           In the United States Court of Federal Claims
                                           No. 18-686C
                                       Filed: April 24, 2019

                                               )
 SIN HANG LEE, M.D.,                           )
                                               )
                        Plaintiff,             )       Breach Of Contract; RCFC 12(b)(6);
                                               )       Failure To State A Claim; RCFC 12(b)(1);
 v.                                            )       Subject-Matter Jurisdiction; Tort Claims;
                                               )       Implied-in-Fact Contract; Contract
 THE UNITED STATES,                            )       Formation.
                                               )
                        Defendant.             )
                                               )

      Mary Alice Moore Leonhardt, Counsel of Record, Daniel J. Csuka, Of Counsel, Moore
Leonhardt & Associates LLC, Hartford, CT, for plaintiff.

       Borislav Kushnir, Trial Attorney, L. Misha Preheim, Assistant Director, Robert E.
Kirschman, Jr., Director, Joseph H. Hunt, Assistant Attorney General, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, DC; Heather Huntley,
Of Counsel, Office of General Counsel, United States Centers for Disease Control and
Prevention, for defendant.

                          MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I.     INTRODUCTION

       In this breach of contract action, plaintiff, Dr. Sin Hang Lee, alleges that he entered into
an implied-in-fact contract with the United States Centers for Disease Control and Prevention
(“CDC”) related to a sequencing-based molecular test to diagnose Lyme disease and that the
CDC breached this contract. See generally Am. Compl. Plaintiff also alleges that the CDC
engaged in anti-competitive conduct and defamed him by making certain false statements about
the results of the sequencing-based molecular test. Id. at ¶¶ 53-81. As relief, plaintiff seeks to
recover monetary damages from the government. Id. at Prayer for Relief.

       The government has moved to dismiss the amended complaint for lack of subject-matter
jurisdiction and failure to state a claim upon which relief can be granted, pursuant to Rules
12(b)(1) and (6) of the Rules of the United States Court of Federal Claims (“RCFC”). See
generally Def. Mot. For the reasons set forth below, the Court GRANTS the government’s
motion to dismiss and DISMISSES the amended complaint.

II.     FACTUAL AND PROCEDURAL BACKGROUND1

        A.     Factual Background

        In this breach of contract action, plaintiff alleges that he entered into an implied-in-fact
contract with the CDC to endorse his sequencing-based molecular test to diagnose Lyme disease
and that the CDC breached this contract. See generally Am. Compl. In addition, plaintiff alleges
that the CDC engaged in anti-competitive conduct and defamed him by making certain false
statements regarding the results of the sequencing-based molecular test. Id. at ¶¶ 53-81. As
relief, plaintiff seeks to recover $57.1 million in monetary damages from the government. Id. at
Prayer for Relief.

        As background, plaintiff is a pathologist/inventor and the owner of the Milford Molecular
Diagnostics Laboratory located in Milford, CT. Id. at ¶ 2. Plaintiff alleges in the amended
complaint that he has developed a sequencing-based molecular test for the accurate diagnosis of
Lyme disease which is “significantly more accurate than any other test currently used.” Id. at ¶
6. Plaintiff also alleges that he entered into an implied-in-fact contract with the CDC to have this
test approved by the CDC as the “gold standard.” Id. at ¶¶ 32-35.

        In this regard, plaintiff alleges that the CDC offered to enter into a contract with plaintiff
during a September 24, 2012, open conference on Lyme disease diagnostics activities, when
Martin E. Schriefer, Ph.D., the chief of the CDC’s diagnostic and reference laboratory, stated
that:
        So wherever possible we encouraged and required other non-serologic-based tests
        in addition to clinical presentation so that might have included PCR or culture or
        both. . . . And again I’m looking forward to seeing a greater utilization of PCR as
        a diagnostic tool in the future.

Id. at ¶ 13.




1
  The facts recounted in this Memorandum Opinion and Order are taken from the amended complaint
(“Am. Compl.”); the documents attached thereto (“Pl. Ex.”); and the government’s motion to dismiss the
amended complaint (“Def. Mot.”). Except where otherwise noted, the facts recited herein are undisputed.



