                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-2385


L-3 COMMUNICATIONS CORPORATION; L-3 APPLIED TECHNOLOGIES,
INC.,

                Plaintiffs - Appellants,

           v.

SERCO, INC.,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:15-cv-00701-GBL-JFA)


Argued:   September 21, 2016                 Decided:   December 14, 2016


Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


ARGUED: Steven L. Levitt, LEVITT LLP, Mineola, New York, for
Appellants. Amy Elizabeth Miller, MCGUIREWOODS LLP, Washington,
D.C., for Appellee.     ON BRIEF: Benjamin G. Chew, Nigel L.
Wilkinson, Rory E. Adams, Joshua N. Drian, MANATT, PHELPS &
PHILLIPS LLP, Washington, D.C.; Karen L. Weiss, Catherine B.
Silliman, LEVITT LLP, Mineola, New York, for Appellants.   John
D. Wilburn, Steven P. Mulligan, Tysons Corner, Virginia, Anand
V. Ramana, Jeffrey L. Brown, Elizabeth H. Goodall, MCGUIREWOODS
LLP, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Plaintiffs       L-3      Communications         Corp.       and    L-3     Applied

Technologies,        Inc.     (L-3    ATI)   (collectively,          the     plaintiffs)

filed     this      diversity     action     alleging         numerous     tort     claims

against       Serco,     Inc.     arising        out     of     a    failed       business

relationship.         The plaintiffs contended that Serco engaged in a

“bid rigging” scheme with another company, Jaxon Engineering &

Maintenance,        Inc.,   to    exclude    the       plaintiffs     from       conducting

work on certain task orders issued under Serco’s prime contract

with    the    United    States      government.         The    plaintiffs        alleged,

among other things, that Serco’s conduct amounted to tortious

interference with the plaintiffs’ business expectancy as well as

statutory business conspiracy under Virginia law.

       The    district      court     dismissed        the     entire     action     under

Federal Rule of Civil Procedure 12(b)(1).                       The court concluded

that the plaintiffs did not have standing under Article III of

the Constitution, because they had not established the existence

of a valid business expectancy.                  The court also dismissed two of

the claims on ripeness grounds, holding that the plaintiffs’

alleged injuries had not yet occurred.

       We conclude that the plaintiffs’ allegations satisfy the

constitutional requirement of a concrete, particularized injury

for purposes of standing.               The separate but related question

whether       the    plaintiffs      plausibly         have    alleged       a    business

                                             3
expectancy    is     one    properly      considered          under   Federal      Rule   of

Civil Procedure 12(b)(6) or on a motion for summary judgment.

     We    also    hold     that    the    plaintiffs’            declaratory      judgment

claims are not ripe for adjudication, and therefore affirm the

district court’s dismissal of those claims.                            Accordingly, we

affirm the judgment of the district court in part, vacate in

part, and remand for further proceedings.


                                           I.

     In 2004, the United States Air Force Space Command (the Air

Force)     awarded    an     indefinite          delivery,        indefinite       quantity

contract    (the     prime    contract)          to    Serco. 1       Under    the     prime

contract, Serco, as the prime contractor, was responsible for

testing     military        sites     around          the     world   regarding       their

protection     from        high-altitude         electromagnetic          pulse       (HEMP)

events.     In practice, when the Air Force provided Serco with a

statement     of     work    under     the       prime        contract,      Serco    would

subcontract HEMP work to other companies.                         Serco selected these

subcontractors       by     issuing    requests             for   proposal    to     certain

qualified companies.           According to the complaint, between 2004

and July 2009, Serco awarded “most, if not all of the [HEMP]

task orders” under the prime contract to the plaintiffs.



     1   In 2004, Serco was known as SI International.



                                             4
       The plaintiffs’ complaint alleged that plaintiff L-3 ATI

was    a    “wholly   owned      indirect       subsidiary”        of   plaintiff        L-3

Communications, and that L-3 ATI was the “successor in interest”

to other entities that performed subcontracted HEMP work, namely

“Jaycor,      the   Titan     Corporation,       and       the   applied   technologies

division of L-3 Services, Inc.” The complaint also specified

that   references        in    the   complaint        to   the   plaintiffs   included

their predecessors in interest.

       After 2009, Serco allegedly began awarding all HEMP task

orders to another company, Jaxon Engineering & Maintenance, Inc.

