              United States Court of Federal Claims
                                   No. 16-932 C
                               Filed: June 30, 2017
______________________________________
                                                  )
SPECTRE CORPORATION,                              )
                                                  )
               Plaintiff,                         )
                                                  )
               v.                                 )
                                                  )
THE UNITED STATES,                                )
                                                  )
            Defendant.                            )
______________________________________

Christina M. Heischmidt, Dunlap Bennett & Ludwig, PLLC, Vienna, VA, for plaintiff.

Shari A. Rose, United States Department of Justice, Civil Division, Washington, DC, for
defendant.

                                    OPINION AND ORDER

SMITH, Senior Judge

        This case is before the Court on defendant’s Motion to Dismiss. Plaintiff, Spectre
Corporation (“Spectre”), seeks compensatory damages for alleged breaches of two contracts by
the National Aeronautics and Space Administration (“NASA”), as well as an alleged breach of
the implied covenants of good faith and fair dealing on both contracts. Spectre claims that
NASA failed to deliver its promised consideration under the contracts, and that NASA
consistently acted with bad faith throughout its course of dealing with plaintiff. Defendant, the
United States (“government”), argues that plaintiff failed to meet certain conditions precedent
contained in the contracts, and that plaintiff’s claims should be dismissed because they are all
precluded by the express terms of both contracts. For the following reasons, defendant’s Motion
to Dismiss is denied.

I.     Background

       NASA retains the authority “to enter into and perform such contracts, leases, cooperative
agreements, or other transactions as may be necessary in the conduct of its work and on such
terms as it may deem appropriate . . . with any person, firm, association, corporation, or
educational institution.” 51 U.S.C. § 20113(e) (2012). Under the National Aeronautics and
Space Act, “such contracts, leases, agreements, and other transactions shall be allocated . . . in a


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manner which will enable small-business concerns to participate equitably and proportionately in
the conduct of the work of the Administration.” Id.

        NASA entered into two such agreements with Spectre. The first agreement, SAA3-1210
(“Space Act Agreement”) executed on December 22, 2011, set forth NASA’s and Spectre’s
obligations with respect to the commercialization of NASA’s silicon-carbide (“SiC”) sensor
patents. See Complaint (hereinafter “Compl.”) at 18-20; see also Plaintiff’s Exhibit 2
(hereinafter “P’s Ex. 2”) at 2. Under the second agreement, DE-456 (“Exclusive Licensing
Agreement”) executed on May 14, 2012, Spectre paid a $50,000 fee to NASA, and NASA
granted a royalty-bearing, exclusive license to Spectre to practice the SiC sensor patents through
January 25, 2025, the end of the patents’ terms. Compl. at 16-17. After delays and conflicts
affecting the performance of obligations under the contracts, NASA terminated the Exclusive
Licensing Agreement and halted its performance under the Space Act Agreement, allowing the
Space Act Agreement to expire by its own terms. Id. at 32-33.

         Spectre brought the current action on August 3, 2016 against NASA, alleging the
following: (1) breach of the Exclusive Licensing Agreement’s express terms, (2) breach of the
Space Act Agreement’s express terms, and (3) breach of the implied covenants of good faith and
fair dealing under both contracts. Id. at 35-43. Defendant responded with a motion to dismiss
for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the
Rules of the Court of Federal Claims (“RCFC”). Defendant’s Motion to Dismiss (hereinafter
“MTD”) at 1. Defendant contends that the express disclaimers in both the Exclusive Licensing
and Space Act Agreements preclude all of Spectre’s claims, as well as the damages Spectre seeks
in its complaint. Id. at 10-15. Further, the government contends that, because Spectre never
satisfied the condition precedent to NASA’s performance under the Space Act Agreement,
NASA never became obligated under either contract to deliver more than it did. Id. at 13-14.

         Spectre filed its Response in opposition to defendant’s motion, maintaining that the
general disclaimers in both the Exclusive Licensing Agreement and Space Act Agreement cannot
operate to preclude Spectre’s breach of contract claims. Spectre Corporation’s Memorandum
Opposing the Government’s Motion to Dismiss (hereinafter “P’s Resp.”) at 8, 13. Further,
Spectre claims that both agreements must be examined in the context of a joint proposal for
funding from the State of Ohio, as well as a subsequent Grant Agreement, because NASA played
a role in preparing and submitting the joint proposal which served as the impetus for the
Exclusive Licensing Agreement and the Space Act Agreement. Id. at 16-18. Spectre contends
that, taking this context into consideration, its allegations are sufficient to overcome defendant’s
Motion to Dismiss.

II.    Discussion

       A.      Standard of Review

       This Court’s jurisdictional grant is found primarily in the Tucker Act, which provides the
Court of Federal Claims the power “to render judgment upon any 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 . . . in cases not

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sounding in tort.” 28 U.S.C. § 1491(a)(1) (2012). Although the Tucker Act explicitly waives the
sovereign immunity of the United States against such claims, it “does not create any substantive
right enforceable against the United States for money damages.” United States v. Testan, 424
U.S. 392, 398 (1976). Rather, in order to fall within the scope of the Tucker Act, “a plaintiff
must identify a separate source of substantive law that creates the right to money damages.”
Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part).

