Crowley Government Services, Inc. v. GSA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 15, 2022 Decided July 1, 2022
No. 21-5242
CROWLEY GOVERNMENT SERVICES, INC.,
APPELLANT
v.
GENERAL SERVICES ADMINISTRATION AND ROBIN CARNAHAN,
IN HER OFFICIAL CAPACITY AS ADMINISTRATOR OF THE
GENERAL SERVICES ADMINISTRATION,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-02298)
James Y. Boland argued the cause for appellant. With him
on the briefs were Nicholas M. DePalma and Kevin W.
Weigand.
Steven Hazel, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Acting Assistant Attorney General, Mark B.
Stern, Attorney, and Nitin Shah, General Counsel, General
Services Administration. Stephanie R. Johnson and R. Craig
Lawrence, Assistant U.S. Attorneys, entered appearances.
2
Before: SRINIVASAN, Chief Judge, HENDERSON and
JACKSON*, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Crowley
Government Services, Inc. sued the General Services
Administration and its Administrator (collectively, GSA),
seeking declaratory and injunctive relief to halt the GSA’s
purported practice of interfering with payments owed to
Crowley under its contract with the United States
Transportation Command (TRANSCOM). Crowley argues
that the Administrative Procedure Act (APA), 5 U.S.C.
§§ 701–706, and the general federal question statute, 28 U.S.C.
§ 1331, confer subject matter jurisdiction on the district court
to review the GSA’s alleged violation of the Contract Disputes
Act of 1978, 41 U.S.C. § 7103(g), and the Transportation Act
of 1940, 31 U.S.C. § 3726(b).1 The question is whether
Crowley’s suit against the GSA, which is not a party to
Crowley’s contract with TRANSCOM, is “at its essence”
contractual, Megapulse, Inc. v. Lewis, 672 F.2d 959, 968 (D.C.
Cir. 1982)—including whether Crowley “in essence” seeks
more than $10,000 in monetary relief from the federal
government, Kidwell v. Dep’t of Army, Bd. for Corr. of Mil.
Recs., 56 F.3d 279, 284 (D.C. Cir. 1995)—such that it is
subject to the exclusive jurisdiction of the United States Court
of Federal Claims (Claims Court) pursuant to the Tucker Act,
28 U.S.C. § 1491(a). The district court answered affirmatively
and dismissed Crowley’s complaint for lack of subject matter
* Circuit Judge, now Justice, Jackson was a member of the
panel at the time the case was argued but did not participate in this
opinion.
1
Crowley also invoked the Declaratory Judgment Act,
28 U.S.C. §§ 2201–2202, for its requested declaratory relief.
3
jurisdiction. Crowley Gov’t Servs. v. GSA, No. 21-cv-2298,
2021 WL 4940953, at *9–11, *12 (D.D.C. Oct. 22, 2021).
We disagree. Crowley’s action against the GSA in district
court is not “at its essence” contractual because Crowley does
not seek to enforce or recover on the contract with
TRANSCOM. Nor does Crowley “in essence” seek monetary
relief from the federal government in district court. Rather, it
requests declaratory and injunctive relief that, if granted, would
have considerable value independent of (and not negligible in
comparison to) any monetary recovery Crowley may
ultimately attain in other proceedings. Accordingly, we reverse
and remand to the district court.
I. BACKGROUND
In November 2016, Crowley,2 which “provides marine
solutions, energy, and logistical services in domestic and
international markets,” entered a procurement contract with
TRANSCOM, a unit of the Department of Defense (DOD).3
Compl. ¶¶ 12, 19, No. 21-cv-2298, Crowley Gov’t Servs. v.
GSA (D.D.C. Aug. 30, 2021), reprinted in Joint Appendix
(J.A.) 6, 8–9. Crowley agreed to “provide[] various logistical,
planning, and transportation coordination services to assist
[TRANSCOM] with managing a large and complex network of
moving goods and cargo for the [DOD].” Id. ¶ 20, reprinted in
J.A. 9. Under the contract, government shippers send Crowley
orders for cargo shipments to and from DOD facilities within
2
TRANSCOM awarded the contract to Crowley’s predecessor-
in-interest, Crowley Logistics, Inc. We refer to the company as
“Crowley.”
3
Reviewing the dismissal of a complaint for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1),
“we accept the facts alleged by the plaintiff as true.” Schnitzer v.
Harvey, 389 F.3d 200, 202 (D.C. Cir. 2004).
4
the continental United States. Crowley, which does not handle
or take possession of the cargo, coordinates the shipment
process by subcontracting to third parties the transportation of
the cargo from its origin and to its destination. Crowley’s
contract with TRANSCOM sets forth performance standards
for the transportation process, including delivery timeframes,
permissible reasons for deviating from the timeframes and
methods for calculating the timeframes. At the time Crowley
filed its complaint, Crowley had coordinated approximately 1.2
million shipments for TRANSCOM under the contract.
This dispute arises from the GSA’s audits of Crowley’s
invoices to TRANSCOM for payment for services provided
under the contract. The GSA, which all parties agree is not
party to the contract, asserted authority to audit Crowley’s
invoices pursuant to the Transportation Act. See 31 U.S.C.
3726(b) (authorizing GSA to “conduct pre- or post-payment
audits of transportation bills of any Federal Agency”). Through
the audits, the GSA concluded that Crowley had, inter alia,
misapplied agreed-upon exceptions for delays in cargo
delivery, used the wrong method for calculating transit times
and submitted invoices based on improperly completed
government documentation. As a result, the GSA has issued
more than 50,000 Notices of Overcharge (NOCs) totaling
approximately $37 million to Crowley since 2018.4
4
As the district court explained, TRANSCOM uses “a third-
party payment system, operated by a bank, through which GSA
‘unilaterally applie[s] off-sets to future payments to Crowley’
pursuant to the NOCs, without coordinating such offsets with
[TRANSCOM]” or other DOD agencies. Crowley Gov’t Servs. v.
