Frankel v. United States

United States Court of Appeals
for the Federal Circuit
______________________
DAVID FRANKEL,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2015-5146
______________________
Appeal from the United States Court of Federal
Claims in No. 13-546C, Judge Thomas C. Wheeler.
______________________
Decided: December 1, 2016
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MATTHEW JAMES DOWD, Dowd PLLC, Washington,
DC, argued for plaintiff-appellant.
MEEN GEU OH, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee. Also represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
STEVEN J. GILLINGHAM; THEODORE P. METZLER, Office of
General Counsel, Federal Trade Commission, Washing-
ton, DC.
______________________
2 FRANKEL v. US
Before PROST, Chief Judge, NEWMAN and DYK, Circuit
Judges.
PROST, Chief Judge.
This appeal arises from plaintiff David Frankel’s suit
against the United States in the Court of Federal Claims
for events arising out of the “Robocall Challenge,” a prize
competition sponsored by the United States Federal
Trade Commission (“FTC”). Proceeding pro se, Mr.
Frankel requested that the FTC rescore the contest
entries and sought money damages. The Court of Federal
Claims construed Mr. Frankel’s rescoring request as
seeking injunctive relief under the bid protest provisions
of 28 U.S.C. § 1491(b) and his request for money damages
as a breach of contract claim. The Court of Federal
Claims subsequently dismissed the request for injunctive
relief for failure to state a claim and, after discovery,
granted summary judgment in favor of the government on
the breach of contract claim. Mr. Frankel now appeals
those rulings.
For the reasons discussed below, we affirm.
BACKGROUND
On October 23, 2012, the FTC announced the “Ro-
bocall Challenge,” a prize competition under 15 U.S.C.
§ 3719(b). J.A. 43. Members of the public were invited to
participate by “creat[ing] innovative solutions to block
illegal robocalls.” 1 Id. Under the competition rules, each
submission would be evaluated by a panel of judges based
on three criteria—(1) whether the solution would success-
fully block robocalls, worth 50%; (2) how easily could a
consumer use the solution, worth 25%; and (3) whether
the solution could feasibly be implemented in practice,
worth 25%. After judging, the submission with “the
1 A “robocall” is an automated sales call.
FRANKEL v. US 3
highest overall scores” would be awarded a $50,000 prize.
J.A. 46–47. As conditions of entry, contestants granted
the FTC “non-exclusive, irrevocable, royalty free and
worldwide license to use” their submissions, and agreed to
release the FTC from “any and all liability in connection
with the Prizes or Contestant[s’] participation in the
Contest.” J.A. 45, 49.
By the end of the competition, the FTC received close
to 800 submissions. After a preliminary review, of these,
266 were forwarded to the judges for consideration. The
contest rules provided limited guidance to the judges.
The only express limitations on their discretion were that
judges were required to be impartial and to evaluate
submissions based on the criteria identified in the rules.
Accordingly, at the start of the judging process, the FTC
informed the judges that they did not need to provide a
numerical score for each submission and were free to
communicate with each other at any time.
Due to the large number of submissions, the judges
determined that they would need a way to cull the sub-
missions to a group of finalists. After reviewing the
forwarded submissions, the judges decided that the front-
runners would be those entries that proposed using
filtering as a service (“FaaS”) to block robocalls. The
judges based this decision, in part, on a belief that other
solutions would not work. Having made this determina-
tion, the judges then proceeded to numerically score the
FaaS solutions to find the winning submissions. After the
judges finished their deliberations, they announced the
winners. The judges also released the numerical scores
for the two winning entries, which had tied.
Mr. Frankel is the author of a submission that was
among the entries given to the judges, but not ultimately
selected. Unlike the winning entries, which were FaaS
solutions, Mr. Frankel’s submission proposed a “trace-
back” solution, which would trace a robocall back to its
4 FRANKEL v. US
source number, which could then be blocked. Though
neither selected as a front-runner nor scored by all three
judges, Mr. Frankel’s submission did receive a numerical
score from one judge which was the same as the score
awarded to the winning entries.
Believing his submission to be superior to the FaaS
solutions, Mr. Frankel filed suit against the government
in the Court of Federal Claims seeking to have the FTC
rescore all the submissions. In addition, Mr. Frankel
asked that, if the Court of Federal Claims were to grant
his request, he “be compensated for his time and expenses
in bringing the action.”
