DEFENDANT’S MOTION TO DISMISS · 2013. 8. 25. · no. 12-326c (judge charles f. lettow) in the united states court of federal claims council for tribal employment rights, plaintiff,

No. 12-326C

(Judge Charles F. Lettow)

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

COUNCIL FOR TRIBAL EMPLOYMENT RIGHTS,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

DEFENDANT’S MOTION TO DISMISS

OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

OF COUNSEL:

CHARLES WALLACE

WILLIAM B. BLAKE

Branch of Acquisitions and

Intellectual Property

Solicitor’s Office – Division of

General Law

U.S. Department of the Interior

December 11, 2012

STUART F. DELERY

Acting Assistant Attorney General

JEANNE E. DAVIDSON

Director

DONALD F. KINNER

Assistant Director

JOSEPH E. ASHMAN

Trial Attorney

Commercial Litigation Branch

Civil Division

Department of Justice

Ben Franklin Station

P.O. Box 480

Washington, D.C. 20044

Tel. (202) 353-7578

Attorneys for Defendant

Case 1:12-cv-00326-CFL Document 25 Filed 12/11/12 Page 1 of 49

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES……………………………………………………………………..iv

QUESTIONS PRESENTED………………………………………………………………………2

STATEMENT OF THE CASE……………………………………………………………………2

I. STATUTORY AND LEGAL FRAMEWORK…………………………………...2

A. Indian Self-Determination And Education Assistance Act of 1975….…...2

B. Indian Employment, Training And Related Services

Demonstration Act of 1992………………………………………………..4

C. BIA’s Role As Manager And Protector Of Native American Affairs…….5

II. STATEMENT OF THE FACTS………………………………………………….6

A. The ARRA And Spirit Lake Tribe’s 638 Contract…………………....….6

B. The Amendments To SLT’s ARRA 638 Contract………………………..7

1. Amendment 2……………………………………………………...7

2. Interagency Agreement Between IEED And FHWA……………..8

3. Amendment 6……………………………………………………...9

SUMMARY OF ARGUMENT………………………………………………………………….10

ARGUMENT…………………………………………………………………………………….13

I. STANDARD OF REVIEW……………………………………………………...13

A. Motion To Dismiss Pursuant To Rule 12(b)(1)………………………….13

B. Motion To Dismiss Pursuant To Rule 12(b)(6)………………………….14

C. Motion For Summary Judgment Pursuant To Rule 56(a)………………..14


ii

II. THE COURT SHOULD DISMISS COUNTS I AND IV OF CTER’S

COMPLAINT OR, IN THE ALTERNATIVE, ENTER SUMMARY

JUDGMENT IN THE GOVERNMENT’S FAVOR ON CTER’S

BREACH OF CONTRACT CLAIMS…………………………………………..16

A. CTER’s Complaint Fails To State A Claim For Relief Under

The Contract Disputes Act Because The Agreements At Issue

Do Not Involve The Procurement Of Services For The Direct

Benefit Or Use Of The Government……………………………………..16

B. There Exists No Express Contract Between CTER And The

United States Upon Which This Court May Assert Its Tucker

Act Jurisdiction…………………………………………………………..19

1. The IEED “Awarding Official” Was Without Authority

To Bind The United States In Contract With CTER…………….20

a. The Scope Of Authority Of An IEED “Level I

Awarding Official” Is Limited To Issuing Self-

Determination Agreements Under The ISDA, And

The Agreements At Issue In CTER’s Complaint

Are Not Self-Determination Agreements………………..21

b. BIA Further Limited The Scope Of Ms. Forcia’s

Authority To Issuing Grants Under The 477

Program, And She Therefore Possessed No

Authority To Bind The United States In A

Contract Of Any Kind……………………………………23

c. There Is No Language In The ARRA Indicating

That Congress Intended To Bind The United States

In Contract By Issuing The Grant Funds Through

BIA And FHWA…………………………………………24

2. Counts I And IV Should Be Dismissed Because CTER Is Not

A “Tribal Organization” Under The ISDA ….…………………..25

3. There Did Not Exist A Mutual Intent To Contract With

CTER On The Part Of IEED…………………………………….27

a. IEED Did Not Receive Consideration From

CTER Through The Agreements At Issue……………….27

b. There Was No Unambiguous Acceptance Of An

Offer To Enter Into A Binding Contract With

CTER By IEED…………………………………………..30


iii

III. THE COURT SHOULD DISMISS COUNTS II, V AND VI OF

CTER’S COMPLAINT BECAUSE PLAINTIFF IS NOT A THIRD

PARTY BENEFICIARY…………………………………………………….…..35

A. CTER Is Not A Third Party Beneficiary To Any Agreement At

Issue Because There Was No Intent To Benefit CTER Directly………...35

B. Interagency Agreements Are Not Enforceable Contracts In

This Court, And CTER, Therefore, Cannot Be A Third Party

Beneficiary To The Interagency Agreement Between IEED

And FHWA………………………………………………………………36

IV. THE COURT SHOULD DISMISS COUNTS III AND VII OF CTER’S

COMPLAINT BECAUSE THE COURT DOES NOT POSSESS

JURISIDICTION TO ENTERTAIN CLAIMS BASED IN EQUITY…...……...38

A. The Court Does Not Have Jurisdiction Over Implied-In-Law

Contracts………………………………………………………………....38

B. The Court Does Not Have Jurisdiction Over Claims Based

Upon The Equitable Principle Of Promissory Estoppel…………………38

CONCLUSION……………………………………………………………….………………….39


iv

TABLE OF AUTHORITIES

CASES PAGE(S)

AEY, Inc. v. United States,

99 Fed. Cl. 300 (2011) .............................................................................................................14

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) ................................................................................................................14

Anderson v. United States,

344 F.3d 1343 (Fed. Cir. 2003) ...............................................................................................28

Aviation Contractor Emps., Inc. v. United States,

945 F.2d 1568 (Fed. Cir. 1991) ...............................................................................................25

Bataco Industries, Inc. v. United States,

29 Fed. Cl. 318 (1993) .............................................................................................................30

BioFunction, LLC v. United States,

92 Fed. Cl. 167 (2010) .............................................................................................................38

Brown v. United States,

86 F.3d 1554 (Fed. Cir. 1996) ...................................................................................................5

Busby School of the Northern Cheyenne Tribe v. United States,

8 Cl. Ct. 596 (1985) .................................................................................................................18

CW Government Travel, Inc. v. United States,

61 Fed. Cl. 559 (2004) .............................................................................................................30

Cardiosom, LLC v. United States,

91 Fed. Cl. 659 (2010) .............................................................................................................13

Carter v. United States,

98 Fed. Cl. 632 (2011) .............................................................................................................35

Carter v. United States,

102 Fed. Cl. 61 (2011) .............................................................................................................25

Cedars-Sinai Medical Center v. Watkins,

11 F.3d 1573 (Fed. Cir. 1993) .................................................................................................14

Conley v. Gibson,

355 U.S. 41 (1957) ..................................................................................................................14


v

Cooley v. United States,

76 Fed. Cl. 549 (2007) .............................................................................................................14

County of Suffolk New York v. United States,

19 Cl. Ct. 295, 297 (1990) .................................................................................................26, 27

Craig-Buff Ltd. Partnership v. United States,

69 Fed. Cl. 382 (2006) .............................................................................................................39

Demontiney v. United States,

54 Fed. Cl. 780 (2002) .........................................................................................................5, 32

Demontiney v. United States ex rel Dept. of Interior, Bureau of Indian Affairs,

255 F.3d 801 (9th Cir. 2001) .....................................................................................................3

Federal Crop Ins. Corp. v. Merrill,

332 U.S. 380 (1947) ................................................................................................................20

First Hartford Corp. Pension Plan & Trust v. United States,

194 F.3d 1279 (Fed. Cir. 1999) ...............................................................................................37

Flexfab, L.L.C. v. United States,

424 F.3d 1254 (Fed. Cir. 2005) ...............................................................................................35

General Elec. Co. v. United States,

60 Fed. Cl. 482 (2004) .............................................................................................................30

Glass v. United States,

258 F.3d 1349 (Fed. Cir. 2001) ...............................................................................................36

Grayton v. United States,

92 Fed. Cl. 327 (2010) .............................................................................................................38

Guardsman Elevator Co., Inc. v. United States,

50 Fed. Cl. 577 (2001) .............................................................................................................35

Levine v. United States,

453 F.3d 1348 (Fed. Cir. 2006) ...............................................................................................14

Maniere v. United States,

31 Fed. Cl. 410 (1994) .............................................................................................................35

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574 (1986) ................................................................................................................15


vi

Monarch Assur. P.L.C. v. United States,

244 F.3d 1356 (Fed. Cir. 2001) ...............................................................................................20

Nat’l R.R. Passenger Corp. v. Atchison, Topeka and Santa Fe Ry.,

470 U.S. 451 (1985) ................................................................................................................24

Nevin v. United States,

43 Fed. Cl. 151 (1999) .............................................................................................................28

New Era Const. v. United States,

890 F.2d 1152 (Fed. Cir. 1989) ...............................................................................................16

Nwogu v. United States,

94 Fed. Cl. 637 (2010) .............................................................................................................38

O. Ahlborg & Sons, Inc. v. United States,

74 Fed. Cl. 178 (2006) .............................................................................................................14

PCL Const. Srvcs., Inc. v. United States,

47 Fed. Cl. 745 (2000) .............................................................................................................30

Pennsylvania Dep’t of Public Welfare v. United States,

48 Fed. Cl. 785 (2001) .......................................................................................................19, 24

Reynolds v. Army & Air Force Exch. Servs.,

846 F.2d 746 (Fed. Cir. 1988) .................................................................................................13

Rick’s Mushroom Service, Inc., v. United States,

521 F.3d 1338 (Fed. Cir. 2008) ...............................................................................................17

Russell & Assocs.-Freson Ltd. v. United States,

1979 WL 16491 (Ct. Cl. 1979) ................................................................................................30

Sangre de Cristo Dev. Co. v. United States,

932 F.2d 891 (10th Cir. 1991) ...................................................................................................6

Scheuer v. Rhodes,

416 U.S. 232 (2007) ................................................................................................................14

Schism v. United States,

316 F.3d 1259 (Fed. Cir. 2002) ...............................................................................................31

Steinberg v. United States,

90 Fed. Cl. 435 (2009) .......................................................................................................28, 39


vii

Stout Road Assocs., Inc. v. United States,

80 Fed. Cl. 754 (2008) .............................................................................................................20

