       In the United States Court of Federal Claims
                                          No. 15-989

                                   (Filed: March 25, 2016)

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                                    *
CARLOS TORO,                        *
                                    *
                    Plaintiff,      *               Implied-In-Fact Contract; DEA
                                    *               Confidential Informant; Failure to
v.                                  *               Identify Authorized Government
                                    *               Representative; Absence of Key
THE UNITED STATES,                  *               Contract Terms; Failure to State a
                                    *               Claim.
                    Defendant.      *
                                    *
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Michael L. Avery, Sr., The Avery Law Firm, Arlington, Virginia, for Plaintiff.

Michael A. Rodriguez, Trial Attorney, with whom were Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Robert E. Kirschman, Jr., Director, Bryant G. Snee,
Deputy Director, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice, Washington, D.C., Sandra T. Stevens, Senior Attorney, Drug Enforcement
Administration, Office of the Chief Counsel, Civil Litigation Section, U.S. Department of
Justice, Of Counsel, for Defendant.

                             OPINION AND ORDER ON
                         DEFENDANT’S MOTION TO DISMISS

WHEELER, Judge.

       Plaintiff Carlos Toro filed this suit claiming to have been a confidential informant
to the Drug Enforcement Administration (“DEA”) for the past 29 years. Mr. Toro asserts
that he was instrumental in bringing some notorious international drug dealers to justice,
and he wants to be compensated for his efforts. He alleges that he had an oral implied-in-
fact contract with the agency, but unfortunately Mr. Toro cannot name any authorized
representative of the Government who entered into this contract, much less any of the
contract’s fundamental terms. Even if Mr. Toro could establish the existence of a binding
contract, it is likely that his claim is barred by the applicable six-year statute of limitations.
28 U.S.C. § 2501. Accordingly, the Court must dismiss this action under Rule 12(b)(6) for
failure to state a claim upon which relief can be granted.

                              Factual and Procedural History

       In 1986, Mr. Toro claims that he orally agreed to act as a confidential source for the
DEA in exchange for compensation and reimbursement of his expenses. Compl. ¶¶ 2-4,
20. This agreement allegedly continued until 2015. Compl. ¶ 2. In his role as a
confidential source, Mr. Toro asserts that he infiltrated and assisted the DEA in dismantling
the Medellin drug cartel in Colombia, South America. Compl. ¶¶ 5, 7-10, 14-16, 18.
Working with multiple DEA agents, Mr. Toro claims that his work contributed to the arrest
and prosecution of many international drug traffickers. Id. During his 29-year tenure as a
confidential source, Mr. Toro and the DEA did not reduce the agreement to writing. He
asserts that the DEA never compensated him for his services, thus breaching the oral
contract and causing Mr. Toro financial hardship. Compl. ¶¶ 21-24.

       On September 8, 2015, Mr. Toro filed suit in this Court seeking $5 million in
damages as a result of the DEA’s alleged breach of contract. On December 9, 2015, the
Government filed a motion to dismiss for failure to state a claim and for lack of subject
matter jurisdiction. The motion is fully briefed. The Court heard oral arguments on March
15, 2016. For the reasons below, the Court grants the Government’s motion to dismiss.

                                          Analysis

        Rule 12(b)(6) authorizes this Court to dismiss an action for failure to state a claim
upon which relief can be granted. See, e.g., Godwin v. United States, 338 F.3d 1374, 1377
(Fed. Cir. 2003). The Court must dismiss a claim if “it appears beyond doubt that the
plaintiff can prove no set of facts in support of his legal claim which would entitle him to
relief.” W. Shoshone Nat. Council v. United States, 73 Fed. Cl. 59, 62 (2006) aff’d, 279
F. App’x 980 (Fed. Cir. 2008) (quoting Conley v. Gibson, 355 U.S. 41, 46 (1957)). A
plaintiff is only required to offer “‘a short and plain statement,’” showing a plausible claim
for relief to survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In reviewing a motion to dismiss, the
Court should assume well-pleaded facts in the complaint are true, but, “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

