Ground Improvement Techniques, Inc. v. United States , 618 F. App'x 1020 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GROUND IMPROVEMENT TECHNIQUES, INC.,
MK FERGUSON COMPANY, FOR THE USE AND
BENEFIT OF GROUND IMPROVEMENT
TECHNIQUES, INC.,
Movants-Appellants
v.
UNITED STATES,
Defendant-Appellee
v.
PNC BANK, N.A., FIREMAN'S FUND INSURANCE
COMPANY, R.N. ROBINSON & SONS, INC.,
SECURED CREDITORS OF GROUND
IMPROVEMENT TECHNIQUES, INC.,
Plaintiffs-Appellees
______________________
2013-5110
______________________
Appeal from the United States Court of Federal
Claims in No. 12-CV-0057, Senior Judge Lynn J. Bush.
______________________
Decided: July 28, 2015
______________________
2 GROUND IMPROVEMENT TECHNIQUES v. US
STEVEN R. SCHOOLEY, Schooley Law Firm, Orlando,
FL, argued for movants-appellants.
JEFFREY A. REGNER, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN,
JR., STEVEN J. GILLINGHAM.
ROBERT G. BARBOUR, Watt, Tieder, Hoffar & Fitzger-
ald, L.L.P., McLean, VA, for plaintiffs-appellees.
______________________
Before PROST, Chief Judge, BRYSON and DYK, Circuit
Judges.
PROST, Chief Judge.
Ground Improvement Techniques, Inc. (“GIT”) ap-
peals decisions by the U.S. Court of Federal Claims
holding that GIT is not the real party in interest, granting
the real party in interest’s motion for substitution and
denying GIT’s motion to continue as plaintiff, and dis-
missing certain of GIT’s claims for lack of jurisdiction.
For the reasons set forth below, we affirm the decisions of
the U.S. Court of Federal Claims.
BACKGROUND
In 1983, the Department of Energy (“DOE”) entered
into a prime contract with Morrison Knudson Company,
Inc. (the “MK prime contract”) for multiple projects across
the nation relating to the remediation of uranium mill
tailings. The MK prime contract was subsequently
passed from Morrison Knudson Company, Inc. to MK-
Ferguson Company (“MK”). On March 1, 1995, MK
entered into a subcontract with GIT (the “GIT subcon-
tract”) for work on particular uranium mill sites located in
Slick Rock, Colorado. The GIT subcontract was specifical-
ly titled “CONSTRUCTION SUBCONTRACT” and was
GROUND IMPROVEMENT TECHNIQUES v. US 3
identified as being “[u]nder DOE Prime Contract No. DE-
AC04-83AL 18796,” the MK prime contract. J.A. 89. The
DOE provided its consent for MK and GIT to enter into
the GIT subcontract. In doing so, the DOE contracting
officer stated that its consent “shall neither create any
obligation of the Government to, or privity of contract
with the subcontractor.” J.A. 362.
On September 18, 1995, with the consent of DOE, MK
terminated GIT for default. That termination became the
subject of multiple years of litigation between MK and
GIT in the U.S. District Court for the District of Colorado
(the “GIT-MK litigation”). During the course of the GIT-
MK litigation, GIT filed for Chapter 11 bankruptcy in the
U.S. Bankruptcy Court for the Western District of Penn-
sylvania, and GIT’s interest the GIT-MK litigation be-
came an asset of the bankruptcy estate. As part of the
bankruptcy proceeding, GIT entered into a “Reorganiza-
tion Plan,” which stated that “GIT will assign . . . any and
all claims, causes of action, right, title, and interest in and
to the [GIT-MK litigation]” to five of its secured creditors:
PNC Bank (“PNC”), Fireman’s Fund Insurance Company
(“Fireman’s Fund”), Holland & Knight LLP (“Holland &
Knight”), The Law Offices of Frederick Huff (“Mr. Huff”),
and R.N. Robinson & Sons, Inc. (“Robinson”) (collectively,
the “Secured Parties”). J.A. 418. The Reorganization
Plan further provided that “[i]f the net proceeds of the MK
case are sufficient to satisfy the claims of [the Secured
Parties] in full, the remaining proceeds shall be distribut-
ed to unsecured creditors on a pro rata basis.” J.A. 418–
19. In a subsequent one-page “Clarifying Order,” the
Pennsylvania bankruptcy court stated that “the Secured
Parties may either direct the Debtor to assign to the
Secured Parties or their designee all of the Debtor’s rights
and interest in the [GIT-MK litigation] or, at their option,
continue prosecution of the [GIT-MK litigation] in GIT’s
name in lieu of an assignment.” J.A. 479. The Secured
Parties elected to continue litigation against MK in the
4 GROUND IMPROVEMENT TECHNIQUES v. US
name of GIT, rather than directing GIT to assign its
claims against MK to the Secured Parties. In addition to
the Reorganization Plan, GIT and the Secured Parties
also entered into an “Agreement Respecting Litigation,”
which stated that, after payment of litigation costs and
$125,000 to the unsecured creditors as required by the
Reorganization Plan, the proceeds not in excess of the
secured creditors’ claims would be distributed first in part
to the Secured Parties and then in part to Mr. Kinghorn,
an equity holder in GIT. J.A. 431–34. As provided by the
Reorganization Plan, any amounts in excess of the Se-
cured Parties’ claims would go to the unsecured creditors.