GSA, No. 21-cv-2298, 2021 WL 4940953, at *3 (D.D.C. Oct. 22,
2021) (quoting Contracting Officer’s Final Decision Regarding
Certified Claim, Defense Freight Transportation Services (DFTS),
Contract HTC711-17-D-R003 ¶ 3(f)(1) (Dec. 30, 2020), reprinted in
5
In January 2020, Crowley objected to the GSA’s asserted
authority to conduct the audits and submitted a claim to
TRANSCOM’s Contracting Officer challenging various
categories of the NOCs under a provision of the contract it
argued was governed by the Contract Disputes Act. See
41 U.S.C. § 7103(a), (g) (instructing contractors to submit
claims against federal government to contracting officer,
whose decision “is final and conclusive and is not subject to
review by any forum, tribunal or Federal Government agency,
unless an appeal or action is timely commenced as authorized
by this chapter”). After reviewing Crowley’s challenges, the
Contracting Officer issued three final decisions covering
various aspects of the claims, two in August 2020 and another
a few months later in December 2020. Most relevant here, the
Contracting Officer concluded in the December 2020 final
decision that “the NOCs are erroneous,” “are not factually
supportable, and, hence, are not valid” and “should not have
been issued.” Contracting Officer’s Final Decision Regarding
Certified Claim, Defense Freight Transportation Services
(DFTS), Contract HTC711-17-D-R003 ¶¶ 3(a)–(e) (Dec. 30,
2020), reprinted in J.A. 37. Although he agreed with Crowley
that the funds withheld by the GSA, which “remain[ed] in
GSA’s possession,” properly belonged to Crowley, the
Contracting Officer determined that TRANSCOM “has no
authority to order GSA to pay from its own funding source for
disputed NOCs” and “does not have any authority to order
payment from the U.S. Treasury’s miscellaneous receipts
account.” Id. ¶ 3(f)(2), reprinted in J.A. 38. He then advised
that Crowley could pursue the funds only “through the GSA
Post-Payment Audit dispute process, appealable to the Civilian
J.A. 38). TRANSCOM, through the DOD, pays the full amount of
the invoice to the bank and the GSA deducts the NOC amount from
payments owed to Crowley, directing the withheld funds to a
“miscellaneous receipts account” of the United States Treasury. Id.6
Board of Contract Appeals of the U.S. Court of Federal
Claims.” Id. (citing 41 C.F.R. §§ 102-118.600 et seq.).
Notwithstanding the Contracting Officer’s final decisions, the
GSA had, until recently, continued to issue NOCs to Crowley.
Joint Status Report ¶ 2, Crowley Gov’t Servs. v. United States,
No. 21-cv-1405 (PEC) (Fed. Cl. May 26, 2022), ECF No. 45
(“The parties have negotiated a separate agreement in which
the United States will temporarily suspend the issuance of
Notices of Overcharge (‘NOCs’) and any deductions for
outstanding NOCs until November 19, 2022.”).
In May 2021, Crowley filed suit against TRANSCOM in
Claims Court, alleging breach of contract for nonpayment of
services and seeking money damages and declaratory relief, as
TRANSCOM had not reimbursed Crowley for the payments
offset by the GSA. Compl. ¶¶ 1, 49–60, Crowley, No. 21-cv-
1405 (PEC) (Fed. Cl. May 27, 2021), ECF No. 1. After the
United States moved to dismiss, Crowley amended its
complaint, adding an alternative count against the GSA under
49 U.S.C. § 14705, seeking recovery of the charges already
deducted by the GSA through the 31 U.S.C. § 3726(b) audits.
Am. Compl. ¶¶ 17, 98–102, Crowley, No. 21-cv-1405 (PEC)
(Fed. Cl. Aug. 26, 2021), ECF No. 8. Crowley submits to us
that it included the alternative count “only as a last resort to
preserve [its] monetary claim due to the three-year statute of
limitations” but also maintains that “[s]ection 14705 does not
apply and cannot provide a jurisdictional basis for Crowley to
challenge GSA’s violation of the Contract Disputes Act’s
finality clause.” Appellant’s Br. 21 n.3. Crowley’s action,
which remains pending in Claims Court, is currently at the
discovery stage. See Joint Status Report, supra, ¶ 5.
Several days after filing its amended complaint in Claims
Court in late August 2021, Crowley filed a two-count
complaint against the GSA in district court. Count I alleged that
7
the GSA exceeded its statutory authority by improperly
auditing Crowley’s invoices and issuing NOCs in violation of
(1) the Transportation Act, 31 U.S.C. § 3726(b), because
Crowley is not a “carrier or freight forwarder” and its invoices
are not “transportation bills” under the statute, id. § 3726(a),
and (2) the Contract Disputes Act, 41 U.S.C. § 7103(g),
because the NOCs contravene the TRANSCOM Contracting
Officer’s final decisions and the statute’s so-called finality
clause. Compl. ¶¶ 108–26, reprinted in J.A. 20–22; see also
Appellant’s Br. 6–10 (arguing dispute resolution schemes
under Transportation Act and Contract Disputes Act are
mutually exclusive and cannot both apply to same contract).
