DOE v. USA
Filing
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REPORTED OPINION granting Defendant's motion for summary judgment. The Clerk shall enter judgment accordingly. No costs. Signed by Senior Judge Nancy B. Firestone. (jt1) Copy to parties.
In the United States Court of Federal Claims
No. 12-849C
(Filed: November 22, 2016)*
*Opinion originally filed under seal on November 7, 2016
JOHN DOE,
Plaintiff,
v.
THE UNITED STATES,
Defendant.
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Motion for Summary Judgment; RCFC
56; Government Informant; Narcotics
Rewards Program; 22 U.S.C. § 2708;
Secretary of State Approval
Thomas M. West, Bethlehem, GA, for plaintiff.
Alison Vicks, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, with whom were Steven J. Gillingham, Assistant
Director, Robert E. Kirschman, Jr., Director, and Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, for defendant.
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
This case is before the court on the United States government’s (“the
government”) motion for summary judgment under Rule 56 of the Rules of the Court of
Federal Claims (“RCFC”). The plaintiff, an informant for the Drug Enforcement
Administration (“DEA”) in [xxxxxx] referred to in this opinion as “John Doe,” alleges in
his amended complaint that the government is liable for breach of contract for failing to
pay him a reward under the Department of State Narcotics Rewards Program, which is
codified at 22 U.S.C. § 2708 (2012) (“section 2708” or “the Act”) 1. Under section 2708,
the Secretary of State in his sole, unreviewable, and non-delegable discretion is
authorized to make rewards to individuals that provide information leading to the arrest
of narcotic traffickers. The plaintiff alleges that he provided information that led to the
arrest of a significant narcotics trafficker in Colombia and that agents from the DEA and
later Immigration and Customs Enforcement (“ICE”) agreed to secure a $2.5 million
reward for him under section 2708. The plaintiff asserts that the failure to pay the reward
gives rise to a breach of contract claim in the amount allegedly promised to him. The
government argues that under section 2708, no DEA or ICE agents could have bound the
government to pay plaintiff a $2.5 million reward because no one other than the Secretary
of State had the authority to authorize a reward in that amount under the Act. The
government further argues that the Secretary of State never ratified any promise to pay
plaintiff because the undisputed evidence shows that the Secretary has never received a
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Title 22 U.S.C. § 2708, known as the “Department of State rewards program” is “designed to
assist in the prevention of acts of international terrorism, international narcotics trafficking . . .
and other related criminal acts.” 22 U.S.C § 2708(a)(2). The program provides that “[i]n the sole
discretion of the Secretary [of State] . . . and in consultation . . . with the heads of other relevant
department or agencies” including the Department of Justice, the discretion to pay a reward of up
to $25 million to any “individual who furnishes information leading to . . . the arrest or
conviction in any country of any individual for committing . . . any narcotics-related offense if
that offense involves . . . a violation of United States narcotics laws. . . .” Id. § 2708(b)(3)(A).
Under the Act, “[a] reward . . . of more than $100,000 may not be made without the approval of
the Secretary [of State].” Id. § 2708(e)(2). In addition, “[t]he authority to approve rewards of
more than $100,000 . . . may not be delegated.” Id. § 2708(e)(4). Finally, the Act states that “[a]
determination made by the Secretary under this section shall be final and conclusive and shall
not be subject to judicial review.” Id. § 2708(j).
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request for payment of a reward to plaintiff under the procedures established for paying
rewards under section 2708. 2
For the reasons that follow, defendant’s motion for summary judgment is
GRANTED.
I.
BACKGROUND
A.
STATUTORY AND REGULATORY BACKGROUND
In 1986, Congress granted the Secretary of State the power to establish a Narcotics
Rewards Program in order to pay cash rewards for tips leading to the arrest of narcotics
traffickers outside the jurisdiction of the United States. 22 U.S.C. § 2708. The Secretary
is authorized, at his or her sole discretion, to pay an individual a reward for information
leading to the arrest in any country of a major violator of United States narcotics law. Id.
