The opinion of the court was delivered by: BYERS
These motions by defendant to dismiss for failure to state a cause, etc., and by plaintiff for discovery were argued together and will be disposed of in the same way.
The plaintiff asserts a Tucker Act cause based upon its failure to secure a contract for arch supports for which it submitted, on November 7, 1952, a sealed bid to the Armed Services Medical Supply Procurement Agency. Individual defendant Currie is described as the Chief of Agency; Angell as Chief of Purchases; and Eyer as Chief of Materials Standards, all in the armed forces of the United States. The government is likewise named as a defendant.
The complaint recites the submission of a sealed bid pursuant to invitation duly issued; that its bid was the lowest of five; that the several defendants 'unlawfully, illegally and without justification' refused to award the bid to plaintiff, but made the award to a higher bidder.
The plaintiff seeks judgment (a) nullifying the award as made, and for an award to plaintiff, and for such other etc., or (b) judgment for $ 4,588 with interest and costs.
The sum mentioned seems to be the figure which it offered to accept for the subject-matter, as delivered.
The defendants' motion is countered by argument that the suit is maintainable under Larson v. Domestic etc., 337 U.S. 682, 69 S.CT. 1457, 93 L. Ed. 1628 and Belknap v. Schild, 161 U.S. 10, 16 S. Ct. 443, 40 L. Ed. 599.
In the first an injunction was sought to prevent a sale which the plaintiff asserted to be in contravention of a contract which he had entered into with the Administrator of War Assets. The government was not a party, and dismissal for lack of jurisdiction was upheld.
The second was a suit in equity for an injunction based upon alleged infringement of plaintiff's patent by the defendants who were government employees. In the Circuit Court (this was in 1895) the plaintiff prevailed. The Supreme Court held that the offending structure (caisson gate used in a navy yard) was the property of the United States which was the true party in interest and therefore an indispensable party defendant against whom the injunction would not lie.
The assistance which those cases render to plaintiff is not apparent. It also cites Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 in which a cause for damages was asserted by plaintiffs by reason of alleged violation of their rights under the Fourth and Fifth Amendments on the part of F.B.I. agents. A dismissal for lack of federal jurisdiction was reversed. Seemingly the language appearing on page 682 of 327 U.S., 66 S. Ct. 773 is relied upon by this plaintiff, but it has no application to this situation as presently understood.
This complaint contains no allegation of any right, statutory or otherwise, that the defendants have violated. The statement that the defendants 'illegally, unlawfully and unjustly deprived it' of the award, is a conclusion not deemed to be admitted on this motion, in the absence of an allegation of the basis for an assertion that the mere submission of a low bid cast upon the defendants the duty of acceptance.
In Fielding v. Allen, 2 Cir., 181 F.2d 163, the court examined into the necessity for requiring security from a plaintiff in a stockholders derivative suit. Why the case is cited by this plaintiff does not appear.
The deficiency in the complaint above referred to is probably to be explained by language of the statute governing Procurement by Armed Services, Tit. 41 U.S.C.A. § 151 and 152. The latter reads:
' § 152. Advertisements for bids; time; opening of bids; award or ...