J.A. 418–19. Neither the Agreement Respecting Litiga-
tion nor the Reorganization Plan provided for distribution
of any proceeds to GIT itself. The agreement also appor-
tioned voting interests regarding the decisions to be made
pertaining to the GIT-MK litigation, and specified that
choice of counsel required 70% of the voting interests and
choice of conduct required 75% of the voting interests.
J.A. 432–34.
GIT eventually obtained a judgment against MK in
the GIT-MK litigation for wrongful termination. Howev-
er, the judgment was only partially satisfied, as MK, too,
had filed for bankruptcy in the U.S. Bankruptcy Court for
the District of Nevada. The unsatisfied portion of GIT’s
judgment against MK, and post-judgment interest, were
claims to be administered in MK’s bankruptcy. The
Nevada bankruptcy court required MK to submit a certi-
fied claim with DOE to attempt to satisfy GIT’s claims
against MK related to the DOE project. Although MK did
so, the certification was contested as inadequate. The
Nevada bankruptcy court eventually ordered GIT itself to
file GIT’s claims with DOE’s contracting officer under
MK’s name, and to certify its own claims. GIT then filed
both a certified claim in MK’s name and a certified claim
in its own name with the DOE contracting officer. When
GIT received no response from the contracting officer, GIT
GROUND IMPROVEMENT TECHNIQUES v. US 5
filed a “deemed denied” suit in the U.S. Court of Federal
Claims. GIT’s suit involved four breach of contract counts
against the DOE: Counts I-III in GIT’s own name, and
Count IV in MK’s name, for the benefit of GIT.
On December 5, 2012, the Court of Federal Claims is-
sued a decision addressing two issues raised by the par-
ties. See Ground Improvement Techniques, Inc. v. United
States, No. 12-57 C, 108 Fed. Cl. 162 (Fed. Cl. Dec. 5,
2012) (“GIT I”). First, the court agreed with DOE that
GIT lacked privity with the government, and therefore
dismissed Counts I–III brought in GIT’s own name
against the government for lack of subject matter jurisdic-
tion. Id. at 171–83. Second, the court agreed with DOE
that the Secured Parties, not GIT, were the real parties in
interest for all four counts, as GIT’s bankruptcy had
transferred all its claims in the GIT-MK litigation to the
Secured Parties. Id. at 169–71. Following its decision,
the court denied GIT’s motion for reconsideration, but
given that Count IV still remained, ordered briefing from
both GIT and the Secured Parties addressing if and
how—under the court’s joinder, ratification, and substitu-
tion rules—the suit would go forward on Count IV. See
Ground Improvement Techniques, Inc. v. United States,
No. 12-57 C, (Fed. Cl. May 3, 2013) (“GIT II”). In re-
sponse to the court’s order, GIT sought to continue as
plaintiff, either through ratification (supported by both
Mr. Huff, one of the Secured Parties, and Mr. Kinghorn,
an equity-holder) or through joinder. For their part, three
of the Secured Parties (PNC, Fireman’s Fund, and Robin-
son) sought to be substituted as the sole plaintiffs in the
suit. 1 On April 30, 2014, the court issued a decision
1 Together, these three Secured Parties held the
requisite voting interests to make decisions regarding the
GIT-MK case, as set forth in the Agreement Respecting
Litigation. J.A. 432–34.
