B & B Trucking, Inc. v. United States Postal Service

court, that, suggest respon- not their he if neces- and did court claimed California to ini- sary, allege pleading could additional facts additional facts not he sive this could, necessary, fraud claims. Based on if cure support tially plead his assertion, the Louisiana court asked Adri- defen- pleading defects raised so complaint dants”). an to to amend his seek leave allega- all the court could have amended above, we For the reasons discussed plead- considering tions before it when correctly hold that the California court dismissing the ings. Although the order against the claims California dismissed first complaint amended was the second pro- FCA not Defendants because the does to failed time court ruled Adrian agen- against vide a cause of action state specificity, Adrian drafted plead fraud offi- agency or state officials then- cies objec- receiving after complaint capacity. cial The Louisiana court did in the Louisiana Defendants’ tions raised by dismissing abuse its discretion Adrian’s motions dismiss his first com- to amended against Louisiana Defendants plaint. the Louisiana Defendants When failing plead specificity to fraud with complaint, challenged the second amended leave further granting and without

Adrian he add addi- again claimed could complaint. judgments amend the necessary. if tional The Louisiana detail AFFIRMED. both district courts are a third court refused allow Adrian to file complaint, stating “pleadings re- amended game plaintiff

view not where file until

permitted to serial amendments right. it finally gets opportunity

he One

amend, face spelled of motions that original

out the asserted defects

pleadings, was sufficient under the circum-

stances.”

Adrian has not additional indicated what plead

facts he that would correct the could previous complaints. his

deficiencies court did not

Accordingly, district in this Hu abuse its discretion case. See INC.; Causley TRUCKING, B & B (hold Plan, mana Health at 387 Blackburn; Trucking, Inc.; Cliff Fed ing properly to amend denied in leave was rizzi, Inc.; Inc.; Bros., Foreman al plaintiff an FCA case where the had George Campbell Sons, Inc.; E. ready opportunities had two amend Service, Inc.; L.R. Vincent Truck in indicates that second “[t]he record Inc.; Eipperle, Truck M.C. Massman granted district court stance which the ing, Inc.; Trucking, Inc.; P-D Robert leave amend to cure Relator] [the Inc.; Inc.; Neff, Trucking, M. Roth specificity, lack which is complaint’s Royster Enterprises, Inc.; Sodrel now [the the same basis which Relator] Lines, Inc.; Taylor Truck Postal Con argues should be allowed to amend for he Inc.; tracting, Route time”); National Star a third see also Goldstein v. MCI Association; (5th B WorldCom, Mail B & Cir. Contractors 2003) Inc.; Services, Industries, TB & Mail (finding no abuse of discretion when Inc.; Sheehy Contractors, Inc., proposed “did Mail proffer Plaintiffs-Appellants, second amended the district SERVICE, STATES POSTAL UNITED

Defendant-Appellee.

No. 02-1562. of Appeals,

United States Court

Sixth Circuit. 29, 2003.

Argued: Oct. April

Decided and Filed: 2004. rights allegedly by postal established

regulations. For the reasons set forth below, we REVERSE the district court on claims, all except per- for the claim for formance of the HCR contracts.

BACKGROUND History Procedural 6, 2001, August On Plaintiffs filed suit to enjoin the USPS from demanding that Plaintiffs, carriers, begin as motor comply- ing with the program. USPS’ national fuel Defendant filed a motion to dismiss on grounds Disputes the Contract Act of §§ 41 U.S.C. 601-613 divested the jurisdiction. district court of After hear- 12, 2001, ing argument oral on December (argued Sharon Ambrosia-Wait the district court ruling abey- held its briefed), Seattle, Walt, WA, Houger & ance, to allow amend their Larry Saylor, J. Frederick A. Acomb filings. (briefed), Miller, Canfield, Paddock & Stone, P.L.C., Detroit, MI, Appellants. January On Plaintiffs filed a complaint, seeking second amended declar- briefed), H. (argued Sheila Gaskell and (1) atory injunctive and for violation Detroit, Attorney, Assistant United States (2) of Plaintiffs’ Fifth rights, Amendment MI, Appellee. for (3) postal regulations, violation of vio- process by lation of the due arbi- clause COOK, Before CLAY Circuit trary agency statutory action without au- STAFFORD, Judges; Judge.* District

thority. CLAY, J., opinion delivered the of the order, an The district court issued en- court, STAFFORD, D.J., in joined. which 30, 2002, January granting tered on COOK, 424-27), (pp. J. delivered motion of Defendant to dismiss for lack of separate dissenting opinion. subject jurisdiction. April matter On 2002, the district court issued an order

CLAY, Judge. Circuit denying Plaintiffs’ motion for reconsidera- Plaintiffs, Inc., al., B B Trucking, & et tion, timely appeal. and Plaintiffs filed a appeal from the order of the United States District Court for the Eastern District of Substantive Facts 30, 2002, Michigan, January entered on Defendant, granting the motion independent United Plaintiffs are contractors (“USPS”), Postal transport highways States Service dismiss who the mail on for subject jurisdiction, for lack of matter in Defendant. Plaintiffs have fixed-rate con- asserting pays this action constitutional the rate that Defendant Plain- tracts: * Stafford, Florida, sitting by designation. The Honorable William Senior Unit- trict of Judge ed States District for the Northern Dis- to enter cer- right BP Amoco the Plain- bil and reference to determined with