Count II alleged, in the alternative, that the GSA’s actions are
ultra vires, thus warranting judicial review and injunctive relief
because no other remedy is available. Compl. ¶¶ 127–37,
reprinted in J.A. 22–23. The GSA’s audits, Crowley
maintained, caused it “certain, imminent, and unrecoverable
harm,” Appellant’s Br. 12, including: (1) significant time and
expense reviewing and challenging thousands of NOCs, (2) the
uncertainty of being subjected to what it characterizes as the
mutually exclusive dispute resolution schemes of the Contract
Disputes Act and the Transportation Act and (3) degraded
performance and inability to meet the requirements of its
contract with TRANSCOM, see Compl. ¶¶ 71, 85, 87,
reprinted in J.A. 15, 17.
In its Prayer for Relief, Crowley sought (1) a judgment
declaring that the Transportation Act does not authorize the
GSA to audit the contract; (2) a judgment declaring that the
GSA’s NOCs, which contradict the Contracting Officer’s final
decisions, violate the Contract Disputes Act; and (3) an
injunction prohibiting the GSA from conducting additional
audits of Crowley’s invoices and issuing NOCs. It expressly
stated, however, that it “seeks no monetary relief . . . or other
contractual remedy.” Id. ¶ 107, reprinted in J.A. 20. Crowley
8
asserted that jurisdiction was proper in district court under
28 U.S.C. § 1331 because its action arises under the APA,
5 U.S.C. §§ 701–706. It moved for a preliminary injunction
and the GSA moved to dismiss under Federal Rules of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction and
12(b)(6) for failure to state a claim. See Crowley, 2021 WL
4940953, at *1.
The district court granted the GSA’s motion to dismiss for
lack of jurisdiction and denied Crowley’s motion for a
preliminary injunction as moot. Id. at *1, *12. It concluded that
it lacked subject matter jurisdiction because Crowley “has a
contract dispute with the government exceeding $10,000 in
value, and the forum prescribed by statute to hear such disputes
is the Court of Federal Claims.” Id. at *6. Crowley’s complaint
seeking declaratory and injunctive relief is “in essence” a claim
for monetary relief, the district court reasoned, because the
non-monetary relief Crowley seeks is “‘negligible in
comparison’ to the uncollected contractual proceeds at issue.”
Id. at *9 (quoting Kidwell, 56 F.3d at 284). It reached this
conclusion by comparing what it characterized as Crowley’s
“primary harm”—$180,000 in personnel time lost to reviewing
and challenging the NOCs—to the $37 million in alleged
overcharges, or what it deemed the “real amount at stake.” Id.;
see Compl. ¶¶ 81–82, reprinted in J.A. 16 (“Crowley estimates
that it has already cost Crowley at least $180,000 in personnel
time attempting to review, assess, and challenge the NOCs. . . .
[It] has expended significant resources challenging GSA’s
authority to conduct audits and make determinations that are
contrary to the Contracting Officer’s” final decisions.).
The district court also determined that Crowley’s claims
are in essence contractual because the GSA’s “audits have no
significance outside the context of collection on the contract”
and Crowley’s complaint would not exist “were it not for
9
certain rights to payment promised in the [c]ontract.” Crowley,
2021 WL 4940953, at *10–11 (citing Spectrum Leasing Corp.
v. United States, 764 F.2d 891 (D.C. Cir. 1985)). Finally, the
district court rejected Crowley’s ultra vires claim as a “side-
door attempt to invoke the district court’s jurisdiction” and to
“escape the jurisdictional strictures imposed by the Tucker
Act.” Id. at *11. Crowley appealed.
“In granting the [GSA’s] motion to dismiss, the [d]istrict
[c]ourt issued a final appealable order, which this court has
jurisdiction to review pursuant to 28 U.S.C. § 1291.” Tootle v.
Sec’y of Navy, 446 F.3d 167, 172 (D.C. Cir. 2006). A district
court’s dismissal for lack of subject matter jurisdiction is
reviewed de novo. Id. at 173. Although our review of a
complaint purportedly implicating Tucker Act jurisdiction
focuses on its “substance, not merely its form,” Kidwell,
56 F.3d at 284, “where the jurisdiction of the court turns on
whether the complaint seeks monetary relief, the court must
generally limit itself to the four corners of the complaint,”
Tootle, 446 F.3d at 174 (citing Wolfe v. Marsh, 846 F.2d 782(D.C. Cir. 1988) (per curiam)).
II. ANALYSIS
The United States and its agencies are generally immune
from suit in federal court absent a clear and unequivocal waiver
of sovereign immunity. See Kalodner v. Abraham, 310 F.3d
767, 769 (D.C. Cir. 2002) (citing Lane v. Pena, 518 U.S. 187,
192 (1996)). Via the APA, the Congress has provided a limited
waiver of sovereign immunity for claims against the United
States “seeking relief other than money damages” for persons
“adversely affected or aggrieved by agency action.” 5 U.S.C.
§ 702. Section 702’s sovereign immunity waiver does not
apply, however, “if any other statute that grants consent to suit
expressly or impliedly forbids the relief which is sought.”
10
Perry Cap. LLC v. Mnuchin, 864 F.3d 591, 618 (D.C. Cir.
2017) (quoting 5 U.S.C. § 702).
The Tucker Act gives the United States Court of Federal
Claims jurisdiction
to render judgment upon any claim against
the United States founded either upon the
Constitution, or any Act of Congress or any
regulation of an executive department, or
upon any express 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). We have interpreted the Tucker Act
“to confer exclusive jurisdiction over breach of contract claims
against the United States seeking more than $10,000 in
damages on the Court of Federal Claims,” Hammer v. United
States, 989 F.3d 1, 2 (D.C. Cir. 2021) (citing 28 U.S.C.
