Turping v. United States , 913 F.3d 1060 ( 2019 )

United States Court of Appeals
for the Federal Circuit
______________________
PETER TURPING, DICK CARTMELL, PHILIP
ISAACS, GREG BROWN, JOHN BONGERS, AND
OTHER SIMILARLY SITUATED PERSONS,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-1005
______________________
Appeal from the United States Court of Federal
Claims in No. 1:16-cv-00872-SGB, Senior Judge Susan G.
Braden.
______________________
Decided: January 9, 2019
______________________
DOUGLAS E. MCKINLEY, JR., Law Office of Douglas E.
McKinley, Jr., Richland, WA, argued for plaintiffs-
appellants.
ALBERT S. IAROSSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by STEVEN J. GILLINGHAM, ROBERT EDWARD
KIRSCHMAN, JR., JOSEPH H. HUNT.
______________________
2 TURPING v. UNITED STATES
Before LOURIE, CHEN, and STOLL, Circuit Judges.
CHEN, Circuit Judge.
Appellants are a group of former employees of Lock-
heed Martin Services, Inc. (Lockheed) who appeal a U.S.
Court of Federal Claims (Claims Court) decision dismiss-
ing their contract claim against the U.S. government
(Government). Because the Claims Court correctly de-
termined that Appellants did not prove that an implied-
in-fact contract between themselves and the Government
exists, we affirm the Claims Court’s decision.
BACKGROUND
During World War II, the Hanford Nuclear Reserva-
tion (Hanford) was established by the U.S. Army Corps of
Engineers (Army Corps) in the state of Washington to
produce nuclear material for use in atomic weapons.
J.A. 24–25. After the war, Hanford continued to be used
by the Government for nuclear work, but eventually the
Department of Energy (DOE) assumed responsibility for
managing Hanford. J.A. 25.
Since 1947, DOE and its predecessors engaged con-
tractors, whose employees performed work at Hanford.
J.A. 24–25. Each time the work performed by one con-
tractor was transferred to another contractor, the employ-
ees that performed the work would stay the same, and
they would typically keep their same pay and benefits,
including retirement benefits. J.A. 28.
In 1987, DOE awarded a contract moving the man-
agement and operation of Hanford to a contractor, West-
inghouse Hanford Company (WHC), and directed WHC to
create the Hanford Multi-Employer Pension Plan (MEPP).
J.A. 27, 29. The MEPP was a contract between “Employ-
ers,” defined with specific contractor and subcontractor
names including WHC, and “Employees,” who were
employed by the Employers. J.A. 201–202. Each time a
TURPING v. UNITED STATES 3
new contractor performs work at Hanford, the definition
of “Employer” in the MEPP adds that new contractor. See
J.A. 102. According to the preamble of the MEPP, the
MEPP was created by the Employers for the benefit of the
Employees. J.A. 196. The Government is not listed as a
party to the MEPP.
The MEPP is run by a Plan Administrator, which Ar-
ticle 11 of the MEPP defines as a committee established
by the Employers. J.A. 248. The Plan Administrator may
not amend the MEPP without prior DOE approval and
may not take any action that has a financial impact on
the MEPP without prior written approval of DOE.
J.A. 33. Article 10 requires “[e]ach Employer [to] make
contributions to the Plan from time to time as the Plan
Administrator shall determine but in at least such
amount as is required by the minimum funding standards
of federal law applicable to the Plan.” J.A. 248.
Article 29 of the MEPP, entitled “Terminations for
Transfer,” requires that employees be able to “receive[] a
benefit at Normal Retirement Date which is reflective of
his Years of Service on the Hanford Reservation.”
J.A. 293. Reference to the Government only appears once
in the MEPP, and that is in Article 29, where the MEPP
states: “A Termination for Transfer means a termination
from one contractor on the Hanford Reservation to anoth-
er which is determined to be in the best interests of the
government.” Id.
On August 6, 1996, DOE announced that the Hanford
Management Contract would be transferred from the
current contractor (WHC) to a new contractor (Fluor
Daniel Hanford or FDH). J.A. 30. The majority of work-
ers received the same post-retirement benefits when the
1996 contract changeover occurred. J.A. 38.
On August 30, 1996, however, some WHC employees
were provided with an “Offer Letter” from Lockheed,
which was to be a subcontractor to FDH. J.A. 37. The
4 TURPING v. UNITED STATES
Offer Letter stated: “[i]f your employee benefits for this
position are different than the current site benefit pro-
gram, a summary is enclosed,” but no summary was
enclosed. Id. The Offer Letter required the WHC em-
ployees to sign it by September 9, 1996, if they wanted to
accept employment with Lockheed. J.A. 38.