Tennessee Valley Authority (TVA) v. United States

13 Cl. Ct. 692 (1987) ...............................................................................................................37

Thermalon Industries v. United States,

34 Fed. Cl. 411 (1995) ...........................................................................................19, 23, 26, 27

Thompson v. Cherokee Nation of Oklahoma,

334 F.3d 1075 (Fed. Cir. 2003) ...........................................................................................4, 22

Travelers Cas. & Sur. Co. of America v. United States,

103 Fed. Cl. 101 (2012) ...........................................................................................................13

U.S. Ecology, Inc. v. United States,

245 F.3d 1352 (Fed. Cir. 2001) ...............................................................................................36

United States v. Algoma Lumber Co.,

305 U.S. 415 (1939) ............................................................................................................6, 32

United States v. Testan,

424 U.S. 392 (1976) ................................................................................................................13

Warr v. United States,

46 Fed. Cl. 343 (2000) .............................................................................................................32

STATUTES

25 U.S.C. § 2 ....................................................................................................................................5

25 U.S.C. § 450 ................................................................................................................................2

25 U.S.C. § 450(a)(1) .......................................................................................................................3

25 U.S.C. § 450a(a)..........................................................................................................................3

25 U.S.C. § 450a(b) ...................................................................................................................3, 10

25 U.S.C. § 450b ........................................................................................................................7, 9

25 U.S.C. § 450b(l) ........................................................................................................4, 33, 34, 35

25 U.S.C. § 450f ............................................................................................................................35


viii

25 U.S.C. § 450f(a)(1) ...............................................................................................................3, 33

25 U.S.C. § 3401 ..............................................................................................................................4

25 U.S.C. § 3403 ..............................................................................................................................5

25 U.S.C. § 3410(a)(4) .....................................................................................................................5

25 U.S.C. § 450l .......................................................................................................................21, 33

25 U.S.C. § 450l(a) ..........................................................................................................................4

25 U.S.C. § 450l(c) ....................................................................................................................4, 22

28 U.S.C. § 518 ..............................................................................................................................37

28 U.S.C. § 1491 ............................................................................................................................13

28 U.S.C. § 1491(a) .......................................................................................................................19

28 U.S.C. § 1491(a)(1) ........................................................................................................... passim

28 U.S.C. § 1491(a)(2) .........................................................................................................2, 15, 16

28 U.S.C. § 1491(b) .......................................................................................................................19

28 U.S.C. § 1491(b)(1) ..................................................................................................................19

28 U.S.C. § 1491(b)(2) ..................................................................................................................19

31 U.S.C. § 6301 ............................................................................................................................18

31 U.S.C. § 6303 ................................................................................................................16, 17, 18

31 U.S.C. § 6304 ......................................................................................................................17, 18

33 U.S.C. § 1251 ............................................................................................................................27

41 U.S.C. § 7101 ..................................................................................................................2, 11, 15

41 U.S.C. § 7102(a)(1) ...................................................................................................................16

41 U.S.C. § 7102(a)(2) ...................................................................................................................16

41 U.S.C. § 7104(b)(1) ..................................................................................................................15


ix

42 U.S.C. § 1861 ............................................................................................................................26

25 U.S.C.A. § 450b(j) ....................................................................................................................21

25 U.S.C.A. § 450b(m) ..................................................................................................................21

MISCELLANEOUS

American Recovery and Reinvestment Act of 2009 (ARRA),

Pub. L. 111-5 .................................................................................................................6, 17, 24

Indian Self-Determination and Education Assistance Act of 1975 (ISDA),

Pub. L. 93-638 ...........................................................................................................................2

Indian Employment, Training and Related Services Demonstration Act of 1992,

Pub. L. 102-477 .............................................................................................................4, 23, 28

Restatement (Second) Contracts § 1 (1981) ..................................................................................37

Restatement (Second) Contracts § 17 (1981) ................................................................................25

Restatement (Second) Contracts § 18 (1981) ................................................................................28

Restatement (Second) Contracts § 22(1) (1981) ............................................................................28

Restatement (Second) Contracts § 50(1) (1981) ............................................................................28


IN THE UNITED STATES COURT OF FEDERAL CLAIMS

COUNCIL FOR TRIBAL )

EMPLOYMENT RIGHTS, )

)

Plaintiff, )

)

v. ) No. 12-326C

) (Judge Charles F. Lettow)

THE UNITED STATES, )

)

Defendant. )

DEFENDANT’S MOTION TO DISMISS

OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

Pursuant to Rule 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal

Claims (RCFC), and this Court’s order entered on November 7, 2012, defendant, the United

States, respectfully requests that the Court dismiss plaintiff’s complaint for lack of jurisdiction

and for failure to state a claim for which relief may be granted. Dismissal is warranted because

the various claims for relief set forth in the complaint of plaintiff, Council For Tribal

Employment Rights (CTER), either fail to invoke this Court’s limited, statutorily proscribed

jurisdiction or are otherwise not sufficiently pled to entitle CTER to the relief for which it seeks.

In the alternative, pursuant to Rule 56(b), defendant respectfully requests that the Court

enter summary judgment on CTER’s claims in defendant’s favor. The allegations set forth in

CTER’s complaint raise no issues of material fact necessary to resolve plaintiff’s claims, and

summary judgment is therefore appropriate at this time.

In support of our motions, we rely upon CTER’s complaint, the following brief and

accompanying appendix.1

1 The United States is filing this motion in lieu of an answer to plaintiff’s complaint. In the

event that the Court denies this motion, we request that the Court permit the Government to file

an answer to the complaint within 60 days after such denial.


2

QUESTIONS PRESENTED

(1) Whether plaintiff has stated a claim for relief under the Contract Disputes Act, 41

U.S.C. § 7101, et seq., and the Tucker Act, 28 U.S.C. § 1491(a)(2), where the facts alleged in

CTER’s complaint do not demonstrate the existence of a “procurement contract” whereby the

Government acquires services for its direct benefit or use.

(2) Whether jurisdiction exists under the Tucker Act, 28 U.S.C. § 1491(a)(1), where

the facts alleged in CTER’s complaint do not show that the grant agreements at issue bound the

United States in contract with plaintiff because the traditional elements of a contract with the

Government are not sufficiently pled or otherwise do not exist based upon the agreements’ clear

terms.

(3) Whether CTER is a third party beneficiary to an agreement to which the

Government is a party where plaintiff has not pled facts sufficient to demonstrate that the parties

to the agreements at issue intended to benefit CTER directly.

(4) Whether the Court possesses jurisdiction pursuant to the Tucker Act, 28 U.S.C.

§ 1491(a)(1), to entertain CTER’s implied-in-law contract claims where the Court lacks

jurisdiction over claims based in equity.

STATEMENT OF THE CASE

I. STATUTORY AND LEGAL FRAMEWORK

A. Indian Self-Determination And

Education Assistance Act Of 1975

On January 4, 1975, Congress passed the Indian Self-Determination And Education

Assistance Act of 1975 (ISDA), Pub. L. 93-638, codified at 25 U.S.C. § 450, et seq. The passage

of the ISDA was based in-part upon Congress’ finding that “[t]he prolonged Federal domination

of Indian service programs has served to retard rather than enhance the progress of Indian people


3

and their communities by depriving Indians of the full opportunity to develop leadership skills

crucial to the realization of self-government . . . .” 25 U.S.C. § 450(a)(1). Through the ISDA,

Congress recognized “the obligation of the United States to respond to the strong expression of

the Indian people for self-determination by assuring maximum Indian participation in the

direction of . . . Federal services to Indian communities so as to render such services more

responsive to the needs and desires of those communities.” 25 U.S.C. § 450a(a). In passing the

ISDA, Congress declared its commitment to:

[T]he maintenance of the Federal Government’s unique and

continuing relationship with and responsibility to the Indian people

through the establishment of a meaningful Indian self-

determination policy which will permit an orderly transition from

Federal domination of programs for and services to Indians to

effective and meaningful participation by the Indian people in the

planning, conduct, and administration of those programs and

services.

25 U.S.C. § 450a(b); see also Demontiney v. United States ex rel Dept. of Interior, Bureau of

Indian Affairs, 255 F.3d 801, 806 (9th Cir. 2001) (“Congress enacted [the ISDA] to encourage

Indian self-determination and tribal control over administration of federal programs for the

benefit of Indians . . . .”).

Through the ISDA, Congress conferred upon the Secretary of the Interior the authority to

“enter into a self-determination contract or contracts with a tribal organization to plan, conduct,

and administer programs or portions thereof” for the benefit of Indians. 25 U.S.C. § 450f(a)(1).

The term “tribal organization” is specifically defined in the ISDA to mean:

[T]he recognized governing body of any Indian tribe; any legally

established organization of Indians which is controlled, sanctioned,

or chartered by such governing body or which is democratically

elected by the adult members of the Indian community to be served

by such organization and which includes the maximum

participation of Indians in all phases of its activities. Provided,

That in any case where a contract is let or grant made to an


4

organization to perform services benefiting more than one Indian

tribe, the approval of each such Indian tribe shall be a prerequisite

to the letting or making of such contract or grant.

25 U.S.C. § 450b(l).

The ISDA sets forth a model agreement, commonly referred to as a “self-determination

contract” or “638-contract,” to be followed by the Secretary of the Interior in the formation of a

self-determination agreement with a tribal organization. 25 U.S.C. § 450l(c). The law mandates

that “[e]ach self-determination contract entered into under this subchapter shall . . . contain, or

incorporate by reference, the provisions of the model agreement . . . .” 25 U.S.C. § 450l(a);

Thompson v. Cherokee Nation of Oklahoma, 334 F.3d 1075, 1082 (Fed. Cir. 2003) (“The ISDA

requires that every self-determination contract incorporate the terms of a model agreement,

which is provided by 25 U.S.C. § 450l(c).”).

B. Indian Employment, Training And

Related Services Demonstration Act of 1992

On October 23, 1992, Congress enacted the “Indian Employment, Training and Related

Services Demonstration Act of 1992,” Pub. L. 102-477, codified at 25 U.S.C. § 3401, et seq.

Congress’ stated purpose in passing Pub. L. 102-477 was “to demonstrate how Indian tribal

governments can integrate the employment, training and related services they provide in order to

improve the effectiveness of those services, reduce joblessness in Indian communities and serve

tribally-determined goals consistent with the policy of self-determination.” 25 U.S.C. § 3401.