(Jaxon).       The plaintiffs alleged that Jaxon was not qualified to

perform the assigned work, and that Serco’s decision to award

HEMP work to Jaxon was based on a “fraudulent scheme” between

Serco and Jaxon in which Serco actively prevented the plaintiffs

from fairly competing for the task orders.                         To facilitate this

scheme, the plaintiffs alleged that Jaxon hired the plaintiffs’

employees, who used the plaintiffs’ proprietary information to

benefit Jaxon in the bidding process.

       In 2010, the plaintiffs sued their former employees and

Jaxon on numerous claims, including that these employees took

certain      proprietary       information      from       the   plaintiffs   and    gave

that       information    to     Jaxon.         The    parties      stipulated      to     a

dismissal of the complaint with prejudice in March 2016.                         See L-

3 Commc’ns. Corp. v. Jaxon Eng’g & Maint., Inc., 10-cv-2868,

                                            5
Dkt. No. 1370 (D. Colo. Mar. 3, 2016).                             In 2014, the plaintiffs

filed       a    complaint        in     Virginia          state        court     against        Serco

asserting similar claims to those at issue here, but took a

voluntary nonsuit.

       In       the    present     case,    initiated            in     2015,     the    plaintiffs

filed    an      81-count        amended    complaint            against      Serco,      asserting

claims      of    tortious        interference            with    business        expectancy       for

HEMP    task          orders     from    2009     to       the     present,       based     on    the

plaintiffs’             “long      history           of        incumbency         and     unmatched

experience”            (Counts     1-34);        aiding          and       abetting      Jaxon     to

tortiously interfere with this business expectancy (Counts 35-

68); civil conspiracy and business conspiracy under Virginia law

(Counts         69-70);     violations          of       the     Colorado       Organized     Crime

Control         Act     (Counts     71-73);       tortious            interference       with     the

plaintiffs’ former employees’ non-disclosure agreements (Counts

74-78); negligent misrepresentation of the plaintiffs’ business

relationship            (Count     79);    and       breach        of      fiduciary     duty     and

misappropriation of trade secrets, based on Serco’s intent to

use the plaintiffs’ confidential information to compete with the

plaintiffs            for   future       HEMP    projects          (Counts        80-81).         The

plaintiffs            sought     damages    of       $80,000,000            for   lost    profits,

unjust          enrichment,        and     disgorgement               of     unlawful       profits

resulting from Serco’s scheme with Jaxon.                                  They also sought a

declaratory judgment in Counts 80 and 81, asking the court to

                                                     6
“declare that any competition against [the plaintiffs] by Serco

in the HEMP-Testing area would constitute a breach of Serco’s

fiduciary duties” to the plaintiffs and a misappropriation of

the plaintiffs’ trade secrets.

      Serco filed motions to dismiss under Rules 12(b)(1) and

12(b)(6), as well as a motion for summary judgment.            In its Rule

12(b)(1) motion, Serco asserted that the plaintiffs’ claims of

tortious   interference    with   business   expectancy   rose   and    fell

under a certain subcontract issued in 2004 (the subcontract)

between Serco and Titan Corporation (Titan), a predecessor of L-

3 Services, which is not a named plaintiff in the present case.

The subcontract provided, in relevant parts:

      Prime Contractor has no obligation to issue and there
      is no guaranty to Subcontractor that it will receive
      any work under the terms of this Subcontract. . . .

      All work will be assigned to Subcontractor in the form
      of   [task  orders]   issued   by   Prime   Contractor’s
      authorized Subcontract Administrator.     Work not set
      forth   in   a   written  Task    Order,   executed   by
      subcontractor   and   Prime   Contractor’s    authorized
      Subcontract Administrator, is not authorized. . . .

      Neither this Subcontract nor any right or duty under
      it, except the right to receive payment, may be
      assigned by Subcontractor, without prior written
      consent of Prime Contractor, which consent may be
      withheld in the sole discretion of Prime Contractor.

The   subcontract   also    provided     that   any   waiver     of    these

requirements must be made in writing and authorized by Serco,

and that the subcontractor must notify the prime contractor of

any changes in ownership.         In March 2008, Serco entered into a
                                     7
written subcontract modification with L-3 Services to identify

that       entity,       instead    of   Titan,     as     the     named    subcontractor.

