in original) (citations omitted)).

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].”

Plaintiffs point out that Mr. Miller was the

“lead energy auditor” for MDD’s “MSC contract and for other MDD

customers such as Siemen’s and the U.S. Coast Guard.” Pl.’s

Opp’n, ECF No. 6-7; see also Pls.’ Mot. for Summ. J.,

ECF No. 113 at 23 (stating that Mr. Miller “serv[ed] as a Marine

Engineer and Lead Auditor for MDD”). Plaintiffs characterize

Mr. Miller’s role as “pivotal” at MDD. Pls.’ Mot. for Summ. J.,

ECF No. 113 at 12. It is undisputed that Mr. Miller performed

assignments on behalf of MDD. See Phillips Decl., ECF No. 94-1

at 2 ¶ 10 (stating that Mr. Miller “was on MDD assignment to

conduct a ship audit in Cape Canaveral, Florida”). In his own

words, Mr. Miller avers that he “worked [for MDD] almost

exclusively under a contract to provide engineering and program

management service to the Military Sealift Command (‘MSC’)

Energy Conservation Program . . . .” Miller Decl., ECF No. 98 at

4 ¶ 4; see also Pls.’ SOMF, ECF No. 113 at 5 ¶ 6.

With respect to MDD’s control of Mr. Miller, “[r]elevant

factors that are indicative of control include ‘(1) the

68 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,

(quoting Judah v. Reiner,

(D.C. 2000)).

“[T]he right to control, rather than its actual exercise, is

usually dispositive of whether there is an agency relationship.”

Judah,

(citation omitted)). “In deciding this

question, courts will look both to the terms of any contract

that may exist and to the actual course of dealings between the

parties.”

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.

69 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,

). Mr. Miller does

not challenge that proposition. See Def.’s Opp’n, ECF No. 123 at

4 (“[Mr.] Miller is limited only by the general rule of agency

law that an at-will employee must act for the benefit of the

principal in all matters concerning the subject of the agency

for so long as the agency exists.” (citing Gross v. Akin, Gump,

Strauss, Hauer & Feld, LLP,

(D.D.C.

2009))). Indeed, the court in Amtrak found that three at-will

employees, including a senior analyst, owed a general duty of

loyalty to a company where one employee was aware of and the

70 other two employees acknowledged a policy prohibiting them from

engaging in activities that create conflicts of interest with

the company.

; see also Draim v. Virtual

Geosatellite Holdings, Inc.,

(D.D.C.

2009) (indicating that “even in the absence of a written

contract and even in an employment agreement that is at will, an

employee must, as a matter of agency law, act solely for the

benefit of her principal in all matters concerning her agency”).

The Court therefore finds that Plaintiffs have established the

first element of their breach of fiduciary duty claim because

Mr. Miller owed a fiduciary duty of loyalty to MDD during his

employment there.

In 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. Id.; see

also Pls.’ Ex. C, ECF No. 94-3 at 1. Mr. Miller responds that he

owed no such duty to MDD after his resignation, and that he had

no contractual obligations to MDD. Def. Miller’s Mot. for Summ.

J., ECF No. 87 at 10. Mr. Miller argues that he could not be

bound by the non-compete clause because he never signed the MDD

Employee Handbook. Def. Miller’s Reply, ECF No. 99 at 2. In

their cross-motion for summary judgment, Plaintiffs argue that

71 Mr. Miller’s post-MDD employment conduct constitutes a breach of

fiduciary duty as a result of the non-compete agreement. Compare

Pls.’ Mot. for Summ. J., ECF No. 113 at 28, with Pls.’ Opp’n,

ECF No. 94 at 12-13. Nevertheless, Plaintiffs state that their

cross-motion for summary judgment “set[s] forth the facts

evidencing that [Mr. Miller] was competing with MDD while still

employed at the company.” Pls.’ Reply, ECF No. 129 at 1

(emphasis in original). Plaintiffs reiterate that the “basis for

summary judgment, again, is with regards to the actions taken

while [Mr.] Miller was still employed at MDD that injured

Plaintiffs.” Id. at 2 (emphasis added).

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,

(An agent’s “post-

termination activities therefore cannot serve as the basis for

any claim of breach of an agent’s fiduciary duty to his

principal [where the agent] went to work for a competitor and in

fact competed against [his former principal].”). The Court

therefore finds that Mr. Miller did not owe a fiduciary duty to

72 MDD after his resignation. 21

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.,

(D.C. 1967) (footnotes

omitted); see also Grp. Ass’n Plans, Inc. v. Colquhoun,

(D.C. Cir. 1972) (recognizing “the existence of a

common law right to compete” with a former employer and “the

existence of a right to ‘steal’ clients absent a contractual

relation to the contrary”). The question remains whether Mr.

