Ogunniyi v. United States , 655 F. App'x 842 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VICTOR OGUNNIYI,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-1578
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00581-MBH, Judge Marian Blank
Horn.
______________________
Decided: July 12, 2016
______________________
VICTOR OGUNNIYI, Lemon Grove, CA, pro se.
RETA EMMA BEZAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
MARTIN F. HOCKEY, JR.
______________________
Before NEWMAN, CHEN, and HUGHES, Circuit Judges.
2 OGUNNIYI v. US
PER CURIAM.
Victor Ogunniyi brought contract and tort claims
against the United States based on a 2012 contract be-
tween the United States and Mr. Ogunniyi’s company.
The Court of Federal Claims dismissed for lack of juris-
diction. Because the Court of Federal Claims cannot hear
tort claims, and because Mr. Ogunniyi was neither a
party nor a third-party beneficiary of the 2012 contract,
we affirm.
I
On June 8, 2015, Mr. Ogunniyi filed a pro se com-
plaint in the Court of Federal Claims alleging that the
United States Navy breached a contract formed in late
2012 with Commissioning Solutions Global LLC, a Loui-
siana limited liability company (the Company), for oil
flushing services (the 2012 Contract). The complaint also
alleged that the United States committed several torts,
including fraud, conspiracy, unfair competition, and
intentional misrepresentation.
On December 10, 2015, the Court of Federal Claims
dismissed all claims. It held that Mr. Ogunniyi could not
pursue his contract claims because he did not personally
contract with the Navy, nor did the 2012 Contract render
him a third-party beneficiary. The court dismissed the
remaining claims as sounding in tort, and thus not within
the Tucker Act’s jurisdictional grant. The Court of Feder-
al Claims found in the alternative that it lacked jurisdic-
tion because Mr. Ogunniyi (or the Company) had already
appealed the same claims to the Armed Services Board of
Contract Appeals. Mr. Ogunniyi moved for reconsidera-
tion, which the court denied on January 19, 2016. This
appeal followed.
II
“We review de novo the Court of Federal Claims’
grant of a motion to dismiss for lack of subject matter
OGUNNIYI v. US 3
jurisdiction.” Fid. & Guar. Ins. Underwriters, Inc. v.
United States, 805 F.3d 1082, 1087 (Fed. Cir. 2015).
Under the Tucker Act, the Court of Federal Claims may
hear “claim[s] against the United States founded either
upon the Constitution, or any Act of Congress or any
regulation of an executive department, or upon any ex-
press or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding
in tort.” 28 U.S.C. § 1491(a)(1).
Ordinarily, “[t]o maintain a cause of action under the
Tucker Act based on a contract, [a plaintiff] must show
that there is a contract directly between [him]self and the
Government[.]” Estes Express Lines v. United States,
739 F.3d 689, 693 (Fed. Cir. 2014). A plaintiff may also
sue as a third-party beneficiary, but only if the contract
“reflects the express or implied intention . . . to benefit the
party directly.” Sioux Honey Ass’n v. Hartford Fire Ins.
Co., 672 F.3d 1041, 1056 (Fed. Cir. 2012) (quoting Glass v.
United States, 258 F.3d 1349, 1354 (Fed. Cir.), opinion
amended on reh’g, 273 F.3d 1072 (Fed. Cir. 2001)).
The Court of Federal Claims correctly concluded that
the complaint alleged a contract formed between the
United States and the Company, not Mr. Ogunniyi.
Mr. Ogunniyi’s argument that he has “privity of contract
[with the Navy] inherent in his capacity as the sole owner
of” the Company is wrong; the Company and Mr. Ogunni-
yi are not legally identical entities (absent certain excep-
tions not implicated here). Appellant’s Br. at 23; see La.
Stat. Ann. § 12:1320 (“A member . . . of a limited liability
company is not a proper party to a proceeding by or
against a limited liability company. . . .”); FDIC v. United
States, 342 F.3d 1313, 1319 (Fed. Cir. 2003) (“Neither [the
government’s] knowledge, . . . [n]or the [plaintiffs’] posi-
tion as stockholders in Karnes, made them parties to
those arrangements. A shareholder generally does not
have standing to assert a breach of contract claim on
behalf of the corporation.”). The trial court also correctly
4 OGUNNIYI v. US
concluded that Mr. Ogunniyi’s allegations that he owned
the Company and represented it in its dealings with the
Navy do not establish that the parties intended him as a
direct beneficiary of the 2012 Contract. See S. Cal. Fed.
Sav. & Loan Ass’n v. United States, 422 F.3d 1319, 1332
(Fed. Cir. 2005) (“Having chosen to limit their personal
liability by adopting a corporate form, we have refused to
allow shareholders to rely on their involvement in the
negotiation process [with a government contract] . . . to
alter their chosen legal status.”); FDIC, 342 F.3d at 1320
(stockholder status insufficient to confer third-party
beneficiary rights). And Mr. Ogunniyi is “not [a] third
party beneficiar[y] merely because the contract would
benefit [him].” FDIC, 342 F.3d at 1319. Accordingly, the
Court of Federal Claims correctly found that it lacked
jurisdiction over Mr. Ogunniyi’s contract claims.
The trial court was also correct to dismiss the remain-
ing tort claims because “[t]he plain language of the Tuck-
er Act excludes from the Court of Federal Claims
jurisdiction claims sounding in tort.” Rick’s Mushroom
Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir.
2008); see 28 U.S.C. § 1491(a)(1) (the Court of Federal
Claims has jurisdiction over claims against the United
States “not sounding in tort”).
In light of the foregoing, we need not address whether
the court also lacked jurisdiction because Mr. Ogunniyi or
the Company had presented the same claims to the
Armed Services Board of Contract Appeals. Because the
Court of Federal Claims properly found that it lacked
jurisdiction over all of Mr. Ogunniyi’s claims, we affirm. 1
1 Appellant submitted a “Motion To Submit Tran-
scripts” on March 28, 2016. We construe that as a motion
to take judicial notice of the record in the trial court and,
hereby, grant the motion.
OGUNNIYI v. US 5
AFFIRMED
No costs.