        It is well-settled that a complaint should be dismissed under RCFC 12(b)(6) “when the
facts asserted by the claimant do not entitle him to a legal remedy.” Lindsay v. United States,
295 F.3d 1252, 1257 (Fed. Cir. 2002). When considering a motion to dismiss brought under
RCFC 12(b)(6), “the allegations of the complaint should be construed favorably to the pleader.”
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court must inquire, however, whether the
complaint meets the “plausibility” standard described by the United States Supreme Court, i.e.,
whether it adequately states a claim and provides a “showing [of] any set of facts consistent with
the allegations in the complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560, 563 (2007)
(hereinafter “Twombly”) (citations omitted). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (hereinafter “Iqbal”) (quoting Twombly, 550
U.S. at 570).

        B.      Breach of Contract

        Plaintiff alleges in its Complaint that NASA breached specific provisions of the Space
Act Agreement, frustrating Spectre’s ability to continue performance under that agreement.
These provisions included the requirement that NASA deliver a specified number of
NASA-fabricated SiC sensors that met certain performance specifications along with the
technology and data necessary for Spectre to manufacture those SiC sensors on its own. Id. In
its Motion to Dismiss, defendant asserts that Spectre was obligated to make certain payments as
a condition precedent to NASA’s performance under the Space Act Agreement, and that each
payment would trigger the performance of specific “milestones.” Id. At Oral Argument on June
22, 2017, the parties disagreed as to the amount Spectre paid NASA under the Space Act
Agreement, therefore, this Court is unable to determine whether Spectre had made payments
sufficient to trigger the specific milestones. Absent clarification from the parties, this Court is
reluctant to dismiss this breach of contract claim without further findings of fact.

        In addition to breaches of the Space Act Agreement, plaintiff also asserts that NASA
breached the Executive Licensing Agreement by wrongfully terminating the agreement based on
pretextual grounds brought about by NASA’s breach of the aforementioned Space Act
Agreement. Compl. at 42-43. In its Motion to Dismiss, defendant asserts that the Exclusive
Licensing Agreement’s disclaimers preclude any liability or damages for violation of the
licensing agreement’s express terms, including the contract’s termination clause. MTD at 12-13.
The defendant’s position is in direct contrast with facts asserted by the plaintiff concerning the
circumstances of the termination. As the record currently stands, Spectre has made a plausible
claim that NASA breached the Exclusive Licensing Agreement, and this Court cannot dismiss
Spectre’s third claim absent further fact-finding.



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       C.      Good Faith and Fair Dealing

        In addition to arguing that NASA breached express provisions of both the Space Act
Agreement and the Executive Licensing Agreement, plaintiff also asserts that NASA breached
the implied warranty of good faith and fair dealing. Compl. at 39-43. Spectre argues that the
duties of good faith and fair dealing are implied in every government contract, and that its
Complaint sets forth countless allegations supporting its claim that NASA breached these duties.
P’s Resp. at 16-17 (citing Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed. Cir. 2005)).
In its Motion to Dismiss, the government contends that these claims are duplicative of its breach
of contract claims, and that Spectre is attempting to “‘expand [NASA’s] contractual duties
beyond those in the express contract or create duties inconsistent with the contract’s
provisions.’” Defendant’s Reply in Support of its Motion to Dismiss (hereinafter “D’s Reply”)
at 14 (quoting Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 831 (Fed. Cir.
2010)). In its Response, Spectre asserts that “[t]he implied covenant of good faith and fair
dealing ‘is implied as a supplement to the express contractual covenants, to prevent a contracting
party from engaging in conduct which (while not technically transgressing the express
covenants) frustrates the other party’s rights to the benefits of the contract.’” P’s Resp. at 17-18
(quoting Metcalf Constr. Co. v. United States, 742 F.3d 984, 994 (Fed. Cir. 2014)). Spectre
further maintains that the breaches of good faith and fair dealing also arise when the Exclusive
Licensing Agreement and the Space Act Agreement are read in the context of the joint proposal
to the State of Ohio and the subsequent Grant Agreement. Id. at 16-17.

        Spectre’s breach of contract claims and Spectre’s factual assertions regarding its breach
of implied duty claims leave a number of questions of fact for determination. For example,
Spectre alleges that NASA only ever “attempted to deliver the minimal amounts of fabricated
materials,” and that NASA treated the Space Act Agreement as a mere research and development
project even though the parties originally intended to commercialize the SiC technology. Compl.
at 40. If this Court were to construe the facts in the manner most favorable to the plaintiff, there
exists a plausible claim for breaches of NASA’s implied duties of good faith and fair dealing.
Nevertheless, a deeper factual inquiry, supported by discovery and witness testimony, is needed
to resolve these issues. As such, this Court cannot dismiss Spectre’s breach of covenant claims
on the current record.

III.   Conclusion

       Construing the facts in favor of Spectre, the nonmoving party, there exists a plausible
claim that NASA breached the contractual provisions of the Exclusive Licensing Agreement and
the Space Act Agreement as well as the implied covenants of good faith and fair dealing in both
contracts. For the reasons set forth above, defendant’s MOTION to dismiss is DENIED.

       IT IS SO ORDERED.

                                                     s/   Loren A. Smith
                                                     Loren A. Smith,
                                                     Senior Judge


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