The law mandates that the Secretary of the Interior:

[S]hall, upon receipt of a plan acceptable to the Secretary . . .

submitted by an Indian tribal government, authorize the tribal

government to coordinate, in accordance with such plan, its

federally funded employment, training, and related services

programs in a manner that integrates the program services involved

into a single, coordinated, comprehensive program and reduces

administrative costs by consolidating administrative functions.


5

25 U.S.C. § 3403. The programs authorized under the law are commonly referred to as “477

programs.” The law states that the “lead agency for a demonstration program under this chapter

shall be [BIA]. The responsibilities of the lead agency shall include:

[T]he provision of technical assistance to a tribal government

appropriate to the project, except that a tribal government shall

have the authority to accept or reject the plan for providing such

technical assistance and the technical assistance provider.

25 U.S.C. § 3410(a)(4).

C. BIA’s Role As Manager And

Protector Of Native American Affairs

This Court has observed that “BIA has been assigned responsibilities to act as a manager

and protector of Native American affairs.” Demontiney v. United States, 54 Fed. Cl. 780, 787

(2002) (citing 25 U.S.C. § 2). BIA manages “‘all Indian affairs and all matters arising out of

Indian relations with a just regard not merely to the rights and welfare of the public, but also to

the rights and welfare of the Indians, and to the duty of care and protection owing to them.’” Id.

(quoting 41 Am.Jr.2d Indians § 36 at 515-16 (1995)). BIA regulations “make it clear beyond

any doubt that the Secretary exercises his or her control over commercial [activity] on allotted

lands not only for traditional general welfare purposes . . . but also for the purpose of protecting

the allottees’ financial interests.” Brown v. United States, 86 F.3d 1554, 1562-63 (Fed. Cir.

1996).

BIA’s assigned role as manager and protector of Indian affairs anticipates that the agency

will supervise and participate in the formation of commercial relationships between Indian tribes

and third parties. The Supreme Court has explained that performing as the “protector of Indians”

“does not necessarily involve the assumption of contractual obligations by the government.

Their assumption is not to be presumed in the absence of any action taken by the government or


6

on its behalf indicating such a purpose.” United States v. Algoma Lumber Co., 305 U.S. 415,

421-22 (1939). The Supreme Court’s decision in Algoma has been interpreted to mean that the

“United States is not liable to third parties when it contracts with them on behalf of Indian

tribes.” Sangre de Cristo Dev. Co. v. United States, 932 F.2d 891 895 (10th Cir. 1991).

II. STATEMENT OF FACTS2

A. The ARRA And Spirit Lake Tribe’s 638-Contract

On February 17, 2009, Congress enacted the American Recovery and Reinvestment Act

of 2009 (ARRA). Pub. L. 111-5, 123 Stat. § 115. In Title VII of the ARRA, Congress allocated

$40 million to BIA for the “Operation of Indian Programs” related to “workforce training

programs and the housing improvement program.” Id. at 168; Compl. ¶ 10. In Title XII of the

ARRA, Congress allocated $550 million to the Federal Highway Administration “for

investments in transportation at Indian reservations and Federal lands.” Id. at 207; Compl. ¶ 27.

On June 8, 2009, the Secretary of the Interior, acting through the Office of Indian Energy

and Economic Development (IEED), modified an existing ISDA 638-contract between IEED and

the Spirit Lake Tribe (SLT), A 41,3 a Federally recognized Indian tribe whose reservation is

located in east-central North Dakota.4 The stated purpose of the modification was to “provide

Indian Employment, Training, and Related Services in accordance with the terms, provisions and

conditions of this contract and funding agreement; and provisions of the [ARRA]” (hereinafter

referred to as SLT’s ARRA 638-contract). A 43.

2 For purposes of this motion only, unless otherwise indicated, the United States accepts as true

the factual allegations set forth in the complaint. In the event that this motion is denied,

however, we reserve the right to contest each and every factual allegation in the complaint.

3 “A __” refers to the appendix accompanying this motion.

4 See http://www.spiritlakenation.com/.


7

SLT’s ARRA 638-contract contained the statutorily prescribed model agreement for 638-

contracts, A 42, and identifies the “Recipient” and “Contractor” to be “[SLT], a federally-

recognized Indian Tribe or Tribal Organization, as defined at 25 U.S.C. 450b.” A 75. The

contract’s statement of work (SOW) states that IEED “shall transfer to the Contractor all such

funds and other resources made available for the benefit of the Tribe through this contract in the

most expeditious manner authorized by law, and shall provide technical support and assistance at

the request of the Contractor and as provided herein.” A 59. The SOW further states that SLT

“shall exercise full discretion over the funds made available subject only to the provisions of this

contract, Federal law and provisions.” Id.

B. The Amendments To SLT’s ARRA 638-Contract

1. Amendment 2

On August 5, 2009, IEED issued an amendment to SLT’s ARRA 638-contract

(hereinafter Amendment 2). A 83. The purpose of Amendment 2 was to allocate ARRA grant

funds to support (1) a Solar Heat Panel Training and Installation Project; and (2) the Native

Construction Careers Initiative Project (NCCI). A 94; Compl. ¶¶ 16-18. Amendment 2

identified the parties to the agreement as being IEED and SLT, A 83, and defined “Contractor,

Recipient, Tribe (ARRA related)” to mean “[SLT], a federally-recognized Indian Tribe or Tribal

Organization, as defined at 25 U.S.C. 450b.” A 88. Amendment 2’s SOW stated that SLT “shall

exercise full discretion over the funds made available subject only to the provision of this

contract, Federal law, and provisions.” A 93. Amendment 2 anticipated that SLT would enter

into subcontracts to execute the two grant programs. A 89-90.

The NCCI training program agreement, A 114-24, referenced in Amendment 2’s SOW,

A 94, was based upon a proposal drafted by CTER and submitted to IEED, Compl. ¶ 19, for a


8

contract between itself and SLT: “[SLT] proposes to enter into a contract with CTER to conduct

[NCCI training].” A 114; Compl. ¶ 25. The NCCI training program agreement explained that

the program is to be conducted by CTER, an “intertribal organization,” Compl. ¶ 8, that works

“with tribes nationwide to provide hands-on commercial construction training.” A 114. The

NCCI training program agreement identified eight Indian tribes and one Alaska Native Village to

which CTER would afford the NCCI training. A 115-19; Compl. ¶ 14. The amount of ARRA

grant funds to be afforded the NCCI training program was $1,019,000. A 125. Amendment 2

was signed by representatives of IEED and SLT. A 83. The performance period for Amendment

2 was from June 1, 2009, through September 30, 2010. Id. The NCCI training program

agreement was signed by representatives of IEED, SLT and CTER. A 124; Compl. ¶¶ 22-24.

The NCCI training program agreement’s performance period also expired on September 30,

2010. A 122.

2. Interagency Agreement Between IEED And FHWA

On September 16, 2009, IEED and the Federal Highway Administration (FHWA) entered

into an interagency agreement, A 126, to allow IEED to secure a portion of FHWA’s ARRA

grant funds “for On-the-Job training and Supportive Services (OJT/SS) to increase job

opportunities for federally recognized tribes and disadvantaged American Indians in the Federal-

aid highway construction industry.” A 130; Compl. ¶¶ 27-29. Through the agreement, FHWA

provided IEED with $1.5 million to support the training program. A 126; Compl. ¶ 27. Of that

amount, the agreement stated that $500,000 would be allocated for CTER’s NCCI training “that

will be conducting on-site apprenticeship training programs to at least 6 tribes at the cost of

$50,000 per tribe this is 6 x $50,000 = $300,000 + $200,000 for related expenses stated above.”

A 143; Compl. ¶ 28. In the “Budget and Financial Requirements” section, the agreement stated


9

that the “activities cited in this proposal strengthen and expand the goals and objectives of the

477 program and [IEED]. The activities address the weakness of the 477 program which are a

lack of economic development and jobs on Indian reservations.” A 142.

3. Amendment 6

On June 11, 2010, IEED issued a sixth amendment to SLT’s ARRA 638-contract

(hereinafter Amendment 6). A 150. The purpose of Amendment 6 was to allocate ARRA grant

funds through SLT’s ARRA 638-contract to support “Department of Transportation-Federal

Highway Administration’s approved training projects . . . .” A 161; Compl. ¶ 31. Amendment 6

stated that the parties to the agreement were IEED and SLT, A 150, and defined “Contractor,

Recipient, Tribe (ARRA related)” to mean “[SLT], a federally-recognized Indian Tribe or Tribal

Organization, as defined at 25 U.S.C. 450b.” A 155. Amendment 6’s SOW stated that SLT

“shall exercise full discretion over the funds made available subject only to the provision of this

contract, Federal law, and provisions.” A 160. Amendment 6 anticipated that SLT would enter

into subcontracts to execute the project. A 156-57.

The FHWA training program agreement, referenced in Amendment 6’s SOW, A 161,

was based upon a proposal drafted by CTER, Compl. ¶ 30, for SLT “to enter into a contract with

CTER and the National Indian Ironworkers [(NII)] Training Program to administer the

[FHWA/IEED] Training Initiative.” A 188. The FHWA training program agreement stated that

the “purpose of this [agreement] is a modification to the current ARRA contract between [SLT],

[CTER] and adding the [NII] training center that is an ARRA project under an interagency

agreement that is between [FHWA] and The Department of the Interior/Indian Affairs.” A 187.

The FHWA training program agreement explained that CTER would provide training “to

develop Indian preference certification programs for road construction activity.” Id. CTER was


10

to provide this training to six as yet to be identified Indian tribes. A 188; Compl. ¶ 31. The

amount of ARRA grant funds to be afforded for the FHWA training program performed by

CTER stated in Amendment 6 was $500,000. A 190; Compl. ¶ 30.

Amendment 6 was signed by representatives of IEED and SLT. A 150. The

performance period for Amendment 6 was from June 1, 2009, through September 30, 2010. Id.

The FHWA training program agreement was signed by representatives of IEED, A 192-93, SLT,

A 192, and CTER. A 193; Compl. ¶¶ 32, 34-35. The FHWA training program agreement

would terminate on September 30, 2010. A 191.

On February 21, 2012, CTER submitted a claim for $200,000 to IEED asserting that

CTER was a party to an express contract with IEED through the NCCI training program

agreement, and was owed damages from IEED for the latter’s alleged breach of that alleged

contract. Compl. ¶ 5. On March 13, 2012, CTER submitted a claim for $300,000 to IEED

asserting that CTER was a party to an express contract with IEED through the FHWA training

program agreement, and was owed damages from IEED for the latter’s alleged breach of that

alleged contract. Compl. ¶ 5. IEED did not respond to CTER’s claims. CTER thereafter filed

the present complaint in the Court of Federal Claims on May 23, 2012.