6 GROUND IMPROVEMENT TECHNIQUES v. US
substituting PNC, Fireman’s Fund, and Robinson as the
sole plaintiffs in the suit and denying GIT’s request to
continue as plaintiff. See Ground Improvement Tech-
niques, Inc. v. United States, No. 12-57 C, 2014 WL
1711004 (Fed. Cl. Apr. 30, 2014) (“GIT III”). The court
subsequently directed entry of judgment pursuant to Rule
54(b) of the Rules of the U.S. Court of Federal Claims
(“RCFC”).
GIT appealed to this court. Specifically, GIT seeks
reversal of: (i) the determination that GIT is not the real
party in interest; (ii) the substitution of PNC, Fireman’s
Fund, and Robinson as plaintiffs, and the denial of GIT’s
request to continue as plaintiff; and (iii) the dismissal of
Counts I–III for lack of privity. PNC, Fireman’s Fund,
and Robinson moved, with the government’s consent, for
voluntary dismissal of the appeal and the return of juris-
diction to the Court of Federal Claims; GIT opposed. We
requested briefing from all three parties, and for the
reasons explained below, affirm the decisions of the Court
of Federal Claims.
DISCUSSION
“This court reviews judgments of the Court of Federal
Claims to determine whether they are premised on clearly
erroneous factual determinations or otherwise incorrect
as a matter of law.” Wheeler v. United States, 11 F.3d
156, 158 (Fed. Cir. 1993). The court below addressed the
real party in interest question under RCFC 12(b)(6) and
the privity question under both RCFC 12(b)(1) and
12(b)(6). We review the court’s determinations under
both rules de novo. Id. The court addressed the substitu-
tion and joinder questions under RCFC 19 and 20. While
we have not yet stated whether such determinations are
reviewed de novo or for abuse of discretion, United Kee-
towah Band of Cherokee Indians of Okla. v. United States,
480 F.3d 1318, 1324 (Fed. Cir. 2007), we need not decide
GROUND IMPROVEMENT TECHNIQUES v. US 7
the question here because our outcome would be the same
under either standard.
I
We begin by addressing the real party in interest
question. Under the applicable rule of the Court of Fed-
eral Claims, “[a]n action must be prosecuted in the name
of the real party in interest.” RCFC 17(a)(1). The Court
of Federal Claims has defined a real party in interest as
“the party that ‘possesses the right to be enforced.’” Grass
Valley Terrace v. United States, 69 Fed. Cl. 543, 546
(2006) (quoting Mitchell Food Prods., Inc. v. United
States, 43 Fed. App’x. 369, 369 (Fed. Cir. 2002)); see also
Crone v. United States, 538 F.2d 875, 882 (Ct. Cl. 1976)
(describing the real party in interest as the party “to
whose present, personal benefit a money judgment may
run”). Failure to prosecute an action in the name of the
real party in interest results in dismissal of the claim,
unless cured. Aldridge v. United States, 59 Fed. Cl. 387,
390 (Ct. Cl. 2004); Norega v. United States, 113 F. Supp.
463, 464 (Ct. Cl. 1953).
The Court of Federal Claims held that GIT’s bank-
ruptcy effected a transfer of GIT’s claims related to the
DOE project to the Secured Parties, and that the Secured
Parties were therefore the real parties in interest for all of
GIT’s claims in this suit. 2 GIT I, 108 Fed. Cl. at 171–83.
For the reasons explained below, we agree.
2 The Court of Federal Claims held this to be true
regardless of “whether the claims are described as claims
against MK or against the United States,” as all of GIT’s
claims were founded on either the unsatisfied judgment
and post-judgment interest against MK obtained by GIT,
or additional, related claims against MK and/or the
United States which arise from the DOE project. GIT I,
108 Fed. Cl. at 170. The court therefore concluded, and
8 GROUND IMPROVEMENT TECHNIQUES v. US
It is undisputed that when GIT filed for bankruptcy,
its assets—including its claims in the GIT-MK litiga-
tion—became part of the bankruptcy estate. See 11
U.S.C. § 541(a); Aaron v. United States, 65 Fed. Cl. 29, 31
(Fed. Cl. 2005) (“It is well established that the bankruptcy
estate thus includes all ‘causes of action’ owned by the
debtor at the time of filing for bankruptcy.”). The central
question in this case, therefore, is whether the events
during bankruptcy transferred GIT’s claims from its
bankruptcy estate to the Secured Creditors. Based on the
plain language of the documents involved in the bank-
ruptcy proceedings, the answer is clearly yes.