tiffs is fuel to fill certain Plaintiffs’ land cost and tain of the annual estimates tiffs’ have tanks, all of Plaintiffs since some or in trans- that will be needed of fuel amount “bulk fuel tanks private . their own increase installed If fuel costs the mail. porting (tanks just for mail contract, that are used not rendering during the life of for all their business transportation but upon which inaccurate the estimates installed, their own determined, needs and that were then payments were pursu- and not expense, at their property, to re- Plaintiffs have the contract).” of a ant to terms price. adjustment the contract quest an 20-21.) (Petitioners’ Br. at contract, Defen- B-65.of Per Clause must accede to a contracting officer dant’s privy Plaintiffs were None of price for it to for an increase request contracts, Plaintiffs and none of Exxon prices fuel effect. take Because.the terms of regarding the were consulted on to Defendant pay passed are Plaintiffs original con- these contracts. potentially pre-contract estimates not contain with the USPS did tracts adjustments granted requests suppli- choice of fuel governing the terms contracts, Defendant during the life of the program ers. The fuel-cost-reduction limiting find methods of an incentive to has through im- reach Plaintiffs expanded to costs. Plaintiffs’ fuel Bulk Fuel Purchase plementation which, through costs, Defen- Defendant’s Plaintiffs’ fuel To reduce Plan> view— contracts Amendment 3 to Defendant’s supply contracts dant entered into fuel transporters requires mail Exxon-Mobil and with fuel manufacturers Plaintiffs — from Exxon-Mobil and purchase fuel BP are referred Amoco. .These but not all of Plaintiffs BP Amoco. Some “Exxon contracts.” Plaintiffs as. to contracts with agreed to Amendment 3 characterize the Exxon contracts USPS,'without pressure from the BP overt Exxon-Mobil and Amoco granting Then, point, those Plain- at some exclusivity: grant Exxon contracts USPS. “[t]he yet contain whose contracts did not right to the sole fuel tiffs Exxon-Mobil the adopt pushed Amendment 3 were the eastern seaboard supplier throughout amendment, they “flatly were inasmuch as region right ... and the region and central would not be told that supplier [their] BP to be the sole fuel Amoco (J.A. 394) the clause.” central, re- renewed without midwestern and western ” Plaintiffs). (affidavit (Petition- an officer of one of gions of the United States.... 9.) desig- Exxon' contracts ers’ Br. at The the Exxon contracts Compliance with fuel, the material terms of the sale nate Arguably, problematic for Plaintiffs. quality, and including price, grade fuel supply for arranging for" their own fuel quantity, timing. and allowed Plaintiffs to their vehicles had effectively, al- addition, meet their fuel needs most give In the contracts Exxon- trucks tering supplied fuel to their own BP to enter Mobil and Amoco the terrain, road, climate, and truck- fuel: to reflect properties supply “[t]he certain and Some or identify specific motor carri- conditions variables. Exxon contracts fuel had installed their own specific all of Plaintiffs with bulk fuel tanks within the ers part of the expense, at their own as designate them as tanks geographic location arranging for their own fuel delivery of endeavor of to which the sale and ‘fuel sites’ 9.) (Petitioners’ gave control Exxon contracts supply. Br. at The fuel will be made.” BP Amoco over the to Exxon-Mobil and give Exxon-Mo- provision appears This Here, supplied fuel to be to these tanks the waived the assert. pricing important of the fuel. it is to note applicable that the (as test set forth and as clarified in case

DISCUSSION law) is well-pleaded similar to the com- (which plaint governs issue before this Court is rule gener- the more properly jurisdictional whether the district court dis al issue of whether there is subject jurisdic question jurisdiction, missed lack matter federal under 28 1331). subject tion. A dismissal for lack of mat § U.S.C. Under the Contract Dis- novo, jurisdiction Act, ter is reviewed de with putes the relevant is whether (measured plaintiff bearing the burden of estab by claimed relief) lishing jurisdiction and the taking court proper and the appear would to be allegations true. contractual on well-pleaded the face of a Coll., Muskingum, Nichols v. 318 F.3d complaint. well-pleaded As with the com- (6th Cir.2003). See also Green v. Am rule, plaint the substance of a defense is (6th Corp., eritech Cir. irrelevant —a well-taken contractual rebut- 2000) (de review). novo standard tal argument bearing jurisdic- has no tion, if the issue would appear in a— steps analy There are two well-pleaded complaint. Applying these sis, briefly each of which is summarized principles, jurisdic- the district court had step place here. The first is to this case claims, except tion over all for the claim applicable within the framework of the for enforcement of the HCR contracts. larger jurisdictional issues and to set forth legal Where, the appropriate standard. I.

here, defendant, government is the Contract Act Disputes bars district court contend, and Defendant does jurisdiction exercising over indi contest, that if sovereign immunity has contractual, vidual claim that is when eval waived, been then the district court would by uated the source of the claimed jurisdiction have over the claims (or and the appropriate). argue case. Plaintiffs that absent sover clearly Case law establishes eign immunity, the district courts would necessarily are not rendered jurisdiction through have least one presence of a contractual relation independent grants jurisdiction, three ship parties. promi between the two First, each of which would be sufficient. cases, nent there awas contractual rela Reorganization Plaintiffs cite the Postal defendants, tionship between Act, § seq., 39 U.S.C. 401 et whose section nonetheless claims were held to be 401(1) grants authority the USPS the “to Drapery non-contractual. Commercial sue and be sued in its official name.” Sec Contractors, Inc. v. United 133 1339, ondly, § to point Plaintiffs 28 U.S.C. (D.C.Cir.1998); Megapulse, F.3d 3-4 which states: “The district courts shall Lewis, 959, 961-62, Inc. v. 672 F.2d 968-69 original jurisdiction any have of civil action (D.C.Cir.1982). arising any relating Act Congress under of step postal