SUMMARY OF ARGUMENT

This case centers upon two grant programs funded by Congress through the ARRA to

address the persistently high unemployment among members of Indian tribes and to improve the

transportation infrastructure on Indian reservations. Consistent with the ISDA’s intent to

“transition from Federal domination of programs for and services to Indians to effective and

meaningful participation by the Indian people in the planning, conduct, and administration of

those programs and services,” 25 U.S.C. § 450a(b), IEED provided the grant funds to SLT to


11

control and manage under the tribe’s self-determination contract and 477 program. Also

consistent with the Government’s unique role to “protect and manage” Indian affairs, IEED

participated in the formation of agreements between SLT and CTER whereby CTER would

serve as the sub-grantee to SLT and carry-out the Indian service programs – a relationship

succinctly summarized by CTER’s president in a letter to the Assistant Secretary-Indian Affairs

written well-before the present litigation began: “IEED granted the [ARRA] funds to [SLT]

which in turn contracted with CTER to deliver the NCCI program according to a scope of work

developed by IEED.” A 201.

Now, CTER has brought this action against the Government claiming, inter alia, that

IEED (1) breached two express contracts with CTER; (2) breached CTER’s rights as a third

party beneficiary to the grant agreements between IEED and SLT; (3) breached an implied

contract with CTER; and (4) caused CTER to rely upon IEED to plaintiff’s detriment. None of

CTER’s claims have merit.

First, the Court should dismiss Counts I and IV of CTER’s complaint or, in the

alternative, enter summary judgment in the Government’s favor on plaintiff’s breach of contract

claims. This disposition is warranted because CTER’s complaint fails to state a claim for relief

under the Contract Disputes Act (CDA), 41 U.S.C. § 7101, et seq., as the agreements at issue in

plaintiff’s complaint do not involve the procurement of services for the direct use or benefit of

the Government and are therefore not “procurement contracts” under the CDA. Further, it is

clear that there exists no express contracts between CTER and the United States upon which the

Court may assert its jurisdiction under section 1491(a)(1) of the Tucker Act, because (1) the

IEED “Awarding Official” who signed the agreements was without authority to bind the United

States in contract; (2) IEED did not receive consideration from CTER through the agreements at


12

issue; and (3) there was no unambiguous acceptance of an offer by IEED to enter into a binding

contract with CTER.

In addition, under the ISDA, IEED may only enter into a “self-determination” agreement

with a “tribal organization.” Assuming, arguendo, that the agreements at issue constitute “self-

determination” agreements under the ISDA then CTER has not pled sufficient facts to show that

it is a “tribal organization” with which IEED could contract, and Counts I and IV should be

dismissed on that basis.

Second, the Court should dismiss Counts II, V and VI of CTER’s complaint because

plaintiff is not a third party beneficiary to any agreement to which the Government is a party. It

is apparent from the face of CTER’s pleading that there was no intent by IEED, SLT or FHWA

to benefit plaintiff directly through the agreements at issue. While the intended beneficiaries of

the agreements are clearly the Indians to whom the vocational job training would be provided,

CTER argues that it was to benefit from the agreements as well because plaintiff would be

compensated for performing as a sub-grantee under SLT’s grant agreements with IEED. This

“benefit,” however, is no different from the benefit that every subcontractor working under a

Federal prime contract receives, and is therefore no basis to confer the “exceptional”

jurisdictional status of third party beneficiary upon CTER. Further, Count VI should be

dismissed on the additional basis that an interagency agreement between IEED and FHWA is not

an enforceable contract in this Court, and therefore CTER could not “step into the shoes” of

FHWA to assert that party’s rights.

Finally, the Court should dismiss Counts III and VII of CTER’s complaint because the

Court does not possess jurisdiction over claims based in equity, and therefore cannot entertain

plaintiff’s claims founded upon an alleged implied-in-law contract or detrimental reliance.


13

For these reasons, as will be fully set forth below, the Court should dismiss CTER’s

complaint in its entirety or, in the alternative, enter judgment on plaintiff’s claims in the

Government’s favor.

ARGUMENT

I. STANDARD OF REVIEW

A. Motion To Dismiss Pursuant To Rule 12(b)(1)

“In ruling on a motion to dismiss for lack of subject matter jurisdiction pursuant to . . .

Rule 12(b)(1), the Court accepts as true the undisputed allegations in the complaint and draws all

inferences in favor of the plaintiff.” Travelers Cas. & Sur. Co. of America v. United States, 103

Fed. Cl. 101, 103 (2012) (citing Cardiosom, LLC v. United States, 91 Fed. Cl. 659, 662 (2010)).

“If the motion to dismiss challenges the truth of jurisdictional facts alleged in the complaint, the

Court may consider relevant evidence to resolve the dispute.” Id. (citing Reynolds v. Army & Air

Force Exch. Servs., 846 F.2d 746, 747 (Fed.Cir.1988)). “The plaintiff bears the burden of

establishing jurisdiction by a preponderance of the evidence.” Id. (citing Reynolds, 846 F.2d at

748). “‘Subject matter jurisdiction is a threshold matter which must be addressed before the

Court reaches the merits of plaintiff's claims.’” Id. (quoting Cardiosom, 91 Fed. Cl. at 662).

“Absent an unequivocal consent to suit, the . . . Court lacks authority to grant relief

against the United States.” Travelers, 103 Fed. Cl. at 103 (citing United States v. Testan, 424

U.S. 392 (1976)). “The central provision granting consent to suit in the Court of Federal Claims

is the Tucker Act, 28 U.S.C. § 1491. Under the Tucker Act, this Court possesses jurisdiction to

entertain monetary claims founded upon the Takings Clause of the Constitution, statutes,

regulations, or contracts. 28 U.S.C. § 1491(a)(1).” Id. “For a claim founded upon contract to

fall within the Tucker Act’s waiver of sovereign immunity and therefore within the jurisdiction


14

of this Court, a plaintiff must adequately plead the elements necessary to establish the existence

of a contract; that the contract was entered into by an authorized Government official; and that

there exists privity of contract.” Id. (internal citations omitted).

“In finding the facts necessary for a determination of jurisdiction ‘a court is not restricted

to the face of the pleadings, but may review evidence extrinsic to the pleadings, including

affidavits and deposition testimony.’” O. Ahlborg & Sons, Inc. v. United States, 74 Fed. Cl. 178,

188 (2006) (quoting Cedars-Sinai Medical Center v. Watkins, 11 F.3d 1573, 1584 (Fed. Cir.

1993)).

B. Motion To Dismiss Pursuant To Rule 12(b)(6)

“Granting a motion to dismiss under RCFC 12(b)(6) ‘is appropriate when the plaintiff

can prove no set of facts that would warrant the requested relief, when drawing all well-pleaded

factual inferences in favor of the complainant.’” Cooley v. United States, 76 Fed. Cl. 549, 555

(2007) (quoting Levine v. United States, 453 F.3d 1348, 1350 (Fed. Cir. 2006)). “In ruling on a

motion under RCFC 12(b)(6), the court must determine ‘not whether a plaintiff will ultimately

prevail but whether the claimant is entitled to offer evidence to support the claims.’” Id. (quoting

Scheuer v. Rhodes, 416 U.S. 232, 236 (2007)). “A motion to dismiss should not be granted

unless ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.’” Id. (quoting Conley v. Gibson, 355 U.S. 41 (1957)).

C. Motion For Summary Judgment Pursuant To Rule 56(a)

“A grant of summary judgment is warranted when the pleadings, affidavits, and

evidentiary materials filed in a case reveal that ‘there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter of law.’” AEY, Inc. v. United States, 99

Fed. Cl. 300, 303 (2011) (quoting RCFC 56(c)(1)). “A material fact is one ‘that might affect the


15

outcome of the suit under the governing law.’” Id. at 303-04 (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). “A genuine dispute is one that ‘may reasonably be

resolved in favor of either party.’” Id. at 304 (quoting Liberty Lobby, 477 U.S. at 250).

“The party moving for summary judgment bears the burden of demonstrating the absence

of any genuine issue of material fact.” Id. “Consequently, ‘the inferences to be drawn from the

underlying facts . . . must be viewed in the light most favorable to the party opposing the

motion.’” Id. (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

587-88 (1986)). “If the moving party establishes that there is no genuine issue of material fact,

the non-moving party ‘may not rely merely on allegations or denials in its own pleading; rather,

its response must . . . set out specific facts showing a genuine issue for trial.’” Id. (quoting

RCFC 56(e)(2)). “‘Where the record taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there is no genuine issue for trial,’ and summary judgment is

appropriate.” Id. (quoting Matsushita, 475 U.S. at 587).

For the reasons set forth below, the Court should dismiss CTER’s complaint for lack of

jurisdiction pursuant to Rule 12(b)(1) and/or for the failure to state a claim for which relief may

be granted pursuant to Rule 12(b)(6). In the alternative, the Court should enter judgment in the

Government’s favor pursuant to Rule 56(a) because there exists no issue of material fact that

would preclude summary judgment at this time.


16

II. THE COURT SHOULD DISMISS COUNTS I AND IV OF CTER’S COMPLAINT

OR, IN THE ALTERNATIVE, ENTER SUMMARY JUDGMENT IN THE

GOVERNMENT’S FAVOR ON CTER’S BREACH OF CONTRACT CLAIMS

A. CTER’s Complaint Fails To State A Claim For Relief Under The Contract

Disputes Act Because The Agreements At Issue Do Not Involve The

Procurement Of Services For The Direct Benefit Or Use Of The Government

In its complaint, CTER asserts that the Court has jurisdiction to entertain plaintiff’s

claims pursuant to the CDA, 41 U.S.C. § 7101, et seq. Compl. ¶ 4. Pursuant to 28 U.S.C.

§ 1491(a)(2), the Court has jurisdiction “to render judgment upon any claim by or against, or

dispute with, a contractor arising under” the CDA. See 41 U.S.C. § 7104(b)(1). The CDA

applies to Government contracts entered into by an executive agency for the procurement of

goods or services. 41 U.S.C. § 7102(a)(1), (2). For an agreement to constitute a “procurement

contract” under the CDA, it must involve “the acquisition by purchase, lease or barter, of

property or services for the direct benefit or use of the Federal Government . . . .” New Era

Const. v. United States, 890 F.2d 1152, 1157 (Fed. Cir. 1989) (quotation omitted, emphasis

original); see also 31 U.S.C. § 6303 (explaining that an agency shall use a “procurement contract

as the legal instrument” when “the principal purpose of the instrument is to acquire . . . property

or services for the direct benefit or use of the United States Government” (emphasis added).).