21Because this Court has determined that the MDD Employee Handbook was not a contract and that Mr. Miller was not bound by the clauses therein, the Court need not address the parties’ arguments with regard to the validity and reasonableness of the non-compete clause in the MDD Employee Handbook. See, e.g., Pls.’ Opp’n, ECF No. 94 at 13-14; Def. Miller’s Reply, ECF No. 99 at 2, 6-8; Pls.’ Mot. for Summ. J., ECF No. 113 at 17-18. 73 Miller’s actions constitute a breach of his fiduciary duty to

MDD while working there.

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

74 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,

(D.D.C. 2017) (quoting Mercer Mgmt. Consulting, Inc. v. Wilde,

(D.D.C. 1996)). “The employee, ‘[i]n

preparing to compete, . . . may not commit fraudulent, unfair,

or wrongful acts, such as misuse of confidential information.’”

(quoting Mercer,

). “And the employee

‘must refrain from actively and directly competing with [his

existing] employer for customers and employees’ through

solicitation, while he is still employed.”

(citation

omitted).

In Amtrak, the court stated:

75 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.,

(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,

, at *11 (quoting Mercer,

); see also Jet Courier Serv., Inc. v. Mulei,

(Colo. 1989).

(emphasis added). “By comparison, acts

that have been found to constitute actual competition include

solicitation of business for an employee’s personal endeavor,

which otherwise the employee had an obligation to obtain for an

employer, [and] competing with the employer for customers or

employees . . . .”

(emphasis in original) (citing

Mercer,

; Sci. Accessories Corp. v.

Summagraphics Corp.,

(Del. 1980)). “The

ultimate determination of whether an employee has breached his

fiduciary duties to his employer by preparing to engage in a

competing enterprise must be grounded upon a thorough[]

examination of the facts of the particular case.” Furash & Co.,

Inc. v. McClave,

(D.D.C. 2001) (quoting

Md. Metals, Inc. v. Metzner,

,

, 569–70

(1978)).

76 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.”

. There, Amtrak

argued that the employees breached their fiduciary duties by

22The court in Amtrak examined the plaintiff’s claim for aiding and abetting the breach of a fiduciary duty under District of Columbia law.

n.19 (citation omitted). However, the District of Columbia Court of Appeals has not expressly recognized a cause of action for aiding and abetting the breach of fiduciary duty. Pietrangelo v. Wilmer Cutler Pickering Hale & Dorr, LLP,

(D.C. 2013) (“[W]e need not decide here whether a cause of action exists in the District of Columbia for aiding and abetting the breach of fiduciary duty . . . .”); see also Halberstam v. Welch,

(D.C. Cir. 1983) (stating that “[t]he separate tort of aiding-abetting has not yet, to our knowledge, been recognized explicitly in the District”). Here, Plaintiffs allege a claim for breach of fiduciary duty, and District of Columbia law recognizes “an independent tort for breach of a fiduciary duty.” Cumis Ins. Soc’y, Inc. v. Clark,

(D.D.C. 2018); see also Randolph v. ING Life Ins. & Annuity Co.,

(D.C. 2009) (recognizing that a breach of fiduciary duty claim is cognizable under D.C. law). Nonetheless, this Court will rely on the reasoning in Amtrak to analyze whether Mr. Miller breached his fiduciary duty to MDD in this case. See

. 77 competing with Amtrak—purported acts that were prohibited by the

company’s policy—because they: (1) permitted their names and

résumés to be included in a competitor’s bid proposal for a

contract; (2) accepted the competitor’s contingent offers for

employment; and (3) agreed to withhold their names from Amtrak’s

bid.

. Amtrak contended that those “employees did not

merely prepare to compete” with Amtrak,

, but that they

directly competed with Amtrak.

. The competitor

responded that the employees did not breach their fiduciary

duties because they “did not solicit customers or employees for

it, that it did not divert any Amtrak corporate opportunities,

and it did not misuse any of Amtrak’s trade secrets.”

The

competitor argued that “the employees merely prepared to go into

competition with Amtrak by making plans to work for [the

competitor] after their employment ended.”

(emphasis in

original).

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 Amtrak as a matter of law, but neither is it

so benign to entitle [the competitor] to summary judgment on

this issue.”