In September 1996, many former employees of WHC,
including Appellants, accepted employment at Lockheed
and were informed by Lockheed that, upon their retire-
ment, they would not receive retirement benefits—
including medical benefits, death benefits, and pension
compensation—that were previously afforded under the
MEPP. J.A. 39.
Despite being told earlier in October 1996 that Appel-
lants were no longer parties to the MEPP, on October 10,
1996, Appellants were informed 1 that they would in fact
remain in the MEPP. J.A. 40. Instead of calculating their
pension benefits based on their total years in service,
however, their benefits would be calculated using the
highest five year salary during their employment at
1 Appellants allege throughout their amended com-
plaint that “the Government” performed certain actions,
including making certain statements to Appellants. See,
e.g., J.A. 39–41. At times, Appellants also state that the
Government made these statements “acting through the
MEPP” or “acting through its agent the MEPP.” Id.
These allegations as to what the Government told Appel-
lants, however, fail to reach the “plausible” level required
by Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive
a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’”) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Moreover, the Gov-
ernment is not a party to the MEPP and therefore cannot
act “through” the MEPP.
TURPING v. UNITED STATES 5
Hanford (the high-five rule). J.A. 41. This was solidified
in an amendment to the MEPP, made retroactive to the
end of September 1996. Id. The Lockheed employees
were told that they could not challenge the new changes
to their benefits until they retired. Id.
In October 2014, Peter Turping retired from Lockheed
and notified the Plan Administrator that he intended to
begin withdrawing pension benefits from the MEPP.
J.A. 42. The Plan Administrator used the high-five rule
to calculate Mr. Turping’s pension benefits, rather than
calculating the benefits using his entire term of service at
Hanford. Id.
In July 2016, Appellants, including Mr. Turping, filed
a class action lawsuit against the Government under the
Tucker Act, alleging, inter alia, that they had an implied-
in-fact contract with the Government and that the Gov-
ernment breached that contract when it refused to pro-
vide Appellants pension benefits based on their total
years in service. J.A. 22–52. The Government subse-
quently filed a motion to dismiss Appellants’ amended
complaint under Rules of the U.S. Court of Federal
Claims (RCFC) 12(b)(1) and 12(b)(6). J.A. 6. The Claims
Court granted the Government’s motion, and Appellants
timely appealed.
We have jurisdiction under 28 U.S.C. § 1295(a)(3).
STANDARD OF REVIEW
“This court reviews de novo whether the Court of Fed-
eral Claims possessed jurisdiction and whether the Court
of Federal Claims properly dismissed for failure to state a
claim upon which relief can be granted, as both are ques-
tions of law.” Wheeler v. United States, 11 F.3d 156, 158
(Fed. Cir. 1993).
“Whether a contract exists is a mixed question of law
and fact.” Cienega Gardens v. United States, 194 F.3d
1231, 1239 (Fed. Cir. 1998). “We review the trial court’s
6 TURPING v. UNITED STATES
legal conclusions independently and its findings of fact for
clear error.” Cal. Fed. Bank, FSB v. United States,
245 F.3d 1342, 1346 (Fed. Cir. 2001). Since we accept all
facts pleaded in the complaint as true at the 12(b)(6)
stage, the issue of whether a party is in privity of contract
with the Government reduces to a question of law, which
we review de novo. Cienega Gardens, 194 F.3d at 1239.
“Contract interpretation itself also is a question of law,
which we review de novo.” Id.
DISCUSSION
A. Statute of Limitations
“Every claim of which the United States Court of Fed-
eral Claims has jurisdiction shall be barred unless the
petition thereon is filed within six years after such claim
first accrues.” 28 U.S.C. § 2501. “Generally, a claim
against the United States first accrues on the date when
all the events have occurred which fix the liability of the
Government and entitle the claimant to institute an
action.” Bowen v. United States, 292 F.3d 1383, 1385
(Fed. Cir. 2002) (internal quotation marks omitted).
Repudiation “ripens into a breach prior to the time for
performance only if the promisee elects to treat it as
such.” Franconia Assocs. v. United States, 536 U.S. 129,
143 (2002) (internal quotation marks omitted). “[I]f the
injured party instead opts to await performance, the
cause of action accrues, and the statute of limitations
commences to run, from the time fixed for performance
rather than from the earlier date of repudiation.” Id. at
144 (internal quotation marks omitted).
