Aeroplate Corp., a California Corporation v. the United States 12-374c and , 2013 U.S. Claims LEXIS 614 ( 2013 )

In the United States Court of Federal Claims
Nos. 12-374C and 12-377C
(Filed: June 7, 2013)
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AEROPLATE CORP., a California *
corporation, *
*
Plaintiff, * Motion to Intervene by Judgment Creditor
* for Limited Purpose of Filing a Notice of
v. * Lien; RCFC 24; Antiassignment Act, 31
* U.S.C. § 3727
THE UNITED STATES, *
*
Defendant. *
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William L. Bruckner, San Diego, CA, for plaintiff.
Jessica R. Toplin, United States Department of Justice, Washington, DC, for defendant.
Russell W. Reynolds, Fresno, CA, for putative defendant-intervenor.
OPINION AND ORDER
SWEENEY, Judge
Plaintiff Aeroplate Corp. has filed two suits against the United States in this court,
alleging in each that the United States Department of Veterans Affairs (“VA”) breached a
contract related to the renovation of the VA medical center in Philadelphia, Pennsylvania.
Premier Valley Bank, a judgment creditor of plaintiff, moves to intervene in both suits for the
sole purpose of filing a Notice of Lien on plaintiff’s causes of action. For the reasons set forth
below, the court denies the bank’s motion to intervene.
I. BACKGROUND
To finance its renovation projects in Philadelphia, plaintiff obtained several loans from
Premier Valley Bank. The loans were secured, in part, by plaintiff’s accounts receivable. Due
largely to its disputes with the VA regarding the two renovation contracts at issue in these cases,
plaintiff defaulted on its loan payments to the bank. Plaintiff sought to assign its breach of
contract claims against the VA to the bank, but the VA did not execute the assignment as
requested. Accordingly, plaintiff filed suit in this court, seeking damages of $688,513.14 for the
alleged breach of one of the contracts and $744,690.95 for the alleged breach of the other. The
bank subsequently obtained a judgment against plaintiff in the Fresno County, California
Superior Court in the amount of $743,136.24. It now seeks to enforce that judgment by placing a
lien on the proceeds, if any, of plaintiff’s suits in this court.
II. DISCUSSION
Premier Valley Bank relies on Rule 24 of the Rules of the United States Court of Federal
Claims (“RCFC”) as authority for its intervention in these cases, asserting, without any legal
support, that both intervention as a matter of right pursuant to RCFC 24(a) and permissive
intervention pursuant to RCFC 24(b) are appropriate. Neither provision is applicable.
Under RCFC 24(a), the court is required to allow the intervention of anyone who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of
the action, and is so situated that disposing of the action may as a practical
matter impair or impede the movant’s ability to protect its interest, unless
existing parties adequately represent that interest.
The bank has not identified any federal statute that provides it “an unconditional right to
intervene” as set forth in RCFC 24(a)(1), instead relying on California state law as the basis of its
purported right to intervene in these two cases. However, the plain language of the rule does not
allow state law to provide the right to intervene in an action against the United States in this
court. See also Knight v. United States, 982 F.2d 1573, 1578 (Fed. Cir. 1993) (“Absent consent,
state process to reach government property, even where there is a monetary obligation owed by
the government to another, is not cognizable.”). Thus, intervention under RCFC 24(a)(1) is not
appropriate.
With respect to RCFC 24(a)(2), the bank asserts bald allegations that it has an interest in
plaintiff’s claims against the VA, that the court’s disposition of those claims without providing
for its lien would impair its interest, and that neither of the current parties would adequately
protect its interest. These assertions are conclusory in nature. Indeed, the bank does not attempt
to explain how the court’s resolution of plaintiff’s suits would impair or preclude the
enforcement of its judgment against plaintiff. In the absence of nonconclusory allegations
regarding its interest in plaintiff’s claims, the bank cannot intervene under RCFC 24(a)(2). See
also Am. Renovation & Constr. Co. v. United States, 65 Fed. Cl. 254, 257-58 (2005) (noting that
the requirements of RCFC 24(a)(2) are to be construed liberally in support of intervention, but
that nonconclusory allegations are nevertheless required).
Under RCFC 24(b), the court may allow the intervention of anyone who “(A) is given a
conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with
the main action a common question of law or fact.” RCFC 24(b)(1). Permissive intervention
“usually involves adjudication of an additional claim on the merits.” United Keetoowah Band of
Cherokee Indians of Okla. v. United States, 78 Fed. Cl. 303, 306 (2007). Thus, permissive
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intervention requires putative intervenors to establish an independent basis for jurisdiction. Id. at
306-07; Chippewa Cree Tribe of Rocky Boy’s Reservation v. United States, 85 Fed. Cl. 646, 661
(2009). The bank has not alleged that a federal statute provides it a conditional right to intervene
or that it has a claim or defense in either of plaintiff’s suits; in fact, it acknowledges that it has no
claim against the United States. Because the bank has not identified an independent claim over
which the court possesses jurisdiction, its motion to intervene under RCFC 24(b) must also fail.
In addition to not meeting the criteria for intervention set forth in RCFC 24,1 the bank is
precluded from intervening in these two cases pursuant to the statute generally prohibiting the
assignment of claims against the United States, commonly referred to as the Antiassignment Act.
See 31 U.S.C. § 3727 (2006). Under the Antiassignment Act, an assignment of a claim, or an
interest in a claim, against the United States “may be made only after a claim is allowed, the
amount of the claim is decided, and a warrant for payment of the claim has been issued.” Id.
§ 3727(b); see also Pittman v. United States, 116 F. Supp. 576, 580 (Ct. Cl. 1953) (“The
Anti-Assignment statute was enacted for the purpose of preventing third parties, with whom the
Government was not in privity, from acquiring an enforceable interest in a claim against it.”).
The requirements of the Antiassignment Act have not been satisfied in these two cases;
plaintiff’s claims have not been allowed, the amounts of plaintiff’s claims have not been decided,
and warrants for the payment of plaintiff’s claims have not been issued. Moreover, the bank has
not established, much less alleged, that it has a valid assignment under 31 U.S.C. § 3727(c),
which sets forth different requirements for assignments to financing institutions.
III. CONCLUSION
For the foregoing reasons, the court DENIES Premier Valley Bank’s motion to intervene
in the above-captioned cases. The clerk shall forward a copy of this ruling to the bank at the
address set forth in the motion to intervene.
IT IS SO ORDERED.
s/ Margaret M. Sweeney
MARGARET M. SWEENEY
Judge
1
Premier Valley Bank also did not comply with RCFC 24(c), which requires a motion to
intervene to be accompanied by “a pleading that sets out the claim or defense for which
intervention is sought.” Pleadings in this court include complaints, answers, counterclaims,
replies to offsets or pleas of fraud in an answer, and replies to answers. See RCFC 7; RCFC 14.
The Notice of Lien submitted by the bank with its motion to intervene does not constitute a
pleading.
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