                                                                                                         2
        Plaintiff further alleges that he accepted the CDC’s offer to contract when David M.
Shearer, M.D., the chief executive officer of Therapeutic Research Foundation, Inc., “contacted
Dr. Schriefer on behalf of [plaintiff] . . . urging the CDC to endorse [plaintiff’s] nested
PCR/DNA sequencing-based diagnostic technology as a needed molecular test for the accurate
diagnosis of Lyme [disease].” Id. at ¶ 15.

        In 2013, the CDC provided plaintiff with samples of blind-coded archived serum
pursuant to two material transfer agreements (“MTAs”). Id. at ¶¶ 17-23. These MTAs were
executed on behalf of the CDC by Drs. Beth Bell and Claudia Molins. Id.; Pl. Exs. 6, 9.
Plaintiff and Dr. Shearer also signed these agreements in their respective capacities as the
investigators and authorized officials for the recipient. Pl. Exs. 6, 9.

        Plaintiff maintains that by entering into the MTAs—and having various other interactions
with the CDC—a larger implied-in-fact contract was created between the CDC and plaintiff,
whereby the CDC “promised that if the tests performed as expected, [plaintiff’s] testing would
be approved [by the CDC] as the ‘gold standard.’” Am. Compl. at ¶¶ 32-35. In this regard,
plaintiff maintains that he and the CDC contractually agreed that, “if the report regarding the
second samples [provided to plaintiff] was received and favorable, [plaintiff] would proceed to
develop a protocol for use in a national comparative study to measure the accuracy and cost
effectiveness of the then currently used tests against [plaintiff’s] nested PCR/DNA sequencing-
based diagnostic technology.” Id. at ¶ 16. Plaintiff also maintains that the CDC breached this
alleged implied-in-fact contract by failing to transfer his test technology to hospitals, or to permit
more trials of this technology. Id. at ¶ 52.

        Lastly, plaintiff alleges that the CDC has “engaged in an anti-competitive campaign to
stifle the use and availability” of his sequencing-based molecular test and that the CDC defamed
him by stating that plaintiff and Dr. Shearer “reported inconsistent results for this specimen [in
connection with the sequencing-based molecular test].” Id. at ¶¶ 6, 53-54; see also id. at ¶¶ 40-
60; Pl. Ex. 20 at 3.

        B.      Procedural Background

        Plaintiff commenced this action on May 15, 2018. See generally Compl. On July 16,
2018, the government filed a motion to dismiss. See generally Def. Mot. to Dismiss. After the




                                                                                                     3
government filed a motion to dismiss the complaint, plaintiff filed an amended complaint on
October 1, 2018. See generally Am. Compl.

       On November 2, 2018, the government filed a motion to dismiss the amended complaint.
See generally Def. Mot. On November 30, 2018, plaintiff filed a response and opposition to the
government’s motion to dismiss the amended complaint. See generally Pl. Resp. The
government filed a reply in support of its motion to dismiss the amended complaint on December
17, 2018. See generally Def. Reply. On January 11, 2019, plaintiff filed a sur-reply. See
generally Pl. Sur-Reply.

       These matters having been fully briefed, the Court resolves the pending motion to
dismiss.

III.   LEGAL STANDARDS

       A.      Jurisdiction And RCFC 12(b)(1)

       When deciding a motion to dismiss upon the ground that the Court does not possess
subject-matter jurisdiction, pursuant to RCFC 12(b)(1), this Court must assume that all
undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the
non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007); RCFC 12(b)(1). But, plaintiff
bears the burden of establishing subject-matter jurisdiction and he must do so by a
preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748
(Fed. Cir. 1988). And so, should the Court determine that “it lacks jurisdiction over the subject
matter, it must dismiss the claim.” Matthews v. United States, 72 Fed. Cl. 274, 278 (2006).