We agree with the Claims Court that performance oc-
curred when each participant received his or her benefits,
i.e., on the participant’s “Normal Retirement Date.” See
J.A. 182. Because Mr. Turping did not retire until 2014,
which is fewer than 6 years before he filed this lawsuit,
Appellants’ contract claims are not barred by the statute
of limitations. See J.A. 5.
TURPING v. UNITED STATES 7
The Government argues that any repudiation here
was not wholly anticipatory because Appellants allege
that the Government breached multiple provisions of the
contract, and therefore the statute of limitations should
have started running immediately upon the Government’s
first breach of the MEPP, which took place in 1996 or
1997. Appellee Br. at 36–40 (citing Kinsey v. United
States, 852 F.2d 556, 558 (Fed. Cir. 1988)). The Govern-
ment then cites to specific facts in the amended complaint
(e.g., that the Government refused to allow Appellants to
withdraw their pensions, in violation of MEPP Article 26
and federal statute) that Appellants could have cited in
support of an allegation that the Government breached
the MEPP. Id. at 37–38.
But Appellants did not bring an action against the
Government’s alleged breach of Article 26 or its alleged
federal law violations. Accordingly, these instances of
potential contractual nonperformance are not relevant to
the analysis. We must focus on the claim that is in front
of us in this appeal, and that is Appellants’ allegation that
the Government breached its implied-in-fact contract, the
performance of which took place at retirement.
B. Implied-in-Fact Contract
The Tucker Act provides the Claims Court with juris-
diction to hear claims against the United States that are
founded upon, among other things, an express or implied
contract with the United States. 28 U.S.C. § 1491(a)(1).
“An implied-in-fact contract is one founded upon a meet-
ing of minds and is inferred, as a fact, from the conduct of
the parties showing, in the light of the surrounding cir-
cumstances, their tacit understanding.” Hanlin v. United
States, 316 F.3d 1325, 1328 (Fed. Cir. 2003). “[T]he
requirements for an implied-in-fact contract are the same
as for an express contract; only the nature of the evidence
differs.” Id. An implied-in-fact contract with the Gov-
ernment requires proof of (1) mutuality of intent, (2)
8 TURPING v. UNITED STATES
consideration, (3) an unambiguous offer and acceptance,
and (4) “actual authority” on the part of the Government’s
representative to bind the Government in contract. Id.
Plaintiffs have the burden to prove the existence of an
implied-in-fact contract. Id.
“As a threshold condition for contract formation, there
must be an objective manifestation of voluntary, mutual
assent.” Anderson v. United States, 344 F.3d 1343, 1353
(Fed. Cir. 2003) (citing Restatement (Second) of Contracts
§ 18 (1981)). “To satisfy its burden to prove such a mutu-
ality of intent, a plaintiff must show, by objective evi-
dence, the existence of an offer and a reciprocal
acceptance.” Id.
Appellants have not met their burden of proving that
mutuality of intent between the Government and Lock-
heed’s employees exists. Appellants argue that “[t]he
government made two promises to the Hanford workers”
when the MEPP was formed: (1) an implicit promise that
the government would provide the funds to meet the
pension obligations set forth in the MEPP; and (2) an
explicit promise in Article 29 of the MEPP to workers that
when they retire from Hanford, they will receive credit in
the calculation of their pensions for all their years work-
ing at Hanford, even if the Government changed contrac-
tors. Appellants Op. Br. at 7–8.
But nothing in the MEPP indicates intent by the Gov-
ernment to be in privity of contract with Lockheed’s
employees. Rather, the MEPP only evidences a contrac-
tual relationship between Lockheed and its employees.
Notably, the MEPP does not list the Government as a
party to the contract. Rather, the MEPP states that it
was created by “Employers” for the benefit of their Em-
ployees. J.A. 197. Appellants do not dispute that the
“Employers” referenced in the MEPP do not include the
Government, but rather refer to contractors and subcon-
tractors such as Lockheed. See J.A. 201–202. The MEPP
TURPING v. UNITED STATES 9
also specifies that the Plan Administrator, established by
the Employers, is the entity that funds the plan, not the
Government. J.A. 248. And the MEPP places responsibil-
ity for benefits determinations into the hands of the Plan
Administrator, not the Government. J.A. 293.