As we will explain in section II.B below, there exist no express contracts between CTER

and IEED upon which the Court may assert its Tucker Act jurisdiction – under either section

1491(a)(1) or (a)(2) – because the agreements at issue do not possess the required contractual

elements for privity to arise between the Government and CTER. However, as an initial matter,

for purposes of CTER’s assertion that its breach of contract claims arise under the CDA, it is

clear that plaintiff has not stated a claim for relief under the CDA because the agreements at


17

issue in CTER’s complaint are not “procurement contracts” as they do not involve the

acquisition of services for the direct benefit or use of the Government.

As CTER acknowledges in its complaint, the direct beneficiaries of the services that are

the subject of the agreements at issue are the Indian tribe members to whom CTER would

provide vocational job training. See, e.g., Compl. ¶ 1.a (“IEED breached a three-party contract

. . . under which IEED had agreed to pay CTER $950,000 in consideration for CTER providing

construction worker training to Indians on eight reservations and one Alaska Native Village . . . ”

(emphasis added).). CTER makes no allegation that any Government personnel were to receive

vocational job training from plaintiff through the agreements at issue in its complaint. Because it

is clear that the principal purpose of the agreements does not involve the procurement of services

for the direct benefit or use of the Government, the agreements are therefore not “procurement

contracts” under the CDA. See 31 U.S.C. § 6303; Rick’s Mushroom Service, Inc., v. United

States, 521 F.3d 1338, 1344 (Fed. Cir. 2008).

Rather, the principal purpose of the agreements entered into between CTER and SLT,

from IEED’s perspective, is to implement Government grant funds provided through SLT’s

ARRA 638-contract “to carry out a public purpose of support or stimulation authorized by a law

of the United States instead of acquiring . . . services for the direct benefit or use of the United

States Government.” 31 U.S.C. § 6304. Indeed, these ARRA grant funds were provided by

Congress to BIA and FHWA specifically to promote the identified public policies of affording

vocational job training to Indians and to improve transportation infrastructure on Indian

reservations, and to serve the larger goal of stimulating the nation’s economy during a recession.5

5 In furtherance of this policy, Congress conferred (1) $40 million to BIA “for workforce

training programs and the housing improvement program,” Pub. L. 111-5, 123 Stat. § 115, 168;

and (2) $550 million to FHWA “for investments in transportation at Indian reservations and

Federal lands.” Id. at 207.


18

In its complaint, CTER acknowledges that the agreements at issue involve IEED’s

furtherance of a stated public policy rather than the procurement of services for the direct benefit

or use of the Government. Specifically, CTER alleges that IEED received consideration through

the agreements because IEED “would satisfy its obligations to Congress to use certain funds

Congress appropriated under [the] ARRA for construction worker training of Indians.” Compl.

¶ 97; see also id. at ¶ 107. This statement is the closest CTER comes to identifying a direct

benefit afforded IEED through the agreements at issue in plaintiff’s complaint. But generally

furthering a stated public policy rather than acquiring services for an agency’s direct benefit or

use is the precise basis upon which a grant agreement is distinguished from a “procurement

contract.” See Federal Grant and Cooperative Agreement Act (FGCA), 31 U.S.C. § 6301, et

seq.; compare 31 U.S.C. § 6303 with § 6304.

Furthermore, this Court’s predecessor, the Claims Court, ruled that agreements that

generally further a social policy – as do the agreements at issue in this case – are not

“procurement contracts” under the CDA. In Busby School of the Northern Cheyenne Tribe v.

United States, 8 Cl. Ct. 596 (1985), the Claims Court ruled that a self-determination agreement

between BIA and an Indian school board for the refurbishment of a school located on an Indian

reservation was not a “procurement contract” under the CDA. Id. at 600. The Claims Court

emphasized that the “nature of these Indian contracts, which are not ‘procurement’ oriented

contracts, but are basically grant or sociological type contracts designed to accomplish

government social policy goals, seem to place them outside the pale of the [CDA’s] provisions

. . . .” Id. (emphasis added). Here, as in Busby, the agreements that are the basis of CTER’s

complaint accomplish stated government social and economic policies of addressing the high


19

unemployment among the Indian people, improving infrastructure on Indian reservations, and

stimulating the nation’s economy during a recession.

The agreements at issue do not involve the acquisition of services for the direct benefit or

use of the Government and are therefore not “procurement contracts” under the CDA. CTER

therefore has not stated a claim for which relief may be granted under the CDA.

B. There Exists No Express Contract Between CTER And The United States

Upon Which This Court May Assert Its Tucker Act Jurisdiction

While CTER’s complaint fails to state a claim for relief under the CDA, we recognize

that agreements that are not “procurement contracts” may nevertheless constitute contracts upon

which the Court may exercise jurisdiction under section 1491(a)(1) of the Tucker Act.6 See

Thermalon Indus. v. United States, 34 Fed. Cl. 411 (1995). This Court has explained that for a

grant agreement to constitute a contract under section 1491(a)(1), “[t]he party alleging a contract

must show a mutual intent to contract including offer, and acceptance, and consideration passing

between the parties. In addition, the party must demonstrate that the government representative

who entered or ratified the agreement had authority to bind the United States in contract.”

Thermalon, 34 Fed. Cl. at 414 (citations omitted). “Since all four elements are necessary to state

a contract claim, the inability to allege some facts to establish any one of them will doom

Plaintiff’s claim.” Pennsylvania Dep’t of Public Welfare v. United States, 48 Fed. Cl. 785, 788

(2001).

In this case, the grant agreements at issue in CTER’s complaint clearly do not possess all

the elements necessary for privity to exist between plaintiff and the Government, as (1) the IEED

6 In its Complaint, CTER asserts that the Court possesses jurisdiction to entertain this action

“pursuant to the Tucker Act, 28 U.S.C. § 1491(b)(1) and (2) . . . .” Compl. ¶ 4. Because section

1491(b) addresses the Court’s jurisdiction over procurement protest challenges, which is clearly

not the subject of CTER’s complaint, we assume that plaintiff intended to invoke this Court’s

jurisdiction under section 1491(a).


20

representative who signed the agreements as the agency “Awarding Official” lacked authority to

bind the United States in contract; (2) IEED did not receive consideration from CTER through

the agreements; and (3) there was no mutuality of intent to contract because the agreements at

issue clearly establish CTER as a sub-grantee to SLT under SLT’s ARRA 638-contract with

IEED for the distribution of ARRA grant funds.

1. The IEED “Awarding Official” Lacked Authority To Bind The

United States In Contract With CTER

As we will explain in section II.B.3 below, there existed no mutual intent to contract with

CTER on the part of IEED through the agreements at issue in plaintiff’s complaint. Even so, it is

also clear that no privity exists between IEED and CTER because the IEED “Awarding Official”

who signed the agreements lacked the requisite authority to bind the United States in contract.

The Federal Circuit has explained that “the law requires that a Government agent who

purports to enter into or ratify a contractual agreement that is to bind the United States have

actual authority to do so.” Monarch Assur. P.L.C. v. United States, 244 F.3d 1356, 1360 (Fed.

Cir. 2001). Furthermore, “any party entering into an agreement with the Government accepts the

risk of correctly ascertaining the authority of the agents who purport to act for the Government.”

Id. “Whatever the form in which the Government functions, anyone entering into an

arrangement with the Government takes the risk of having accurately ascertained that he who

purports to act for the Government stays within the bounds of his authority . . . . And this is so

even though . . . the agent himself may have been unaware of the limitations upon his authority.”

Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947). “Contracts entered into by

[G]overnment employees who lack authority to bind the United States are unenforceable.” Stout

Road Assocs., Inc. v. United States, 80 Fed. Cl. 754, 757 (2008).


21

The agreements at issue in CTER’s complaint are signed by Lynn Forcia, an IEED

“Awarding Official.” A 124, 192-93. CTER asserts in its complaint that “[u]pon information

and belief, Ms. Forcia, at the time she executed the $950,000 Contract, was a warranted contracts

and grants officer.” Compl. ¶ 25.b. A review of Ms. Forcia’s warrant in conjunction with BIA’s

policies defining the scope of authority of an agency “Awarding Official,” however, clearly

shows that Ms. Forcia did not possess the requisite authority to bind the United States in contract

with CTER through the agreements at issue in plaintiff’s complaint.

a. The Scope Of Authority Of An IEED “Level I Awarding

Official” Is Limited To Issuing Self-Determination Agreements

Under The ISDA, And The Agreements At Issue In CTER’s

Complaint Are Not Self-Determination Agreements

At the time she signed the agreements at issue, Ms. Forcia was a “Level I Awarding

Official.” A 1-2. The BIA’s “Indian Self-Determination Awarding Official Certification System

(AOCS) Handbook” in effect at the time Ms. Forcia signed the agreements, A 3-38, defined

“Awarding Official” to mean an agency representative with the authority to issue self-

determination contracts and grants under the ISDA:

“Awarding Official” means Contracting Officer and shall be any

person in the self-determination career field, who has been

certified under the Awarding Official Certification System as an

Awarding Official, other than an Approving Official, who has the

delegated authority to award, modify, and administer all self-

determination contracts as defined in the 25 U.S.C.A. Section

450b(j), including where applicable construction contracts as

defined in 25 U.S.C.A. Section 450b(m), as amended, and shall

make decisions and issue findings and determinations with respect

thereto. The awarding official shall also have the authority to

award, modify and administer self-determination grants.

A 8 (emphasis added). The AOCS Handbook further defines “Level I Awarding Official” to

mean: “[t]he Awarding Official is certified. Awarding Official authority covers all self-

determination non-construction contracts, and grants.” A 11 (emphasis added). Thus, BIA


22

specifically limited the scope of authority of an IEED “Level I Awarding Official” to issuing

only self-determination contracts and self-determination grants.

CTER makes no assertion in its complaint that the agreements at issue constitute self-

determination agreements, and it is clear that they do not. Specifically, by 25 U.S.C. § 450l,

“Contract or grant specifications,” Congress prescribed the specific form and terms of the

agreement that IEED is required to follow when entering into self-determination agreements with

Indian tribes or tribal organizations. See 25 U.S.C. § 450l(c) (setting forth the terms of the self-

determination “model agreement.”); see also Thompson v. Cherokee Nation of Oklahoma, 334

F.3d 1075, 1082 (Fed. Cir. 2003) (“The ISDA requires that every self-determination contract

incorporate the terms of a model agreement, which is provided by 25 U.S.C. § 450l(c).”). The

agreements at issue are not self-determination agreements as they clearly do not follow the

statutorily required form nor contain the legally required terms of the self-determination model

agreement required by law. Compare 25 U.S.C. § 450l(c) with A 114-24 and A 187-93.