       Serco contended in its motion to dismiss brought under Rule

12(b)(1)       that      because     neither       of    the    named      plaintiffs,       L-3

Communications nor L-3 ATI, were parties to the subcontract,

they lacked standing under Article III of the Constitution to

bring their claims.                The plaintiffs responded that, under their

allegations, their claimed business expectancy arose from their

history       of     performance         of   HEMP        work,     regardless        of    the

subcontract. 2             The     plaintiffs       further        explained         that    the

complaint          asserted        claims     of        tortious     interference           with

employees’ non-disclosure agreements, completely apart from the

subcontract.

       After a hearing, the district court granted Serco’s motion

to dismiss under Rule 12(b)(1).                     The court concluded that the

plaintiffs         had    presented      insufficient          evidence     of   a    business

expectancy in the losses alleged, because the plaintiffs were

not parties to the subcontract and, thus, did not have standing




       2
       The plaintiffs argued in the alternative that they were
the assignees of the subcontract and the current causes of
action, pursuant to the terms of a 2011 contribution agreement
which transferred all of the “assets” of L-3 Services to L-3
ATI.



                                               8
to bring this suit. 3        The court additionally held that the claims

alleged    in    Counts   80   and    81     were       not   ripe     for    adjudication

because    the    injuries      alleged          had    not     yet    occurred.         The

plaintiffs now appeal.


                                           II.

     The    plaintiffs       argue    that        the    district      court     erred   in

dismissing their complaint under Rule 12(b)(1).                              They maintain

that the issue whether they had a valid business expectancy is a

question    regarding     the       merits       of     the   tortious        interference

claims,    not     a   question       of     constitutional            standing.         The

plaintiffs further assert that, in any event, they adequately

pleaded    the    elements     of    tortious          interference      with     business

expectancy based on their previous course of performance of HEMP

work.      The   plaintiffs     also       contend       that    the    court    erred    in

focusing on the existence of a business expectancy arising from

the subcontract when many of the claims were unrelated to the

subcontract.           Finally,       the        plaintiffs       submit        that     the

declaratory judgment claims in Counts 80 and 81 were ripe for

adjudication.

     In response, Serco primarily contends that the plaintiffs

did not have the “personal stake” in their lawsuit necessary to

     3 The district court also rejected the plaintiffs’ assertion
that they had standing to sue as assignees of the subcontract.



                                             9
satisfy the Article III standing requirement, because they did

not have any rights or expectancies under the subcontract to

which    they    were     neither       parties     nor       assignees.      Serco     also

argues that the district court properly dismissed Counts 80 and

81 on ripeness grounds, because the plaintiffs did not identify

an immediate, “real” controversy.

     We agree with the plaintiffs that the district court erred

in dismissing Counts 1 through 79 on jurisdictional grounds, but

conclude that the district court properly dismissed Counts 80

and 81 for lack of ripeness.                    We first address the issue of

standing for Counts 1 through 79.

        We   review      de     novo    a   district      court’s       dismissal     of   a

complaint       under    Rule    12(b)(1).          In    re    KBR,     Inc.,   Burn    Pit

Litig., 744 F.3d 326, 333 (4th Cir. 2014).                              The doctrine of

constitutional          standing       arises     from    the    case    or   controversy

requirement      of     Article    III,     and     is    a    jurisdictional     inquiry

regarding the power of the courts to adjudicate a litigant’s

claim.       Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60

(1992); see also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547

(2016).      The case or controversy requirement generally ensures

that “the conflicting contentions of the parties present a real,

substantial       controversy       between       parties       having     adverse    legal

interests, a dispute definite and concrete, not hypothetical or



                                             10
abstract.”      Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006)

(citation and internal quotation marks omitted).

      To   establish   Article          III       standing,    a     plaintiff      invoking

federal jurisdiction bears the burden to show that he has a

“personal stake” in the outcome of the suit.                         Camreta v. Greene,

563 U.S. 692, 701 (2011).               This requirement is satisfied if the

plaintiff has shown an actual or imminent injury in fact that is

concrete    and   particularized,             a    causal     connection      between      the

injury and the conduct complained of, and a likelihood that the

injury would be redressed by a favorable decision.                             Id.; Lujan,

504 U.S. at 560-61.         An injury is “concrete” if it is “real,” as

opposed    to   “abstract,”       Spokeo,          136   S.    Ct.    at    1548,    and   is

