Rocky Mountain Helium, LLC v. United States

United States Court of Appeals
for the Federal Circuit
______________________
ROCKY MOUNTAIN HELIUM, LLC,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-1278
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00336-SGB, Judge Susan G.
Braden.
______________________
Decided: November 16, 2016
______________________
DAVID BERNARD BUSH, David B. Bush, LLC, Wheat
Ridge, CO, argued for plaintiff-appellant.
RENEE BURBANK, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee. Also represented
by ALLISON KIDD-MILLER, BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR.
______________________
Before PROST, Chief Judge, TARANTO, and HUGHES,
Circuit Judges.
2 ROCKY MOUNTAIN HELIUM, LLC v. US
TARANTO, Circuit Judge.
Rocky Mountain Helium, LLC sued the United States
in the United States Court of Federal Claims, asserting
breach of two contracts concerning Rocky Mountain’s
potential extraction of helium from beneath federal
lands—the 1994 Helium Contract and the 2008 Settle-
ment Agreement (the latter resolving a dispute centered
on the former). The Court of Federal Claims found lack of
jurisdiction over both claims and, in the alternative,
dismissed the Helium Contract claim on the merits. We
partly reverse the jurisdictional dismissal of the Helium
Contract claim but affirm the merits dismissal of that
claim. We reverse the jurisdictional dismissal of the
Settlement Agreement claim and remand for further
proceedings on that claim.
I
In 1994, Rocky Mountain and the United States Bu-
reau of Land Management entered into the Helium Con-
tract, under which the Bureau gave Rocky Mountain the
right, for up to 25 years, to extract helium gas from
roughly 21,000 acres of federal lands in Colorado and
Utah. The Helium Contract (Federal Helium Contract
FLL 94-001) stipulated that Rocky Mountain annually
pay to the United States either rent of one dollar per acre
(i.e., roughly $21,000) or royalties based on the helium
that Rocky Mountain extracted, whichever was greater.
The Helium Contract also gave Rocky Mountain certain
preferential rights to enter into a new agreement with the
Bureau if the Bureau terminated the Helium Contract.
If, within a year of such termination, the United States
“elects to enter into an agreement [with another company]
for the sale, extraction or other disposition of helium” that
would be covered by the Helium Contract but for the
termination, Rocky Mountain would have the right to step
in and take that deal instead of the other company. J.A.
62.
ROCKY MOUNTAIN HELIUM, LLC v. US 3
Rocky Mountain never extracted helium from the
property—which Rocky Mountain alleges was the result
of inadequate cooperation from other firms whose oil and
gas mining releases helium for collection. For one year,
Rocky Mountain paid the rent due to the Bureau, then it
stopped paying. J.A. 82 (“In nearly 15 years, [Rocky
Mountain] has made no payment on its contract . . . .”). In
December 2004, the Bureau informed Rocky Mountain
that it had cancelled the Helium Contract due to non-
payment. Rocky Mountain filed an administrative appeal
with the Civilian Board of Contracts Appeals (CBCA). On
August 29, 2008, before a CBCA decision, the parties
entered into a Settlement Agreement.
Under the Settlement Agreement, within specified pe-
riods the Bureau had to direct certain oil and gas lessees
of federal land to furnish the Bureau with specified in-
formation (“the Data”) about gas composition on the
federal lands covered by the Helium Contract, and the
Bureau then had to provide “the Data” to Rocky Moun-
tain. J.A. 70–71. Within 90 days of receiving “the Data,”
Rocky Mountain had to pay $116,579.90 (representing
back rent) to the Bureau. J.A. 70. After those events
occurred, the 1994 Helium Contract would be reinstated.
Additional provisions specified certain interactions be-
tween the Bureau, Rocky Mountain, and the oil and gas
lessees to produce cooperation leading to actual helium
collection.
The Settlement Agreement addresses what would
happen if Rocky Mountain failed to make the $116,579.90
payment in the specified time after receiving the contract-
specified Data. That failure, the Agreement says, “shall
trigger” a “Sunset Provision.” J.A. 70. The Sunset Provi-
sion, item III.1 of the Agreement, specifies the conse-
quences of such triggering:
[Rocky Mountain] agrees to completely and forev-
er release any and all claims, rights, and/or inter-
4 ROCKY MOUNTAIN HELIUM, LLC v. US
est in or arising from Federal Helium Contract
FLL 94-001, in their entirety and expressly in-
cluding any preferential rights detailed therein,
and any and all claims against [the Bureau], the
Department of the Interior and the United States,
relating to Federal Helium Contract FLL 94-001.
