MARCHENA v. USA

Filing 15

REPORTED OPINION granting 7 Motion to Dismiss - Rule 12(b)(1) and (6); denying 10 Cross Motion to Amend Complaint. The Clerk is directed to enter judgment. Signed by Judge Thomas C. Wheeler. (gb) Copy to parties.

In the United States Court of Federal Claims
No. 16-76C
(Filed: September 21, 2016)
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HAROLD C. MARCHENA,
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant.
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Breach of Contract; Actual
Authority of Government Agents;
Motion to Dismiss; Rule 15(a)(2)
Motion to Amend

Kenneth F. McCallion, McCallion & Associates LLP, New York, N.Y., for Plaintiff.
Anthony F. Schiavetti, with whom were Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Robert E. Kirschman, Jr., Director, and Steven J. Gillingham,
Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice, Washington, D.C., for Defendant.
OPINION AND ORDER
WHEELER, Judge.
Plaintiff, a Government informant named Harold C. Marchena, claims that the
Government breached a contract with him when it failed to help him secure money from a
large asset forfeiture in a criminal case. Marchena argues that agents working on behalf of
the Government promised him that they would use best efforts to help him secure the
money in return for his assistance in procuring the testimony of several acquaintances, but
that the Government has refused to pay even though Marchena performed.
The Government moved to dismiss Marchena’s original complaint pursuant to
Rules 12(b)(1) and 12(b)(6) of the Court of Federal Claims (“RCFC”) on May 13, 2016.
Marchena filed his opposition to the Government’s motion on July 22, 2016, and crossmoved to amend his complaint pursuant to RCFC 15(a)(2) in the same filing. The

Government opposed Marchena’s motion to amend on August 18, 2016, in its reply in
support of its motion to dismiss.1 The Court heard oral argument on the parties’ respective
motions on September 12, 2016. After reviewing the parties’ arguments in court and in
their filings, the Court concludes that Marchena’s proposed amendments would be futile.
Plaintiff’s motion to amend is therefore DENIED, and Defendant’s motion to dismiss is
GRANTED.
Background2
Marchena filed this action to recover $106,250 for his efforts in an illegal gambling
and racketeering case brought against José Miguel Battle, Sr. Prop. Am Compl. ¶¶ 4, 7–
10. Battle was the leader of a Cuban criminal organization called “La Corporacion,” and
a casino he owned in Peru employed Marchena from approximately September 1, 1993 to
November 14, 1994. Id. ¶¶ 4, 9. When Marchena stopped working at the casino, he was
owed $106,250 in back wages. Id. ¶ 10. He has not been able to collect these wages even
after obtaining a judgment for them in 1996 in Peru. Id.
In 2001, Marchena met with Detective David Shanks of the Metro-Dade Police
Department and Agent Robert O’Bannon of the United States Department of State. Id.
¶¶ 12–13. Shanks and O’Bannon asked for Marchena’s help in the Battle investigation.
Id. ¶ 13. They also told Marchena that they would use their best efforts to
“obtain/recommend/support” an award to Marchena from any asset seizure in the Battle
case if Marchena helped in the investigation. Id. ¶ 16. Marchena alleges that Shanks and
O’Bannon “had apparent and actual authority” to enter into this agreement on the
Government’s behalf. Id. After this, Marchena hired an attorney who “verbally
confirm[ed]/witness[ed]” the agreement with Shanks and O’Bannon. Id. ¶ 18. Marchena
alleges that Shanks and O’Bannon’s “superiors and other Government agents,” including
an Assistant United States Attorney, Gonzalez, “with the actual authority to bind the
Government,” ratified the agreement with Marchena. Id. ¶ 19.
Marchena performed as promised. He gave Shanks and O’Bannon information and
introduced them to three other witnesses. Id. ¶ 20. Marchena also convinced several
witnesses to speak to Shanks and O’Bannon. Id. ¶¶ 21–23. Two of these witnesses testified
in front of the Grand Jury in the Battle case. Id. ¶ 27.

These filings are referred to herein respectively as “Mot.,” “Cross Mot.,” and “Reply,” and may be found
at Docket Numbers 7, 10, and 13. Additionally, Plaintiff’s Proposed Amended Complaint (Dkt. No. 10 Ex.
1) is referred to herein as “Prop. Am. Compl.”
1

The Court draws the facts as stated in the Background section of this Opinion from the Proposed Amended
Complaint. For the purposes of the pending motions, these facts are assumed to be true.