Most significantly, GIT’s Reorganization Plan states
that: “GIT will assign . . . any and all claims, causes of
action, right, title, and interest in and to the [GIT-MK
litigation]” to the Secured Parties and provides for the
distribution of proceeds in excess of the Secured Parties’
claims to the unsecured creditors. J.A. 418. A debtor
submitting such a plan only retains the power over claims
or interests if the plan expressly states so. See 11 U.S.C.
§ 1123(b)(3)(B). Here, not only did the Reorganization
Plan fail to include any such reservation clause, the plan
instead specifically passed GIT’s rights in the GIT-MK
litigation over to the Secured Parties.
Additional documents involved in the proceedings con-
firm the transfer of claims in the GIT-MK litigation to the
Secured Parties. For example, under the Agreement
Respecting Litigation, the proceeds from the GIT-MK
litigation were to be distributed to the bankruptcy estate
and the creditors, but not to GIT itself. J.A. 432–42. And
we agree, that all of GIT’s claims in this case “arise from
and are inseparable from” those that GIT brought against
MK in the GIT-MK litigation, and that the real party in
interest is the same regardless of how the claims are
described. Id.GROUND IMPROVEMENT TECHNIQUES v. US 9
the bankruptcy court’s Clarifying Order specified that,
pursuant to the transfer clause in the Reorganization
Plan, “the Secured Parties may either direct the Debtor to
assign to the Secured Parties or their designee all of the
Debtor’s rights and interest in the [GIT-MK litigation] or,
at their option, continue prosecution of the [GIT-MK
litigation] in GIT’s name in lieu of an assignment.” J.A.
479. Together, the Reorganization Plan, Agreement
Respecting Litigation, and Clarifying Order all make
clear that the Secured Parties had replaced GIT as the
ones “to whose present, personal benefit a money judg-
ment” from the GIT-MK litigation runs. Crone, 538 F.2d
at 882.
GIT’s arguments to the contrary are unpersuasive.
First, GIT’s reading of the Clarifying Order borders on the
incredible. The Clarifying Order clearly states that “the
Secured Parties” could continue prosecution of the GIT-
MK litigation in GIT’s name in lieu of an assignment.
J.A. 479 (emphasis added). To support its claim that GIT
continued to control the litigation, GIT simply replaces
“the Secured Parties” with “GIT.” See Corrected Appel-
lants’ Br. 21–22 (“It is clear from the language of the
Order that GIT could continue ‘prosecution of the MK
Case in GIT’s name in lieu of an assignment.’”). This
overt misreading of the court’s order cannot support GIT’s
claim.
Second, GIT’s focus on the language “will assign” from
the Reorganization Plan, J.A. 479, and the fact that “[n]o
assignment or transfer was ever consummated,” Correct-
ed Appellants’ Br. 22, gets it no further. Of course there
was no assignment; as permitted by the Clarifying Order,
the Secured Parties elected the option of continuing
litigation in the name of GIT, rather than having GIT
directly assign its claims over to the Secured Parties.
GIT’s complaint that there was never a formal assign-
ment is beside the point.
10 GROUND IMPROVEMENT TECHNIQUES v. US
Finally, GIT’s argument that it remained a “debtor-in-
possession” with both the power to pursue the GIT-MK
litigation claims as well as the fiduciary obligation to its
unsecured creditors to do so also fails. While a debtor-in-
possession may have most of the powers of a bankruptcy
trustee to pursue claims on behalf of the bankruptcy
estate when the bankruptcy proceedings are initiated, 11
U.S.C. § 1107(a), the bankruptcy estate—and accordingly,
the debtor-in-possession’s authority to pursue claims—
ceases to exist upon confirmation of a reorganization plan,
In re United Operating, LLC, 540 F.3d 351, 355 (5th Cir.
2008). Thus, while GIT may have initially possessed
rights to pursue the claims in the GIT-MK litigation,
those rights were extinguished upon the Pennsylvania
bankruptcy court’s confirmation of the Reorganization
Plan. This conclusion is not obviated by the GIT’s citation
to snippets from the Reorganization Plan and other places
where the bankruptcy court continued to refer to GIT as a
debtor-in-possession. The court’s use of such language
appears merely to be boilerplate, and in any event, cannot
overcome the strong evidence showing that a transfer of
rights occurred in this case.