Furthermore [Rocky Mountain] agrees that upon
triggering of the Sunset Provision, [the Bureau]
may contract with third parties for Helium recov-
ery on the lands covered by Federal Helium Con-
tract FLL 94-001.
J.A. 73.
Relatedly, the Settlement Agreement contains a dis-
putes clause, which states: “The parties agree that, except
in the event of a triggering of the Sunset Provision de-
scribed at item III(1) herein, disputes or disagreements
arising from operation of this Agreement will be submit-
ted to the Honorable Judge Allan Goodman at the CBCA
for ADR [Alternative Dispute Resolution] pursuant to
CBCA rule 54.” J.A.73. It is undisputed that the cited
rule 54 generally provides for CBCA participation in
dispute-resolution efforts, which are to be voluntary
unless the parties jointly agree to be bound, and that the
Settlement Agreement’s disputes clause required only
voluntary efforts before Judge Goodman, not submission
of a dispute for a binding decision.
Under the Settlement Agreement, the Bureau sought
information from oil and gas lessees and provided Rocky
Mountain with information on December 5, 2008. 1 Rocky
1 We rely here on the record submitted to us in the
usual course of this appeal and, in addition, on the letter
jointly submitted to us by the parties to clarify matters
that arose at oral argument in the appeal. Appellant &
Appellee’s Supp. Letter, Oct. 12, 2016. We appreciate the
ROCKY MOUNTAIN HELIUM, LLC v. US 5
Mountain objected that the information was incomplete,
i.e., was not “the Data” required by the Agreement. Thus,
Rocky Mountain refused to pay the $116,579.90 due
within 90 days of delivery of “the Data.”
On March 4, 2009, before the end of that 90-day peri-
od for payment, Rocky Mountain informed the Bureau
and Judge Goodman that it wanted to pursue mediation,
thus invoking the Agreement’s disputes clause. The
Bureau “responded that it had supplied all the infor-
mation necessary and therefore there was no dispute to
mediate, but agreed to suspend the settlement payment
deadline for ten days for [Rocky Mountain] to either make
the payment or to explain exactly what information
required by the settlement agreement [the Bureau] had
failed to provide.” Appellant & Appellee’s Supp. Letter at
1, Oct. 12, 2016. Rocky Mountain repeated its request for
mediation on April 16, 2009.
On April 21, 2009, the Bureau sent a letter to Rocky
Mountain stating that it was invoking the Sunset Provi-
sion of the Settlement Agreement and “consider[ed]
federal helium contract FLL-94-001 fully, finally, and
permanently terminated.” J.A. 82. It added: “Any recov-
ery that [Rocky Mountain] may ultimately seek through
litigation will be limited to money damages—and will be
vigorously contested by [the Bureau].” Id. Rocky Moun-
tain alleges that, within a year, the Bureau entered into a
new lease with another company; the Bureau neither
confirms nor denies that allegation.
The parties “continued to discuss possible ADR pro-
ceedings” with Judge Goodman. Appellant & Appellee’s
parties’ initiative and cooperation in providing the joint
clarification. Because we do not go beyond the joint letter,
we deny Rocky Mountain’s motion to file additional mate-
rials responsive to the questions raised at oral argument.
6 ROCKY MOUNTAIN HELIUM, LLC v. US
Supp. Letter at 1. In those conversations, “Judge Good-
man never made a written or oral determination about
whether the sunset provision had been triggered.” Id. “It
appears that neither party pursued ADR further after
September 2009, and that the CBCA closed its ADR file in
March 2010.” Id. at 2.
On April 21, 2015, Rocky Mountain filed a complaint
in the Court of Federal Claims. Rocky Mountain alleged
that the Bureau breached two contracts: (1) the Helium
Contract and (2) the Settlement Agreement. The United
States filed a motion to dismiss. The trial court granted
the motion based on different jurisdictional and merits
grounds.
