Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 1 of 49. No C (Judge Charles F. Lettow) IN THE UNITED STATES COURT OF FEDERAL CLAIMS

Transcription

1 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 1 of 49 No C (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 STUART F. DELERY Acting Assistant Attorney General JEANNE E. DAVIDSON Director OF COUNSEL: DONALD F. KINNER Assistant Director 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 JOSEPH E. ASHMAN Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Ben Franklin Station P.O. Box 480 Washington, D.C Tel. (202) Attorneys for Defendant

2 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 2 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 B. Indian Employment, Training And Related Services Demonstration Act of 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 Amendment Interagency Agreement Between IEED And FHWA Amendment 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

3 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 3 of 49 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 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 Counts I And IV Should Be Dismissed Because CTER Is Not A Tribal Organization Under The ISDA 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 ii

4 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 4 of 49 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 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 iii

5 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 5 of 49 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 iv

6 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 6 of 49 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 v

7 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 7 of 49 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 (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 vi

8 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 8 of 49 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 U.S.C U.S.C. 450(a)(1) U.S.C. 450a(a) U.S.C. 450a(b)...3, U.S.C. 450b...7, 9 25 U.S.C. 450b(l)...4, 33, 34, U.S.C. 450f...35 vii

9 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 9 of U.S.C. 450f(a)(1)...3, U.S.C U.S.C U.S.C. 3410(a)(4) U.S.C. 450l...21, U.S.C. 450l(a) U.S.C. 450l(c)...4, U.S.C U.S.C U.S.C. 1491(a) U.S.C. 1491(a)(1)... passim 28 U.S.C. 1491(a)(2)...2, 15, U.S.C. 1491(b) U.S.C. 1491(b)(1) U.S.C. 1491(b)(2) U.S.C U.S.C , 17, U.S.C , U.S.C U.S.C , 11, U.S.C. 7102(a)(1) U.S.C. 7102(a)(2) U.S.C. 7104(b)(1)...15 viii

10 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 10 of U.S.C U.S.C.A. 450b(j) U.S.C.A. 450b(m)...21 MISCELLANEOUS American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L , 17, 24 Indian Self-Determination and Education Assistance Act of 1975 (ISDA), Pub. L Indian Employment, Training and Related Services Demonstration Act of 1992, Pub. L , 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 ix

11 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 11 of 49 IN THE UNITED STATES COURT OF FEDERAL CLAIMS COUNCIL FOR TRIBAL ) EMPLOYMENT RIGHTS, ) ) Plaintiff, ) ) v. ) No C ) (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.

12 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 12 of 49 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 , 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 2

13 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 13 of 49 and their communities by depriving Indians of the full opportunity to develop leadership skills crucial to the realization of self-government 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 selfdetermination 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 3

14 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 14 of U.S.C. 450b(l). 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. 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 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 , codified at 25 U.S.C. 3401, et seq. Congress stated purpose in passing Pub. L 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 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. 4

15 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 15 of U.S.C 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: 25 U.S.C. 3410(a)(4). [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. 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 (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, (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 5

16 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 16 of 49 on its behalf indicating such a purpose. United States v. Algoma Lumber Co., 305 U.S. 415, (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 (10th Cir. 1991). II. STATEMENT OF FACTS 2 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 , 123 Stat 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 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 6

17 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 17 of 49 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 federallyrecognized 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 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 The NCCI training program agreement, A , referenced in Amendment 2 s SOW, A 94, was based upon a proposal drafted by CTER and submitted to IEED, Compl. 19, for a 7

18 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 18 of 49 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 ; 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, Id. The NCCI training program agreement was signed by representatives of IEED, SLT and CTER. A 124; Compl The NCCI training program agreement s performance period also expired on September 30, A 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 Federalaid highway construction industry. A 130; Compl 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 8

19 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 19 of 49 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 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 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 9

20 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 20 of 49 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, Id. The FHWA training program agreement was signed by representatives of IEED, A , SLT, A 192, and CTER. A 193; Compl. 32, The FHWA training program agreement would terminate on September 30, 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, 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 10

21 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 21 of 49 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 11

22 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 22 of 49 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 selfdetermination 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. 12

23 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 23 of 49 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 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 13

24 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 24 of 49 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 14

25 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 25 of 49 outcome of the suit under the governing law. Id. at (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, (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. 15

26 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 26 of 49 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 (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 16

27 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 27 of 49 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 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 , 123 Stat. 115, 168; and (2) $550 million to FHWA for investments in transportation at Indian reservations and Federal lands. Id. at

28 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 28 of 49 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 with 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 18

29 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 29 of 49 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). 19

30 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 30 of 49 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). 20

31 Case 1:12-cv CFL Document 25 Filed 12/11/12 Page 31 of 49 The agreements at issue in CTER s complaint are signed by Lynn Forcia, an IEED Awarding Official. A 124, 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 selfdetermination 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 selfdetermination 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 selfdetermination non-construction contracts, and grants. A 11 (emphasis added). Thus, BIA 21