. The court also recognized that “a fact-

finder could reasonably conclude that the employees’

participation in the rival bid was more akin to preparation

78 rather than actual competition.”

. The court concluded

that a material question of fact existed as to whether the

employees breached their fiduciary duties of loyalty to Amtrak

because a reasonable jury could find that the employees’

participation in the competitor’s bid was a breach of the

fiduciary duties they owed to Amtrak.

.

Here, the Proposed Business Plan is “more akin to

preparation rather than actual competition.” Amtrak,

. Mr. Miller does not deny that he developed the

Proposed Business Plan to form a new company that would be

positioned to compete with MDD after his resignation. See Def.

Miller’s Opp’n, ECF No. 123 at 9; see also Miller Decl., ECF No.

123-2 at 2 ¶ 6. Neither does Mr. Miller dispute that the

Proposed Business Plan outlined a plan to work for both MDD and

the new company concurrently. See generally Def. Miller’s Opp’n,

ECF No. 123. The record does not show that this proposal moved

beyond the planning phase. See Pls.’ SOMF, ECF No. 113 at 6 ¶ 13

(stating that the Proposed Business Plan “identified the

government as a prospective customer”). There is no evidence in

the record demonstrating that Mr. Miller provided the Proposed

Business Plan to competitors or used the Proposed Business Plan

for personal gain because the proposed company never transacted

any business. See, e.g., Miller Suppl. Decl., ECF No. 100-1 at 1

¶¶ 2-3; Pls.’ SOMF, ECF No. 113 at 6 ¶¶ 12-15; cf. Sias v. Gen.

79 Elec. Info. Servs. Co., No. 80-1561,

, at *4 (D.D.C.

May 18, 1981) (finding that an employee breached his fiduciary

duty where the employee established his own company and competed

with his employer during his employment). The Court therefore

finds that the creation and existence of the Proposed Business

Plan alone does not constitute a breach of the fiduciary duty

because Mr. Miller was not prohibited from making arrangements

to compete with MDD while still employed there. See, e.g.,

Mercer,

(recognizing that employees can make

plans to compete with their employers while employed in the

absence of unfair acts or injury to the employer); Sci.

Accessories Corp.,

(“[Former employees’]

concealment from [their former employer] of their plans to enter

into competition with [the former employer] was not, without

more, a violation of their fiduciary duty of loyalty.”).

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

80 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 virtue 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

23The “Confidentiality” provision provides: Because of the confidential nature of the information that you will handle, we request that all information be held confidential and not disclosed to anyone outside Marine Design Dynamics (“MDD”) without written authorization. MDD may, from time-to-time, exchange confidential business information such as plans for future events, strategic plans, or other competitive-type information. As to such information, the employee shall not make it available to competitors or use such information for a personal gain. Also, while 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. Pls.’ Ex. 1, ECF No. 113-1 at 2 § 7. 24Plaintiffs assert that Mr. Miller drafted a SOW for Merrill- Dean to reroute $700,000 to AirClean by “copying, verbatim, MDD’s [SOW] submitted for their OPLOG subcontract . . . .” Pls.’ Mot. for Summ. J., ECF No. 113 at 20. Mr. Miller responds that “[MDD’s] [SOW] is not confidential or proprietary” for three reasons. Def. Miller’s Opp’n, ECF No. 123 at 10; see also Def. Miller’s Reply, ECF No. 99 at 5. First, “[MDD’s SOW] is made 81 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

part of the public record in the bidding process.” Def. Miller’s Opp’n, ECF No. 123 at 10. Next, “[it] is a template containing form language that is used by multiple companies, generally derived from the government’s requests for proposals.” Id. at 10-11. “Finally, MDD’s [SOW] was prepared by [Mr.] Miller for MDD.” Id. at 11 (emphasis in original). Mr. Miller argues that Plaintiffs were not “harmed by Air[C]lean’s use of form language from a previous contract[,]” Def. Miller’s Reply, ECF No. 99 at 5, and that “[he] was not appropriating material of the employer for his own use” because “he [was] simply relying on the knowledge he acquired when working for MDD.” Def. Miller’s Opp’n, ECF No. 123 at 11. Because of their failure to respond to Mr. Miller’s arguments that the SOW is not confidential or proprietary, Plaintiffs have conceded these points. See Campbell v. Nat’l R.R. Passenger Corp.,

(D.D.C. 2018) (“Plaintiffs do not offer any response to this argument, and thus concede it.”). 82 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 U.S. Travel Agency, Inc.,

. The question remains whether the development of the

Proposed Business Plan is evidence that Mr. Miller committed

“fraudulent, unfair, or wrongful acts, such as the misuse of

confidential information . . . .” Riggs Inv. Mgmt. Corp. v.