       In this regard, the United States Court of Federal Claims is a court of limited jurisdiction
and “possess[es] only that power authorized by Constitution and statute. . . .” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The Tucker Act grants the Court
jurisdiction over:

       [A]ny claim against the United States founded either upon the Constitution, or any
       Act of Congress or any regulation of an executive department, or upon any express
       or implied contract with the United States, or for liquidated or unliquidated
       damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1). The Tucker Act is, however, a jurisdictional statute and “it does not
create any substantive right enforceable against the United States for money damages. . . . [T]he


                                                                                                      4
Act merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the
substantive right exists.” United States v. Testan, 424 U.S. 392, 398 (1976) (alterations original).
And so, to pursue a substantive right against the United States under the Tucker Act, a plaintiff
must identify and plead a money-mandating constitutional provision, statute, or regulation; an
express or implied contract with the United States; or an illegal exaction of money by the United
States. Cabral v. United States, 317 F. App’x 979, 981 (Fed. Cir. 2008) (citing Fisher v. United
States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)); see also Martinez v. United States, 333 F.3d 1295,
1302 (Fed. Cir. 2003). “[A] statute or regulation is money-mandating for jurisdictional purposes
if it ‘can fairly be interpreted as mandating compensation for damages sustained as a result of the
breach of the duties [it] impose[s].’” Fisher, 402 F.3d at 1173 (quoting United States v. Mitchell,
463 U.S. 206, 217 (1983)).

       In this regard, it is well-established that this Court does not possess subject-matter
jurisdiction to review tort claims. Hernandez v. United States, 96 Fed. Cl. 195, 204 (2010); see
also 28 U.S.C. § 1491(a)(1); Keene Corp. v. United States, 508 U.S. 200, 214 (1993) (“[T]ort
cases are outside the jurisdiction of the Court of Federal Claims today.”); Rick’s Mushroom
Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) (“The plain language of the
Tucker Act excludes from the Court of Federal Claims jurisdiction [over] claims sounding in
tort.”). The Court also does not possess subject-matter jurisdiction to consider claims brought
pursuant to the Sherman Act, the Clayton Act, or the Federal Trade Commission Act. See
Kabando v. United States, No. 14-562C, 2014 WL 4251548, at *2 (Fed. Cl. Aug. 28, 2014),
aff’d, No. 15-5018 (Fed. Cir. Jan. 21, 2015) (stating the court does not have jurisdiction over
claims arising under the Sherman Antitrust Act); 28 U.S.C. § 1337(a) (stating that district courts
have original jurisdiction over “any civil action or proceeding arising under any Act of Congress
regulating commerce or protecting trade and commerce against restraints and monopolies” such
as the Clayton and FTC acts). And so, the Court must dismiss tort claims and claims arising
under federal antitrust laws for lack of subject-matter jurisdiction.

       B.      RCFC 12(b)(6)

       When deciding a motion to dismiss based upon failure to state a claim upon which relief
can be granted, pursuant to RCFC 12(b)(6), this Court similarly must assume that all undisputed
facts alleged in the complaint are true and must draw all reasonable inferences in the non-



                                                                                                    5
movant’s favor. See Call Henry, Inc. v. United States, 855 F.3d 1348, 1354 (Fed. Cir. 2017)
(citing Bell/Heery v. United States, 739 F.3d 1324, 1330 (Fed. Cir. 2014). And so, to survive a
motion to dismiss under RCFC 12(b)(6), a complaint must contain facts sufficient to “state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

       When the complaint fails to “state a claim to relief that is plausible on its face,” the Court
must dismiss the complaint. Iqbal, 556 U.S. at 678 (citation omitted). On the other hand,
“[w]hen there are well-pleaded factual allegations, a court should assume their veracity,” and
determine whether it is plausible, based upon these facts, to find against the defendant. Id. at
678-79 (“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

       C.      Contracts With The United States

       Lastly, this Court possesses subject-matter jurisdiction to consider breach of contract
claims against the United States based upon an express or implied-in-fact contract. 28 U.S.C. §
1491(a)(1). Plaintiff bears the burden of proving the existence of a contract with the United
States and he must demonstrate that there is “something more than a cloud of evidence that could
be consistent with a contract to prove a contract and enforceable contract rights.” D & N Bank v.
United States, 331 F.3d 1374, 1377 (Fed. Cir. 2003).

