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Frankel v. United States

United States Court of Appeals for the Federal Circuit

December 1, 2016, Decided



 [*1247]  Prost, Chief Judge.

This appeal arises from plaintiff David Frankel's suit against the United States in the Court of Federal Claims for events  [*1248]  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 [**2]  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.


On October 23, 2012, the FTC announced the "Robocall 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 successfully 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 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.

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842 F.3d 1246 *; 2016 U.S. App. LEXIS 21449 **; 2016-2 Trade Cas. (CCH) P79,841

DAVID FRANKEL, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee

Prior History:  [**1] Appeal from the United States Court of Federal Claims in No. 13-546C, Judge Thomas C. Wheeler.

Frankel v. United States, 122 Fed. Cl. 287, 2015 U.S. Claims LEXIS 976 (2015)

Disposition: AFFIRMED.


contest, prize, contracts, procurement, score, Robocall, cooperative agreement, judging, summary judgment, breach of contract claim, gross mistake, competitions, winning, block

Civil Procedure, Appeals, Standards of Review, De Novo Review, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Summary Judgment Review, Standards of Review, Antitrust & Trade Law, Consumer Protection, Telemarketing, Business & Corporate Compliance, Contract Formation, Contracts Law, Contract Formation, Governments, Legislation, Interpretation, Public Contracts Law, Dispute Resolution, Bid Protests, Types of Contracts, Unilateral Contracts, Rewards, Jurisdiction