§ 2708(b)(3)(A). The maximum reward for a narcotics arrest is $25,000,000, and any
award in excess of $100,000 must be personally approved by the Secretary of State. Id. §
2708(e)(1)-(2). By law, the Secretary may not delegate the authority to approve awards
greater than $100,000 to any person. Id. § 2708(e)(4). Finally, “[a] determination made
by the Secretary [with regard to payment of a reward] . . . shall be final and conclusive
and shall not be subject to judicial review.” Id. § 2708(j).
State Department officials and officers of ICE and DEA may propose reward
offers for information leading to the arrest of narcotics traffickers. See 2 FAM §
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As discussed above, the process for securing approval of rewards under section 2708 are laid
out in the State Department’s Foreign Affairs Manual. 2 U.S. Dep’t of State Foreign Affairs
Manual §§ 950-54 (2013).
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953.1(a). However, no such officer may offer or promise a reward without express
approval from the Bureau of International Narcotics and Law Enforcement Affairs
(“INL”) and the Secretary of State. 2 FAM § 953.2(c). The INL is responsible for
managing the reward program. When an agency proposes to offer a reward, the State
Department may allocate Narcotics Rewards Program funds to advertise the reward in a
foreign country. 2 FAM § 953.2(a).
If an informant’s tip leads to the arrest of a narcotics fugitive, DEA or ICE officers
are authorized to submit a reward proposal, specifically detailing the informant’s
contribution, to the Chief of Mission of the U.S. Embassy in the involved country. 2
FAM § 953.4(a). If the Chief of Mission approves the reward proposal he then forwards
the proposal to the appropriate government offices for review, including the Department
of Justice and the Narcotics Rewards Program Committee. 22 U.S.C. § 2708(c)(2)
(“Before making a reward under this section in a matter over which there is Federal
criminal jurisdiction, the Secretary of State shall obtain the concurrence of the Attorney
General.”). If the Committee recommends a reward, the INL presents the
recommendation to the Secretary of State, who has final and exclusive discretion to
authorize a reward. 2 FAM § 953.5, 953.7(a). Neither Section 2708 nor the Foreign
Affairs Manual dictates a timetable for making a determination. See generally 22 U.S.C
§ 2708; 2 FAM §§ 950-54. If the Secretary does not approve a reward proposal, the
Committee must communicate to ICE or DEA the basis for the denial. 2 FAM §
953.5(f). For approved rewards, the Bureau of the Comptroller and Global Financial
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Services transfers the appropriate funds to ICE or DEA who are then responsible for
paying the informant. 2 FAM § 953.8(c).
B.
FACTUAL BACKGROUND
The plaintiff contends that he responded to a reward offer by federal government
agents for a reward of up to $5,000,000 for information leading to the arrest of a major
narcotics trafficker. It is not disputed that information he provided led to the trafficker’s
arrest. It is also not disputed that “[i]n or around November 2011, [ICE], via the U.S.
Embassy in [xxxxx, xxxxx], submitted a proposal requesting a reward of $2 million for
an operation that led to the capture of [xxxxxxxxxxxxxxxxxxxx],” a high ranking
member of the [xxxxxxxxxxxxxxxxx]. [xxxxxx] Decl. ¶ 5 (ECF No. 61). 3 According to
[xxxxxxxxxxxxxx], the current Narcotics Rewards Program Manager at the State
Department, 4 in a declaration signed on August 17, 2016, the request for reward has not
passed review by the Department of Justice because “[the Department of Justice] had
provided ICE with numerous questions to be addressed before [the Department of
Justice] would approve the proposal.” [xxxxxx] Decl. ¶ 6. Department of Justice
concurrence is required in the present case because there is Federal criminal jurisdiction.
22 U.S.C. § 2708(c)(2). “The file remains in ‘pending/inactive’ status with the [State]
Department, as ICE needs to provide [the Department of Justice] with responses to the
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On [xxxxxxxxxxxxxxxxx, xxxxxxxxxxx] was indicted in the Eastern District of New York for
conspiracy to import and distribute cocaine and money laundering. Narcotics Rewards Program:
[xxxxxxxxxxxxxxxxxxxxxxxxxxx, U.S. Dep’t of State,
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx].
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[xxxxxxxxxx], an employee of Celestar Corporation, is assigned to INL’s Office of Policy
Coordination at the State Department. [xxxxxx] Decl. ¶ 1.