In response to Mr. Frankel’s complaint, the govern-
ment moved to dismiss the complaint for failure to state a
claim under Rule 12(b)(6) of the Rules of the U.S. Court of
Federal Claims (“RCFC”). The Court of Federal Claims
construed Mr. Frankel’s request that the submissions be
rescored as seeking injunctive relief under the bid protest
provisions of 28 U.S.C. § 1491(b). The court granted the
government’s motion in part. Reasoning that the Robocall
Challenge was neither a procurement, nor a proposed
procurement, the court determined that injunctive relief
was not available. However, the court determined that
the complaint made out a claim that a contract had been
formed between the FTC and each contestant when the
contestant submitted an entry under the competition
rules, and that the FTC allegedly breached the contract.
At the end of discovery, the government moved for
summary judgment in its favor, arguing that Mr.
Frankel’s claim was foreclosed by the release clause
present in the competition rules and, in the alternative,
that Mr. Frankel did not present evidence of “any fraud,
bad faith, gross mistake, or dishonesty on the part of the
judges.” J.A. 2. The court granted the government’s
motion. In doing so, the court determined that the evi-
dence presented did not show that the contest was con-
FRANKEL v. US 5
ducted unfairly or fraudulently. In the alternative, the
court determined that, without evidence of fraud or bad
faith, Mr. Frankel’s claim was barred by the liability
waiver provision of the rules. This appeal followed.
We have jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
I
We review a grant of a motion to dismiss for failure to
state a claim de novo. Prairie Cty., Mont. v. United
States, 782 F.3d 685, 688 (Fed. Cir. 2015). To withstand a
motion to dismiss under Rule 12(b)(6) of the RCFC, a
complaint must contain “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). In deciding a motion to
dismiss, a court is required to accept as true all factual
allegations pleaded. Id. However, courts are not required
to accept a complaint’s legal conclusions. Id.
We review a grant of summary judgment de novo.
Suess v. United States, 535 F.3d 1348, 1359 (Fed. Cir.
2008). “The 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.” RCFC 56(a). On a motion for summary
judgment, “all evidence must be viewed in the light most
favorable to the nonmoving party, and all reasonable
factual inferences should be drawn in favor of the non-
moving party.” Dairyland Power Coop. v. United States,
16 F.3d 1197, 1202 (Fed. Cir. 1994).
II
We first address Mr. Frankel’s appeal of the dismissal
6 FRANKEL v. US
of his claim under 28 U.S.C. § 1491(b). On appeal, the
parties do not dispute that Mr. Frankel and the FTC
entered into a binding contract when Mr. Frankel submit-
ted his entry in response to the government’s prize compe-
tition announcement. The nature of the relationship
between a contestant and a sponsoring agency arising out
of a prize competition under 15 U.S.C. § 3719 is a ques-
tion of first impression. In the contest context, the major-
ity of courts have long interpreted announcement of a
contest as a contractual offer by a sponsor and entry into
the contest by a contestant as acceptance of that offer.
See, e.g., Nat’l Amateur Bowlers, Inc. v. Tassos, 715 F.
Supp. 323, 325 (D. Kan. 1989); Johnson v. BP Oil Co., 602
So. 2d 885, 888 (Ala. 1992). We agree with this view.
Though the parties do not dispute the existence of a
contract, they do dispute the nature of this contract. Mr.
Frankel argues that his contract with the FTC is a pro-
curement contract. As such, Mr. Frankel would have
standing to object to the prize award because the competi-
tion resulted in “the award of a contract . . . in connection
with a procurement or a proposed procurement.” See 28
U.S.C. § 1491(b)(1).
The government argues that a prize competition is not
a procurement contract because, for every prize competi-
tion, the agency is required to explain why a prize compe-
tition would be preferable “as opposed to other authorities
available to the agency, such as contracts, grants, and
cooperative agreements.” See 15 U.S.C. § 3719(p)(2)(B).
Thus, according to the government, prize competitions are
distinct from procurement contracts.
Whether a government contract is a procurement con-
tract is a legal question of statutory interpretation. See
Wesleyan Co. v. Harvey, 454 F.3d 1375, 1378 (Fed. Cir.
2006). As written, the language of § 3719(p)(2)(B) strong-
ly implies that prize competitions are distinct from “con-
tracts” because the statute contrasts prize competitions
FRANKEL v. US 7
with other authorities available to an agency. However,
in isolation, the meaning of “contracts” is unclear. If
“contracts” were to refer to all contracts, it would render
the term meaningless because, as the parties agree, a
contract between the contestants and the agency is
formed when a contestant submits an entry. There would
be no difference between prize competitions and contracts.
Because “a statute is to be construed in a way which gives
meaning and effect to all of its parts,” the term must
therefore be given a meaning that is narrower than any
contract between an agency and a contestant. See
Heinzelman v. Sec’y of Health & Human Servs., 681 F.3d
1374, 1379 (Fed. Cir. 2012).