§§ 1346(a), 1491(a); Greenhill v. Spellings, 482 F.3d 569, 573
(D.C. Cir. 2007)), and thus “to ‘impliedly forbid[]’ contract
claims against the Government from being brought in district
court under the waiver in the APA,”5 Perry Cap., 864 F.3d at
618–19 (quoting Albrecht v. Comm. on Emp. Benefits of Fed.
Rsrv. Emp. Benefits Sys., 357 F.3d 62, 67–68 (D.C. Cir. 2004)
(alteration in original)); see also Bowen v. Massachusetts,
487 U.S. 879, 910 n.48 (1988) (observing Claims Court’s
exclusive jurisdiction of Tucker Act claims seeking more than
$10,000 “is not based on any language in the Tucker Act
5
The Little Tucker Act “gives district courts concurrent
jurisdiction with the Court of Federal Claims in most Tucker Act
cases seeking less than $10,000.” Kidwell v. Dep’t of Army, Bd. for
Corr. of Mil. Recs., 56 F.3d 279, 283 (D.C. Cir. 1995) (citing
28 U.S.C. § 1346(a)(2)).
11
granting such exclusive jurisdiction” and is exclusive “only to
the extent that Congress has not granted any other court
authority to hear the claims that may be decided by the Claims
Court”); Van Drasek v. Lehman, 762 F.2d 1065, 1071 n.10
(D.C. Cir. 1985) (noting that Claims Court’s exclusive
jurisdiction of Tucker Act claims is not based on text of statute,
but on fact the Congress rarely grants district courts jurisdiction
of such claims).
Because the Tucker Act does not expressly forbid the relief
sought by Crowley, the district court correctly identified the
critical overarching question to be whether the statute
“impliedly forbids” such relief. Crowley, 2021 WL 4940953,
at *6 (quoting 5 U.S.C. § 702). As explained below, we
conclude that it does not and that the district court has
jurisdiction of Crowley’s claim under the APA.
A. TUCKER ACT JURISDICTION
Our longstanding test for determining whether a claim
falls within the exclusive jurisdiction of the Claims Court
pursuant to the Tucker Act appears straightforward. “[A]n
action against the United States which is at its essence a
contract claim lies within the Tucker Act and . . . a district court
has no power to grant injunctive relief in such a case.”
Megapulse, 672 F.2d at 967 (emphasis added). Whether a
claim is “at its essence” contractual for the Tucker Act
“depends both on the source of the rights upon which the
plaintiff bases its claims, and upon the type of relief sought (or
appropriate).” Id. at 968.
In examining “the source of the rights upon which the
plaintiff bases its claims,” Megapulse’s first prong, we
recognize that “[c]ontract issues may arise in various types of
cases where the action itself is not founded on a contract.” Id.
(listing, as examples, “a license . . . raised as a defense in an
12
action for trespass, or a purchase contract . . . raised to counter
an action for conversion”). But we have explicitly rejected the
“broad” notion “that any case requiring some reference to or
incorporation of a contract is necessarily on the contract and
therefore directly within the Tucker Act” because to do so
would “deny a court jurisdiction to consider a claim that is
validly based on grounds other than a contractual relationship
with the government.” Id. at 967–68. Indeed, “the mere fact
that a court may have to rule on a contract issue does not, by
triggering some mystical metamorphosis, automatically
transform an action . . . into one on the contract and deprive the
court of jurisdiction it might otherwise have.” Id. at 968. That
said, we have cautioned plaintiffs that this court
“prohibit[s] . . . the creative drafting of complaints,” for
example, by “disguis[ing]” a claim for money damages as one
for equitable relief, to avoid the jurisdictional consequences of
the Tucker Act. Kidwell, 56 F.3d at 284; see also Megapulse,
672 F.2d at 969. In conducting this inquiry, we “make rational
distinctions between actions sounding genuinely in contract
and those based on truly independent legal grounds,”
Megapulse, 672 F.3d at 969–70. We consider whether, among
other factors, the plaintiff’s asserted rights and the
government’s purported authority arise from statute, see, e.g.,
id. at 969 (Tucker Act “does not necessarily apply where the
government defendants are charged with having acted beyond
the scope of their statutory authority”), whether the plaintiff’s
rights “exist[] prior to and apart from rights created under the
contract,” Spectrum, 764 F.2d at 894, and whether the plaintiff
“seek[s] to enforce any duty imposed upon” the government
“by the . . . relevant contracts to which” the government “is a
party,” Perry Cap., 864 F.3d at 619.
Megapulse’s second prong considers “the type of relief
sought.” 672 F.2d at 968. Here, we are guided by our case law
that has identified the “explicitly contractual remedy” of
13
specific performance and the “prototypical contract remedy” of
money damages as types of relief that are “specific to actions
that sound in contract.” Perry Cap., 864 F.3d at 619 (quoting
A & S Council Oil Co. v. Lader, 56 F.3d 234, 240 (D.C. Cir.
