Williams v. Biomedical Advanced Research & Dev. Auth.

SHAKUR WILLIAMS, Plaintiff, v. BIOMEDICAL ADVANCED RESEARCH AND DEVELOPMENT AUTHORITY, et al., Defendants.

Civil Action No. 20-3592 (FYP)

United States District Court, District of Columbia

March 31, 2022

MEMORANDUM OPINION

FLORENCE Y. PAN UNITED STATES DISTRICT JUDGE

Plaintiff Shakur Williams developed a COVID-19 contact-tracing app that he shared with the United States government via email and a public website. He alleges that the information he sent to the government was “confidential, ” and that the government improperly used and disclosed his intellectual property. He brings this suit against the Biomedical Advanced Research and Development Authority (“BARDA”) and the United States Department of Health and Human Services (“HHS”), alleging violations of the Federal Tort Claims Act (“FTCA”), the Trade Secrets Act, the Sherman Antitrust Act, the Federal Trade Commission Act, the American Inventors Protection Act, and the Fifth and Fourteenth Amendments to the United States Constitution. Defendants BARDA and HHS move to dismiss, arguing that Plaintiff fails to state a claim, and that this Court lacks jurisdiction. The Court agrees and will therefore grant Defendants' Motion.

BACKGROUND

Plaintiff is an engineer who developed a COVID-19 contact-tracing app called ConTAGV Trac. See ECF No. 6 (Amended Complaint), ¶¶ 1, 22. According to Plaintiff, his “breakthrough Pandemic 2020 preventive measure development could win a Nobel Peace Prize, ” id., ¶ 21, as “[n]o one had conceived or designed this product concept . . . by use of GPS, Bluetooth or computer software application via mobile phone app utilization locating case associates or people location daily, ” id., ¶ 22. Williams claims that he emailed a “confidential letter” about this “breakthrough intellectual property” to the Secretary of HHS, the Assistant Secretary of HHS, and the U.S. Surgeon General in March 2020. Id. ¶¶ 22, 38, 46. He also uploaded information about the app to the BARDA COVID countermeasures website in April 2020. Id., ¶ 47; see also id., ¶ 48 (stating that BARDA solicited “developments from inventors”).^[1] Shortly thereafter, in April of 2020, the technology companies Apple, Inc. and Google LLC announced that they were “partnering” to develop contact-tracing technology. Id., ¶¶ 36, 37. Based on the timing of this announcement, Plaintiff alleges that “a leak or disclosure of [his] confidential contact-tracing innovation was disclosed in the U.S.” Id., ¶ 32. He further alleges that the government agencies that possessed his information negligently failed to contact him and “conspire[d] to overlook an emergency.” Id., ¶¶ 38, 10.^[2]

Based on the foregoing facts, Plaintiff alleges violations of his civil rights and deprivation of his property without due process of law, as well as “unfair and deceptive acts or practices in or affecting commerce.” Id., ¶¶ 3, 4, 14, 15. Specifically, Williams mentions or alleges violations of the Federal Tort Claims Act, 28 U.S.C. § 2674; the Trade Secrets Protection Act, 18 U.S.C. § 1905; the Sherman Antitrust Act, 15 U.S.C. § 2; the Federal Trade Commission Act, 15 U.S.C. § 45; the American Inventors Protection Act, 35 U.S.C. § 297(b); and the Fifth and Fourteenth Amendments. Id. at 4, ¶¶ 8, 14-15, 38, 45, 47, 48. He seeks injunctive and declaratory relief, compensatory damages, punitive damages, pro se fees, and litigation expenses. Id., ¶ 16. In total, he requests between $4, 200, 000, 000 and $4, 800, 000, 000 in compensation. Id., ¶ 56.

On March 30, 2021, Defendants BARDA and HHS filed the instant Motion to Dismiss, arguing that the Court lacks subject matter jurisdiction over many of Plaintiff's claims; and that, in any event, Plaintiff fails to state a claim. See generally ECF No. 9 (Defendants' Motion to Dismiss). The Motion to Dismiss is ripe for resolution.

LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a claim upon which relief can be granted.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 552 (2007). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, id. at 555, “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) (quoting Twombly, 550 U.S. at 570).