For all of these reasons, we agree with the Court of
Federal Claims that GIT’s bankruptcy effected a transfer
of GIT’s claims related to the DOE project to the Secured
Parties, and that the Secured Parties, and not GIT, are
the real parties in interest in this case.
II
When it has been determined that a plaintiff is not
the real party in interest, the court must allow the plain-
tiff a reasonable amount of time to cure the defect
through substitution, joinder, or ratification. See RCFC
17(a)(3). Here, the Court of Federal Claims requested
briefing from both GIT and the Secured Parties regarding
how to move forward in light of the real parties in interest
issue. The parties responded with conflicting proposals:
GROUND IMPROVEMENT TECHNIQUES v. US 11
while GIT sought to continue as a plaintiff (supported by
ratifications of Mr. Huff and Mr. Kinghorn), three of the
Secured Parties (PNC, Fireman’s Fund, and Robinson)
sought to be substituted as the sole plaintiffs in the suit
with the obligation to distribute the proceeds in accord-
ance with the Agreement Respecting Litigation and the
Reorganization Plan. The Court of Federal Claims opted
for substitution, finding that PNC, Fireman’s Fund, and
Robinson “possess[ed] the voting power to make operating
decisions for plaintiffs in this suit” and that joinder of GIT
was inappropriate “for the simple reason that post-
bankruptcy GIT has no financial interest in claims arising
from the DOE project.” See GIT III, 2014 WL 1711004, at
*6–7.
On appeal, GIT argues that the Court of Federal
Claims should have permitted GIT’s continued presence
as a ratified plaintiff under either the rules governing
required joinder, RCFC 19, or permissive joinder, RCFC
20. According to GIT, it must remain a plaintiff in this
suit in order “to ensure the procedural integrity of the
action and to protect the rights and interest of Huff,
Kinghorn, and the unsecured creditors.” Corrected Appel-
lants’ Br. 42. In response, PNC, Fireman’s Fund, and
Robinson argue that their substitution is fully supported
by the Agreement Respecting Litigation, and that the
requirements for neither required nor permissive joinder
are met here.
We agree with PNC, Fireman’s Fund, and Robinson.
Most important to our conclusion is the Agreement Re-
specting Litigation, which was signed by all five of the
Secured Parties (including Mr. Huff) as well as Mr. King-
horn. GIT has not disputed that, pursuant to the agree-
ment’s terms, PNC, Fireman’s Fund, and Robinson
together hold the requisite 70% and 75% interests to
control decisions regarding choice of counsel and litigation
conduct, respectively. J.A. 431–42. Mr. Huff and Mr.
Kinghorn, pursuant to terms to which they agreed, do not
12 GROUND IMPROVEMENT TECHNIQUES v. US
hold enough interest to direct such decisions. Given that
Mr. Huff and Mr. Kinghorn have expressly signed away
their control, GIT’s argument, premised as it is on pro-
tecting the rights of Mr. Huff and Mr. Kinghorn, loses its
force. As the Court of Federal Claims rightly held: “Just
because one of the Secured Parties (Mr. Huff) and an
equity holder in GIT (Mr. Kinghorn) might be able to
benefit from a judgment won in this court does not mean
that Mr. Kinghorn or Mr. Huff may flout the Agreement
[Respecting Litigation] and its terms.” GIT III, 2014 WL
1711004, at *5.
GIT’s argument that it must continue as plaintiff in
order to protect the rights of the unsecured creditors also
fails, this time because of the provisions of the Reorgani-
zation Plan. In order for a bankruptcy court to confirm a
debtor’s reorganization plan, the debtor must show that
the reorganization plan adequately protects the rights
and interests of the unsecured creditors. See 11 U.S.C.
§ 1129(b)(2)(B). Here, GIT’s Reorganization Plan ad-
dresses the interests of the unsecured creditors in multi-
ple places. Most particularly, the plan requires that
creditors holding unsecured claims be paid on a pro rata
basis in the following manner: (1) the first $125,000 of the
net proceeds of the GIT-MK litigation; (2) the net proceeds
of the GIT-MK litigation, if any, remaining after the
claims of the Secured Parties are satisfied in full; (3) up to
$120,000 to be paid by GIT’s shareholders over a period of
five years; and (4) a dividend of $600,000 to be paid by
GIT, with payments made on an annual basis over a
period of five years. J.A. 423. The Reorganization Plan
thus already sets forth the ways in which the claims of
the unsecured creditors shall be satisfied.
