Ham Investments, LLC v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
HAM INVESTMENTS, LLC,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2010-5024
__________________________
Appeal from the United States Court of Federal
Claims in case no. 07-495C, Judge Susan G. Braden.
___________________________
Decided: July 8, 2010
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RUSSELL O. BRABHAM, of Shreveport, Louisiana, for
plaintiff-appellant.
DAVID A. HIBEY, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for defendant-appellee. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and MARK A.
MELNICK, Assistant Director.
__________________________
HAM INVESTMENTS v. US 2
Before RADER, Chief Judge, LOURIE, and BRYSON, Circuit
Judges.
PER CURIAM.
The United States Court of Federal Claims granted
the United States’ (“Government”) motion for summary
judgment on the grounds that 31 U.S.C. § 3727 and 41
U.S.C. § 15 (collectively, the “Anti-Assignment Acts”)
invalidated the assignment that HAM Investments, LLC
(“HAM”) alleged entitled it to payment, and the Govern-
ment did not waive the requirements of the Anti-
Assignment Acts. HAM Invs., LLC v. United States, 89
Fed. Cl. 537 (2009). Because no genuine issue of material
fact bars the conclusion that the Government did not
waive the requirements of the Anti-Assignment Acts, this
court affirms.
I.
This case arises from a dispute in connection with a
contract awarded by the United States Army (“Army”) to
Fire Security Systems, Inc. (“FSS”) on August 23, 1999 to
upgrade sprinkler systems for certain buildings at Fort
Campbell, Kentucky (the “Fort Campbell contract”). On
September 5, 2003, FSS assigned to HAM a “certain sum
of money amounting to $50,000.00 due to Fire Security
Systems, Inc. and currently being retained by the De-
partment of the Army . . . .” J.A. 124. On September 25,
2003, HAM informed the Contracting Officer for the Fort
Campbell contract (“CO”) of the assignment. On Septem-
ber 26, 2003, the Army faxed to HAM a copy of Federal
Acquisition Regulation 32.8, entitled “Assignment of
Claims,” which sets forth the requirement that the as-
signment must be made to a “bank, trust company, or
other financing institution, including any Federal lending
agency.” J.A. 132. On September 30, 2003, HAM sent a
copy of the assignment to the CO. The Army told HAM
3 HAM INVESTMENTS v. US
that there was a problem with the assignment because
HAM was not a financing institution. On October 7, 2003,
the Army faxed to HAM an example of an acceptable
assignment. On October 28, 2003, the CO sent a letter to
HAM, explaining that the Army could not honor the
assignment because he was unable to confirm that HAM
is a “financing institution” as required by the Anti-
Assignment Acts. The CO further explained that invest-
ment companies are not financing institutions and neither
the Caddo Parish Business Occupational Licensing Sec-
tion nor the Caddo Parish Chamber of Commerce listed
HAM as a financing institution.
On August 9, 2007, HAM filed a complaint in the
Court of Federal Claims, alleging that the Government
improperly rejected an assignment of contract proceeds
when it failed to pay HAM the remaining proceeds from
the Fort Campbell contract. The trial court granted the
Government’s motion for summary judgment that the
assignment was invalid on October 1, 2009, and this
appeal followed. This court has jurisdiction pursuant to
28 U.S.C. § 1295(a)(3).
II.
This court reviews de novo a grant of summary judg-
ment by the Court of Federal Claims. Local Okla. Bank,
N.A. v. United States, 452 F.3d 1371, 1376 (Fed. Cir.
2006). Summary judgment is proper when there are no
genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “When a motion for
summary judgment is properly made and supported, an
opposing party may not rely merely on allegations or
denials in its own pleading; rather, its response must—by
affidavits or as otherwise provided in this rule—set out
HAM INVESTMENTS v. US 4
specific facts showing a genuine issue for trial.” Fed. R.
Civ. P. 56(e)(2).
III.
The Anti-Assignment Acts invalidate assignments of
government contracts unless specific conditions are met.
See Tuftco Corp. v. United States, 614 F.2d 740, 744 (Ct.
Cl. 1980). The Government may waive the requirements
of the Anti-Assignment Acts if it is “aware of, assented to,
and recognized the assignment[].” See id. at 745. The
Government’s actions must rise to the level of “clear
assent” to the assignment to demonstrate waiver. See,
e.g., D & H Distrib. Co. v. United States, 102 F.3d 542,
546 (Fed. Cir. 1996) (finding clear assent where the
contracting officer issued a modification of the contract,
which expressly adopted the new payment arrangement);
Tuftco, 614 F.2d at 746 (finding clear assent where the
contracting officer wrote “Assignment acknowledged” with
his signature and the date at the bottom of the letter
notifying the Government of the assignment, and made a
payment to the assignee). HAM does not argue on appeal
that the assignment met the requirements of the Anti-
Assignment Acts. Thus, this court need not address that
issue further. Therefore, the only issue on appeal is
whether the Government waived the requirements of the
Anti-Assignment Acts.
HAM asserts, and the Government does not dispute,
that the CO was aware of the assignment. The parties
dispute whether the Government assented to and recog-
nized the assignment. In this case, the Army consistently
informed HAM that for a valid assignment, the assignee
must be a financing institution. Specifically, in Septem-
ber 2003, the Army told HAM that a financing institution
must receive and collect the assignment. Moreover, the
Army faxed to HAM a copy of Federal Acquisition Regula-
5 HAM INVESTMENTS v. US
tion 32.8 and an example of an acceptable assignment of
claims that had been approved by the CO. In addition,
the Army repeatedly informed HAM that its assignment
did not meet the requirements of the Anti-Assignment
Acts because HAM was not a financing institution.
HAM argues that the Government’s knowledge of the
assignment and its provision of guidance to HAM to
perfect the assignment amounted to recognition and
assent sufficient to present a genuine issue of material
fact as to waiver. HAM asserts in its complaint that the
Army told HAM that payment under the assignment
“would cause no problems,” but in order to expedite the
payment, such payment should be made through a bank.
HAM also asserts in its complaint that the CO attempted
to stop payment to FSS, which HAM argues on appeal
shows the Army’s intention to pay HAM. Those unsup-
ported assertions, however, cannot defeat the trial court’s
grant of summary judgment. See Enzo, 599 F.3d at 1337.
Even if this court were to rely on the assertions in
HAM’s complaint, they only show that the Army offered
cooperation and support to HAM; it did not assent to and
recognize the assignment. The record does not show that
the Government was willing to accept the assignment
despite the flaws it perceived. Without clear assent, the
Government did not waive the requirements of the Anti-
Assignment Acts.
IV.
Because there is no genuine issue of material fact as
to whether the Government waived the requirements of
the Anti-Assignment Acts, this court affirms the trial
court’s grant of the Government’s motion for summary
judgment.
AFFIRMED