When considering a motion to dismiss, a court must construe a complaint liberally in the plaintiff's favor, “treat[ing] the complaint's factual allegations as true” and granting the plaintiff “the benefit of all inferences that can be derived from the facts alleged.” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)); accord Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Although a plaintiff may survive a Rule 12(b)(6) motion even if “‘recovery is very remote and unlikely, '” the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

ANALYSIS

As an initial matter, Defendants have submitted a detailed Motion to Dismiss in which they methodically discuss all of Plaintiff's legal theories and explain why each fails on jurisdictional grounds or fails to state a claim. See generally Def. Mot. In his Opposition, Plaintiff fails to address any of Defendants' substantive legal arguments.^[3] “It is well understood in this Circuit that when [a party] files an opposition to a dispositive motion and addresses only certain arguments raised by [the moving party], a court may treat those arguments [which were not addressed] as conceded.” Kenner v. Berryhill, 316 F.Supp.3d 530, 537 (D.D.C. 2018) (cleaned up); Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014) (“[I]f a party files an opposition to a motion to dismiss and therein addresses only some of the movant's arguments, the court may treat the unaddressed arguments as conceded.”). Because Plaintiff has conceded all of Defendants' arguments for dismissal by failing to address those arguments, the Court will grant the Motion to Dismiss.

In any event, the facts alleged by Plaintiff fail to state a claim. The core allegations of Plaintiff's Amended Complaint appear to be: (1) That after Plaintiff sent information about his COVID-19 contact-tracing app to Defendants, they unlawfully used his design, thereby stealing his intellectual property and depriving him of due process of law and violating various statutes, see Am. Compl., ¶¶ 3, 8, 12, 27, 32, 45; and (2) After Plaintiff sent Defendants his information, they negligently and unlawfully failed to respond to his overtures, see id., ¶¶ 1, 10, 38. To support his claims of theft or misuse of intellectual property, Plaintiff alleges that shortly after he sent his confidential information to various federal agencies in March 2020, Apple and Google announced their intention to develop contact-tracing technology. Id., ¶¶ 36, 37. Plaintiff speculates that Apple, Google, and the government must have discussed contact-tracing in April 2020. Id., ¶ 30 (“FACT: Apple and Google had talked to the U.S. government on the digital app's development, right?”); ¶ 39 (“[T]he belief is that the U.S. government, Apple and Google talked on contact-tracing during April 2020.”). He concludes that the government must have improperly used his idea and confidential information without compensating him because (1) the “probability that [HHS] and [BARDA] . . . conversed and planned a digital app contact-tracing technology . . . before March 2020 . . . is probably a very low number, ” id., ¶ 11; and (2) “[i]f there [were] no foreign talks on contact-tracing developments . . . before [he sent his letter] dated March 2020, then . . . a leak or disclosure of [his] confidential contact-tracing innovation was disclosed in the U.S.” Id., ¶ 32; see also id., ¶ 46 (claiming that no one “had conceived or designed this product concept” before).

The facts alleged by Plaintiff do not support an inference that his contact-tracing app was stolen or improperly released by Defendants. The linchpin of Plaintiff's case is his assumption that Apple and Google relied on Plaintiff's confidential information when they decided to develop contact-tracing technology. But the only evidence of this is (1) Plaintiff's speculation that it is “probably” very unlikely that the government had planned to develop a contact-tracing app before it received his unsolicited information, and (2) his unsupported assumption that Apple and Google communicated with the government about his app. See Am. Compl., ¶¶ 11, 30, 39. Those allegations are insufficient on their face to support Plaintiff's claim. See Denton v. Hernandez, 504 U.S. 25, 33 (1992) (stating a court may dismiss a claim “when the facts alleged rise to the level of the irrational or the wholly incredible”); Hagans v. Lavine, 415 U.S. 528, 537 (1974) (stating that allegations are insufficient where so “attenuated and unsubstantial as to be absolutely devoid of merit”). The idea of a contact-tracing app is not so unique or revolutionary that only Plaintiff could have conceived it; and the fact that other contact-tracing technologies were developed after Plaintiff submitted his idea does not support the inference that his information must have been unlawfully used or released. See Moore v. Motz, 437 F.Supp.2d 88, 90 (D.D.C. 2006) (finding that “[e]ven a pro se plaintiff's inferences . . . need not be accepted” if they “are unsupported by the facts set out in the complaint”).^[4]

Nor does Plaintiff cite any evidence or authority that the government agencies to which he sent his confidential information...