As to the Helium Contract claim: The court first found
that Rocky Mountain lacked constitutional standing
because the Helium Contract had been terminated in
2004 and never reinstated. It also dismissed that claim
on the merits for the same reason. As to the Settlement
Agreement claim: The court found lack of subject matter
jurisdiction on the ground that the disputes clause re-
quired submission of the dispute to Judge Goodman. 2
Rocky Mountain appeals. We have jurisdiction pur-
suant to 28 U.S.C. § 1295(a)(3).
II
We review de novo the dismissal for lack of jurisdic-
tion, which in this case involves no factual findings on
2 Rocky Mountain argues that the Court of Federal
Claims also dismissed its Settlement Agreement breach
claim for failure to state a claim. We do not agree. The
court’s discussion of Rocky Mountain’s obligation to pay
the $116,579.90 payment related to its merits dismissal of
the Helium Contract breach claim (as never reinstated),
not to the Settlement Agreement breach claim.
ROCKY MOUNTAIN HELIUM, LLC v. US 7
material disputed facts, and the dismissal for failure to
state a claim. See RadioShack Corp. v. United States, 566
F.3d 1358, 1360 (Fed. Cir. 2009); Trauma Serv. Grp. v.
United States, 104 F.3d 1321, 1324 (Fed. Cir. 1997).
Count I of Rocky Mountain’s complaint alleges breach
of the Settlement Agreement, while Count II alleges
breach of the Helium Contract. Like the Court of Federal
Claims, we discuss the 1994 Helium Contract first, then
the 2008 Settlement Agreement. Count III of the com-
plaint, seemingly covering both contracts, alleges breach
of an implied duty of a good faith and fair dealing. We see
no need for separate discussion of Count III. Our rulings
on the two simple breach counts shall be taken to extend
to Count III’s implied-duty claim insofar as that count
applies, respectively, to the Helium Contract and Settle-
ment Agreement.
A
As to the Helium Contract, although Rocky Moun-
tain’s complaint might be taken to allege breach in 2004,
when the United States declared the contract terminated,
the complaint principally alleges breach years later.
Specifically, it alleges breach on April 21, 2009, when the
government stated that it deemed the contract fully,
finally, and permanently terminated, and then during the
year after April 21, 2009, when (the complaint alleges) the
government contracted with another firm for helium
extraction on the lands covered by the contract. Accord-
ing to Rocky Mountain, the termination was a breach
because it rested on Rocky Mountain’s failure to pay rent
and that failure was in fact the result of the Bureau’s own
failure to cooperate with Rocky Mountain “to ensure
access to gas streams to conserve and recover helium.”
Appellant’s Br. at 1. And the government’s alleged con-
tracting with a new firm in the year after April 2009,
Rocky Mountain alleges, was a breach because it violated
8 ROCKY MOUNTAIN HELIUM, LLC v. US
Rocky Mountain’s preferential rights under the Helium
Contract, which existed for one year after a termination.
1
The Court of Federal Claims first held that Rocky
Mountain lacked constitutional standing to assert its
claim for breach of the Helium Contract. If correct, that
conclusion would support the jurisdictional dismissal.
Anderson v. United States, 344 F.3d 1343, 1349 (Fed. Cir.
2003). But the standing conclusion is not correct.
Rocky Mountain met the constitutional standing re-
quirement because it alleged a legally cognizable injury in
fact that is “concrete and particularized” and “actual or
imminent,” causation of that injury by the conduct com-
plained of, and redressability of the injury by a favorable
decision on the merits of the claim. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992). Here, no issue is or
could be raised about any component of that familiar
standard except the requirement of cognizable injury in
fact. On that component of the standing test, Rocky
Mountain alleges economic harm from a breach of con-
tract. That allegation asserts a cognizable injury in fact:
“palpable economic injuries have long been recognized as
sufficient to lay the basis for standing.” Sierra Club v.
Morton, 405 U.S. 727, 733 (1972). Rocky Mountain’s
allegations thus suffice to establish standing.