Columbia Partners, L.L.C.,

(D.D.C. 1997)

(citing Sci. Accessories, 424 A.2d at 965). In Riggs, an agent

agreed to “‘treat in strict confidence’ bank business, including

the affairs of its customers, which he would learn in the course

of his employment.” Id. at 1265 n.5. The court concluded that

the agent went “beyond his privilege to prepare for future

competition” when he shared confidential information, such as

the salary information of employees and fees paid by clients.

Id. at 1265.

83 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

25To the extent that Plaintiffs argue that Mr. Miller violated the confidentiality provision in the “Terms and Conditions of Employment” by using “information acquired while working for MDD to enrich himself and his next employer, AirClean,” Pls.’ Mot. for Summ. J., ECF No. 113 at 26, the Court rejects that argument because Plaintiffs have not identified the specific information that Mr. Miller allegedly acquired at MDD. Furthermore, Mr. Miller did not enter into a non-compete agreement; therefore, he was permitted to compete with MDD after his resignation, and he could take with him all the skills and information that he acquired at MDD to AirClean. See U.S. Travel Agency, Inc.,

. 84 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,

). Finally, Plaintiffs argue that Mr. Miller’s actions went

beyond mere preparation because Mr. Miller “utilized MDD

professional contacts to undermine MDD and fashion a lucrative

opportunity at Plaintiffs’ expense.” Pls.’ Opp’n, ECF No. 94 at

85 10.

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,

(D.C.

Cir. 1956)).

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,

. After termination, a

86 former employee cannot be held liable for soliciting her former

employer’s customers or competing with her former employer,

absent an agreement to the contrary. Aetna Cas. & Sur. Co.,

-89 (citing Restatement (First) of Agency § 393 cmt.

e (1933)).

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

87 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 fails.

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,

(“When the court is presented

with cross-motions for summary judgment, it analyzes the

underlying facts and inferences in each party’s motion in the

88 light most favorable to the non-moving party.”).

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.” Id. The Court agrees.

“To survive a summary judgment motion, [Plaintiffs] need

89 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,

(quoting Threadgill v. Spellings,

(D.D.C. 2005) (quoting Anderson,

)).

Plaintiffs have not presented a scintilla of evidence that

Mr. Miller directly competed with MDD while employed there.

Plaintiffs do not deny that East Coast Energy Management, Inc.,

the proposed company, never transacted any business. See

generally Pls.’ Reply, ECF No. 129. The undisputed facts

demonstrate that the Proposed Business Plan was a proposal that

was never sent to anyone outside of MDD and provides no support

for Plaintiffs argument that Mr. Miller directly competed with

MDD while he was employed there. Because Plaintiffs have failed

to present any evidence demonstrating that Mr. Miller engaged in

any business activity in competition with MDD, there is no issue

of genuine fact that would make summary judgment in favor of

Plaintiffs appropriate on this element of the breach of

fiduciary duty claim. See 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,

90 because Mr. Miller “continu[ed] to solicit the business of OPLOG

for himself and his new employer AirClean.”

at 44 ¶ 177.

Plaintiffs assert that OPLOG budgeted $2.7 million for MDD in

fiscal year 2012, but Mr. Miller played a role in redirecting

$700,000 of OPLOG work away from MDD. Pls.’ SOMF, ECF No. 113 at

7-8 ¶¶ 18-22.

Plaintiffs’ burden is to prove that Mr. Miller’s breach

proximately caused their injuries. See Gadaire,

. “To establish proximate cause, the plaintiff must

present evidence from which a reasonable juror could find that

there was a direct and substantial causal relationship between

the defendant’s breach of the standard of care and the

plaintiff’s injuries and that the injuries were foreseeable.”

District of Columbia v. Zukerberg,

(D.C. 2005)

(quoting District of Columbia v. Wilson,

(D.C.

1998)). Mr. Miller correctly states that he “cannot be held

liable for breach of fiduciary duty unless Plaintiffs can prove

they lost business as a result of his alleged misconduct.” Def.