Furthermore, the agreements themselves do not purport to constitute self-determination

agreements under the ISDA. 7

See A 114-24, 187-93. CTER therefore cannot claim to be a party

to a self-determination agreement with IEED.

In sum, the agreements at issue in this case were signed for the Government by Ms.

Forcia, an IEED “Level I Awarding Official” whose authority was specifically limited to

conforming self-determination agreements under the ISDA. A 8, 11. CTER makes no allegation

that they are a party to a self-determination agreement with IEED, and the agreements at issue

are clearly not self-determination agreements as they do not follow the “model agreement”

required by statute, 25 U.S.C. § 450l(c), nor otherwise purport to be self-determination

7 The only party identified in CTER’s complaint with a self-determination agreement with IEED

is SLT. Compl. ¶¶ 17, 31; see A 42, 84, 151.


23

agreements. Accordingly, the agreements were beyond the scope of authority delegated to Ms.

Forcia and are therefore unenforceable against the Government as a matter of law. Monarch

Assur., 244 F.3d at 1360.

b. BIA Further Limited The Scope Of Ms. Forcia’s Authority To

Issuing Grants Under The 477 Program, And She Therefore

Possessed No Authority To Bind The United States In A

Contract Of Any Kind

In addition to the specific limitations BIA placed upon the scope of authority of a “Level

I Awarding Official” in the AOCS Handbook, BIA placed further restrictions upon Ms. Forcia’s

scope of authority to issue self-determination agreements. Specifically, in the letter to IEED

accompanying Ms. Forcia’s warrant certificate, BIA stated that “we have conditionally approved

Ms. Forcia as a Level I Awarding Official to award only Pub. L. 102-477 grants.” A 1 (emphasis

added). Accordingly, Mr. Forcia’s warrant certificate states that she is “delegated the authority

to award only P.L. 102-477 grants, and is hereby certified as an Awarding Official – Level I.” A

2 (emphasis added). BIA therefore restricted the scope of Ms. Forcia’s authority to issuing

grants under the 477 program, and specifically denied her the authority to bind the United States

in contract of any kind.

That BIA withheld contracting authority from Ms. Forcia’s warrant is consistent with the

principle that “the government always has the choice when designing a grant scheme to select a

scheme that does or does not involve contracts.” Thermalon, 34 Fed. Cl. at 421. Because Ms.

Forcia lacked contracting authority, she only possessed the authority to issue grants that do not

create contractual obligations. In Thermalon, in deciding whether a grant agreement created a

contract, the Court examined whether the Government representative who issued the agreement

possessed contracting authority. Id. at 414. Specifically, the Court emphasized that “the party

must demonstrate that the government representative who entered or ratified the agreement had


24

authority to bind the United States in contract.” Id. (emphasis added). The Court noted that, in

the case before it, the “[d]efendant does not contend that the government agents involved lacked

contracting authority . . . .” Id. (emphasis added).

Here, BIA specifically withheld from Ms. Forcia’s warrant the authority to enter into

contracts of any kind on behalf of IEED. A 1-2. It is therefore clear that she had no authority to

bind the United States in contract with CTER through the agreements at issue in plaintiff’s

complaint. Stout Road Assocs., 80 Fed. Cl. at 757 (“Contracts entered into by [G]overnment

employees who lack authority to bind the United States are unenforceable.”).

c. There Is No Language In The ARRA Indicating That Congress

Intended To Bind The United States In Contract By Issuing

The Grant Funds Through BIA And FHWA

In determining whether a grant agreement constituted a contract under section 1491(a)(1),

this Court has also examined whether Congress manifested a clear intent to bind the United

States in contract through the legislation establishing the grant program or generating the grant

funds. In Pennsylvania Dep’t of Public Welfare, the Court explained that “absent some clear

indication that the legislature intends to bind itself contractually, the presumption is that ‘a law is

not intended to create private contractual vested rights but merely declares a policy to be pursued

until the legislature shall ordain otherwise.’” 48 Fed. Cl. at 791 (quoting Nat’l R.R. Passenger

Corp. v. Atchison, Topeka and Santa Fe Ry., 470 U.S. 451, 465 (1985)). This principle is

particularly applicable in the context of grant agreements, as the Court further explained, because

“[b]y funding and regulating programs designed for the public good the U.S. is acting in its role

as sovereign and the moneys promised are gifts or gratuities which do not establish any

contractual obligations, express or implied, on the part of the United States.” Id. (internal

quotations omitted). Here, there is no language in the sections of the ARRA generating the grant


25

funds underlying the agreements at issue in CTER’s complaint that provides a “clear indication”

that Congress intended to bind the United States in contract by affording grant monies to BIA

and FHWA. See Pub. L. 111-5, 123 Stat. § 115 at §§ 168, 207.

Thus, in addition to the IEED “Awarding Official” lacking the requisite authority to bind

the United States in contract with CTER through the agreements at issue in plaintiff’s complaint,

the legislation authorizing the grant funds at issue contains no language demonstrating

Congressional intent to bind the Government in contract through IEED’s award of the grant

funds at issue.

2. Counts I And IV Should Be Dismissed Because CTER Is Not A

“Tribal Organization” Under The ISDA

Should the Court conclude that CTER has pled sufficient facts to show that the

agreements at issue are self-determination agreements under 25 U.S.C. § 450l, then the Court

should nevertheless dismiss Counts I and IV of plaintiff’s complaint because CTER cannot show

that it is a “tribal organization” with which IEED may contract pursuant to the ISDA.

Under the ISDA, IEED may only enter into self-determination agreements with a “tribal

organization.” 25 U.S.C. § 450f(a)(1). The ISDA mandates in the definition of “tribal

organization” “[t]hat in any case where a contract is let or grant made to an organization to

perform services benefiting more than one Indian tribe, the approval of each such Indian tribe

shall be a prerequisite to the letting or making of such contract or grant.” 25 U.S.C. § 450b(l)

(emphasis added). The benefitted tribe’s “approval” must be expressed and memorialized

through a “tribal resolution.” 25 U.S.C. § 450l(f)(1).

Here, CTER asserts that it is an “intertribal organization,” Compl. ¶ 8, that would

perform services benefiting more than one Indian tribe – i.e., eight Indian tribes and one Alaska

Native Village under the NCCI training program agreement, Compl. ¶ 17, and six Indian tribes


26

under the FHWA training program agreement. Compl. ¶ 31. As such, “a prerequisite to the

letting or making of” the agreements is the approval of each Indian tribe and Alaska Native

Village for which plaintiff would perform the job training services. 25 U.S.C. § 450b(l). Yet,

CTER acknowledges in its complaint that it did not obtain the requisite approval from each

Indian tribe and Alaska Native Village prior to executing the agreements and, indeed, has never

obtained any approval from any of the six tribes to which plaintiff was to afford training under

the FHWA training program agreement.

While the NCCI Training program agreement identified the eight Indian tribes and one

Alaska Native Village that CTER would provide the training, the agreement’s terms

acknowledge that CTER had yet to obtain the required approval from each tribe or village prior

to “the letting or making” of the agreement: “CTER shall ensure that all proposed NCCI projects

have approved tribal resolutions before project work can begin.” A 119. In its complaint, CTER

makes no allegation that it obtained the required approvals prior to the execution of the

agreement and, indeed, acknowledges that it had not:

While the Contract required CTER to obtain resolutions from each

tribe, it did not require CTER to obtain such resolutions before it

could receive funding. As a result, under the terms of the Contract,

CTER should have been able to use a portion of the funds provided

under the Contract to meet with the Tribes, explain the NCCI

program to them, and then obtain the required resolution.

Compl. ¶ 37 (emphasis added). While the terms of the agreement may not have required CTER

to obtain the tribal resolutions prior to receiving ARRA grant funding, the ISDA did. See 25

U.S.C. § 450b(l).

Nor did CTER obtain the required tribal resolutions before the “letting or making” of the

FHWA training program agreement, as the six tribes were not even identified prior to plaintiff’s

execution of the agreement: “CTER sought permission from IEED to change tribes, even though


27

no tribes were listed by name in the $500,000 Contract.” Compl. ¶ 41 (emphasis added). The

agreement itself clearly states that CTER had not received authorization from any tribe to allow

CTER to provide the vocational job training services outlined in the agreement: “[t]he contract

will involve six Tribal projects identified by CTER, as of the date of the contract CTER has not

yet identified any of the 6 Tribal projects, nor provided tribal resolutions agreeing to the

[FHWA] Projects.” A 188 (emphasis added). Indeed, CTER makes no allegation in its

complaint that it has ever obtained permission from an Indian tribe to allow plaintiff to perform

for the tribe the job training outlined in the FHWA training program agreement.

Because CTER had not obtained the requisite approval from each Indian tribe and Alaska

Native Village to which plaintiff would afford the training under the NCCI and FHWA training

program agreements prior to the “letting or making” of the agreements, CTER, by statute, was

not a “tribal organization” under the ISDA with which IEED could enter into a self-

determination agreement. 25 U.S.C. §§ 450f, 450b(l).

3. There Did Not Exist A Mutual Intent To Contract With CTER On

The Part Of IEED

a. IEED Did Not Receive Consideration From CTER Through

The Agreements At Issue

This Court has explained that “[a] contract requires ‘a bargain in which there is a

manifestation of mutual assent to the exchange and a consideration.’” Carter v. United States,

102 Fed. Cl. 61, 66 (2011) (quoting RESTATEMENT (Second) CONTRACTS § 17 (1981)).

“Consideration is generally a bargained for exchange consisting of an act, forbearance, or return

promise.” Id. “Moreover, government officials ‘lack authority to enter into contracts under

which the government receives nothing.’” Id. (quoting Aviation Contractor Emps., Inc. v.

United States, 945 F.2d 1568, 1573 (Fed. Cir. 1991)). “Thus, for the contract to be binding,


28

consideration must flow simultaneously to the government. It is therefore necessary to

determine what, if any, consideration flowed to the government at the time the agreement was

struck.” Id. The agreements at issue in CTER’s complaint do not satisfy the requirement that

consideration “flowed to the government at the time the [alleged] agreement was struck.”