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outstanding questions before it can be submitted to the [State] Department for formal
consideration.” [xxxxxx] Decl. ¶ 7.
Both the government and plaintiff have filed conflicting affidavits regarding
various meetings between the plaintiff and federal government agents. The plaintiff filed
declarations stating that he met with federal government agents who promised him the
reward. See generally Pl.s’ Response App’x. (ECF No. 51). The government has filed
declarations from the identified agents, who state that none of them promised plaintiff the
reward. Def.’s App’x. at 2, 10, 73-74 (ECF No. 45).
However, not disputed that, in 2013, ICE endeavored to find out what had
happened with the request for reward that had been submitted for plaintiff. Emails from
ICE management show that ICE was told that more information was needed to complete
the submission. Specifically, ICE was told that to complete the submission more
information would be needed regarding how the plaintiff obtained information on
[xxxxx]’s location and whether any DEA agents assisted in the arrest. Def.’s App’x. at
48 (ECF No. 45). However, because necessary information has apparently never been
submitted, the request for reward remains “pending/inactive.” [xxxxxx] Decl. ¶ 7.
Accordingly, the request has not been submitted to the Secretary of State.
The government filed the present motion for summary judgment on April 29, 2016
(ECF No. 45). Briefing was completed on August 19, 2016. The court heard oral
argument on November 1, 2016.
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II.
LEGAL STANDARD
The court shall grant summary judgment when a movant shows that there is no
genuine issue of material fact and that they are entitled to judgment as a matter of law.
RCFC 56(a). A material fact is one that might alter the outcome of a suit. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In order to establish that a fact is or
cannot be disputed, a party must cite to particular parts of materials in the record. RCFC
56(c). When a party moves for summary judgment before discovery and “a nonmovant
shows by affidavit or declaration that, for specified reasons, it cannot present facts
essential to justify its opposition, the court may . . . allow time to obtain affidavits or
declarations or to take discovery.” RCFC 56(d). However, a court may grant summary
judgment before discovery where the party opposing summary judgment only baldly
speculates that wrongful conduct occurred. See T & M Distribs., Inc. v. United States,
185 F.3d 1279, 1285 (Fed. Cir. 1999).
III.
DISCUSSION
In order to establish a binding express or implied-in-fact contract with the
government, a plaintiff must show (1) mutuality of intent; (2) consideration; (3) lack of
ambiguity in the offer and acceptance; and (4) actual authority on the part of the
government’s representative to bind the government in contract. City of El Centro v.
United States, 922 F.2d 816, 820 (Fed. Cir. 1990). “Absent actual authority on the part of
the [g]overnment’s agent to bind the [g]overnment in contract, no binding contract can
exist, regardless of the agent’s representations.” Doe v. United States, 100 F.3d 1576,
1584 (Fed. Cir. 1996). The government is not bound by the acts of its agents beyond the
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scope of their authority. Harbert/Lummus Agrifuels Projects v. United States, 142 F.3d
1429, 1432 (Fed. Cir. 1998). “The scope of this authority may be explicitly defined by
Congress or be limited by delegated legislation . . . .” Fed. Crop Ins. Corp. v. Merrill, 332
U.S. 380, 384 (1947). Individuals contracting with the government bear the risk of
correctly ascertaining that the government agent has actual authority to bind the
government. Id. at 384; City of El Centro, 922 F.2d at 829. Where the agent acting on
behalf of the government lacks authority, the government may be bound if a superior
with contracting authority “ratifies” the unauthorized agreement. Harbert/Lummus, 142
F.3d at 1433. To show that an unauthorized agreement has been “ratified” there must be
evidence to show that a person with authority knows the fact of the unauthorized contract
and has approved the agreement. Id.
Tested by these standards the government is entitled to summary judgment in this
case. Based on the undisputed facts, the plaintiff cannot show that there is a genuine
issue of material fact as to whether the federal agents he allegedly contracted with had
authority to bind the government. Nor can the plaintiff show on this record any genuine
issue of material fact that the Secretary of State ratified any promise to provide plaintiff
with a reward under section 2708.