       To pursue a breach of contract claim against the United States under the Tucker Act,
plaintiff must have privity of contract with the United States. Flexfab, L.L.C. v. United States,
424 F.3d 1254, 1263 (Fed. Cir. 2005) (citations omitted) (“[T]he ‘government consents to be
sued only by those with whom it has privity of contract.’”). Plaintiff must also support his
contract claim with well-pleaded allegations going to each element of a contract. See Crewzers
Fire Crew Transp., Inc. v. United States, 741 F.3d 1380, 1382 (Fed. Cir. 2014) (holding that to
invoke the jurisdiction of this Court under the Tucker Act, a plaintiff must present a well-pleaded
allegation that its claims arose out of a valid contract with the United States); see also RCFC
9(k) (“In pleading a claim founded on a contract or treaty, a party must identify the substantive
provisions of the contract or treaty on which the party relies.”); Gonzalez-McCaulley Inv. Grp.,
Inc. v. United States, 93 Fed. Cl. 710, 715 (2010). In addition, RCFC 9(k) requires that a party
identify the substantive provisions of the contract on which the party relies when pleading a


                                                                                                     6
claim founded on a contract with the United States. RCFC 9(k). And so, this rule ensures that
the Court knows the relevant provisions of a contract to render a decision on a breach of contract
claim. Gonzalez-McCaulley Inv. Grp., Inc., 93 Fed. Cl. at 715.

       The requirements for establishing a contract with the United States are identical for
express and implied-in-fact contracts. See Night Vision Corp. v. United States, 469 F.3d 1369,
1375 (Fed. Cir. 2006); Huntington Promotional & Supply, LLC v. United States, 114 Fed. Cl.
760, 767 (2014) (“The elements are the same for an express or implied-in-fact contract . . . .”).
Specifically, a plaintiff must show: (1) mutuality of intent; (2) consideration; (3) lack of
ambiguity in the offer and acceptance; and (4) actual authority to bind the government in
contract on the part of the government official whose conduct is relied upon. Kam-Almaz v.
United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012); see also Trauma Serv. Grp. v. United
States, 104 F.3d 1321, 1325 (Fed. Cir. 1997). In this regard, a government official’s authority to
bind the United States must be express or implied. Roy v. United States, 38 Fed. Cl. 184, 188-89
(1997), dismissed, 124 F.3d 224 (Fed. Cir. 1997). And so, “the [g]overnment, unlike private
parties, cannot be bound by the apparent authority of its agents.” Id. at 187.

       A government official possesses express actual authority to bind the United States in
contract “‘only when the Constitution, a statute, or a regulation grants it to that agent in
unambiguous terms.’” Jumah v. United States, 90 Fed. Cl. 603, 612 (2009), aff’d, 385 F. App’x
987 (Fed. Cir. 2010) (internal citations omitted); see also City of El Centro v. United States, 922
F.2d 816, 820 (Fed. Cir. 1990) (citation omitted). On the other hand, a government official
possesses implied actual authority to bind the United States in contract “when the employee
cannot perform his assigned tasks without such authority and when the relevant agency’s
regulations do not grant the authority to other agency employees.” SGS-92-X003 v. United
States, 74 Fed. Cl. 637, 652 (2007) (citations omitted); see also Aboo, 86 Fed. Cl. at 627 (stating
that implied actual authority “is restricted to situations where ‘such authority is considered to be
an integral part of the duties assigned to a [g]overnment employee.’”) (quoting H. Landau & Co.
v. United States, 886 F.2d 322, 324 (Fed. Cir. 1989)). In addition, when a government agent
does not possess express or implied actual authority to bind the United States in contract, the




                                                                                                       7
government can still be bound by contract if the contract was ratified by an official with the
necessary authority.2 Janowsky v. United States, 133 F.3d 888, 891-92 (Fed. Cir. 1998).

IV.     LEGAL ANALYSIS

        The government has moved to dismiss the amended complaint for lack of subject-matter
jurisdiction and for failure to state a claim upon which relief can be granted for the following
eight reasons: (1) the allegations in the amended complaint concerning offer and acceptance are
insufficient to demonstrate the formation of a contract with the government; (2) plaintiff’s draft
protocol demonstrates that the parties never intended to enter into a contract to test plaintiff’s
methods; (3) the relationship between plaintiff and the CDC was not contractual; (4) the
amended complaint fails to identify substantive provisions of the alleged contract; (5) the
amended complaint lacks specific allegations concerning the authority of government officials to
enter into the alleged contract and the CDC’s breach; (6) the amended complaint fails to allege
specific facts to show that plaintiff’s remedy would be monetary damages; (7) the amended
complaint fails to allege or demonstrate that plaintiff is a party to the alleged contract; and (8) the
Court does not possess subject-matter jurisdiction to consider plaintiff’s tort and antitrust claims.
See generally Def. Mot. And so, the government requests that the Court dismiss the amended
complaint, pursuant to RCFC 12(b)(1) and (6). Id. at 1.