The second is to determine whether to the service.” See also Owen v. (9th jurisdiction Mulligan, the standard for is satisfied. 640 1134 n. 10 case, Cir.1981) (“if present In the much of the determi- the suit is characterized as nation as to whether the requiring standard is met one the Postal Service to follow depends regulations, jurisdiction. on the relevance of Defendant’s its own there 1339.”). 409(a); arguments contractually § § that Plaintiffs- 39 U.S.C. 28 U.S.C. 412 (J.A. 327.) may point language that there clause.” This

Finally, out jurisdiction, question only applies under 28 clause begs question. be federal The relating § claim that Cali disputes U.S.C. 1331. Plaintiffs under or to “arising Sanders, 99, 105, 97 430 U.S. S.Ct. “relating v. contract.” term a The fano (1977) by 51 L.Ed.2d establishes contract” is same standard used agencies of federal are federal regulations Thus, the contractual clause CDA. resolves “laws.” nothing. If a claim to a “relat[es] con- then, regardless any language in tract” validity determining the Without contract, the CDA bars the claim from claimed, jurisdiction basis' of the third brought court. If being a district a proffered first and bases Plaintiffs’ second contract,” claim does not to a “relatfe] then sovereign if' jurisdiction establish that nor the CDA neither contract clause then the district immunity apply, does brought claim from being bars the a then, jurisdiction. question, The court had (The phrase court. district sovereign immunity applies. is whether “arising under ... this contract” is not (“CDA”) Disputes Act Contract sufficiently phrase different from the “re- by against “All claims contractor states: a lating analy- this contract” to alter this government relating to a contract shall sis.) writing and shall be be submitted contracting officer for a decision.” To resolve whether 605(a). § If Plaintiffs’ claims U.S.C. a the CDA bars district court from assum a against Defendant do not “relat[e] ing jurisdiction all of over some or Plain CDA, contract,” meaning under the claims, analysis compli tiffs’ is rather waived; sovereign immunity then has been complexity cated. Some arises otherwise, juris lack district court would dispute may fact that a a whole as relate claims, diction to hear the which could part plain to a contract between before brought the Court Federal tiffs) defendant(s) i.e., dispute and the 609(a)(1) § (“Except 41 U.S.C. Claims. issues, may quite to” “relat[e] a number provided (2), in paragraph and in lieu of contract, of which perhaps some involve appealing contracting the decision of the ancillary an item. The CDA makes § 605] officer under section U.S.C. [41 dispute clear that the nature of the as a board, a agency may bring an contractor Rather, whole is irrelevant. claims must directly on an action claim the Unit individually be examined to determine ed States Claims Court States [United the CDA applies. whether The CDA Claims], notwithstanding of Federal Court “All by government states: provision, regulation, or rule against relating contractor to a contract contrary.”). of law to the subject shall be of a decision outset, At the apparent it is 605(a) contracting § officer.” 41 U.S.C. the contract itself answer the does not added); (emphasis Campanella Com question of whether claims “re- (6th Bank, Exch. merce to a contract.” The contract lat[e] (“We Cir.1998) which must next decide present case contains a that states: clause plaintiffs’ claims constitute ‘contract’ subject “This contract is Contract CDA.”). claims within the of the meaning (41 601-613) Disputes Act of 1978 U.S.C. (‘the Act’). Act, Except as in the provided determining whether the CDA claim, disputes arising relating given all under or to a applies an individual claim may appear only this contract must be resolved under this in part relate' a

413 parties, creating between the dif- Under the RMI Titanium/Mega n test, ficulty determining pulse in whether the presence of a contractual to a contract.” Further- “relat[es] ivhole relationship plaintiffs between and defen more, it wholly it is not obvious what in dants does not itself render all claims contract, to a means contractual;” rather, “relat[e]” “essentially pres Fortunately, the has place. first standard ence of a contract is relevant only insofar In RMI through been defined case law. provides as it legal rights the source of the Westinghouse Corp., Titanium Co. v. Elec. being claimed or the basis for relief. provided applicable this Court stan- Thus, in the D.C. Megapulse Circuit’s case dard, adopted which was from the D.C. itself, and in another ruling the same Megapulse, Inc. v. Lew- ruling Circuit’s circuit, plaintiffs had contracts with the is: but, government, upon analysis based claimed and the relief apply, request it first be