1995)). The crux of this inquiry, however, boils down to
whether the plaintiff effectively seeks to attain monetary
damages in the suit. Accordingly, under the second prong of
Megapulse, “a claim is subject to the Tucker Act and its
jurisdictional consequences if, in whole or in part, it explicitly
or ‘in essence’ seeks more than $10,000 in monetary relief
from the federal government.”6 Kidwell, 56 F.3d at 284 (citing
Megapulse, 672 F.2d at 967–68); cf. Bowen, 487 U.S. at 916(Scalia, J., dissenting) (“[D]istrict court jurisdiction is not
established merely because a suit fails to pray for a money
judgment.” (citing cases)). Narrowing our focus further, a
plaintiff does not “in essence” seek monetary relief “as long as
[the] complaint only requests non-monetary relief that has
‘considerable value’ independent of any future potential for
monetary relief” and “as long as the sole remedy requested is
declaratory or injunctive relief that is not ‘negligible in
comparison’ with the potential monetary recovery.” Kidwell,
56 F.3d at 284 (citation omitted). Exclusive jurisdiction in
Claims Court under the Tucker Act does not lie “merely
because [a plaintiff] hints at some interest in a monetary reward
from the federal government or because success on the merits
6
Both parties appear to recognize that a claim must satisfy both
the Megapulse test and the Kidwell test to fall within the Claims
Court’s exclusive Tucker Act jurisdiction and that Kidwell’s test for
monetary relief is included in Megapulse’s remedy prong. See
Appellant’s Br. 31 (Crowley arguing that “a claim must be both for
money and contractual” to satisfy Kidwell and Megapulse (emphases
omitted)), 45 (referencing Kidwell monetary-relief conclusion in
Megapulse remedy-prong analysis); Tr. of Oral Arg. at 23 (GSA
stating that it “see[s] that second Megapulse prong and the sort of
Kidwell test as coextensive”).
14
may obligate the United States to pay the complainant.” Id.
(citing Vietnam Veterans of Am. v. Sec’y of the Navy, 843 F.2d
528, 534 (D.C. Cir. 1988) (“It is . . . clear that a claim is not for
money merely because its success may lead to pecuniary costs
for the government or benefits for the plaintiff.”)). “[E]ven if
the plaintiff filed the complaint with an eye to future monetary
awards, a district court with otherwise appropriate jurisdiction
may hear the claim and grant the proper equitable relief.” Id.With these principles in mind, we turn to Crowley’s
complaint in district court to determine if it is “at its essence”
a contract claim. Megapulse, 672 F.2d at 967.
B. APPLICATION OF MEGAPULSE
1. Source of the Right
We begin with the source of the right upon which Crowley
bases its claim. But we must first properly characterize
Crowley’s asserted right before we can proceed to identify its
source. Crowley contends that it has the right “to be free from
government action beyond [its] congressional authority,”
Appellant’s Br. 42, and that the GSA has infringed upon this
right by auditing Crowley’s invoices without authority under
the Transportation Act, 31 U.S.C.§ 3726(b), and in violation of
the Contract Disputes Act’s finality clause, 41 U.S.C.
§ 7103(g). Compl. ¶¶ 111–22, reprinted in J.A. 20–21.
Crowley’s asserted right is clear enough on the face of the
complaint. We therefore cannot agree with the district court’s
characterization of the right in question as Crowley’s “alleged
rights to certain monies.” Crowley, 2021 WL 4940953, at *10.
Indeed, Crowley makes no claim here based on a right to
money owed by TRANSCOM, the GSA or any other
government agency under the contract. In fact, it explicitly
disclaims any effort to vindicate such a right in district court.
See Compl. ¶ 107, reprinted in J.A. 20 (“Crowley seeks no
15
monetary relief (for the offsets or otherwise) or any other
contractual remedy from” the district court.).
We next identify the source of Crowley’s asserted right.
We conclude that the sources of Crowley’s claimed right are
the statutes identified in Crowley’s complaint. Its claimed right
sounds more in the nature of tort, not by virtue of its contract
with TRANSCOM. To begin, Crowley “do[es] not seek to
enforce any duty imposed upon” the GSA by Crowley’s
contract with TRANSCOM.7 Perry Cap., 864 F.3d at 619. As
all agree, the GSA owes no duty to Crowley under the contract.
It is neither a party to, a beneficiary of nor an assignee under
the Crowley-TRANSCOM contract. And Crowley did not seek
in district court an order compelling the GSA to perform or
fulfill any obligations to Crowley created by the contract.
Further, determining whether the GSA infringed
Crowley’s rights as alleged in the complaint requires primarily
an examination of the statutes the GSA has purportedly
violated, not of Crowley’s contract with TRANSCOM.
Whether the GSA exceeded its authority to audit Crowley’s
invoices under the Transportation Act because Crowley is not
a “carrier or freight forwarder,” 31 U.S.C. § 3726(a), and
whether the GSA violated the Contract Disputes Act, 41 U.S.C.
§ 7103(g), by contravening the TRANSCOM Contracting
Officer’s final decisions are not questions the district court can
answer by examining a contractual promise made by the GSA
to Crowley. No such promise exists, as the GSA and Crowley
7
The United States has acknowledged as much in Claims
Court. Defendant’s Motion to Dismiss at 9, Crowley, No. 21-cv-1405
(PEC) (Fed. Cl. Aug. 9, 2021), ECF No. 7 (“Whatever claims
Crowley may have against GSA, the law is clear that GSA’s actions
do not give rise to a breach of contract claim against [TRANSCOM]”
and “the actions of one Government agency cannot give rise to a
breach of contract claim against a different agency.”).
16
have no contractual relationship. Rather, the district court must
determine whether Crowley is a “carrier or freight forwarder”
under the Transportation Act such that the GSA exercised
proper authority in conducting the audits and whether the GSA
did in fact violate the Contract Disputes Act as alleged.