In order to construe the term, we look to the sur-
rounding context under the interpretive canon of noscitur
a sociis. “This maxim, literally translated as ‘it is known
by its associates,’ counsels lawyers reading statutes that a
word may be known by the company it keeps.” Graham
Cty. Soil & Water Conservation Dist. v. United States ex
rel. Wilson, 559 U.S. 280, 287 (2010).
Here, the term “contracts” is followed by “grants” and
“cooperative agreements.” These latter terms relate to
the government “acquiring property and services” and are
discussed in Title 31, Chapter 63 of the United States
Code. See 31 U.S.C. § 6301(1). In passing this chapter,
Congress expressed a desire to “promote increased disci-
pline in selecting and using procurement contracts, grant
agreements, and cooperative agreements . . . .” Id.
§ 6301(3) (emphasis added). Thus, Congress viewed
grants and cooperative agreements as alternatives to
procurement contracts. See id.; see also id. §§ 6303–05
(detailing rules for the use of procurement contracts,
grant agreements, and cooperative agreements). Because
15 U.S.C. § 3719(p)(2)(B) distinguishes prize competitions
from “contracts, grants, and cooperative agreements,” and
because grants and cooperative agreements are alterna-
8 FRANKEL v. US
tives to procurement contracts, it follows that, in this
context, “contracts” are “procurement contracts.”
Therefore, we agree with the Court of Federal Claims
that Mr. Frankel’s contract with the FTC arising out of
the Robocall Challenge was not a procurement contract
and, consequently, Mr. Frankel did not have standing to
register an objection to the prize award under 28 U.S.C.
§ 1491(b).
III
We next turn to Mr. Frankel’s appeal of the grant of
summary judgment of his monetary claims. In a contract
arising out of a prize competition, the parties are bound
by the terms and conditions of the contest; contestants
agree to abide by any eligibility requirements present,
and the sponsor agrees to consider eligible entries for a
prize. See, e.g., Scott v. People’s Monthly Co., 228 N.W.
263, 265–66 (Iowa 1929); Johnson v. N.Y. Daily News, 97
A.D.2d 458, 458 (N.Y. App. Div. 1983), aff’d without
opinion, 462 N.E.2d 839 (N.Y. 1984). When, as here, the
terms and conditions of a contest include a limitation of
liability, a breach of contract claim brought by an unsuc-
cessful competitor will generally succeed only if the plain-
tiff shows “fraud, irregularity, intentional misconduct,
gross mistake, or lack of good faith involved in the con-
test.” BP Oil Co., 602 So. 2d at 888 (collecting cases); see
also Tassos, 715 F. Supp. 323 at 325 (collecting cases).
Clear rule violations may fall into one of these categories.
See Groves v. Carolene Prods. Co., 57 N.E.2d 507, 509 (Ill.
App. 1944).
Mr. Frankel does not argue that there was fraud, in-
tentional misconduct, or a lack of good faith by the FTC.
Instead, Mr. Frankel argues that there was irregularity
and gross mistake when the judges failed to provide
numerical scores to all eligible submissions, determined
that only entries proposing FaaS solutions would be
FRANKEL v. US 9
eligible to win, and did not appropriately apply the pub-
lished judging criteria.
These arguments are unconvincing. Though the con-
test rules do provide weights for the judging criteria, they
are silent as to whether judges were required to assign
numerical scores to each entry. Other than laying out the
criteria by which entries were to be evaluated, the rules
did not otherwise cabin the judges’ discretion. Conse-
quently, the judges had discretion to proceed in the man-
ner they thought best. In doing so, the judges decided
that entries not using a FaaS solution would categorically
not work. It may be that, as Mr. Frankel argues, the
judges were mistaken in their belief that other solutions,
such as Mr. Frankel’s, would be unsuccessful (although it
is not clear that Mr. Frankel proposed a true blocking
solution). But, even assuming the judges were mistaken,
they acted in accordance with the published judging
criteria. This is not a “gross mistake” or “irregularity.”
Cf. Minton v. F.G. Smith Piano Co., 36 App. D.C. 137,
147–48 (Ct. App. 1911) (finding a breach of contest terms
when the judges went beyond the judging criteria by
adding “neatness and legibility” requirements when,
under the contest rules, judges were only required to
evaluate a numerical entry for correctness).
Because Mr. Frankel is unable to show “fraud, irregu-
larity, intentional misconduct, gross mistake, or lack of
good faith involved in the contest,” any other breach of
contract claim based on the judging process is barred by
the contest’s limitation of liability clause. Therefore, the
Court of Federal Claims correctly granted summary
judgment in favor of the government on Mr. Frankel’s
breach of contract claim.
CONCLUSION
For the foregoing reasons, the judgment of the Court
of Federal Claims is affirmed.
10 FRANKEL v. US
AFFIRMED
COSTS
Each party shall bear their own costs.