[F]or CDA must ed, the court held that the determined that the CDA did not claims asserted are jurisdiction. bar “essentially Drapery Commercial contractual” nature. Me Contractors, Lewis, Inc. v. United gapulse, U.S.App. Inc. v. (D.C.Cir.1982). (D.C.Cir.1998); 3-4 Megapulse, D.C. 672 F.2d Lewis, 959, 961-62, Inc. v. partic “The of a 968-69 classification . . . (D.C.Cir.1982).1 ular action as one which not ‘at is or is its essence’ a contract depends action The RMI Titanium/Megapulse both on the source of rights upon test for whether the CDA bars a district claim, which the bases its then, exercising jurisdiction, court from ex (or upon type sought appro of relief legal plaintiffs amines the basis for a well- priate).” Megapulse, supra at 968. pleaded complaint. The test looks at the Westinghouse RMI Titanium Co. v. Elec. totality of both the source of in a (6th Cir.1996). Corp., 78 F.3d given claim type sought and the of relief As RMI Megapulse Titanium stated the (or appropriate) for that claim. If an indi (hereinafter, test “the RMI Titanium/Me- appears vidual claim contractual after a test”), gapulse juris court has district totality consideration of the of the source claims, diction over those those relief, of the and the then the CDA claims, that are “essentially not deemed juris exercising bars district court from contractual,” after consideration “the If, diction over that claim. anal after this rights” plaintiffs source of claim ysis, appear the claim does not to be con (or type sought and “the of relief appropri tractual, then a district maintains court ate).” This test makes clear that the de jurisdiction over the claim. ju termination of whether the CDA bars claims, depends risdiction on the II. complaint explained stated — as II, below, Titanium/Megapulse issue a defendant’s rebuttal The RMI can test points analysis, are not considered applied present case. Plaintiffs’ which makes the similar test to the well- second amended asserted three pleaded complaint rule of federal causes of action. Plaintiffs declara- (a) jurisdiction. injunctive tory relief for violation detail, adopted applicable legal 1. The two cases are discussed in more this Court rulings Megapulse below. The D.C. Circuit’s on this standard the D.C. Circuit's great importance, considering ruling. issue are of damages: “They transporters’ of mail Fifth Amendment seek non-contractual the (b) rights, regulations, specific violation of for nor postal damages per- ask neither (c) formance, and of the clause process enjoin violation due but to the USPS from (Petitioners’ statuto- by arbitrary agency action without its acting authority.” outside action” ry authority. 25.) The first “cause of Br. at multiple claims. asserted Ingersoll-Rand Defendant Co. v. cites above, As each of stated (D.C.Cir.1985), 780 F.2d 74 United individually, in claims must be examined apparent attempt argue in an that the order determine whether each claim is dispositive. type of relief alone is not De- the “essentially contractual.” Yet because though fendant states that IR “[e]ven (or appropriate) relief for most of sought sought only declaratory injunctive and re- the claims in this case is identical —declar- ..., the court the lief followed framework atory injunctive and relief —most of the Megapulse concluding ... that the of analysis of relief can done without rights essentially of at was source stake treating separately. the claims After ex- and IR could not avoid the relief, analysis amining the will look at the jurisdictional bar (Respon- of the CDA.” source of the for each individual 29.)3 Br. at dent’s claim, revisiting the issue of relief needed. If Ingersoll-Rand Defendant cites as an (contrac- of a the illustration case which proceeding analysis

Before of re- tual) (non- rights trumped source lief, point there is clarification. There contractual) requested, then Defen- categories in this case: two contracts (between Ingersoll-Rand, dant is mistaken. In first, the Exxon contracts Amoco) air plaintiff supply had contract to com- and Exxon-Mobil BP Force, and, pressors Air the Air secondly, those between the USPS Force terminated the contract. 780 F.2d priv- It is not that disputed Plaintiffs. plaintiff sought declaratory at 75. The ity requirement for to fall a contract CDA, injunctive prevent scope meaning under of the relief that would bids— n Air category soliciting Force new first contracts are exclud- i.e., thus, plaintiff Exxon cannot be sought prevent ed— which “re- contracts to Plaintiffs’ claims Air Force from replacing latte].” contract. Id. concluded The court essentially seeking con- (or type sought ap-

A. The of relief relief, in specific tractual per- the form of propriate) for Plaintiffs’ claims formance Air Force’s contract with (“we Id. plaintiff. court at 79-80 find that The district did not consider the case,2 request of relief in the and the essence of claim is a present I-R’s specific performance original so this Court must be first to examine con- argue outset, it. requested that for their claims tract. From the I-R has Despite properly stating “essentially Ingersoll-Rand, 2. that the 3. that served as for the the basis claim were viewed as con- test contractual” demands consideration tractual; stake, the claim was characterized es- rights and relief both the the district sentially one of contract. breach of (or court examined the relief never at 77-78. The arose from a contract to appropriate) to not the determine whether or supply compressors. Air Force with air "essentially claims were contractual.” Id. 76.