At its core, GIT’s argument is that, “because a signifi-
cant portion of the Secured Creditors claims have been
disbursed, there is no incentive for the Secured Creditors
GROUND IMPROVEMENT TECHNIQUES v. US 13
to maximize recovery against the government.” Corrected
Appellants’ Br. 42. While this may or may not be true, 3 it
is not reason to avoid the plain language of the governing
documents in this case.
We also agree with the Court of Federal Claims that
joinder of GIT is not appropriate under either RCFC 19 or
20. Under RCFC 19, a person must be joined as a party if
that person “claims an interest relating to the subject of
the action and is so situated that disposing of the action
in the person’s absence may . . . as a practical matter
impair or impede the person’s ability to protect the inter-
est.” RCFC 19(a)(1)(B)(i). Under RCFC 20, persons may
be joined as a party if “they assert any right to relief
jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series
of transactions or occurrences; and . . . any question of law
or fact common to all plaintiffs will arise in the action.”
RCFC 20(a)(1).
Here, as the Court of Federal Claims observed, GIT
no longer has any “financial interest in claims arising
from the DOE project. Those claims were transferred to
the Secured Parties in the GIT bankruptcy litigation.”
GIT III, 2014 WL 1711004, at *7. GIT, therefore, does not
“claim[] an interest relating to the subject of the action”
as required by RCFC 19 or have “any right to relief” as
required by RCFC 20. Thus, neither mandatory nor
permissive joinder is appropriate.
3 It remains unclear to us which of the multitude of
competing bankruptcy claims have been fully satisfied,
which have been partially satisfied, and which remain
outstanding. Thus, even if we were inclined to elevate
GIT’s fairness concerns over the language of the govern-
ing documents (which we are not), we are unable to fully
analyze GIT’s argument.
14 GROUND IMPROVEMENT TECHNIQUES v. US
III
The Court of Federal Claims dismissed Counts I–III
(brought in GIT’s own name) for lack of privity between
GIT and the government, and therefore lack of jurisdic-
tion. GIT I, 108 Fed. Cl. at 172–82. 4 In doing so, the
court examined and found lacking GIT’s many arguments
based on theories of direct contract, implied-in-fact con-
tract, and agency. On appeal, GIT again argues that
privity between itself and the government exists under
multiple theories. Like the Court of Federal Claims, we
reject GIT’s arguments.
Pursuant to the Tucker Act, the Court of Federal
Claims has jurisdiction over claims against the govern-
ment involving “any express or implied contract with the
United States.” 28 U.S.C. § 1491(a)(1). Similarly, the
Contract Disputes Act provides that “a contractor may
bring an action directly on the claim in the United States
Court of Federal Claims.” 41 U.S.C. § 7104(b)(1). Be-
cause a subcontractor ordinarily lacks privity with the
government, the Court of Federal Claims generally lacks
jurisdiction over claims brought by a subcontractor
4 Although the Court of Federal Claims viewed
GIT’s claims against the government as indistinct from
those transferred to the Secured Parties in GIT’s bank-
ruptcy, the court nonetheless went on to consider wheth-
er, “to the extent that GIT has alleged that it possessed
distinct claims against the United States,” there was
privity of contract between GIT and the government such
that subject matter jurisdiction over such claims existed.
GIT I, 108 Fed. Cl. at 171–72.
Because we hold that GIT is not in privity with the
government, we have no occasion to consider whether
GIT, which we have held is no longer a debtor-in-
possession, has any standing to assert a claim against the
government.
GROUND IMPROVEMENT TECHNIQUES v. US 15
against the government, though there are some excep-
tions. See J.G.B. Enters., Inc. v. United States, 497 F.3d
1259, 1261 (Fed. Cir. 2007) (“A subcontractor typically is
unable to seek relief against the United States on a
dispute over the contract since it is not a party to the
contract and thus lacks privity with the United States.”);
United States v. Johnson Controls, Inc., 713 F.2d 1541(Fed. Cir. 1983) (concluding that the case did not “fall
within any recognized exception to the well-entrenched
rule that a subcontractor cannot bring a direct appeal
against the government”). Whether a contract exists is a
mixed question of law and fact, but where “the parties do
not dispute the relevant facts, the privity issue reduces to
a question of law, which we review de novo.” Cienega
Gardens v. United States, 194 F.3d 1231, 1239 (Fed. Cir.