Crowley’s “position is ultimately based, not on breach of
contract, but on an alleged governmental . . . violation of” the
Transportation Act and the Contract Disputes Act, Megapulse,
672 F.2d at 969; that is, its asserted right “exist[s]
independently of [the] contract” with TRANSCOM, Spectrum,
764 F.2d at 894.
We find Crowley’s claim against the GSA to fall within
that category of cases identified in Megapulse in which
“[c]ontract issues may arise” but “the action itself is not
founded on a contract.” 672 F.2d at 968. Specifically, we find
convincing Crowley’s analogy of its claim to the common law
claim of tortious interference with contractual relations. See
Appellant’s Reply Br. 7 n.3; Tr. of Oral Arg. at 10 (Crowley
“analogize[s] [its] case . . . to a tortious interference-type
case”); see also Megapulse, 672 F.2d at 969 (“[P]ublic officials
may become tort-feasors by exceeding the limits of their
authority.” (quoting Land v. Dollar, 330 U.S. 731, 738 (1947)).
The elements of tortious interference are “substantially similar
in most jurisdictions” and commonly include: “(a) a contract or
valid business relationship or expectancy; (b) knowledge by the
defendant of the contract or relationship; (c) intentional
interference by the defendant which induces the breach of
contract or relationship; (d) the absence of justification; and
(e) resulting damages.” 9 Stuart M. Speiser et al., American
Law of Torts § 31:45 (2022) (noting that some courts do not
consider breach of contract to be essential element of tortious
interference claim). With the exception of damages, which
Crowley explicitly disclaims in its complaint, Crowley has
alleged, as part of its claim under the APA, the remaining
17
elements of tortious interference: it has a valid contract with
TRANSCOM; the GSA knew of the contractual relationship as
it sought to review Crowley’s invoices for payment under the
contract; the GSA intentionally interfered with the contract
through allegedly unauthorized audits and the issuance of
NOCs; and the GSA allegedly lacked authority for its actions
under the Transportation Act and the Contract Disputes Act.
The Tucker Act, however, does not extend to the Claims Court
jurisdiction of tort claims.8 28 U.S.C. § 1491(a)(1) (granting
jurisdiction for “cases not sounding in tort”). Because a
plaintiff could not bring this type of tort action in Claims Court
in the first place, that Court would not have exclusive
jurisdiction of them. And the same goes for Crowley’s
analogous statutory claims.
We believe the district court made several errors in its
examination of the source of the right. First, as explained, it
misidentified the right Crowley sought to vindicate in its action
against the GSA. Crowley, 2021 WL 4940953, at *10
(identifying “rights to certain monies” rather than asserted right
to be free from allegedly unauthorized audits and NOCs). Next,
it misinterpreted Megapulse to impose a “but-for” test for
identifying the source of the right. Crowley, 2021 WL
4940953, at *11 (“[b]ut for” the GSA’s withholding of
payments allegedly owed to Crowley under the contract,
“neither complaint [in Claims Court or district court] would
exist”); see also Appellees’ Br. 9 (“Absent its agreement with
[TRANSCOM], Crowley would have no claims to assert.”).
Imposing such a test, however, contravenes Megapulse’s
express rejection of the “argument that the mere existence of
such contract-related issues . . . convert[s] [the] action to one
based on the contract.” 672 F.2d at 969. Granted, Crowley’s
8
The Little Tucker Act includes the same prohibition. See
28 U.S.C. § 1346(a)(2).
18
claim presupposes the existence of a contract, as without one
the GSA would have no invoices to audit. But the right
Crowley seeks to vindicate is not a contract right and its action
in district court only “require[s] some reference to or
incorporation of [the] contract.” Id. at 968. These references to
contract issues are insufficient to “deprive the [district] court
of jurisdiction it might otherwise have.” Id.Third, the district court mistakenly relied on our 1985
Spectrum decision. See Crowley, 2021 WL 4940953, at *10;
see also Appellees’ Br. 14 (“This case resembles Spectrum in
all relevant respects.”). There, a software and hardware
services provider in a contractual relationship with the GSA
challenged the GSA’s withholding of payment of certain
invoices based on Spectrum’s alleged failure to fulfill its
contractual obligations. Spectrum, 764 F.2d at 892. Spectrum
sued in district court for the GSA’s alleged violations of the
Debt Collection Act of 1982, 31 U.S.C. §§ 3701 et seq.
Spectrum is inapposite for multiple reasons. See infra II.B.2.
Most significantly, unlike in this case, the GSA was a party to
the contract at issue in Spectrum, squarely indicating that the
claims against the GSA in that case arose under the contract.
The plaintiff in Spectrum sought to vindicate its right to
payment under its contract with the GSA but the Debt
Collection Act “confer[ed] no such right in the absence of the
contract itself.” 764 F.2d at 894. We concluded that the Debt
Collection Act “might impose procedural requirements on the
government having some impact on the contract, [but] the Act
in no way creates the substantive right to the remedy Spectrum
seeks.” Id.; see also id. at 892 n.1 (describing Debt Collection
Act’s “procedures and safeguards designed to assure due
process protections to delinquent government debtors and to
enhance the ability of the federal government to collect its
debts”). In other words, “Spectrum’s right to the . . . payments
arose only upon creation and satisfaction of its contract with
19
the government.” Id. at 894. Crowley, by contrast, has no right
to anything from the GSA under its contract with
TRANSCOM—and certainly no right to payment—and it seeks
to vindicate an entirely different sort of right from Spectrum’s
asserted right.
For these reasons, we conclude that the source of the right
upon which Crowley bases its claim against the GSA is not its
contract with TRANSCOM and therefore the complaint does
not fall within the Claims Court’s exclusive Tucker Act
jurisdiction under the first prong of Megapulse.