2

2

In June 2002, Marchena agreed to forgo filing a lien against the assets in the Battle
case until after the Battle defendants were indicted. Id. ¶ 25. Shanks, on behalf of AUSA
Gonzalez, continued to assure Marchena that they would use best efforts to obtain an award
for him from any eventually forfeited assets in the Battle case. Id. The Government also
provided no security or protection for Marchena and his family during or after trial, despite
having told Marchena that it would do so. Id. ¶ 28. Battle pled guilty during his trial, and
other members of his organization were convicted in a jury trial on July 25, 2006. Id. ¶ 8.
The court in that case entered a final forfeiture order on January 13, 2010, in the amount
of $1.4 billion against Battle and $642 million against Battle’s son. Id.
After the trial, Shanks told Marchena to file a lien in the Battle case to ensure
Marchena would be paid. Id. ¶ 30. The court in that case denied Marchena’s lien because
Marchena was not a qualified lien holder. Id. ¶ 31. Marchena and Shanks then got into a
dispute over involving Marchena’s then-attorney, Spittler, in further attempts to obtain
Marchena’s money from the Government. Id. ¶¶ 33–34. Shanks told Marchena that if he
brought Spittler into the case once again, Shanks would ensure that Marchena would never
be paid. Id. ¶ 34. Marchena nevertheless did so, and Spittler filed a petition for restitution
on Marchena’s behalf with the United States Attorney General’s Office on December 12,
2010. Id. ¶ 35. The Attorney General’s Office denied the petition on May 8, 2013, because
Marchena was not a “victim of the crime nor a recognized lienholder, because he did not
file and record his foreign judgment and file a lien before the Government’s indictment
and seizure . . . .” Id. ¶ 38. Thus, Marchena was left with no compensation for his efforts
as an informant.
Marchena filed this action on January 13, 2016, alleging that the Government
breached either an express or implied-in-fact contract with him under which the
Government promised to use best efforts to help Marchena recover his money. See Compl.,
Dkt. No. 1. The Government then moved to dismiss this case under RCFC 12(b)(1) and
12(b)(6), mainly on the grounds that Marchena did not sufficiently allege the existence of
a contract with the United States. See Mot., Dkt. No. 7. Marchena moved to amend his
complaint pursuant to RCFC 15(a)(2). See Cross Mot., Dkt. No. 10. In his Proposed
Amended Complaint, Marchena fills out his contract allegations, deletes his plea for
declaratory relief, and adds allegations that the Government breached a further agreement
to provide Marchena and his family with protection during the Battle investigation. See
Prop. Am. Compl., Dkt. No. 10 Ex. 1. In its reply in support of its motion to dismiss, the
Government opposes Marchena’s motion to amend, asserting largely the same arguments
under RCFC 12(b)(1) and 12(b)(6) that it raised in its original motion. See Reply, Dkt.
No. 13.

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Discussion
Plaintiff’s Motion to Amend the Complaint
A party may amend its complaint under RCFC Rule 15(a)(2) with the Court’s leave,
which should be given “freely . . . when justice so requires.” Courts construe this language
liberally, and generally grant leave to amend barring any “apparent or declared reason” not
to permit amendment. A & D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1158 (Fed.
Cir. 2014) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). The Court should deny
leave to amend if there is evidence of delay, bad faith, repeated failure to correct a
complaint’s deficiencies, undue prejudice to the opposing party, or if the amendment would
be futile. Id.
Here, there is no evidence of bad faith or undue delay by Marchena, and this is
Marchena’s first request to amend his complaint. Further, the Government does not argue
that it would be unduly prejudiced if Marchena were granted leave to amend his complaint.
Indeed, the amendments Marchena proposes merely serve to add details to factual
allegations in the original complaint. Instead, the Government argues that Marchena
should not be granted leave to amend because Marchena’s proposed amendments would
be futile. Therefore, this Court’s analysis will focus entirely on whether Marchena’s
proposed amendments would be futile.
A proposed amendment is futile if it would not survive a motion to dismiss. Meyer
Grp., Ltd. v. United States, 115 Fed. Cl. 645, 650 (2014). Accordingly, “the party seeking
leave must proffer sufficient facts supporting the amended pleading that the claim could
survive a dispositive pretrial motion.” Id. (quoting Kemin Foods, L.C. v. Pigmentos
Vegetales Del Centro S.A. de C.V., 464 F.3d 1339, 1354–55 (Fed. Cir. 2006)) (internal
punctuation omitted). Here, the Government argues that the amendment would be futile
because it would not survive a motion to dismiss brought under RCFC 12(b)(1) and
12(b)(6). Specifically, the Government argues (1) that Marchena has not alleged the
existence of a contract with the United States, so this Court lacks subject matter
jurisdiction; (2) that the statute of limitations has run on Marchena’s claims; and (3) that
the amended complaint fails to state at claim upon which relief can be granted because
Marchena has not sufficiently alleged the existence of a contract with the United States.
The Court will examine each of the Government’s arguments in turn.