Miller’s Reply, ECF No. 99 at 9 (citing Maxwell v. Gallagher,

(D.C. 1998)). Plaintiffs cannot establish a

causal connection between their alleged damages in the amount of

$2.5 million and Mr. Miller’s alleged misconduct because

Plaintiffs have not demonstrated that Mr. Miller breached his

fiduciary duty owed to MDD. Accordingly, the Court GRANTS the

91 Federal Defendants’ cross motion for summary judgment as to

Count VI and DENIES the Plaintiffs’ motion for summary judgment

as to Count VI.

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 II,

. Mr. Miller denies that he “conspire[d] with

any of his co-workers to leave MDD,” “work[ed] for any of them

after he left, or solicit[ed] any MDD contracts.” Def. Miller’s

Mot. for Summ. J., ECF No. 87 at 6. Plaintiffs must establish

the necessary elements for civil conspiracy under District of

Columbia law:

(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,

(D.C. 1994) (internal

citations omitted). “Civil conspiracy, of course, is not

actionable in and of itself but serves instead ‘as a device

through which vicarious liability for the underlying wrong may

be imposed upon all who are a party to it, where the requisite

agreement exists among them.’” Hall v. Clinton,

, 82

92 (D.C. Cir. 2002) (quoting Riddell v. Riddell Wash. Corp.,

(D.C. Cir. 1989)).

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

at 18-

19, 29. Thus, the Proposed Business Plan does not provide 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,

, 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

93 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,

(D.D.C. 2015)

(holding that plaintiffs failed to meet their burden at the

summary judgment stage that a defendant conspired with his co-

defendant because plaintiffs relied on allegations of an

agreement between the defendant and his co-defendant without

evidence of an agreement). The Court therefore finds that

Plaintiffs have not established the first element.

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,

. Plaintiffs

contend that their claim for breach of fiduciary duty is the

underlying tortious act. See Pls.’ Opp’n, ECF No. 94 at 15; see

94 also Am. Compl., ECF No. 42 at 46 ¶ 191 (alleging that Mr.

Miller is “vicariously liable for the underlying tort of breach

of fiduciary dut[y]”). Plaintiffs argue that Mr. Miller left MDD

to compete for the same contracts at AirClean and MSC “in

violation of his covenant not compete.” Pls.’ Opp’n, ECF No. 94

at 15. But under that theory, Plaintiffs fail to make out a

claim for civil conspiracy for two reasons. First, Mr. Miller

was not bound by the non-compete clause in the MDD Employee

Handbook because it was not an enforceable contract between him

and MDD. Next, Plaintiffs have not demonstrated that Mr. Miller

breached his fiduciary duty owed to MDD. Mr. Miller correctly

points out that “to state a claim for civil conspiracy, the

Plaintiff must show that the defendants committed a breach of

fiduciary duty.” Def. Miller’s Mot. for Summ. J., ECF No. 87 at

11. The underlying breach of fiduciary duty against Mr. Miller

is not viable; thus, Plaintiffs cannot rely on Mr. Miller’s

alleged breach of his fiduciary duty as the underlying tortious

act. See Riddell,

(“[A]s a matter of

substantive law, one cannot be liable for a conspiracy that does

not have as its object an actionable wrong.”). The Court

therefore finds that Mr. Miller is entitled to summary judgment

95 on Plaintiffs’ civil conspiracy claim. See Hall,

. 26

IV. 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

26In its prior Opinion, the Court found that Plaintiffs stated plausible claims for breach of fiduciary duty and civil conspiracy to withstand a motion to dismiss. Phillips I,

. Although the Court grants Mr. Miller’s motion for summary judgment as to Counts VI and VIII, the Court does not reach the merits of the breach of fiduciary duty and civil conspiracy claims with respect to Mr. Mazzocco, Mr. Stammnitz, and Mr. Muras. See, e.g., Sloan ex rel. Juergens v. Urban Title Servs., Inc., No. CIV.A. 06-01524 CKK,

, at *8 (D.D.C. Mar. 27, 2011) (“So long as the underlying fraud count . . . remains viable, Plaintiff is free to rely upon civil conspiracy as a theory to establish [defendants’] liability for the underlying fraud.”); de Lupis v. Bonino, No. CIVA 07-01372 (RBW),

, at *10 (D.D.C. Mar. 31, 2010) (holding that a plaintiff could maintain a conspiracy claim against defendants because it had been adequately pled). Accordingly, Plaintiffs may maintain their breach of fiduciary duty and civil conspiracy claims against Mr. Mazzocco, Mr. Stammnitz, and Mr. Muras.

96 and VIII, ECF No. 113. A separate Order accompanies this

Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge July 15, 2019

97