2. Relief Sought
We turn next to “the type of relief sought.” Megapulse,
672 F.2d at 968. We conclude that Crowley’s requested
declaratory and injunctive relief is “not specific to actions that
sound in contract.” Perry Cap., 864 F.3d at 619. Crowley seeks
neither the “prototypical contract remedy” of damages, id.
(quoting Lader, 56 F.3d at 240), nor “the classic contractual
remedy of specific performance,” Spectrum, 764 F.2d at 894.
And, critically, Crowley does not “in essence” seek more than
$10,000 in monetary relief from the federal government, as the
declaratory and injunctive relief sought has “considerable
value” apart from and is not “negligible in comparison” to any
potential monetary recovery that Crowley might obtain in other
proceedings. Kidwell, 56 F.3d at 284.
Crowley’s complaint expressly “seeks no monetary relief”
or money damages. Compl. ¶ 107, reprinted in J.A. 20; see also
Tootle, 446 F.3d at 174 (first examining whether complaint
explicitly requests monetary damages); Kidwell, 56 F.3d at
284, 285 (same, stating Tucker Act applies if complaint
“explicitly” seeks more than $10,000 in damages). In its Prayer
for Relief, as noted earlier, supra at 7, Crowley seeks only
declaratory and injunctive relief. Compl. Prayer for Relief
20
¶¶ A–C; see also Smalls v. United States, 471 F.3d 186, 190–
91 (D.C. Cir. 2006) (consulting complaint’s prayer for relief to
determine remedy sought).
The resolution of our inquiry under the second prong of
the test articulated in Megapulse accordingly turns on whether
Crowley’s complaint “in essence” seeks monetary relief.
Kidwell, 56 F.3d at 284. It does not. “[M]ost importantly, the
equitable relief sought by [Crowley] has significant value.”
Tootle, 446 F.3d at 174–75. Crowley put forth a host of non-
monetary benefits it would attain with a ruling in its favor in
district court. These include: the ability to direct its resources
to fulfilling its obligations under the contract rather than
analyzing and challenging tens of thousands of audits and
NOCs; the certainty of knowing whether the dispute resolution
procedures under the Contract Disputes Act or the
Transportation Act apply; an answer to the question whether
the GSA has authority to audit Crowley’s invoices generated
by its contract with TRANSCOM; and, perhaps most
significantly, the ability to provide services to TRANSCOM
and perform its contractual obligations free of the GSA’s
alleged interference. Compl. ¶¶ 82, 84, 85, 86, 87, reprinted in
J.A. 16–17. The value of this non-monetary relief to Crowley’s
business operations and professional reputation is arguably just
as considerable as the value of relief from the stigma or “shame
associated with failing to receive an honorable discharge” from
the military that we found sufficient to take a complaint outside
the Claims Court’s exclusive jurisdiction under the Tucker Act.
Kidwell, 56 F.3d at 285 (military veteran, who did not
explicitly seek monetary relief, brought APA action
challenging Army Board for Correction of Military Records’
refusal “to change his military files to indicate a ‘medical’
discharge rather than [a] general discharge” (id. at 281)).
Indeed, continuing to operate under the cloud of the GSA’s
audits and NOCs—and the resulting performance difficulties it
21
creates—could conceivably jeopardize Crowley’s ongoing
contractual relationship with TRANSCOM, which runs
through July 31, 2024, or its potential to win future contracts
with other parties.
Moreover, “any monetary benefits that might flow if
[Crowley] prevails on [its] non-monetary claims will not come
from the District Court’s exercise of jurisdiction.” Tootle,
446 F.3d at 175. Again, Crowley does not ask the district court
to issue an order compelling the GSA to pay or award any
monetary relief whatsoever. Cf. Spectrum, 764 F.2d at 894(plaintiff sought “order compelling the government to pay
money owed in exchange for goods procured under an
executory contract”). “[A]ny monetary recovery [Crowley]
might be entitled to in the future,” including in Claims Court,
“would be entirely separate from” the district court’s exercise
of jurisdiction and award of the requested declaratory and
injunctive relief. Tootle, 446 F.3d at 175; Vietnam Veterans,
843 F.2d at 534 (“claim is not for money merely because its
success may lead to pecuniary costs for the government or
benefits for the plaintiff”). The fact that Crowley may obtain
monetary relief from the United States in Claims Court if it
succeeds in its suit against the GSA in district court “is
insufficient to deprive the district court of jurisdiction.” Smalls,
471 F.3d at 190.
The district court correctly concluded that this second
Megapulse inquiry is controlled by Kidwell, Crowley,
2021 WL 4940953, at *8, but it incorrectly applied the test we
articulated there, see id. at *9. First, it labeled Crowley’s
purported expense in investigating and challenging the NOCs,
which amounted to an estimated $180,000 that “cannot be
recovered,” as the “primary harm” redressable by a ruling in
Crowley’s favor. Id.; see Compl. ¶¶ 81–82, reprinted in J.A.
16. Although the district court acknowledged that this expense
22
“would not be compensated by any money damage award
either here [in district court] or at the [Claims Court],” it
nevertheless compared that figure—and only that figure—to
the $37 million allegedly withheld by the GSA to conclude that
the former is “negligible in comparison” to the latter and
therefore “in essence” a claim for monetary relief. Crowley,
2021 WL 4940953, at *9 (emphasis added). In doing so, it
neglected to weigh the fact that Crowley’s complaint did not
request retroactive relief for the monetary value of the time and
effort spent challenging the NOCs but did, as explained above
and as made clear in its Prayer for Relief, seek prospective
relief from the GSA’s audits and NOCs in the future. The
district court reached its conclusion merely by calculating the
ratio of the value of the NOC withholdings ($37 million) to the
asserted value of the personnel time attempting to review and
challenge the NOCs ($180,000)—200 to 1.9 Id. But there is no
support for this method of comparison in our case law. The
district court cited none, id., and the GSA points to none, see
Appellees’ Br. 18–19.10
9
The district court used $187,000 in its comparison, citing to
Crowley’s Opposition to Motion to Dismiss. Crowley, 2021 WL
4940953, at *9. We have used the figure of $180,000 throughout
because that is the amount Crowley uses in its complaint. See Compl.