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I. The Court Only has Subject-Matter Jurisdiction Over Marchena’s Contract Claims
A. Standard of Review
The Government first argues that this Court lacks subject matter jurisdiction over
this case. Therefore, the Court’s analysis of the Government’s jurisdictional argument is
substantially the same as it would be for a motion to dismiss for lack of subject matter
jurisdiction under RCFC 12(b)(1). When considering a motion to dismiss under RCFC
12(b)(1), the Court must “assume all factual allegations to be true and . . . draw all
reasonable inferences in plaintiff’s favor.” Wurst v. United States, 111 Fed. Cl. 683, 685
(2013) (quoting Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). However, a
plaintiff must establish that jurisdiction exists “by a preponderance of the evidence.” Id.
(citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)).
B. This Court has Subject-Matter Jurisdiction Over Marchena’s Contract Claims
Pursuant to the Tucker Act, 28 U.S.C. § 1491(a)(1), this Court has subject matter
jurisdiction to hear claims against the Government “founded . . . upon any express or
implied contract with the United States.” Where a plaintiff alleges that he entered into a
contract with the Government, the plaintiff need only allege a “non-frivolous allegation of
a contract with the government.” Mendez v. United States, 121 Fed. Cl. 370, 378 (2015)
(quoting Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 2011))
(emphasis in original). Therefore, a plaintiff merely must allege that “either an express or
implied-in-fact contract underlies [his] claim.” Id. (quoting Trauma Serv. Grp. v. United
States, 104 F.3d 1321, 1352 (Fed. Cir. 1997)) (collecting additional cases). Accordingly,
to show jurisdiction, a plaintiff must plead the elements of a contract: “(1) mutuality of
intent to contract; (2) consideration; (3) an unambiguous offer and acceptance; and (4)
actual authority on the part of the government’s representative to bind the government.”
Biltmore Forest Broad. FM, Inc. v. United States, 555 F.3d 1375, 1380 (Fed. Cir. 2009)
(citation omitted).
The Court finds that Marchena has met this low threshold requirement here. He
alleges that he and the Government expressly agreed (mutuality of intent, offer, and
acceptance) that he would serve as an informant in return for help in recovering money
from the Battle asset forfeiture (consideration). Further, Marchena alleges that the agents
with whom he interacted—Shanks and O’Bannon—had actual authority to bind the United
States, and that AUSA Gonzalez also ratified the agreement and had authority to bind the
United States. At the jurisdictional stage, this is all that is required to show a “non-frivolous
allegation of a contract with the government.” Mendez, 121 Fed. Cl. at 378 (citation
omitted). Whether Marchena has sufficiently alleged the elements of a contract such that
his complaint states a claim upon which relief may be granted is a wholly separate issue.
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Therefore, the Court finds that it has subject matter jurisdiction over Marchena’s contract
claims pursuant to 28 U.S.C. § 1491(a)(1), so these claims are not futile for lack of
jurisdiction.
C. The Court Lacks Subject-Matter Jurisdiction Over Marchena’s Protection
Agreement Claims
In his Proposed Amended Complaint, Marchena adds allegations that the
Government failed to offer protection to him and his family during the Battle investigation
and trial as promised. See Prop. Am. Compl. ¶¶ 28, 44, 47, 54. However, agreements that
are “entirely concerned with the conduct of parties in a criminal case, without a clear,
unmistakable statement triggering monetary liability, do not invoke Tucker Act
jurisdiction.” Higbie v. United States, 778 F.3d 990, 993 (Fed Cir. 2015) (citing Sanders
v. United States, 252 F.3d 1329 (Fed. Cir. 2001)). Witness protection agreements related
to criminal cases fall into the same category. See Grundy v. United States, 2 Cl. Ct. 596,
597–98 (1983) (finding no jurisdiction where plaintiff alleged breach of a witness
protection agreement).
In his Proposed Amended Complaint, Marchena alleges that the Government
breached an agreement for protection that was related to a criminal case. Marchena does
not allege any unmistakable statement in this agreement that would give rise to the
Government’s obligation to pay money. Therefore, the Court has no subject-matter
jurisdiction under 28 U.S.C. § 1491(a)(1) to entertain Marchena’s protection agreement
claims, and those amendments to Marchena’s complaint would be futile.
D. Marchena’s Contract Claims are Not Time-Barred
The Government next argues that the statute of limitations has expired for
Marchena’s contract claims. The statute of limitations is a matter of jurisdiction, and
plaintiffs must demonstrate the timeliness of their claims. Parkwood Associates Ltd.
P’ship v. United States, 97 Fed. Cl. 809, 813 (2011). A claim before this Court is timebarred under the statute of limitations “unless the petition thereon is filed within six years
after such claim first accrues.” 28 U.S.C. § 2501. In a breach of contract action such as
this one, “a claim accrues when the breach occurs.” Eden Isle Marina, Inc. v. United States,
113 Fed. Cl. 372, 481 (2013) (citing Holmes v. United States, 657 F.3d 1303, 1317 (Fed.
Cir. 2011)). Still, a claim cannot accrue “unless the claimant knew or should have known
that the claim existed.” Mendez, 121 Fed. Cl. at 383 (citation omitted). Therefore, the
Court must determine when Marchena knew or should have known his claim for
compensation existed. Because Marchena filed his original complaint on January 13, 2016,
he must have had notice that his claim existed no earlier than January 13, 2010.
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Discussing the statute of limitations in this case necessarily involves turning to the
factually related case of Mendez v. United States, 121 Fed. Cl. 370 (2015). That case
involved the same investigation of José Miguel Battle, Sr. See id. at 373–74. The plaintiff,
Mendez, also alleged that Shanks and O’Bannon entered into a contract with him according
to which he would serve as an informant in exchange for help in recovering money from
the Battle forfeiture. Id. at 374–76. The Government also argued in that case that
Mendez’s claims were barred by the statute of limitations. Id. at 384. After reviewing the
record, the Court in Mendez provisionally found that the statute of limitations began to run
on January 14, 2010, when the court entered the final order of forfeiture in the Battle case.
Id. This was when Mendez “knew or should have known that his claim for compensation
existed” because it was when Mendez’s claim to the forfeited assets ripened. Id. (citation
omitted). Still, the Court stressed that it could revisit the statute of limitations issue later
if the evidence after discovery showed that Mendez was on notice of his claims at an earlier
date outside the six-year statute of limitations. Id.
This Court sees no reason to depart from Mendez in determining when the statute
of limitations began to run in this case. The Court in Mendez correctly reasoned that,
absent evidence to the contrary, the earliest Mendez could have had notice of his claim was
when the Battle forfeiture order was entered. Marchena’s Proposed Amended Complaint
alleges substantially the same details as to when Marchena was put on notice of his claims.3
Therefore, as in Mendez, the Court provisionally finds that the statute of limitations in this
case began to run on January 14, 2010. Marchena filed his complaint on January 13,
2016—one day before the statute of limitations expired. Therefore, the Court finds that
Marchena’s contract claims are timely, so his proposed amendments are not futile on that
basis.
II. Marchena’s Proposed Amended Complaint Fails to State a Claim Upon Which
Relief may be Granted
A. Standard of Review
The Government argues that the Proposed Amended Complaint fails to state a claim
upon which relief may be granted because (1) Marchena does not sufficiently allege that a
contract existed; and (2) Marchena does not sufficiently allege that officials with actual
authority to bind the United States in contract ratified the agreement. See Reply at 3–8.
Accordingly, the Court must evaluate the Government’s arguments the same way it would
3