In its complaint, CTER asserts that consideration flowed to IEED through the alleged

agreements because “IEED would satisfy its obligations to Congress to use certain funds

Congress appropriated under ARRA for construction worker training of Indians . . . .” Compl.

¶¶ 97, 107. This assertion clearly does not evidence, as every Federal agency executing a grant

program through the issuance of a grant agreement is fulfilling the will of Congress as expressed

in the program’s authorizing statute. CTER’s contention regarding the presence of consideration

in this case is a classic “bootstrapping” argument, because it would eliminate the consideration

requirement altogether as a necessary element a plaintiff must show to demonstrate that a grant

agreement bound the United States in contract.

Decisions from this Court addressing whether a grant agreement bound the Government

in contract clearly show that the Court requires more to satisfy the consideration requirement

than a bare statement that the agency involved was fulfilling the will of Congress through the

agreement at issue. For example, in Thermalon, the Court considered whether a grant agreement

issued by the National Science Foundation (NSF) to promote “Small Business Innovation

Research” constituted a binding contract between the plaintiff and NSF. 34 Fed. Cl. at 413. The

NSF issued the grant agreement pursuant to its authority under the National Science Foundation

Act of 1950, 42 U.S.C. § 1861, et seq., and, in doing so, was satisfying its obligations to carry

out Congress’ stated policy goal “to promote scientific activities by entering ‘contracts or other

agreements.’” Id. Nevertheless, on the issue of whether consideration passed to the NSF


29

through the agreement, the Court engaged in a searching inquiry to identify specific, tangible

benefits the Government received from the plaintiff. Id. at 415. Thermalon therefore

demonstrates that the Court requires more than a mere showing that the Federal agency is

executing the will of Congress through the grant agreement at issue in order for the consideration

element of a valid contract to be satisfied. See also County of Suffolk New York v. United States,

19 Cl. Ct. 295, 297 (1990) (considering whether grant agreements issued by the Environmental

Protection Agency (EPA) pursuant to the Federal Water Pollution Control Act, 33 U.S.C.

§ 1251, et seq., bound the United States in contract. The Claims Court found consideration to

have passed to EPA through the agreements because “EPA received assurances that gave it

significant control over construction and operation of the project.”).

In any event, it is clear that IEED received no consideration through the agreements at

issue in CTER’s complaint. In Thermalon, the Court found consideration to have passed in the

grant agreements at issue because the Government received a tangible benefit through the

agreements consisting of “publication of plaintiff’s research results, title to any equipment

plaintiff selected and then purchased with grant funds, and a royalty-free license to the

intellectual property resulting from the research, including a license under patent.” 34 Fed. Cl.

at 415. Here, no tangible benefit would pass to IEED through the agreements at issue because,

as explained above, the vocational job training to be afforded by CTER was to the benefit of the

members of certain Indian tribes, and not Government personnel.

Further, in County of Suffolk, the Claims Court found consideration to have passed in the

grant agreements at issue because the Government “received assurances that gave it significant

control over construction and operation of the project.” 19 Cl. Ct. at 297. Here, by contrast, the

clear terms of the agreements at issue do not afford IEED any control over CTER’s performance


30

of the job training programs. Compl. ¶¶ 17-18, 31. Rather, the agreements show that SLT

maintained control over CTER’s performance – as is consistent with the intent of the ISDA, the

tribe’s ARRA 638-contract and 477 Program. Specifically, the agreements’ sections III, entitled

“[SLT] Responsibilities,” state that: (1) “[SLT] shall administer the NCCI project to ensure that

the goals of the project are being met, including on-site program monitoring as needed,”

(2) “[SLT] will monitor the progress of the CTER activities and provide quarterly reports to the

Public Law 102-477 Tribal Work Group”; and (3) “[SLT] shall ensure that CTER is compliant

with the [ARRA] reporting requirements.” A 121, 190. Thus, it is clear that IEED had no right

to control CTER’s conduct of the job training programs as the agency’s sole involvement was to

provide the grant funds to SLT for distribution to CTER at SLT’s discretion. Accord A 59

(SLT’s ARRA 638 agreement stating that SLT “shall exercise full discretion over the funds

made available subject only to the provision of this contract, Federal law, and provisions.”);

A 93, 160 (same).

CTER has failed to allege facts sufficient to demonstrate that consideration flowed to the

Government through the agreements at issue in plaintiff’s complaint. Furthermore, a review of

the agreements’ plain terms show that IEED did not receive consideration because the

Government would not receive any item of tangible value nor did the agency receive the right to

exercise control over CTER’s conduct of the job training programs.

b. There Was No Unambiguous Acceptance Of An Offer To

Enter Into A Binding Contract With CTER By IEED

“‘As a threshold condition for contract formation, there must be an objective

manifestation of voluntary, mutual assent.’” Steinberg v. United States, 90 Fed. Cl. 435, 444

(2009) (quoting Anderson v. United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003); see also

RESTATEMENT (Second) CONTRACTS § 18 (1981)). “To establish mutual intent to contract, a


31

party must demonstrate the existence of an offer and acceptance of the offer by objective

evidence.” Id.; see RESTATEMENT § 22(1). “After an offer is made, there must be acceptance:

‘manifestation of assent to the terms thereof made by the offeree in a manner invited or required

by the offer.’” Anderson, 344 F.3d at 1353 (quoting RESTATEMENT § 50(1)). Further “[t]here

must also be a ‘[l]ack of ambiguity in [the] offer and acceptance . . . if a contract is to exist.’” Id.

(quoting Nevin v. United States, 43 Fed. Cl. 151, 154 (1999)). Here, CTER has not pled facts

sufficient to demonstrate an offer and/or acceptance of an offer to contract with plaintiff by

IEED, and the agreements at issue clearly show that no such unambiguous offer and acceptance

occurred.

In its complaint, CTER alleges that it submitted an offer to contract to IEED for each

NCCI training program, which, according to plaintiff, IEED explicitly accepted by Ms. Forcia

signing the agreements as the “Awarding Official.” Compl. ¶¶ 97, 107. CTER alleges that upon

request from IEED, plaintiff submitted proposals to conduct the vocational job training and that

CTER’s proposals became express contracts between plaintiff and the Government. Compl. ¶¶

13-15, 19-20, 30. These allegations, if proven, do not show an acceptance of an offer to contract

with CTER by IEED. And, indeed, a review of the plain terms of the agreements at issue shows

that IEED is not a party to the agreements and no privity exists between the Government and

CTER.

CTER acknowledges that it drafted the agreements at issue, Compl. ¶¶ 19, 30, and those

agreements clearly state that they are contract proposals between SLT and CTER: “the $950,000

Contract states it is a contract between [SLT] and CTER . . . .” Compl. ¶ 25; A 114 (“Therefore,

[SLT] proposes to enter into a contract with CTER to conduct the [NCCI training]” (emphasis

added).); see also A 188 (“Therefore, [SLT] proposes to enter into a contract with CTER and the


32

National Indian Ironworkers Training Program to administer the [FHWA/IEED] Training

Initiative” (emphasis added).). Nowhere in the agreements at issue is it stated that IEED is a

party to a contract with CTER.

Tellingly, the FHWA training program agreement, A 187-93, specifically references the

previous NCCI training program agreement and characterizes it as an agreement between CTER

and SLT only, without mentioning IEED: “This [sic] purpose of this statement of work is a

modification to the current ARRA contract between [SLT], [CTER] . . . .” A 187 (emphasis

added). Thus, prior to the onset of the present litigation, CTER, SLT and IEED characterized the

NCCI training program agreement as a contract between CTER and SLT only. “Such

contemporaneous interpretation, during contract performance and before becoming a subject of

dispute is of great, if not controlling, weight.” Russell & Assocs.-Freson Ltd. v. United States,

1979 WL 16491 (Ct. Cl. 1979); CW Government Travel, Inc. v. United States, 61 Fed. Cl. 559,

571 (2004); accord PCL Const. Srvcs., Inc. v. United States, 47 Fed. Cl. 745, 785 (2000).

Despite the agreements at issue clearly stating that they are contracts between SLT and

CTER only, and the parties’ contemporaneous interpretation of the agreements as contracts

between CTER and SLT only, in its complaint CTER points to specific terms of the agreements

that plaintiff alleges “show that IEED was also a party . . . .” Compl. ¶¶ 25, 33. It is a general

rule of contract interpretation “that the [C]ourt construe contract language so as to give

consistent meaning to all of the terms of a contract,” Bataco Industries, Inc. v. United States, 29

Fed. Cl. 318, 325 (1993), and “[t]he plain language of a contract is necessarily the starting point,

and very often is the finishing point, of a court’s duty to interpret a contract.” General Elec. Co.

v. United States, 60 Fed. Cl. 482, 791 (2004). Because the plain language of the agreements at

issue unambiguously identifies the parties to the agreements to be SLT and CTER only, A 114,


33

188, the particular provisions of the agreements identified in CTER’s complaint must be read in

a manner consistent with this plain language.

First, none of the provisions that CTER identifies states that IEED is a party to the

agreements. Rather, all of the provisions are perfectly consistent with IEED’s role as the

provider of the grant funds to be issued by SLT through its ARRA 638-contract to CTER as the

sub-grantee to SLT performing the vocational job training programs. Compl. ¶¶ 25, 33. Further,

none of the provisions that CTER alleges indicate that IEED is a party to a contract with plaintiff

contradict the clear statement in each agreement that the parties to the agreements are SLT and

CTER only. Specifically, none of the agreements’ terms to which CTER points place affirmative

obligations upon IEED to be render a performance due to CTER. The performance duties

identified in the agreements at issue flow between SLT and CTER only. See A 119-22, 188-91.

The sections CTER relies upon address only restrictions on the grant funding being provided by

the Government for the vocational job training programs. See, e.g., Compl. ¶ 25.e (quoting from

A 122, “[n]o contract support cost (CSC) funding is associated with ARRA funds, and nothing in

the [Funding Agreement] or associated contract creates a promise on the part of the Awarding

Agency to pay CTER CSC funding in connection with ARRA funds.”). CTER cannot point to a

single provision of either agreement that identifies IEED as a party to a contract with CTER, or

otherwise identifies a duty to perform owed by IEED directly to CTER.

CTER also points to the fact that Ms. Forcia signed the agreements as the “Awarding

Official” as evidence of an unambiguous acceptance by the Government of a contract proposal

submitted by plaintiff. Compl. ¶¶ 25.b, 32. However, as explained above, Ms. Forcia’s warrant

did not confer upon her the authority to bind the United States in contract, A 1-2, and, as a

Government official, Ms. Forcia is presumed to act within the limits of her authority. Schism v.