“particularized” if it “affect[s] the plaintiff in a personal

and   individual     way,”        rather          than   as     an     undifferentiated,

collective grievance.            Id. (citing United States v. Richardson,

418 U.S. 166, 177 (1974)); Lujan, 504 U.S. at 560 n.1.

      An   examination      of    the    district        court’s       analysis      in    the

present    case   reveals        that    the        court,     in    accepting      Serco’s

arguments, effectively conducted a merits-related evaluation of

the   plausibility     of    the        plaintiffs’           claims       rather   than    a

jurisdictional inquiry under Article III.                           The court dismissed

the case for lack of standing based on its finding that the

plaintiffs were not parties to the subcontract, through which



                                              11
the HEMP work previously flowed, and therefore had not shown

that they had a valid business expectancy.

       The question whether the plaintiffs had a valid business

expectancy is relevant to the issue whether they satisfied an

element of their claim for tortious interference under Virginia

law.    Priority Auto Grp. v. Ford Motor Co., 757 F.3d 137, 143

(4th    Cir.    2014).        Accordingly,     the    requirement   that     the

plaintiffs establish that they had such an expectancy, arising

either out of the subcontract or the parties’ course of conduct,

does   not     involve   an    issue   of    constitutional   standing,      but

presents the question whether the plaintiffs can establish the

substantive elements of their claim.            See Katz v. Pershing, LLC,

672 F.3d 64, 72 (1st Cir. 2012) (by “alleg[ing] the existence of

a contract, express or implied, and a concomitant breach of that

contract,      [the   plaintiff’s]     complaint     adequately   show[ed]    an

injury to her rights” for purposes of standing, even though she

was not a party to the contracts in question and could not

survive a motion to dismiss under Rule 12(b)(6)); Curtis Lumber

Co., Inc. v. La. Pac. Corp., 618 F.3d 762, 770-71 (8th Cir.

2010) (whether a plaintiff ultimately recovers the damages he

seeks “is a question better left to the applicable substantive

law” rather than a standing inquiry under Article III).

       We acknowledge that the distinction between the “personal

stake” requirement for purposes of standing, and the sufficiency

                                        12
of a plaintiff’s allegations of injury as an element of a claim,

often may be unclear.                Nevertheless, in the present case, we

disagree          with   the    district         court’s     conclusion      that   the

plaintiffs lacked a “personal stake” in the dispute because they

did not have a business expectancy arising from the subcontract.

Although the plaintiffs’ allegations of a business expectancy

inform our understanding of the claimed injury for purposes of

standing, the question whether the plaintiffs’ claims ultimately

lack merit does not resolve the issue whether the court had the

constitutional           authority    to        adjudicate   those       claims.     For

purposes of the present standing analysis, we must determine

only       whether   the    plaintiffs      sufficiently      established      at   this

stage of the proceedings that they were injured by Serco in a

concrete and particularized manner redressable by the court. 4

See Camreta, 563 U.S. at 701.                   Thus, Serco’s parallel contention

that a business expectancy did not arise from the subcontract,

or   from     a    separate    course      of    conduct,    is   more    appropriately




       4The plaintiffs also argue that the district court
effectively analyzed whether the plaintiffs were the real
parties in interest under Federal Rule of Civil Procedure 17(a),
not whether the court had the power to adjudicate the dispute
under Article III.   Based on our holding, we need not address
this issue.



                                                13
addressed         in   an    evaluation       of    the      merits      of   the    plaintiffs’

claims. 5

       The plaintiffs have alleged financial injury in the amount

of $80,000,000 based on several theories of liability arising

from       the    same    set     of   facts.          In    particular,       the    plaintiffs

claimed that, absent the fraudulent scheme between Serco and

Jaxon, Serco would have awarded certain specific task orders to

the plaintiffs.              The plaintiffs further alleged that Serco’s

actions          “assisting,      financing,           and   vouching         for   Jaxon   as    a

viable HEMP-Testing operation” resulted in the plaintiffs being

denied       “many       millions      of    dollars         in   non-Serco         HEMP-related

contracts that instead went to Jaxon.”                            These alleged injuries

are concrete and particularized to the plaintiffs, and are “not

conjectural or hypothetical.”                      Lujan, 504 U.S. at 560; Miller,

462 F.3d at 316-17.                The injuries also are traceable to Serco’s

challenged conduct and can be redressed by a favorable decision

of   the     Court.          Miller,        462    F.3d      at   316.        Accordingly,       we

conclude          that      the    plaintiffs           have      met     their      burden      of




       5In   addition   to  their   disagreement  regarding  the
plaintiffs’ rights under the subcontract, the parties also
dispute whether their course of conduct established a business
expectancy. For the reasons discussed above, the district court
may evaluate the parties’ course of conduct in considering a
motion under Rule 12(b)(6) or a motion for summary judgment.