415 original purchase parties to the reinstating order the award of fuel from to an the contract.”).4 the Exxon contracts. But Plaintiffs do not specific performance seek of this contract. cited Defen- Nor does another case fact, In Amendment 3 is the apparent dant, Campanella Exchange v. Commerce Thus, cause of Plaintiffs’ frustration. inas (6th Cir.1998), Bank, prove 137 F.3d 885 (from Megapulse itself which case requested to the relevant relief legal adopted by Court), standard was plaintiff case. present Campanella, Government, actually “It and not contract to payment due on a which was Megapulse plaintiff], relying which is [the the Small Business Administration was a ” Megapulse, on the contract.... Inc. v. plain- Id. at Two of the guarantor. 888. Lewis, (D.C.Cir.1982); 969 payment,” claims were “to enforce tiffs (“[the see also id. does plaintiff] not claim i.e., specific performance to seek of a con- contract, a breach it ... seeks no mone- due—it payment tract where was was so tary damages against United requested for clear the relief these and its claim is properly characterized plaintiff claims was contractual ”). performance.... as one specific point. Id. at did even contest this government seeks to enforce Amend- for rent (describing the claims ment frustration Plaintiffs. fees commercial transactions as “two claims”), straight (stating contract 891-92 Perhaps argued it could be that Plain- dispute plaintiff that the did not that two really performance tiffs seek specific claims). of the claims were contract An- original, unamended thus —the claim, meruit, quantum based on other Ingersoll-Rand, case would be similar clearly to enforce a con- attempting which the court determined that (“The tract, equitable as well. Id. at 892 plaintiff sought specific performance of the quantum on an doctrine meruit based F.2d at original contract. 780 79-80. But part implied promise on of the defen- original, unamended contract did not much pay plaintiff as he dant any contain guaranteeing terms Plaintiffs reasonably deserved to have for his la- freedom to If suppliers. any- fuel choose bor.”) (citation quotation and internal thing, original, unamended contract omitted). marks These circumstances are language stating long contained that so present not similar to those in the case. adjusts price it accordingly, contract By Ingersoll-Rand contrast and Defendant has the dictate which Campanella, present it suppliers is difficult fuel Plaintiffs use.5 This case essentially Ingersoll-Rand case, with case to characterize as contrac- contrasts sought or which dealt with narrow set of tual of the relief otherwise facts relating competitive bidding had appropriate. Plaintiffs contracts with ex- —as below, which, II, through plained Defendant Amendment the facts and the issue binding distinguishable court’s appear to contain terms rationale are ate).' 968”) sought, spe- Megapulse, (emphasis at type supra 4. Not was the of relief performance, directly added). cific related to the con- Force; tract between the and the Air also, "appropriate” types other states, B-65(d) "Should 5. Clause the Postal presumably money would have included dam- procedures Service introduce which affect the ages computed place ain — supplier's obligations respect to the costs position equal to that for which had taxes, price'will of fuel or Titanium, contracted. See RMI 290.) (J.A. adjusted....” (" (or type appropri- 'the of relief of ease, process law. part erty and of interests without due one relevant present 17-18) (Plaintiffs’ (J.A. is not law the D.C. at Second Amend- Ingersoll-Rand good 6.3). requested, 6.1, 6.2, On the issue of relief and Complaint, paragraphs Circuit. ed análogous case more present types are three of here. There Contractors, Inc. v. Drapery Commercial property claim a Plaintiffs violation of (D.C.Cir.1998), F.3d 1 United fuel to control use Plaintiffs’ tanks. right of case, below; described in that which is to con- also claim the freedom Plaintiffs ter- challenged government’s fuel of their own suppliers tract with nevertheless, contract, of a but mination addition, In Plaintiffs assert choosing. not determined that the CDA did the court liberty rights to control the man- various Id. at the claims. 3-4.6 bar operation of Plaintiffs’ business. ner categories of the three is examined Each does not Although requested here. contractual, the RMI initially appear to be a con-

Titanium/Megapulse test demands Deprivation property inter- a. of of and the source sideration both relief ests is based. rights upon which each claim Thus,. any final reaching before conclu- claim, depriva- Plaintiffs assert a one sions, consid- rights the source of must be Plaintiffs property tion of interests. as- for each claim. ered violated sert “Plaintiffs’ to use fuel tanks for freedom their bulk upon B. The sources of the limit choosing, products fuel their and their claims which Plaintiffs base choosing, products exclude not of their and action, Plaintiffs assert three causes the use tanks and to control of their encompasses multiple of which the first surrounding property.”7 The Exxon con- claims. BP grant and Amoco tracts Exxon-Mobil right properties to enter certain 1. Plaintiffs’ claims for numerous supply fuel. declaratory injunctive relief and trans- for violation of the mail Plaintiffs’ asserted porters’ Fifth Amendment property being their protect entered right. and used is not Plain parties any not an am- tiffs were Plaintiffs’ first cause of action is or Amoco. The of numerous Fifth Amendment BP algam Exxon-Mobil ultimately deprivation liberty prop- upon and which this claim is based8 claims for Complaint analogized to present case be 7. This claim is found in 6.The cannot Plaintiffs' 6.2, (J.A. (c). 18.) vague, general Ingersoll-Rand, upon paragraph subpart at based similarities, presence prop- such as the con assert USPS violated that the stated, 1) Ingersoll-Rand rights, to wheth erty ''including tract. As limited to not '.‘As essentially privately contractu protecting er the relief their dominion over their al, (tanks \Megapulse recognized ] court that are used owned bulk fuel tanks 'may against all just transportation resolved mail but for their installed, a [Megapulse, F.2d] of each case.’ needs were facts business and that on t Hence, pur- property, expense, at 76-77. it is not 970.” 780 their their contract)....” ruling surprising that there was a terms different suant to of a USPS (Petitioners’ 20-21.) Drapery jurisdiction in Contrac Br. at Commercial tors, also but which which involved contract Ingersoll-Rand, had different facts than process pro- due itself does not 8. The clause property rights. See Bd. vide the source of over the against president, from these Plaintiffs’ title Commercial and its arise upon which installed terminated its property have GSA contract with Com- Complaint suspended their fuel tanks. Plaintiffs’ mercial and contracting own future ... of “deprivation Acquisition describes this with Milford Corporation interests, (“Milford”), a liberty property company that was owned ... to use including president Plaintiffs’ freedom Commercial’s Id. his wife. products suit, fuel tanks for and brought their bulk the fuel Commercial Milford choosing, to limit exclude “claiming of their that GSA’s cancellation and sus- products choosing, pension govern- not of their and to con- multiple decisions violated procurement regula- trol the use of their tanks and the sur- ment statutes and tions, rounding property.” prop- The title to and constituted ‘de facto debarment’ ‘blacklisting,’ a contractual or erty right. thereby is not them of depriving Id. process.” due relating The contract issues points, are fuel tanks Defendant’s rebuttal D.C. The Circuit ruled that rights not “the which are source of the jurisdiction: CDA bar did not upon claim.” which bases its Among things, other Commercial and Titanium, Perhaps RMI 78 F.3d 1136. complain Milford about the termination Amendment property the Fifth in their clause contracts. That sounds who has of Plaintiffs own fuel tanks no like a claim founded on a contract. But because, 3, by signing merit Amendment of a particular “classification action as bargained Fifth away their is or one which is not ‘at its a essence’ argument Amendment this action depends both claim, not speaks to the merits of the rights upon source of the which jurisdictional issue of the source of the claim, plaintiff bases its upon rights upon which the claim is based. (or type of relief appropriate).” Lewis, Megapulse, Inc. v. isIt well-established that the exis (D.C.Cir.1982). The basis Com- points tence of contractual rebuttal does is that mercial’s Milford’s claim a claim “essentially not render contractu repeated attempts GSA’s to extricate al,” analysis. Circuit— CDA The D.C. government dealings from financial that very circuit devised the CDA test with them constituted unlawful “black- by adopted this Court has ruled that a termi- listing.” dispute The over the “essentially claim is not rendered contrac is em- nation clause in their contracts merely may a tual” because contract issue claim, this and is bedded within broader In prove dispositive the claim. Com independent not an cause of action.... Contractors, Drapery v. mercial Inc. Unit type request- claim and the The (D.C.Cir.1998), ed 133 F.3d 1 a “at ed reveal that not its thus business, Drapery Commercial Contrac Accordingly, essence” a contract action. (“Commercial”), had contracts with tors jurisdiction. we have government’s the federal Services General (“GSA”). This ruling Administration Id. at 3. After Id. at 4. made clear that the grand jury returned a fraud indictment of a contract mere existence issue within Roth,

Regents understandings indepen- 92 S.Ct. stem U.S. that from an (1972) (“Property inter- such as state law —rules or under- 33 L.Ed.2d dent source course, ests, standings are Consti- secure certain and that not created that benefits Rather, support and their of entitlement bene- tution. created those fits.”). by existing are defined rules or dimensions of the not make the claim ment —and broader claim does —that ’ contractual,” “essentially attempting assert where source (those 3). purportedly in Amendment claimed and the relief are not contractual. rule can The rebuttal issue analo alter nature claims is ruling Drap Commercial n gous the well-pleaded complaint rule very ery Megapulse, Contractors cited that governs jurisdiction federal applicable legal case defined stan § 28 U.S.C. 1331. Under the well- under Megapulse, plaintiff, Mega- dard. “ ‘[Wjhether rule, pleaded complaint a case Guard, with the Coast pulse, had contracts law], arising is one under [federal Megapulse had pursuant to which devel jurisdictional statute, ... sense of proprietary data. 672 at 961— oped necessarily from what must be determined When, on Guard’s based the Coast 62. appears in the of statement his that the data had not been determination declaration, in the own claim bill or unaid solely at developed Megapulse’s expense, anything ed by alleged anticipation the Coast decided to release the of Guard thought which it is avoidance parties, Megapulse brought data other of defenses the may interpose.’ Taylor an injunction prevent for the re suit defendant Anderson, 75-76, 74, 724, 234 U.S. 34 S.Ct. of The lease data. 962. D.C. Cir Id. (1914); 58 L.Ed. 1218 & Nash Louisville cuit made that existence of rele clear Mottley, ville R. Co. v. U.S. vant issues not all contractual did render (1908).” S.Ct. 53 L.Ed. 126 Okla. Tax “essentially contractual”: Graham, 838, 840-41, Comm’n v. 489 U.S. may Contract issues arise various (1989) 109 S.Ct. 103 L.Ed.2d 924 types of where action cases itself is added). (emphasis The RMI Titani license, A not on a contract. founded um/Megapulse test is similar to the well- may example, be raised as defense pleaded complaint that both rule tests trespass, purchase in an action for or a jurisdiction by evaluate the underlying- may contract to counter an raised rights upon which a bases its action for conversion. But the mere claims, any without reference to rebuttal may that fact a court have to on a rule points. logical. This is Both similarity not, by contract does triggering issue jurisdiction. concern the issue of Ju tests mystical metamorphosis, some automat- generally by is risdiction established ically an transform action based on plaintiff, through complaint. E.g., trespass or conversion into one on the Coll., v. Muskingum Nichols deprive juris- court of (6th Cir.2003) (the plaintiff bears the might it diction otherwise have. establishing jurisdiction burden of with the Applying general princi Id. 968. taking allegations court in the com ple, the court that determined CDA true). plaint as because, jurisdiction, did not bar “Appel based, case, position present lant’s ultimately well-plead is not on contract, alleged gov complaint necessarily breach on an ed would not even very' infringement property rights ernmental mention the term of contract that dispositive, i.e., It violation of the Trade Secrets Act. Defendant considers Government, actually well-pleaded complaint 3. A Mega- Amendment not refer pulse, relying which is on contract.would to the contracts between Rather, Megapulse, . . .” Id. at 969. As in so Plaintiffs and Defendant. case, govern- refer Exxon present complaint too it is would to the though without even 3 to were made Amendment these con- contracts —which consent, might claims, and which Plaintiffs tracts rebut Plaintiffs’ Plaintiffs’ A allege well-pleaded complaint would merits. does not nullify.9 seek to A contracts had violated refute itself. Defendant’s rebuttal does the Exxon rights on the property rights, granting upon Plaintiffs’ bear source BP property Amoco the to which Plaintiffs base rights Exxon-Mobil and their land. The con claim. enter Plaintiffs’ Exxon key part are a of the factual basis tracts points, Absent contractual rebuttal complaint.