34

United States, 316 F.3d 1259, 1302 (Fed. Cir. 2002). Ms. Forcia’s signature on the agreements

as the “Awarding Official” therefore does not show that she intended to bind the Government in

contract with CTER – an action clearly outside the scope of her authority as a “Level I Awarding

Official.” A 8, 11.

Rather, that IEED directed the formation of the agreements between SLT and CTER to

carry out the ARRA grant programs pursuant to SLT’s 638-contract with IEED is perfectly

consistent with BIA’s unique role as the manager and protector of Native American affairs. See

Demontiney v. United States, 54 Fed. Cl. 780, 787 (2002). Pursuant to this role, it is recognized

that BIA may participate in the formation of contractual relationships between an Indian tribe

and a third party without itself assuming contractual obligations to the third party. See United

States v. Algoma Lumber Co., 305 U.S. 415, 422 (1939). Indeed, the Government may even sign

agreements involving Indian interests with a third party without binding the United States in

contract with the third party. Warr v. United States, 46 Fed. Cl. 343, 348 (2000).

Thus, without more, an IEED official’s signature on an agreement between SLT and a

third party does not demonstrate an unambiguous acceptance of a contract proposal. As

explained above, there is nothing more that CTER can point to in order to show such acceptance,

as the clear language of the agreements at issue show that they are between SLT and CTER only,

A 114, 188, and none of the agreements’ terms place an affirmative duty upon IEED to render a

performance to CTER.

To survive a motion to dismiss for failure to state a claim of an express contract between

itself and the Government, CTER must plead sufficient facts that, if proven, show an

unambiguous acceptance by IEED of an offer to contract with CTER. CTER’s complaint does

not meet this requirement. Indeed, plaintiff in its complaint acknowledges the implicit ambiguity


35

in the allegations regarding IEED’s alleged acceptance of an offer to contract with CTER.

Compl. ¶ 25. Thus, the facts in CTER’s complaint, if proven, do not show an unambiguous offer

and acceptance between CTER and IEED, and plaintiff has therefore not pled the existence of an

express contract with the Government.

III. THE COURT SHOULD DIMISS COUNTS II, V AND VI OF CTER’S

COMPLAINT BECAUSE PLAINTIFF IS NOT A THIRD PARTY BENEFICIARY

A. CTER Is Not A Third Party Beneficiary To Any Agreement At Issue

Because There Was No Intent To Benefit CTER Directly

CTER alleges in Count II and Count V of its complaint that, in the alternative to the

existence of express contracts between itself and IEED, jurisdiction exists in this Court because

CTER is a third-party beneficiary to Amendments 2 and 6 to SLT’s ARRA 638-contract.

Compl. ¶¶ 102-04, 113-16. CTER’s allegations are without merit.

“A plaintiff not in privity may assert jurisdiction based on its status as a third-party

beneficiary.” Guardsman Elevator Co., Inc. v. United States, 50 Fed. Cl. 577, 580 (2001). As

such, the issue of whether a plaintiff is a third-party beneficiary to a Government contract is a

threshold jurisdictional question for the Court to resolve. See Maniere v. United States, 31 Fed.

Cl. 410, 417 (1994). “Third-party beneficiary status is an exceptional privilege that should not

be liberally granted.” Carter v. United States, 98 Fed. Cl. 632, 637 (2011) (internal citation and

quotation omitted). “For jurisdictional purposes a third party must show the intention of the

contracting parties to provide a benefit to the third party.” Flexfab, L.L.C. v. United States, 424

F.3d 1254, 1259 (Fed. Cir. 2005); U.S. Ecology, Inc. v. United States, 245 F.3d 1352, 1357 (Fed.

Cir. 2001). Not only must the contract reflect the parties’ intent to benefit the third party, the

contract must reflect “an intention to benefit the party directly.” Glass v. United States, 258 F.3d

1349, 1354 (Fed. Cir. 2001).


36

Here, it is clear that there was no intention by IEED and SLT in Amendment 2 and 6 to

SLT’s ARRA 638-contract to benefit CTER directly. Rather, the intended beneficiaries of the

NCCI training programs were the members of the Indian tribes who would receive the vocational

job training: “[u]nder the NCCI Program, CTER partners with one or more labor unions to

provide union-quality training to Indian workers in the areas of home and building construction.

Compl. ¶ 11 (emphasis added). CTER’s theory for why it was to benefit directly from the

agreements between IEED and SLT appears to be that, as a sub-grantee to SLT tasked with

providing the job training to the Indians, CTER was to be compensated for its services. Compl.

¶¶ 17, 31. Such a “benefit,” however, is no different from the benefit that every subcontractor

working under a Federal prime contract receives. CTER’s theory for why IEED and SLT

intended to benefit plaintiff directly through the agreements is clearly insufficient to confer the

“exceptional” status of third party beneficiary onto CTER.

B. Interagency Agreements Are Not Enforceable Contracts In This Court, And

CTER, Therefore, Cannot Be A Third Party Beneficiary To The Interagency

Agreement Between IEED And FHWA

In Count VI, CTER alleges that it is a third-party beneficiary to the interagency

agreement between IEED and FHWA that provided the ARRA grant funds that IEED distributed

through SLT to CTER to support the FHWA training program. Compl. ¶¶ 113-16. CTER’s

allegation is without merit.

As an initial matter, CTER cannot claim third-party beneficiary status to an interagency

agreement, and therefore invoke this Court’s Tucker Act jurisdiction, because such agreements

are not enforceable contracts in this Court. In its complaint, CTER asserts without explanation

that the interagency agreement between IEED and FHWA “constitutes a contract subject to the

jurisdiction of this Court.” Compl. ¶ 118. CTER is incorrect.


37

The condition of third-party beneficiary to a contract presupposes the existence of a

contract. A contract is a legally enforceable agreement between two parties. RESTATEMENT

(Second) CONTRACTS § 1. An agreement between two Federal agencies is not legally

enforceable by either agency because Federal agencies generally cannot bring suit against one

another in this Court. As evidence of this self-evident principle, Congress afforded the

Department of Justice (DOJ) the authority to represent Federal agencies in all actions brought

before this Court. 28 U.S.C. § 518.

In those rare instances where the Court has entertained a breach of contract action

brought by an entity within the executive branch against a Federal agency, the Court concluded

that the plaintiff-agency was a sufficiently independent entity to bring such actions. Specifically,

in Tennessee Valley Authority (TVA) v. United States, the Claims Court determined that because

the TVA possessed a separate corporate identity, independent litigation authority from DOJ, and

authority to sue to enforce its contracts, the agency was sufficiently independent from the

executive branch to sue another agency in court. 13 Cl. Ct. 692, 698-99 (1987). Here, neither

the FHWA nor IEED possess their own corporate identities, the authority to represent themselves

in litigation nor the authority to sue to enforce contracts. The underlying principle to the third-

party beneficiary rule “is that the party standing outside of privity by contractual obligation

stands in the shoes of a party within privity.” First Hartford Corp. Pension Plan & Trust v.

United States, 194 F.3d 1279, 1289 (Fed. Cir. 1999). Because FHWA could not bring suit

against IEED in this Court, CTER cannot “stand in the shoes” of FHWA and do so in its place.

In addition, the intended beneficiary of the interagency agreement between IEED and

FHWA is the same as the intended beneficiary of Amendment 6 to SLT’s ARRA 638-contract,

i.e., the Indian tribes to whom the vocational job training would be afforded. A 143. As


38

explained above, it is clear that there was no intent to benefit CTER directly under the

interagency agreement because CTER occupied the same position as every subcontractor

working under a Federal prime contract: CTER would be compensated for performing the

required vocational job training services. Merely being compensated for services rendered is not

sufficient to confer third-party beneficiary status upon CTER.

IV. THE COURT SHOULD DISMISS COUNTS III AND VII OF CTER’S

COMPLAINT BECAUSE THE COURT DOES NOT POSSESS JURISDICTION

TO ENTERTAIN CLAIMS BASED IN EQUITY

A. The Court Does Not Have Jurisdiction Over Implied-In-Law Contracts

In Count III of its complaint, CTER alleges entitlement to recover damages from IEED

on the equitable principle of quantum meruit, or implied-in-law contract. Compl. ¶ 105. “[T]he

Court of Federal Claims . . . has no jurisdiction over implied-in-law, quantum meruit claims.”

Nwogu v. United States, 94 Fed. Cl. 637, 654-55 (2010); see also Grayton v. United States, 92

Fed. Cl. 327, 333 (2010); BioFunction, LLC v. United States, 92 Fed. Cl. 167, 174 (2010). As

such, the Court does not possess jurisdiction over Count III of CTER’s complaint and it should

therefore be dismissed.

B. The Court Does Not Have Jurisdiction Over Claims Based Upon The

Equitable Principle Of Promissory Estoppel

In Count VII of its complaint, CTER appears to allege entitlement to recover damages

from IEED based upon the equitable theory of promissory estoppel or detrimental reliance.

Compl. ¶¶ 122-23. This Court does not have jurisdiction to entertain claims founded upon such

equitable theories. See Steinberg v. United States, 90 Fed. Cl. 435, 444 (2009); Craig-Buff Ltd.

Partnership v. United States, 69 Fed. Cl. 382, 389 (2006). As such, the Court does not possess

jurisdiction over Count VII and it should be dismissed.


39

CONCLUSION

For these reasons, we respectfully request that the Court dismiss plaintiff’s complaint or,

in the alternative, enter judgment in the Government’s favor.

Respectfully submitted,

STUART F. DELERY

Principal Deputy Assistant Attorney General

JEANNE E. DAVIDSON

Director

s/Donald E. Kinner

DONALD E. KINNER

Assistant Director

s/Joseph E. Ashman

JOSEPH E. ASHMAN

Trial Attorney

Commercial Litigation Branch

Civil Division

Department of Justice

P.O. Box 480

Ben Franklin Station

Washington, DC 20044

(202) 353-7578 (telephone)

(202) 353-7988 (facsimile)

December 11, 2012 Attorneys for Defendant

OF COUNSEL

CHARLES WALLACE

Acting Assistant Solicitor

WILLIAM B. BLAKE

Attorney-Advisor

Branch of Acquisitions and

Intellectual Property

Solicitor’s Office – Division of

General Law

U.S. Department of the Interior


Documents

DEFENDANT’S MOTION TO DISMISS · 2013. 8. 25. · no. 12-326c (judge charles f. lettow) in the united states court of federal claims council for tribal employment rights, plaintiff,