In concluding otherwise, the Court of Federal Claims
relied on its determination that Rocky Mountain “was in
default of the Helium Contract on August 1, 1996, when
the annual rental payment was due,” which led the Bu-
reau to declare the contract terminated. J.A. 9. But that
determination is a merits determination: it rejects Rocky
Mountain’s claim that the Helium Contract termination
was a breach, a claim resting on the assertion that the
non-payment of rent resulted from the Bureau’s own
deficient conduct. Such a merits determination is not a
permissible one for the standing analysis, which assumes
ROCKY MOUNTAIN HELIUM, LLC v. US 9
the merits of a litigant’s claim and determines whether
“even though the claim may be correct the litigant ad-
vancing it is not properly situated to be entitled to its
judicial determination.” 13A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 3531
(3d ed. 2008 & Supp. 2016); see, e.g., Warth v. Seldin, 422
U.S. 490, 500 (1975) (“[S]tanding in no way depends on
the merits of the plaintiff’s contention that particular
conduct is illegal.”). The jurisdictional dismissal for lack
of standing is therefore incorrect.
There is, however, a different jurisdictional bar to
Rocky Mountain’s claim of breach of the Helium Contract,
but only to a limited extent. The jurisdiction of the Court
of Federal Claims is limited by the six-year statute of
limitations of 28 U.S.C. § 2501. See John R. Sand &
Gravel Co. v. United States, 552 U.S. 130, 134 (2008)
(holding that § 2501 states a jurisdictional limit). Rocky
Mountain did not bring this action until April 2015—
which was more than six years after any 2004 termina-
tion and the expiration of preferential rights one year
after any such 2004 termination. The six-year limitations
rule thus bars jurisdiction insofar as Rocky Mountain
alleges that the Bureau wrongfully terminated the con-
tract in 2004. On the other hand, there is no time bar
insofar as Rocky Mountain alleges that the termination
occurred on April 21, 2009, or later.
To the extent, then, that Rocky Mountain alleges a
2004 termination, we affirm the dismissal of the Helium
Contract claim for lack of jurisdiction. Whether or not
such a termination was wrongful, Rocky Mountain is out
of time in challenging a 2004 termination. We otherwise
reverse the jurisdictional dismissal.
2
The Court of Federal Claims separately dismissed
Rocky Mountain’s Helium Contract claim for failure to
state a claim on which relief can be granted. It concluded
10 ROCKY MOUNTAIN HELIUM, LLC v. US
that it is beyond reasonable dispute that the Helium
Contract was in fact terminated in 2004 and never rein-
stated. That merits conclusion defeats Rocky Mountain’s
breach claim, which is timely only to the extent it alleges
that there was no termination until April 21, 2009. We
agree with the termination conclusion and the merits
dismissal based on it.
There is no dispute that the Court of Federal Claims
was permitted to rely on the documents from which it
drew its conclusion about the 2004 termination. Court of
Federal Claims Rule 10(c) states (in words identical to
Federal Rule of Civil Procedure 10(c)) that “[a] copy of a
written instrument that is an exhibit to a pleading is a
part of the pleading for all purposes.” The Supreme Court
has ruled that a court “must consider the complaint in its
entirety, . . . in particular, documents incorporated into
the complaint by reference, and matters of which a court
may take judicial notice.” Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007). And the leading
commentary has explained: “the contents of any attached
writing must be considered by the court in a wide variety
of contexts—for example, in determining the sufficiency of
the statement of a claim for relief or a defense on a motion
to dismiss under Rule 12(b)(6)”; the court “obviously is not
bound to accept the pleader’s allegations as to the effect of
the exhibit, but can independently examine the document
and form its own conclusions as to the proper construction
and meaning to be given the attached material”; and “[i]t
appears to be well settled that when a disparity exists
between the written instrument annexed to the pleadings
and the allegations in the pleadings, the terms of the
written instrument will control, particularly when it is
the instrument being relied upon by the party who made
it an exhibit.” 5A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1327 (3d ed. 2004
& Supp. 2016).
ROCKY MOUNTAIN HELIUM, LLC v. US 11
Here, the complaint itself recounts that the Bureau on
December 29, 2004, notified Rocky Mountain “that it had
cancelled the Helium Contract for non-payment.” J.A. 25.
Moreover, the Settlement Agreement recites that the
Bureau “canceled the Contract on December 29, 2004.”
J.A. 69. And it is beyond dispute that no reinstatement
of the Helium Contract actually occurred.
Rocky Mountain’s complaint may allege that the Set-
tlement Agreement should have led to a reinstatement of
the Helium Contract but that breach of the Settlement
Agreement prevented such reinstatement. Such an
allegation, however, would at most be relevant to the
claim of Settlement Agreement breach, with whatever
consequences may follow if that claim is proved. It does
not support an allegation, contrary to the plain facts just
stated, that the Helium Contract actually was in force
until April 21, 2009, rather than having been terminated
in 2004 (the only alternative on this record).