        Plaintiff counters in his response and opposition to the government’s motion to dismiss
that he has established the existence of an implied-in-fact contract with the CDC, because the
amended complaint sufficiently alleges offer, acceptance, and authority on the part of
government officials to contractually bind the CDC. Pl. Resp. at 17-25. Plaintiff also argues that
the amended complaint sufficiently alleges: (1) the substantive provisions of his contract with
the CDC; (2) that he is entitled to recover monetary damages from the government; and (3) that
he is a party to a contract with the government. Id. at 26-31. And so, plaintiff requests that the


2
  Ratification may take place at the individual or institutional level. SGS-92-X003 v. United States, 74
Fed. Cl. 637, 653-54 (2007). Individual ratification occurs when a supervisor: (1) possesses the actual
authority to contract; (2) fully knew the material facts surrounding the unauthorized action of his or her
subordinate; and (3) knowingly confirmed, adopted, or acquiesced to the unauthorized action of the
subordinate. Id. at 654 (quoting Leonardo v. United States, 63 Fed. Cl. 552, 560 (2005)). In contrast,
institutional ratification occurs when the government “seeks and receives the benefits from an otherwise
unauthorized contract.” Id. at 654; see also Janowsky v. United States, 133 F.3d 888, 891-92 (Fed. Cir.
1998).


                                                                                                             8
Court deny the government’s motion to dismiss, or, alternatively grant him leave to further
amend the complaint. Id. at 32.

       For the reasons discussed below, the Court does not possess subject-matter jurisdiction to
consider plaintiff’s tort and antitrust claims against the government. A careful reading of the
amended complaint also makes clear that plaintiff fails to sufficiently allege facts to establish the
existence of a contact with the government. And so, the Court GRANTS the government’s
motion to dismiss the amended complaint and DISMISSES the amended complaint. RCFC
12(b)(1) and (6).

       A.       The Court May Not Consider Plaintiff’s Tort And Antitrust Claims

       As an initial matter, the Court must dismiss plaintiff’s defamation and antitrust claims,
because these claims are jurisdictionally precluded under the Tucker Act. In the amended
complaint, plaintiff alleges that the CDC defamed him by stating that plaintiff and Dr. Shearer
“reported inconsistent results.” Am. Compl. at ¶¶ 6; 53-54. Plaintiff’s defamation claim plainly
sounds in tort. It is well-established that the Tucker Act explicitly places defamation claims
beyond the jurisdiction of this Court. 28 U.S.C. § 1491(a)(1) (“The United States Court of
Federal Claims shall have jurisdiction to render judgment upon any claim against the United
States . . . not sounding in tort.”); Hernandez v. United States, 96 Fed. Cl. 195, 204 (2010)
(“[T]he Tucker Act expressly excludes tort claims, including those committed by federal
officials, from the jurisdiction of the United States Court of Federal Claims.”) (citation omitted).
And so, the Court must dismiss plaintiff’s defamation claim for lack of subject-matter
jurisdiction. Woods v. United States, 122 F. App’x 989, 991 (Fed. Cir. 2004) (“The Court of
Federal Claims is a court of limited jurisdiction, and claims sounding in tort, such as defamation,
are outside the jurisdiction of the court.”) (citation omitted).

       To the extent that plaintiff seeks to assert a claim under the federal antitrust laws, the
Court must also dismiss this claim. Plaintiff alleges in the amended complaint that the CDC
“engaged in an anti-competitive campaign to stifle the use and availability of his test.” Am.
Compl. at ¶ 6. But, any claim that plaintiff wishes to pursue under the federal antitrust laws must
be brought in the United States District Courts. Kabando v. United States, No. 14-562C, 2014
WL 4251548, at *2 (Fed. Cl. Aug. 28, 2014), aff'd, No. 15-5018 (Fed. Cir. Jan. 21, 2015)
(explaining that district courts have original jurisdiction over “any civil action or proceeding


                                                                                                    9
arising under any Act of Congress regulating commerce or protecting trade and commerce
against restraints and monopolies” (quoting 28 U.S.C. § 1337(a)); see Hufford v. United States,
87 Fed. Cl. 696, 703 (2009); Quality Furniture Rentals, Inc. v. United States, 1 Cl. Ct. 136, 139
(1983). Given this, the Court must also dismiss plaintiff’s antitrust claim for lack of subject-
matter jurisdiction. RCFC 12(b)(1).

       B.        Plaintiff Fails To Establish The Existence Of A Contract With The CDC

       The Court must also dismiss plaintiff’s breach of contract claim in this matter, because
plaintiff fails to sufficiently allege the existence of an implied-in-fact contract with the CDC in
the amended complaint. It is well-established that plaintiff must first demonstrate the existence
of a valid contract to prevail on a breach of contract claim against the government. Aboo v.
United States, 86 Fed. Cl. 618, 626, aff'd, 347 F. App’x 581 (Fed. Cir. 2009) (quoting Cooley v.
United States, 76 Fed. Cl. 549, 555-56 (2007)). And so, plaintiff must sufficiently allege facts in
the amended complaint in this matter to show: (1) mutuality of intent; (2) consideration; (3) lack
of ambiguity in the offer and acceptance; and (4) actual authority to bind the government in
contract on the part of the government official whose conduct is relied upon. Kam-Almaz v.
United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012); see also Hanlin v. United States, 316 F.3d
1325, 1328 (Fed. Cir. 2003) (stating that these requirements are the same for both express and
implied contracts). Plaintiff makes no such showing in this case for several reasons.

            1.   The Amended Complaint Does Not Plausibly Allege An Offer To Contract

       First, a careful reading of the amended complaint makes clear that plaintiff has not
sufficiently alleged facts to show that the CDC unambiguously offered to enter into an implied-
in-fact contract with plaintiff. In the amended complaint, plaintiff alleges that the CDC’s chief
of the diagnostic and reference laboratory, Dr. Schriefer, extended an offer to contract with
plaintiff on behalf of the CDC when he publicly stated that:

       So wherever possible we encouraged and required other non-serologic-based tests
       in addition to clinical presentation so that might have included PCR or culture or
       both. . . [and that he was] looking forward to seeing a greater utilization of PCR as
       a diagnostic tool in the future.

Am. Compl. at ¶ 13. But, this Court has long held that mere solicitations, invitations, or
instructions from the government are not offers to contract that can bind the government. XP



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Vehicles, Inc. v. United States, 121 Fed. Cl. 770, 785 (2015) (citing Girling Health Sys., Inc. v.
United States, 22 Cl. Ct. 66, 71-72 (1990)); see also Bogley’s Estate v. United States, 514 F.2d
1027, 1032 (Ct. Cl. 1975) (explaining that an offer to contract with the government must amount
to more than a mere expression of intent or general willingness to do something).

        In this case, Dr. Schriefer’s public statement to a conference audience suggests no more
than a desire, or a general willingness, to see a greater utilization of PCR as a diagnostic tool for
Lyme disease testing. See Bogley’s Estate, 514 F.2d at 1032. Notably, this statement does not
contain a promise from the CDC. See id. Nor does the statement request that plaintiff, or
anyone else, develop a diagnostic test for Lyme disease. Given this, plaintiff cannot reasonably
rely upon Dr. Schriefer’s public statement to show that the CDC extended an offer to enter into
the implied-in-fact contract alleged in this case.

        Plaintiff’s argument that Dr. Schriefer extended an offer to contract on behalf of the CDC
when he stated in a telephone conference on October 25, 2013, that he “agreed that PCR is the
ideal way to diagnose early infection” and that “DNA sequencing is the only reliable way to
accurately, molecularly diagnose” is similarly misguided. Am. Compl. at ¶ 21. Accepting
plaintiff’s allegations regarding this telephone conference as true, the purported statements by
Dr. Schriefer do not plausibly show that the CDC extended an offer to enter into an implied-in-
fact contract. Rather, these factual allegations make clear that Dr. Schriefer expected that
plaintiff would enter a written MTA with the CDC regarding the provision of Lyme disease
testing samples—and it is undisputed that plaintiff ultimately executed two MTAs with the CDC.
Id. at ¶¶ 21, 23.3 And so, plaintiff simply has not alleged sufficient facts to show that the CDC
unambiguously offered to enter into the implied-in-fact contract alleged in the amended
complaint. Kam-Almaz, 682 F.3d at 1368.

            2. The Amended Complaint Does Not Plausibly Allege Acceptance

        Plaintiff similarly fails to sufficiently allege that he accepted any offer by the CDC to
form the implied-in-fact contract alleged in this case. In the amended complaint, plaintiff alleges


3
  The CDC’s understanding that plaintiff would execute a MTA with the CDC is reinforced by a
November 1, 2013, email to plaintiff from the CDC’s provider investigator for the MTAs, Dr. Claudia
Molins, in which Dr. Molins states that she “will be in touch [with plaintiff] when the MTA is fully
executed and will let [him] know when we ship the new panel [of testing samples] to [plaintiff].” Pl. Ex.
8 at 1; see generally Pl. Exs. 6, 9.


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that he accepted the CDC’s offer to enter into an implied-in-fact contract when Dr. Shearer
contacted Dr. Schriefer to urge the CDC to endorse plaintiff’s sequence-based molecular test.
Am. Compl. at ¶ 15. But, as the government persuasively argues in its motion to dismiss,
plaintiff has not alleged sufficient facts to show that Dr. Schriefer reasonably understood Dr.
Shearer’s statements to be an acceptance of an offer to contract. Def. Mot. at 7-8; see also Am.
Fed. Bank, FSB v. United States, 62 Fed. Cl. 185, 198 (2004).

       In this regard, this Court has recognized that the conduct of an offeree can constitute
acceptance of an offer to contract. Am. Fed. Bank, FSB, 62 Fed. Cl. at 198. But, the offeror
must reasonably understand this conduct to be an acceptance of the offer to contract in order to
form the contract. Id. In this case, plaintiff does not explain how Dr. Shearer’s urging of the
CDC to endorse his testing methodology made clear to Dr. Schriefer that plaintiff was accepting
an offer to contract. Am. Compl. at ¶ 15. Rather, the facts alleged in the amended complaint
show that Dr. Schriefer expected that plaintiff would execute a written MTA with the CDC and
that this agreement would govern plaintiff’s relationship with that agency. Id. at ¶¶ 21, 23.

       Indeed, plaintiff acknowledges in the amended complaint that Dr. Schriefer “agreed that
the CDC would provide certain testing samples” to plaintiff and that, if favorable, additional
testing samples would be shared with plaintiff. Id. at ¶ 16. There is no dispute that the
agreement to provide these testing samples is memorialized in the MTAs that plaintiff eventually
executed with the CDC. Id. at ¶ 24; Pl. Exs. 6, 9. Given this, the factual allegations in the
amended complaint do not show—and in fact refute—that plaintiff’s various interactions with
the CDC created a separate implied-in-fact contract with the CDC.

           3. The Amended Complaint Does Not Plausibly Allege Authority To Contract

       Plaintiff also fails to sufficiently allege that a CDC employee or agent had the requisite
authority to enter into the alleged implied-in-fact contract with plaintiff. See Doe v. United
States, 95 Fed. Cl. 546, 583 (2010) (stating that plaintiff must plead facts sufficient to allege that
the government agent had actual authority to bind the United States to a contract); see also Kam-
Almaz, 682 F.3d at 1368. Plaintiff alleges in the amended complaint that it was “reasonable for
[him] to believe” that Drs. Schriefer and Molins had the authority to bind the CDC in contract,
because these individuals were “the only CDC employees with materials and ability to evaluate
tests for Lyme disease.” Am. Compl. at ¶ 29-30; see also id. at ¶ 35 (“Dr. Bell, Dr. Schriefer,


                                                                                                    12
Dr. Molins, Dr. Blake-DiSpigna, Ms. McDaniels, Ms. Ross and Ms. Bogaard . . . were in fact
authorized, or represented through their communications and actions that they were authorized,
to contract on behalf of the CDC.”). But, plaintiff has put forward no factual allegations, or
evidence, to show that Drs. Schriefer and Molins had the authority to enter into the implied-in-
fact contract alleged in this case. Doe, 95 Fed. Cl. at 583 (“[T]he court cannot glean from
plaintiff's amended complaint . . . evidence sufficient to imply actual authority.”).

        Plaintiff’s assertion that the CDC’s Director of the National Center for Emerging and
Zoonotic Infectious Diseases, Dr. Beth Bell, M.D., M.P.H., had the authority to bind the CDC in
the alleged implied-in-fact contract is similarly unfounded. Am. Compl. at ¶ 32. Plaintiff
alleges that Dr. Bell could bind the CDC in contract because she is the Authorized Official for
Provider for the CDC under the MTAs. Id. But, Dr. Bell’s authority to approve the MTAs on
behalf of the CDC has no bearing on any authority that she might have had to bind the CDC in
the contract alleged in the amended complaint.

        In addition, plaintiff’s allegation that other named CDC employees, who were “involved
in discussing and preparing the MTAs” were authorized to contract on behalf of the CDC must
also fail. Id. at ¶¶ 31, 35. The amended complaint is devoid of any factual allegations to show
that these employees had the authority to contractually bind the CDC. See generally id.; see also
Doe, 95 Fed. Cl. at 583-84. Given this, plaintiff has not met his burden to show that an
authorized representative of the CDC bound that agency in an implied-in-fact contract.

        In sum, plaintiff has not sufficiently alleged facts in the amended complaint to show that
there has been an unambiguous offer and acceptance of a contract between plaintiff and the
CDC, whereby the CDC “promised that if the tests performed as expected, [plaintiff’s] testing
would be approved [by the CDC] as the ‘gold standard.’” Am. Compl. at ¶ 35; see id. at ¶¶ 32-
34. Nor has plaintiff sufficiently alleged that an authorized representative bound the CDC in
such a contract. Because plaintiff fails to sufficiently allege facts to show the formation of a
contract with the CDC, the Court must dismiss plaintiff’s breach of contract claim for failure to
state a claim upon which relief can be granted. RCFC 12(b)(6).4



4
 Because the Court concludes that it may not consider plaintiff’s tort and antitrust claims—and that
plaintiff has not put forward sufficient allegations to establish the existence of a contract with the
government—the Court does not reach the other issues raised in the government’s motion to dismiss.


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       C.      Further Amendment Of The Complaint Would Be Futile

       As a final matter, plaintiff requests leave to amend the complaint—for a second time—if
the Court concludes that the amended complaint does not sufficiently allege a breach of contract
claim. Pl. Resp. at 31. Generally, this Court freely grants leave to amend a complaint. RCFC
15(a)(2). But, in this case, the Court previously granted plaintiff leave to amend the complaint to
address jurisdictional and other deficiencies on September 25, 2018. See generally Scheduling
Order, dated Sept. 25, 2018. As discussed above, plaintiff has not cured these deficiencies with
his amended complaint. Given this, further amendment of the complaint would, in the Court’s
view, be futile. And so, the Court DENIES plaintiff’s request for leave to amend the complaint.
Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710, 717 (2010) (citing Foman
v. Davis, 371 U.S. 178, 182 (1962) (noting “repeated failure to cure deficiencies by amendments
previously allowed” and “futility of amendment” as sufficient reasons to deny leave to amend).

V.     CONCLUSION

       In sum, when read in the light most favorable to plaintiff, the amended complaint makes
clear that plaintiff has not established that the Court possesses subject-matter jurisdiction to
consider his defamation and antitrust claims. A careful reading of the amended complaint also
makes clear that plaintiff fails to sufficiently allege facts to show the formation of an implied-in-
fact contract with the CDC to pursue a breach of contract claim. And so, for the foregoing
reasons, the Court:

       1. GRANTS the government’s motion to dismiss the amended complaint; and

       2. DISMISSES the amended complaint.




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      The Clerk’s Office is directed to ENTER final judgment in favor of the government,
DISMISSING the amended complaint.

      No Costs.

      IT IS SO ORDERED.



                                              s/ Lydia Kay Griggsby
                                              LYDIA KAY GRIGGSBY
                                              Judge




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