“It is a hornbook rule that, under ordinary govern-
ment prime contracts, subcontractors do not have stand-
ing to sue the government under the Tucker Act,
28 U.S.C. § 1491 . . . .” Erickson Air Crane Co. of Wash. v.
United States, 731 F.2d 810, 813 (Fed. Cir. 1984). “The
government consents to be sued only by those with whom
it has privity of contract, which it does not have with
subcontractors.” Id. In two-tiered contract schemes, the
Government’s obligations are directed to the contractor,
with whom it shares a contract, and not the subcontrac-
tor, with whom it shares no direct contractual relation-
ship. Cienega Gardens, 194 F.3d at 1245. “Aggrieved
subcontractors have the option of enforcing their subcon-
tract rights against the prime contractor in appropriate
proceedings, or of prosecuting a claim against the gov-
ernment through and in right of the prime contractor's
contract, and with the prime contractor’s consent and
cooperation.” Erickson, 731 F.2d at 813. Employees are
treated as subcontractors for the purposes of this rule.
United States v. Munsey Trust Co. of D.C., 332 U.S. 234,
241 (1947); see also Bolin v. United States, 221 Ct. Cl. 947,
948 (1979). Absent any indicia in the MEPP or other
evidence proffered by Appellants of the Government’s
specific intent to be contractually obligated to Lockheed’s
employees, we find that privity of contract between Appel-
lants and the Government does not exist.
Appellants’ argument that the Government “unilater-
ally forced the Hanford contractors and their employees to
participate in the MEPP,” and therefore the Government
intended to be bound, is unavailing. Appellants Op. Br.
at 32–33. The same is true for Appellants’ focus on the
Government’s alleged “control” in the creation and admin-
10 TURPING v. UNITED STATES
istration of the MEPP. Id. at 6. Our case law has made
clear that the “degree of [government] involvement with a
project does not create privity [between the government
and a subcontractor] so as to allow suit against the gov-
ernment.” Cienega Gardens, 194 F.3d at 1245; see also id.
at 1244–45 (“That the Federal Government has intimate
control over a project, including prior approval of plans
and costs, does not establish liability here for claims by a
contractor [whose contract is only with a third party].”)
(quoting Marshall N. Dana Const., Inc. v. United States,
229 Ct. Cl. 862, 863 (1982)). “Nor does this degree of
involvement indicate an implied-in-fact contract enforcea-
ble against the United States.” Dana Const., 229 Ct. Cl.
at 863.
In Dana Construction, a construction contractor con-
tracted with an Indian Housing Authority (IHA) that
received federal funds from the U.S. Department of Hous-
ing and Urban Development (HUD) to build a low-income
housing project. Id. at 862. The Court of Claims deter-
mined that the construction contractor could not assert a
claim for breach of contract against HUD because the
construction contractor’s privity of contract was with the
IHA, not HUD. Id. at 863. The Court of Claims empha-
sized that, “[b]y funding and regulating programs de-
signed for the public good the U.S. is acting in its role as a
sovereign and the moneys promised . . . do not establish
any contractual obligation, express or implied, on the part
of the United States.” Id. at 864.
The same principle applies in this case. The Govern-
ment funds Lockheed and other Employers to manage
Hanford, but there is no evidence that the Government
intended to be contractually obligated to Lockheed’s or
other Employers’ employees, either through the MEPP or
by other means. Without this mutuality of intent, Appel-
lants fail to meet their burden of proving that an implied-
TURPING v. UNITED STATES 11
in-fact contract exists between the Government and
Lockheed’s employees. 2
Because we determine no mutuality of intent exists,
we do not reach the question of whether the other re-
quired elements of an implied-in-fact contract exist in this
case. We have reviewed Appellants’ other arguments, but
find them unpersuasive. Accordingly, we affirm the
Claims Court’s decision finding that no implied-in-fact
contract exists.
AFFIRMED
2 Appellants argue that WHC acted as the Govern-
ment’s “agent” in drafting Article 29 of the MEPP, which
provided for Hanford workers to receive benefits reflective
of their total years of service. Appellants Op. Br. at 54;
J.A. 293. Appellants do not plead sufficient plausible
facts to support this agency argument. Iqbal, 556 U.S.
at 678. Likewise, Appellants cannot support their broad
allegation that only the Government—a non-party to the
MEPP—had the authority to “enforce” Article 29 and
compel subcontractors to remain in the MEPP. Appel-
lants Op. Br. at 9–10; see Iqbal, 556 U.S. at 678.