The motion-to-dismiss record thus requires the con-
clusion that the Helium Contract was terminated in 2004
and never reinstated. To the extent that Rocky Mountain
alleges that the termination did not occur until 2009, that
allegation is one on which relief cannot be granted.
Therefore, insofar as the Helium Contract breach claim
rests on that allegation, we affirm the merits dismissal of
the Helium Contract breach claim—that claim otherwise
being properly dismissed as jurisdictionally untimely.
B
Rocky Mountain’s claim of breach of the Settlement
Agreement asserts that the Bureau did not provide Rocky
Mountain all of “the Data” it was obliged to provide under
that agreement. As a result, Rocky Mountain asserts, a
contractual precondition to its obligation to make the
$116,579.90 payment was not met. According to Rocky
Mountain, the government therefore breached the agree-
ment when it invoked the Sunset Provision on April 21,
12 ROCKY MOUNTAIN HELIUM, LLC v. US
2009, based on Rocky Mountain’s failure to make that
payment.
The Court of Federal Claims dismissed the Settle-
ment Agreement breach claim for lack of jurisdiction,
concluding that the disputes clause required Rocky Moun-
tain to submit its challenge to the adequacy of the Bu-
reau-furnished information to Judge Goodman of the
CBCA. It is anything but clear that the premise would
support the conclusion: we have seen no authority for
treating a requirement like this one, which reaches no
further than a requirement to invoke non-binding settle-
ment assistance, as an override of an otherwise-clear
jurisdictional grant to the court. But we need not decide
that question. The parties, in their joint post-argument
letter, have now made clear that Rocky Mountain did
invoke Judge Goodman’s assistance under CBCA Rule 54
and, in fact, did so before its $116,579.90 payment was
due. The disputes clause was satisfied. At least on these
newly established facts, the Court of Federal Claims did
not lack jurisdiction over the Settlement Agreement
breach claim based on the disputes clause.
The United States makes an alternative argument for
lack of jurisdiction. It invokes the established principle
that the source of law underlying a Tucker Act claim must
be money-mandating, i.e., be one that “can fairly be
interpreted as mandating compensation by the Govern-
ment for the damages sustained.” United States v. Mitch-
ell, 463 U.S. 206, 217 (1983); see, e.g., Higbie v. United
States, 778 F.3d 990, 993 (Fed. Cir. 2015). The United
States asserts that the Settlement Agreement is not
money-mandating.
We reject that contention. Where there is a breach of
a government contract, “as with private agreements,
there is a presumption in the civil context that a damages
remedy will be available upon the breach of an agree-
ment.” Sanders v. United States, 252 F.3d 1329, 1334
ROCKY MOUNTAIN HELIUM, LLC v. US 13
(Fed. Cir. 2001). Typically, based on that presumption,
“no further inquiry is required” into whether money
damages are available. Holmes v. United States, 657 F.3d
1303, 1314 (Fed. Cir. 2011). We have found that money
damages are not available in a breach of contract case
only in a limited number of situations—e.g., where a
contract expressly disavows money damages, see id.
(distinguishing such cases), where the breach alleged was
of a confidentiality provision in an agreement defining the
terms of an alternative dispute resolution process, Higbie,
778 F.3d at 995, where the agreement concerned a crimi-
nal defendant’s release on bail, Sanders, 252 F.3d at 1331,
and where a special government cost-sharing agreement,
rather than a procurement or sales contract, was at issue,
Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d
1338, 1344–46 (Fed. Cir. 2008).
This case involves no exceptions we have recognized.
The Settlement Agreement is a commercial contract
whereby the two parties set the terms for launching a
continuing commercial arrangement, based on initial
provision of information, followed by payment if the
information was complete, and then the taking of further
steps designed to lead to mutually beneficial commercial
exploitation of valuable resources. This kind of commer-
cial contract comes within the core of the strong back-
ground rule making monetary remedies available for
contract breaches even when there is no express contract
provision so stating.
CONCLUSION
For the foregoing reasons, we affirm in part and re-
verse in part, and we remand the case for further proceed-
ings consistent with this opinion.
No costs.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED