Lublin Corp. v. United States
98 Fed. Cl. 53
Fed. Cl.2011Background
- Lublin, a Pennsylvania real estate broker, served as a subcontractor to HVH under HUD’s contract, handling listing and inquiries for HUD-owned properties.
- HVH allegedly and verbally reduced the fixed fee per property from $321 to $100, though HVH’s written subcontract reflected the later date and amount and Lublin disputes receipt.
- HVH terminated the subcontract in late March 2005 after discussions about lower costs and HVH sought another firm; Lublin contends the termination followed confidential QMR information shared with HUD.
- HUD facilitated a Quality Management Review (QMR) in March 2005; Lublin representatives sought confidentiality assurances to avoid reprisals against them or HVH for candid QMR responses.
- Plaintiff asserts HUD officials promised confidentiality and protection against HVH retaliation, which allegedly induced Lublin to provide candid information during the QMR.
- Lublin filed suit in 2007; after discovery, HUD moved for summary judgment arguing lack of confidentiality contract; the court denied summary judgment, allowing trial on breach and contract theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did HUD officials have implied actual authority to bind the government to a confidentiality contract? | Lublin asserts implied authority due to officers’ duties in investigations. | HVH officials lacked contracting authority; implied authority not established. | Genuine issues of material fact exist; summary judgment denied. |
| Was there an express or implied confidentiality contract for information from the QMR process? | Confidentiality assurances were given by HUD officials and formed a contract. | No valid confidentiality contract exists under authority or ADA constraints. | Issues of fact preclude summary judgment. |
| Did HUD’s assurances to keep QMR information confidential breach by HUD officials constitute a contractual breach? | Breach occurred when HUD disclosed or allowed disclosure to HVH. | No breach proven; any disclosure was not established as breach of contract. | Trial needed to resolve breach question. |
| Does the Anti-Deficiency Act (ADA) bar the alleged confidentiality contract or indemnification terms? | ADA does not bar confidentiality settlements; implied obligations may exist. | Open-ended obligations could violate ADA; indemnification not properly contractual. | ADA defense not dispositive; factual issues remain for trial. |
Key Cases Cited
- Fifth Third Bank of Western Ohio v. United States, 402 F.3d 1221 (Fed.Cir.2005) (implied actual authority to enter contracts for goodwill)
- Stevens Van Lines, Inc. v. United States, 80 Fed.Cl. 276 (2008) (implied actual authority to reimburse fees despite lack of contracting authority)
- SGS-92-X003 v. United States, 74 Fed.Cl. 637 (2007) (denying summary judgment where contract formation was disputed)
- Adv. Team Concepts, Inc. v. United States, 68 Fed.Cl. 147 (2005) (director had authority to bind government despite not being contracting officer)
- Leonardo v. United States, 60 Fed.Cl. 126 (2004) (cultural affairs officer had implied actual authority to bind U.S. for storage contract)
- United States v. Bissett-Berman Corp., 481 F.2d 764 (9th Cir.1973) (attorney’s implicit authority to bind government recognized)
- Johns-Manville Corp. v. United States, 12 Cl.Ct. 1 (1987) (rejecting implied indemnity contract to cover all damages)