      Mr. Toro bears the burden of pleading sufficient facts to show a contract with the
United States. Since Mr. Toro alleges an oral implied-in-fact contract, he must show an
agreement, “which, although not embodied in an express contract, is inferred, as a fact,
from the conduct of the parties showing, in light of the surrounding circumstances, their
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tacit understanding.” Hercules Inc. v. United States, 516 U.S. 417, 424 (1996) (quoting
another source, internal quotation marks omitted). To show a plausible claim of an
implied-in-fact contract, Mr. Toro must plead facts to demonstrate: (1) mutuality of intent;
(2) consideration; (3) lack of ambiguity in the offer and acceptance; and (4) the government
representative whose conduct is relied upon had actual authority to bind the United States.
Flexfab, LLC v. United States, 424 F.3d 1254, 1258 (Fed. Cir. 2005). Mr. Toro fails to
meet this burden.

        Mr. Toro’s complaint ignores key factual allegations necessary to plead a binding
agreement with the United States. In essence, Mr. Toro fails to name the government
official with whom he entered into the alleged agreement. Instead, he presents the Court
with conclusory statements asserting that there was in fact an oral agreement. See Compl.
¶ 4. The Court is “not bound to accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555. It stands to reason that since Mr. Toro has not
named a government official with whom he entered into the alleged agreement, he has
failed to demonstrate that this unnamed official had the requisite authority to enter into the
purported agreement. See, e.g., Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1325
(Fed. Cl. 1997) (“A contract with the United States also requires that the Government
representative who entered or ratified the agreement had actual authority to bind the United
States.”). However, Mr. Toro names one government official who was present when he
“began providing his services. . . .” Compl. ¶ 5. Mr. Toro asserts that he worked as a
confidential source under this official’s direction. Id. Directing Mr. Toro’s assignments
as a confidential source is “‘merely consistent with’” Government liability and thus is
insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 553)). Further, the named government official is a DEA agent incapable of
contracting on behalf of the United States with Mr. Toro. Authority to bind the
Government is generally implied when such authority is considered to be an integral part
of the duties assigned to the government employee. See, e.g., Winter v. Cath-dr/Balti Joint
Venture, 497 F.3d 1339, 1346 (Fed. Cir. 2007). Contracting authority is not an integral
part of a DEA agent’s duties. See, e.g., Doe v. United States, 48 Fed. Cl. 495, 501-04
(2000) (collecting cases).

        In addition to failing to name the government official with whom he contracted, Mr.
Toro does not explain the following details about the purported agreement: the date it went
into effect; the terms; or the monetary arrangement that forms the basis of his requested $5
million damages award. While a plaintiff need not plead “detailed factual allegations,” he
must include more than mere “labels and conclusions.” See Sioux Honey Ass’n v. Hartford
Fire Ins. Co., 672 F.3d 1041, 1062 (Fed. Cir. 2012) (quoting Twombly, 550 U.S. at 555)
(internal quotation marks omitted). Without more, Mr. Toro has not provided sufficient
factual content to allow the Court to conclude that Mr. Toro entered into a binding

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agreement with the United States. Thus, his complaint cannot withstand the Government’s
motion to dismiss. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.

        Even assuming Mr. Toro has properly alleged a binding agreement with the United
States, the Court doubts that his claims fall within the Court’s six-year statute of
limitations. 28 U.S.C. § 2501. Mr. Toro alleges that he began working as a confidential
source over 29 years ago. This assertion is well beyond the Court’s six-year statute of
limitations.

                                     Conclusion

      For the reasons set forth above, the Court GRANTS the Government’s motion to
dismiss and DISMISSES Mr. Toro’s complaint. The Clerk of Court shall enter judgment
accordingly.

      IT IS SO ORDERED.

                                              s/ Thomas C. Wheeler
                                              THOMAS C. WHEELER
                                              Judge




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