for the But source no relating there are contractual issues Plaintiffs their upon which base deprivation property the claim for —-the or any claim is not Exxon source of the asserted this claim It undisputed other contract. is not found contract. The source privy Exxon Plaintiffs were not asserted title to Plain- is the property rights contracts.10 claim at The tiffs’ land. due to tempts to void the Exxon contracts rights. violation of Plaintiffs’ constitutional Freedom b. to contract with fuel relationship between suppliers choos- is not source ing and Defendant rights upon of the which Plaintiffs base Moving on to in other claims similar property rights their claim-—-this is action,” first “cause Plaintiffs also claim Drapery to Commercial Contractors a in liberty interest the “freedom to con Megapulse, in did which claimed tract fuel of their suppliers own relationship not stem from the contractual rebuttal, choosing.”13 possible On it is parties. between the that Defendant would that Plain establish complaint freedom, Plaintiffs actual is consistent tiffs chose to forfeit this order analysis with this of a com- well-pleaded to maintain their contracts. If plaint.11 complaint sign al- had to The actual focuses Plaintiffs chosen not Amend contracts, contracts, entirely most the Exxon on ment 3 to their USPS the USPS violating property rights, with- have with their Plaintiffs’ would not interfered fuel merely out Plain- dealings; Plaintiffs’ consent. Nowhere in instead the USPS would complaint tiffs’ actual is there mention have declined to renew its contracts with But, above, directly of Plaintiffs’ contracts with Defendant12— Plaintiffs. as stated here, may complaint only 9. There because 11. actual is relevant be some confusion Plaintiffs’ contracts, first, analysis as it a there are two sets of those insofar confirms our of well- and, is, complaint. pleaded between sec- even if Plaintiffs’ Plaintiffs Defendant That but, complaint well-pleaded ondly, Defen- the Exxon contracts between actual rather, arguments set forth rebuttal to con- dant and Exxon-Mobil and BP Yet Amoco. defenses, not alter the upon tractual this would Plaintiffs’ claim here is not founded nature of Plaintiffs’ claims. of contracts. either class if, describing 12. Even factual back- 10. a For claim to contractual —and thus ground, Plaintiffs’ had referenced fall within of the the realm Court of Federal Defendant, contracts with this Plaintiffs' attempt Claims—the must to a enforce not alter of Plaintiffs’ would nature party. contract to which was a Cisneros, claims. E.g., 16 F.3d Katz (Fed.Cir.1994) ("Absent privity Hol- between lywood government, Complaint and the there claim is found in Plaintiffs’ Associates 13. This 6.2, (a). (J.A. 18.) Claims].”). paragraph subpart at [in is no case the Court of Federal only be identified with reference would arise issues that in Ingersoll-Rand, oth As do contractual an HCR contracts. rebuttal not render per- requested specific here is claim. non-contractual Commercial erwise The Contractors, 4; original of the contract. at Me formance Drapery perform claim of to HCR at 968. gapulse, This claim “essentially is contractual.” liberty c. interests Other all of the striking contrast provides case, claims in are not other this which Additionally, attempt found a contract and based interests, multiple liberty in assert assert relief, in the do not seek contractual which inter deprivation of “freedom from ing (or money specific performance form business, operate perform their ference damages). contracts, and make business their HCR and condi concerning decisions terms per contractual claim The purchase supplies such tions pol formance HCR contracts does “freedom from interfer fuel.”14 Plaintiffs of Fifth lute the non-contractual assertions ... and make decisions” ence business It rights. Amendment would be absurd possible rooted in contract. It is is not first characterize entire “cause away the free bargained that Plaintiffs “cause of action” as one “claim.” The first claimed, being again doms sub-parts. action” contains three merely point. a rebuttal Commercial Hence, it likely that there are least Contractors, 4; Me 133 F.3d at Drapery action,” three under “cause 968. gapulse, F.2d at more, probably and in fact even there sub-parts (asserting, in this one of inter only rights asserted since alia, argument) upon con the HCR contract “cause of action” that are based asserts of rights legal rights. are to numerous The definition a tractual sources Plaintiffs’ claim, context, comes from them HCR contracts.” The within the CDA “perform original Titanium/Megapulse RMI a claim are the contracts the test HCR contracts if it founded distinct upon Plaintiffs and Defendant as is distinct is between here, rights. stating character prior legal to Amendment In that the existed 3— by “essentially a subsequent Plaintiffs assert that acts ization of claim as contractu depends rights al” “the the breached that contract. Clear on source of USPS claim,”15 to which ly, original upon a claim enforce bases its rights whose is con RMI Titanium indicated that claims are grounded source thus, by rights; to at underlying tractual —this claim is identical defined them (by definition, in original by analysis, contract CDA an asser tempt enforce legal specific performance) Inger- rights tion of non-contractual would requesting sollr-Rand, from of plaintiff sought de be a distinct “claim” an assertion where claratory injunctive prevent legal rights. relief to See also Black’s (7th ed.1999) (one in a defi soliciting Dictionary Air Force bids Law from new a replace that nition of “claim” is “the assertion an process would (If, arguendo, existing right”). at That this the entire contract. 79-80. “cause action” is based a contract is clear from first were somehow claim “claim,” very rights single that can as a then it is doubt- the fact at stake viewed (J.A. 18) (Plaintiffs’ para- Complaint, 15. 78 F.3d at 1136. 14. 6.2, (b)). graph subpart exist, rights be a valid for exist. If the do ful that there would basis not then the “claim,” grant on the basis court a dismissing the entire will motion dismiss for of the claim based part of the small that is failure to state claim the court will jurisdiction upon deny the HCR contracts. its over the claim. question, though, This need not consid- be The district court Defendant at ered.) contractual, tempt to deem claim this which Plaintiffs base upon it to likening Ingersoll-Rand. Inger soll-Rand, their claims not contractual re- plaintiff “alleg[ed] the named spect any Fifth Amendment claim other government’s that decision to termi liberty than the claim HCR perform nate I-R’s contract to air supply compres contracts. sors and to resolicit for the bids contrary