1998).
Here, it is indisputable that no direct contract be-
tween GIT and the government exists. There are two
relevant contracts in this case. The first is the MK prime
contract, which was entered into between MK and DOE
more than a decade before GIT’s involvement in the
project. The second is the GIT subcontract, which plainly
states that it is a “SUBCONTRACT” between MK and
GIT and was made “[u]nder DOE Prime Contract No. DE-
AC04-83AL 18796,” the MK prime contract. J.A. 89.
Given the plain language of these contracts, GIT admits,
as it must, that it does not have a direct contract with the
government. See Corrected Appellants’ Br. 39 (“[T]he GIT
contract is not expressly with the Government . . . . ”).
There is also no implied-in-fact contract between GIT
and the government. “An implied-in-fact contract is one
‘founded upon a meeting of the minds, which, although
not embodied in an express contract, is inferred, as a fact
from conduct of the parties showing, in the light of the
surrounding circumstances, their tacit understanding.’”
City of Cincinnati v. United States, 153 F.3d 1375, 1377
(Fed. Cir. 1998) (quoting Baltimore & Ohio R.R. Co. v
16 GROUND IMPROVEMENT TECHNIQUES v. US
United States, 261 U.S. 592, 597 (1923)); see also City of
El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir.
1990) (“An implied-in-fact contract requires findings of: 1)
mutuality of intent to contract; 2) consideration; and 3)
lack of ambiguity in offer and acceptance.”). Here, GIT
has failed to show that there was a meeting of the minds
between the government and GIT that an implied-in-fact
contract existed. To the contrary, the DOE contracting
offer expressed the opposite intent by specifically dis-
claiming “any privity of contract with the subcontractor”
when providing its consent for the GIT subcontract. J.A
362. Moreover, there cannot be an implied-in-fact con-
tract between GIT and the government when, as here,
there are already two express contracts governing the
same subject matter for which GIT now seeks to establish
an implied contract. See Schism v. United States, 316
F.3d 1259, 1278 (Fed. Cir. 2002) (en banc) (“It is well
settled that the existence of an express contract precludes
the existence of an implied-in-fact contract dealing with
the same subject matter, unless the implied contract is
entirely unrelated to the express contract.”).
GIT’s leading argument for the existence of privity in
this case is based on drawing factual analogies to a deci-
sion by the Energy Board of Contract Appeals (“EBCA”),
McMillan Bros. Constr., EBCA No. 328–10–84, 86–3
B.C.A. P. 17179, 1986 WL 20168 (July 11, 1986). But
decisions of the EBCA are not binding on this court.
Rather, we examine questions relating to privity under
our own jurisprudence. Here, as we held in Johnson
Controls, GIT has failed to show that this case “fall[s]
within any recognized exception to the well-entrenched
rule that a subcontractor cannot bring a direct appeal
against the government.” 713 F.2d at 1550.
Specifically, in Johnson Controls, we recognized that
privity between a subcontractor and the government may
exist if the prime contractor was acting as an agent of the
government. Id. at 1551–52. However, we rejected in
GROUND IMPROVEMENT TECHNIQUES v. US 17
that case a subcontractor’s claim based on agency privity
because the following three “crucial factors” were missing:
The prime contractor was (1) acting as a purchas-
ing agent for the government, (2) the agency rela-
tionship between the government and the prime
contractor was established by clear contractual
consent, and (3) the contract stated that the gov-
ernment would be directly liable to the vendors for
the purchase price.
Id. at 1551.
These three factors are missing in this case as well.
Here, the relevant contracts did not state that MK was
acting as the purchasing agent for DOE, did not provide
“clear contractual consent” for such relationship, and did
not state that DOE would be directly liable to GIT for the
contract price. Specifically, with respect to the first two
factors, the MK prime contract specified that MK itself—
not DOE—was to enter into subcontracts. J.A. 193–95.
And it made clear that MK was responsible, not simply
for contracting with someone else to work for DOE, but
actually performing work under the contract, including
“furnish[ing] all labor, material, facilities, services,
equipment, superintendence and administration neces-
sary to accomplish engineering, design, construction, and
inspection services.” J.A. 178–79. With respect to the
third factor, the GIT subcontract provided that MK, not
DOE, would pay GIT the price for the subcontract. J.A.