Plaintiff claims that he is entitled to a reward under the Department of State
Narcotics Rewards Program, 22 U.S.C. § 2708 (2012), on the grounds that he received a
binding and enforceable promise from federal agents that he would receive a reward for
$2,000,000 (the amount ICE submitted in its proposal) or $2,500,000 (the amount
plaintiff alleges agents promised to secure for him) in exchange for information that led
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to the arrest of a narcotics trafficker. The fatal flaw in plaintiff’s case is that, under
section 2708, the only person with authority to authorize such a reward is the Secretary of
State. In addition, as discussed above, the Secretary of State is explicitly forbidden by
statute from delegating reward authority for rewards over $100,000 to any person. 22
U.S.C. § 2708(e)(4). Thus, under the statutory scheme the Secretary of State is the sole
individual with authority to ratify the proposed reward. Because it is not disputed that the
Secretary of State has not authorized or ratified the proposed reward to plaintiff, the
government is entitled to summary judgment.
The undisputed evidence establishes that the Secretary of State has not received or
approved the $2.5 million reward plaintiff claims he was promised. Plaintiff’s reliance
on the promises of various federal agents to support his breach of contract claim is
misplaced. Regardless of whether any federal agents promised a $2,500,000 reward to
plaintiff, no DEA or ICE agent was authorized to make such a promise under section
2708. In addition, it is not relevant whether superiors at the DEA and ICE knew of the
agent’s actions and approved of the reward promise. No one at ICE or DEA was
authorized to approve or ratify a reward promise. By law, only the Secretary of State is
authorized to approve or ratify a reward promise for over $100,000. Because the
undisputed evidence demonstrates that the request to pay a reward to plaintiff has not
been presented to the Secretary of State, plaintiff cannot establish a legally enforceable
claim to the alleged reward.
To the extent the court now understands that plaintiff may be also arguing that he
has a contract right to have his reward proposal presented to the Secretary of State, that
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claim also fails as a matter of law. There is nothing this court can do to require ICE or its
agents to submit the information apparently missing from the plaintiff’s reward proposal
to the Department of Justice any more than the court can force the Secretary of State to
consider a reward request. The Federal Circuit has made clear that “[e]xcept in strictly
limited circumstances . . . there is no provision in the Tucker Act authorizing the Court of
Federal Claims to order equitable relief.” Massie v. United States, 226 F.3d 1318, 1321
(Fed. Cir. 2000) (citing 28 U.S.C. § 1491(b)(2)). Having determined that no contract
exists, the court lacks jurisdiction to order further action on plaintiff’s proposal. In
Stevens v. United States, the Federal Circuit found that the Court of Federal Claims
lacked jurisdiction to provide plaintiff an opportunity to testify before Congress despite
the fact that plaintiff may have exhausted all other avenues of relief. 367 F. App’x 158,
160-61 (Fed. Cir. 2010). The court found that the “only source of law [plaintiff] has
relied on is contract law, and as discussed above, there is no evidence of a contract to
support his claim.” Id. at 161. The decision to grant a reward rests within the sole
unreviewable discretion of the Secretary of State under section 2708(j). Without such a
decision from the Secretary, there can be no contract. The plaintiff cannot circumvent the
statute by claiming a right to damages when federal agents fail to submit a reward
proposal to the Secretary.
Though plaintiff moved for additional discovery in his response to the
government’s motion, asking the court to compel the government to produce “all
documents concerning the reward offer in this case, communications between
government agencies concerning the progress of the reward, identification of government
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agents who had authority or ratified the reward in this case, and the regulations that
governed this reward offer and the progression of the payment of the reward,” Pl.’s
Response at 10, the court finds that granting such a motion would be futile. None of the
evidence plaintiff seeks could alter the fact that the agents plaintiff spoke with lacked
authority to bind the government. Accordingly, the plaintiff cannot present any genuine
issues of material fact to show that failing to present a reward proposal to the Secretary of
State gives rise to a breach of contract claim, with or without additional discovery.
IV.
CONCLUSION
For the above-stated reasons the government’s motion for summary judgment is
GRANTED. The clerk shall enter judgment accordingly. No costs.
IT IS SO ORDERED.
s/Nancy B. Firestone
NANCY B. FIRESTONE
Senior Judge
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