Although the Government argued that Marchena’s claims in his original complaint were time-barred, the
parties do not seriously dispute the similarities (for statute of limitations purposes) between Mendez’s
claims and the claims in Marchena’s Proposed Amended Complaint. The Government, in its Reply, notes
that the Proposed Amended Complaint attempts to bring Marchena’s claims “in line” with the Mendez
statute of limitations, albeit in a “conclusory” fashion. See Reply at 9 n.4.

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on a motion to dismiss for failure to state a claim under RCFC 12(b)(6). A complaint fails
to state a claim upon which relief may be granted within the meaning of RCFC 12(b)(6)
“when the facts asserted by the claimant do not entitle him to a legal remedy.” Briseno v.
United States, 83 Fed. Cl. 630, 632 (2008) (citation omitted). The Court also must construe
allegations in the complaint favorably to the plaintiff. See Extreme Coatings, Inc. v. United
States, 109 Fed. Cl. 450, 453 (2013). Still, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted)). Further, a plaintiff may
not simply plead “labels and conclusions” or “a formulaic recitation of the elements of a
cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
B. Marchena has not Alleged the Existence of a Contract with Officials who had
Actual Authority to Bind the Government
Marchena alleges that he entered into an express contract with the Government or,
in the alternative, a contract implied-in-fact. Prop. Am. Compl. ¶¶ 42–56. Therefore, to
state a claim upon which relief may be granted, Marchena must sufficiently plead the
elements of a contract with the United States, which are the same whether the alleged
contract is express or implied-in-fact. Threshold Techs., Inc. v. United States, 117 Fed. Cl.
681, 696 (2014). As noted above, these elements are: “(1) mutuality of intent to contract;
(2) consideration; (3) an unambiguous offer and acceptance; and (4) actual authority on the
part of the government’s representative to bind the government.” Biltmore Forest, 555
F.3d at 1380 (citation omitted).
The main issue here is whether the Government agents with whom Marchena
interacted had actual authority to bind the Government. Government agents must have
actual authority to bind the Government in contract—they do not have apparent authority.
See Winter v. Cath-dr/Balti Joint Venture, 497 F.3d 1339, 1344–45 (Fed. Cir. 2007).
Private parties bear the risk that Government agents may not have actual authority to bind
the Government, even when the agents themselves believe they have such authority. See
Schism v. United States, 316 F.3d 1259, 1278 (Fed. Cir. 2002) (citing Fed. Crop Ins. Corp.
v. Merrill, 332 U.S. 380 (1947)). An agent’s actual authority to bind the Government may
be either express or implied. Salles v. United States, 156 F.3d 1383, 1384 (Fed. Cir. 1998)
(citation omitted). An agent has implied actual authority to contract if this authority is “an
integral part of the duties assigned to [the G]overnment employee.” Id. (citation omitted).
Marchena alleges that Shanks, O’Bannon, AUSA Gonzalez, and “their superiors
and other Government Agents” all had actual authority and ratified Marchena’s agreement
with the Government. See Prop. Am. Compl. ¶¶ 16–19. This claim fails. First, pleading
that certain officials had actual authority is a legal conclusion that this Court is not bound
to accept as true. Second, Marchena’s vague claims that “superiors and other Government
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agents” ratified his agreement do not meet the plausibility standard articulated in Iqbal.
See 556 U.S. at 679. The superiors’ and agents’ official roles are not named, so it is
impossible to determine whether they had actual authority or not. Therefore, Marchena’s
claims as to these unnamed officials are not plausible.
Next, Shanks cannot have actual authority to bind the Government because he is a
detective in the Metro-Dade Police Department. Prop. Am. Compl. ¶ 12. The Metro-Dade
Police Department is under the jurisdiction of Florida, not the Federal Government.
Marchena does not allege any special agreement between the Government and Shanks that
would somehow give Shanks authority to bind the Federal Government—the closest
allegation states that the Metro-Dade Police Department was one of several agencies
involved in the Battle investigation. See Prop. Am. Compl. ¶ 5. Therefore, Shanks did not
have actual authority to contract with Marchena on the Government’s behalf.
O’Bannon and AUSA Gonzalez, though agents of the Government, also had no
actual authority to bind the Government in contract. Marchena has not alleged that the
Government gave O’Bannon or AUSA Gonzalez express authority to contract,4 so any
actual authority they had must have been implied—in other words, entering into contracts
of this type must have been an integral part of the duties assigned to them. Salles, 156 F.3d
at 1384.
Government agents generally have no implied actual authority to enter into contracts
on the Government’s behalf where the Government’s performance is conditioned on the
approval of another government official or body. For example, in SGS-92-X003 v. United
States, the Court found that a DEA agent had not bound the Government where he had
promised the plaintiff merely “to use his best efforts to obtain commissions . . . that would
only be paid upon approval of high-level officials.” 85 Fed. Cl. 678, 705 (2009). The
plaintiff also “understood she was working for [the] DEA and that her rewards would be
recommended by [the agent], but paid by the Government if approved and that there was
no guarantee that [the agent]’s requests would be approved.” Id. at 705.
The same is the case here. O’Bannon’s and AUSA Gonzalez’s promise to use “best
efforts” to help Marchena does not translate into a firm promise by the Government
because higher officials with actual authority needed to ratify the agreement. Indeed,
Battle’s assets were not yet forfeited when O’Bannon entered into his alleged agreement
with Marchena, so it is difficult to determine what help O’Bannon—or even AUSA
Gonzalez, in his supervisory role—was capable of promising on the Government’s behalf.
4