130. And, contrary to GIT’s argument, the fact that the
DOE posted a letter of credit to ensure payment, and
directed payment through a dedicated bank account, is
not enough to establish an agency relationship between
MK and DOE here.
GIT argues that “the totality of the individual con-
tractual provisions present a principal-agent relation-
ship,” pointing in support to clauses requiring MK to
obtain DOE approval for certain actions. But the need for
18 GROUND IMPROVEMENT TECHNIQUES v. US
MK to obtain DOE approval does not create an agency
relationship. As we observed in Johnson Controls, “[i]t is
true that the government here has retained a great deal
of control over the actions of [the contractor] in its deal-
ings with the subcontractors on the project. But it is also
apparent that the government meant to use [the contrac-
tor] as a buffer between it and the claims of subcontrac-
tors.” 713 F.2d at 1552. In sum, GIT has failed to
establish privity with DOE under an agency theory.
GIT has also failed to establish privity with DOE un-
der four additional factors discussed in Johnson Controls,
sometimes referred to as the “otherwise in privity” test.
Id. at 1552–53; RMI Titanium Co. v. Westinghouse Elec.
Corp., 78 F.3d 1125, 1139 (6th Cir. 1996). Those four
factors, which led to the conclusion that a direct subcon-
tractor appeal was not permitted in Johnson Controls,
are:
(1) the government and [subcontractor] never en-
tered into a direct contractual relationship; (2) the
‘ABC’ clause, contained in both the prime contract
and the subcontract, specifically disclaimed a con-
tractual relationship between the government and
[subcontractor]; (3) [the contractor] was required
to obtain a Miller Act payment bond, which pro-
vided a recourse by the subcontractor other than a
direct appeal; and (4) there is no provision in any
of the contract documents that clearly authorizes
a direct appeal by a subcontractor.
713 F.2d at 1552–53.
On balance, these four factors weigh against GIT’s di-
rect subcontractor appeal in this case as well. With
respect to the first factor, no direct contractual relation-
ship between GIT and the government exists, for the
reasons already explained. With respect to the second
factor, GIT is correct that there is no contractual provi-
sion expressly disclaiming privity between GIT and the
GROUND IMPROVEMENT TECHNIQUES v. US 19
government. But the DOE, in providing its consent for
the GIT subcontract, specifically stated that there would
be no privity of contract with the subcontractor. J.A. 362.
And although this disclaimer was not written into the
contract, as it was in Johnson Controls, its presence
nonetheless weighs against a finding of privity. With
respect to the third factor, it is true that GIT did not
obtain Miller Act payment bonds as a substitute for a
direct remedy against the government, as the subcontrac-
tor did in Johnson Controls. But Johnson Controls does
not state that the absence of Miller Act bonds creates
jurisdiction over direct subcontractor appeals. And in any
event, the fourth factor—whether any contractual provi-
sion “clearly authorizes a direct appeal by a contractor”—
weighs against GIT’s direct action against the govern-
ment in this case. Here, the “Disputes” clause upon which
GIT relies says merely that the applicable substantive
law is the “body of law applicable to procurement of goods
and services by the Government.” J.A. 131. As already
explained, the rule under the relevant “body of law” is
that “[a] subcontractor typically is unable to seek relief
against the United States on a dispute over the contract
since it is not a party to the contract and thus lacks
privity with the United States.” J.G.B. Enters., 497 F.3d
at 1261. GIT has failed to show why that rule does not
apply here.
We therefore agree with the Court of Federal Claims
that privity, and thus jurisdiction, is lacking as to GIT’s
Counts I–III brought in its own name against the gov-
ernment. We do not address Count IV, brought in MK’s
name for the benefit of GIT, which still remains in this
case.
CONCLUSION
For the foregoing reasons, we affirm the decisions by
the Court of Federal Claims that: (i) GIT is not the real
party in interest for the claims in this suit; (ii) PNC,
20 GROUND IMPROVEMENT TECHNIQUES v. US
Fireman’s Fund, and Robinson should be substituted as
sole plaintiffs in this suit; and (iii) there is no privity
between GIT and the government, and thus no jurisdic-
tion over GIT’s Counts I–III brought in GIT’s own name
against the government. Given our decision on the mer-
its, we deny as moot the motion by PNC, Fireman’s Fund,
and Robinson for voluntary dismissal of this appeal. We
note that our decision does not address any remaining
issues with respect to Count IV, which we leave for fur-
ther consideration by the Court of Federal Claims.
AFFIRMED