                                                  14
demonstrating a “personal stake” in the dispute for purposes of

Article III standing.

      Additionally, we observe that although the district court’s

standing analysis focused on the plaintiffs’ business expectancy

allegations, our conclusion applies equally to the plaintiffs’

other     claims    that    are     unrelated     to    the   subcontract.           The

plaintiffs generally alleged in each of their claims the same

injuries suffered by the same parties.                  None of the plaintiffs’

claims    alleged     a    breach   of   the     subcontract,       and   all   of   the

claims relied on the same series of tortious conduct allegedly

committed    by    Serco.      To    the   extent      that   the    plaintiffs      are

unable to establish an element of any of these causes of action,

such a deficiency properly is addressed under Rule 12(b)(6) or

through entry of summary judgment.

      In reaching this conclusion, we express no opinion whether

the     plaintiffs’       allegations      are     sufficiently       plausible       to

survive a motion under Rule 12(b)(6), nor whether the evidence

ultimately will substantiate their claims.                     We hold only that

the plaintiffs have shown the concrete and particularized nature

of their alleged injury and, thus, that the district court has

the constitutional authority to adjudicate their claims. 6


      6Because we vacate the district court’s judgment on the
basis that the plaintiffs have demonstrated Article III standing
at this stage of the proceedings, we do not reach the district
(Continued)
                                           15
       Finally, the plaintiffs argue that the district court erred

in    dismissing       for    lack    of   ripeness    Counts     80    and    81,   which

sought declaratory judgment for breach of fiduciary duty and

misappropriation of trade secrets.                    The doctrine of ripeness,

also a component of the case or controversy requirement, asks

whether      a    controversy        between    the   parties     “is    presented     in

clean-cut        and   concrete       form.”       Scoggins      v.    Lee’s    Crossing

Homeowners Ass’n, 718 F.3d 262, 270 (4th Cir. 2013); Miller, 462

F.3d at 318-19 (citation and internal quotation marks omitted).

A case is ripe and “fit for judicial decision when the issues

are purely legal and when the action in controversy is final and

not dependent on future uncertainties.”                         Doe v. Va. Dep’t of

State Police, 713 F.3d 745, 758 (4th Cir. 2013) (quoting Miller,

462 F.3d at 319).             Accordingly, a claim should be dismissed for

lack of ripeness “if the plaintiff has not yet suffered injury

and    any       future      impact    remains      wholly      speculative.”         Id.

(citation and internal quotation marks omitted).

       The   plaintiffs        alleged     in     Counts   80    and    81    that   Serco

intends to use their confidential information to compete against

them for a future HEMP project currently being “contemplated” by

the Air Force.               Thus, the plaintiffs’ injuries have not yet



court’s additional conclusion that the subcontract had not been
assigned to the plaintiffs.



                                             16
occurred.       The plaintiffs seek a broad declaration that “any

competition” against the plaintiffs for future HEMP work would

constitute       a    breach     of     Serco’s      fiduciary      duties      and     a

misappropriation of the plaintiffs’ trade secrets.

       Based on the allegations in the complaint, it is entirely

speculative at this stage whether the plaintiffs or Serco might

bid on any future projects announced by the Air Force and, if

so,    whether       Serco     will     use    the     plaintiffs’       confidential

information improperly.           Under these circumstances, we conclude

that    the    injuries        alleged    in     the        complaint    are    “wholly

speculative” and “dependent on future uncertainties.”                          Doe, 713

F.3d   at     758    (citation    omitted).            We    therefore    affirm      the

district court’s conclusion that Counts 80 and 81 are not ripe

for adjudication.


                                         III.

       For these reasons, we vacate the district court’s ruling

regarding      standing,       affirm     the     court’s       dismissal      of     the

declaratory judgment claims, and remand this case for further

proceedings      consistent      with    the    principles       expressed     in   this

opinion.

                                                                  AFFIRMED IN PART,
                                                                   VACATED IN PART,
                                                                       AND REMANDED




                                          17