Though Marchena’s Counsel stated at Oral Argument that AUSAs have the express actual authority to
bind the Government in situations like this one, there are no allegations in the Proposed Amended
Complaint that explain the basis for such authority, and Marchena also has not shown a source of authority
in his briefing.

9

Logically speaking, the Government cannot promise to use best efforts to get Marchena an
award pending Government approval of the award. Therefore, O’Bannon and AUSA
Gonzalez had no actual authority to contract on behalf of the Government.
Marchena has failed to plead in his Proposed Amended Complaint that a
Government agent with actual authority entered into a contract with him. Consequently,
he has failed to plead that an express or implied-in-fact contract existed between him and
the Government. The Court therefore finds that his contract claims are futile because they
fail to state a claim upon which relief may be granted within the meaning of RCFC
12(b)(6).5
III.

Conclusion

The Court finds that Marchena’s claims in his Proposed Amended Complaint that
are predicated upon the Government’s promise to protect him are futile because they do
not fall under the Court’s subject-matter jurisdiction. The Court further finds that
Marchena’s breach-of-contract claims in his Proposed Amended Complaint are futile
because they fail to state a claim upon which relief may be granted. Therefore, because all
claims in the Proposed Amended Complaint would be futile, Plaintiff’s motion to amend
his complaint is DENIED.
Defendant’s Motion to Dismiss
The Government has moved to dismiss Marchena’s original complaint. The
Government’s arguments in support of its motion to dismiss and its arguments in
opposition to Marchena’s motion to amend his complaint are substantially the same. The
only significant difference pertains to the claim for declaratory relief in Marchena’s
original complaint. The Government argues that the Court lacks subject matter jurisdiction
over this claim. See Mot. at 18–19.
This Court has no jurisdiction to grant declaratory relief in the absence of a money
judgment for the plaintiff. Bobula v. U.S. Dep’t of Justice, 970 F.2d 854, 859 (Fed. Cir.
1992). Here, a money judgment for Marchena would require a contract between Marchena
and the Government, which does not exist. Therefore, this Court has no subject-matter

Because the Court finds that no contract existed between the parties, Marchena also has failed to allege
that the Government breached any implied covenant of good faith and fair dealing, so this claim also is
futile. See Scott Timber Co. v. United States, 692 F.3d 1365, 1372 (Fed. Cir. 2012) (“[B]ecause the
existence of the covenant of good faith and fair dealing depends on the existence of an underlying
contractual relationship, there is no claim for a breach of this covenant where a valid contract has not yet
been formed.”) (citations omitted).
5

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jurisdiction over Marchena’s claim for declaratory judgment. Accordingly, Defendant’s
motion to dismiss is GRANTED.
This action is hereby DISMISSED without prejudice. The Clerk is directed to close
this case.
IT IS SO ORDERED.
s/ Thomas C. Wheeler
THOMAS C. WHEELER
Judge

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