¶ 81, reprinted in J.A. 16.
10
The GSA relies on Schwalier v. Hagel, 734 F.3d 1218, 1221
(D.C. Cir. 2013), to argue that “[w]hen a plaintiff requests multiple
forms of relief, courts identify the ‘core’ request by comparing the
relative value of the monetary and non-monetary remedies.”
Appellees’ Br. 18. The GSA’s reliance on Schwalier is misplaced.
There, the plaintiff included a request for monetary relief “on the face
of the complaint” and thus we found “no need to peer deeper into
[the complaint’s] substance, essence, or ‘core.’” Schwalier, 734 F.3d
at 1221 (citing Kidwell, 56 F.3d at 284). In addition, we do not read
Schwalier as reducing the inquiry to the computation of a ratio in this
manner or, perhaps more importantly, as authorizing a district court
23
It also erred by characterizing the $37 million as “the real
amount at stake here.” Crowley, 2021 WL 4940953, at *9. The
district court found it “difficult to see how the requested”
declaratory and injunctive relief “would not effect the release
of the offsets assessed by GSA to date.” Id. But that “is not the
law of the circuit.” Tootle, 446 F.3d at 176. We have explicitly
rejected a district court’s conclusion that a complaint sought
“in essence” monetary relief because “the plain effect of a
judgment in plaintiff’s favor would be a significant financial
gain for plaintiff.” Id. at 175–76 (citing district court opinion).
Indeed, as we said in Kidwell, “[a] plaintiff does not ‘in
essence’ seek monetary relief . . . merely because he or she
hints at some interest in a monetary reward from the federal
government or because success on the merits may obligate the
United States to pay the complainant.” 56 F.3d at 284. “[E]ven
if the plaintiff filed the complaint with an eye to future
monetary awards, a district court with otherwise appropriate
jurisdiction may hear the claim and grant the proper equitable
relief.” Id.
Crowley does not seek money in its suit against the GSA
and the district court would not award such relief were Crowley
to prevail. The declaratory and injunctive relief sought has
considerable value apart from and is not negligible in
comparison to any potential monetary recovery Crowley may
secure in Claims Court. Therefore, under Kidwell, Crowley’s
complaint does not request “in essence” monetary relief.
Crowley “has gone to great lengths to demonstrate that it
is not relying on the contract at all. It does not claim a breach
of contract, it has limited its request for relief” in district court
to the enforcement of the GSA’s statutory obligations, “it seeks
no monetary damages against the United States, and its claim
to exclude a plaintiff’s requested non-monetary relief from its
analysis.
24
is not properly characterized as one for specific performance.”
Megapulse, 672 F.2d at 969 (footnotes omitted). In other
words, neither the source of the right on which Crowley’s claim
is based nor the type of relief sought sounds in contract. Id. at
968. We conclude that Crowley “has not brought a contract
action or an otherwise disguised claim for monetary relief
against the United States.” Id. at 971.
Under our precedent, the Court of Federal Claims has
exclusive jurisdiction of an action pursuant to the Tucker Act
only if the claim in question is “at its essence” contractual. A
plaintiff satisfies this test if its asserted right is based in contract
and seeks “in essence” more than $10,000 in monetary relief
from the federal government. Here, neither of those conditions
is met. Accordingly, jurisdiction of Crowley’s action is proper
in district court under the APA and the general federal question
statute.11 We therefore reverse the district court’s dismissal for
11
The GSA maintains that Crowley can obtain all the relief it
seeks against the GSA in the Court of Federal Claims under the
Transportation Act. See Tr. of Oral Arg. at 22; Appellees’ Br. 22.
Crowley disagrees. See Tr. of Oral Arg. at 26–27; Appellant’s Reply
Br. 6 (“Crowley cannot sue GSA under the Transportation Act
because it does not apply.”). The district court noted, albeit in dicta,
that the “APA’s sovereign immunity waiver does not apply if . . .
some ‘other adequate remedy in a court’ is available,” Crowley,
2021 WL 4940953, at *6 (quoting 5 U.S.C. § 704), and agreed with
the GSA that it “has in essence laid out a blueprint for how this matter
can receive a fulsome hearing” in Claims Court, id. at *12. Even
assuming that is true, we find no reason to conclude that the Claims
Court’s jurisdiction in such an action would be exclusive of district
court jurisdiction, as Crowley does not seek the same relief in district
court as it does in Claims Court. In addition, whether another
adequate remedy exists under § 704 has no bearing on our
jurisdictional inquiry. We have made clear that the “adequate remedy
bar of § 704” does not address “whether there is federal subject
matter jurisdiction.” Perry Cap., 864 F.3d at 621.
25
lack of subject matter jurisdiction and remand for consideration
of the merits of Crowley’s claim.12
So ordered.
12
Because we conclude Crowley’s complaint can proceed in
district court under Count I of its complaint, we need not address its
alternative ultra vires claim or the district court’s dismissal of that
claim, see Crowley, 2021 WL 4940953, at *11–12.