was ... federal acqui several declaratory 2. claim Plaintiffs’ for regulations.” sition F.2d at 74. Yet injunctive viola- Ingersoll-Rand govern pres does not regulations postal tion of court, In Ingersoll-Rand, ent case. to classifying addition the relief cause of action is the second contractual, offered reasons for three rul claim that has its own Defendant violated ing that the source of the regulations. regula- Plaintiffs state that for violation of regulations was con tions Plain- limiting forbid the USPS tractual. The court stated: purchase any tiffs’ freedom to fuel from First, it possible source that to conceive of Plaintiffs wish. Plaintiffs cite regulation postal dispute entirely contained within “[t]he service is permitted tell a terms the contract. The contract in- contractor how or ” (J.A. supplies.... when to cluded purchase termination-for-convenience 209) clause.... (quoting Management Instruc- USPS PO-530-97-1).

tion Plaintiffs also cite a Second, by plaintiffs the issues raised regulation may of fuel “[p]urchases unique are within complaint exper- option made from source at the of the Court of tise Claims. The sub- 216) (J.A. at contractor.” (quoting is that Air stance I-R’s PO-530-97-1). Management Instruction good had no to Force reason terminate begin the resolicitation. merits, a question On the as to arises unlike a complaint, This regulations whether private these vest based, for example, on a violation of the rights of regulations. action to enforce the contractor, rights civil of the calls for question The transporters is whether mail knowledge of government the contract- (Plaintiffs) fuel suppliers (e.g., those and/or ing process.... Amoco) other than and BP Exxon-Mobil characterization, Finally, despite have the to force the sue I-R’s 34, comply regulations.16 But this Br. for Appellant the see at we find that question ruling is relevant to a I-R not a bidder.” I-R not is “frustrated jurisdiction. “essentially The contractual” asserts that its action is no different Titanium, test of RMI bid Megapulse, protest from from a action. See Scanwell Laboratories, upon Shaffer, examines of rights “the source the Inc. v. 137 claim,” which the bases 424 F.2d U.S.App. its without D.C. 859 (D.C.Cir.1970). requiring rights that those claimed even Sandoval, (2001). 16. See 149 L.Ed.2d 517 Alexander 532 U.S. 121 S.Ct. cir- contrary is to the same opinion, three reasons at 78. None of these Id. (and present case. the controlling ruling Megapulse the prove cuit’s 1982 ruling circuit’s Commercial sanie Setting the first reason momentar aside ),-it appears that this Drapery Contractors ily, it is clear that the other two reasons do good point Ingersoll-Rand never was dispute. The apply present to the not law Ingersoll-Rand is not in the D.C. Circuit.17 reason from second present dispute, to the because applicable Moreover, if the terms even the “within present case .does Plaintiffs claim law, good this point of the contract” were contracting process. In not relate to similarity enough is make the one not involving gersoll-Rand was case dispute Ingersoll-Rand. similar to present bidding competitive process rules above, sec As discussed the D.C. Circuit’s awarding government contracts. for given ond third determin reasons for in present at 75. case does not Id. ing Ingersoll-Rand claim the source awarding among of contracts volve to the applicable are not be contractual thus, the in In competitors; third reason above, Also, dispute. present discussed clearly apply to gersoll-Rand does not Ingersoll-Rand court ruled that case, which does not involve present performance, a sought specific relief was “frustrated bidder.” remedy relief issue alone —the given Ingersoll-Rand The first reason Ingersoll-Rand distinguish is sufficient to present might apply sign ease: many present Finally, from the case. might have ing Amendment present case and differences between that contractually rights waived vested Ingersoll-Rand quite importan t —In Nonetheless, regulations. under gersoll-Rand case-spe stressed the itself governed by present dispute Inger is inquiry. cific nature the CDA appears It that the D.C. soll-Rand. Cir (“As 76-77 whether ruling first cuit’s reason contractual, essentially [Mega- was source of the was contractual never p'ulse recognized court ] good ruling law within that circuit. ‘may only against resolved the facts that the in the claim source [Megapulse, F.2d] each case.’ possible “it was contractual because 970.”). dispute entirely conceive con contract,” within the terms of the tained postal The claim for violation of the D.C. Circuit classified the on the regulations “relating a claim to a point basis of a rebuttal embedded within CDA, contract,” under is a but rather larger claim—the ran D.C. Circuit thus upon claim based established mere principle afoul of the that the exis regulations. is government The claim of a tence contract issue within broader Drapery to in analogous that Commercial “essentially claim does not make the claim Contractors, bar where' the CDA did not contractual,” of the where the source jurisdiction plaintiffs’ over claims “that rights claimed and the remedies are not suspension cancellation and deci GSA’s Drapery contractual. Commercial Con n tractors, multiple government pro 4; sions violated Megapulse, 672 regulations.” 133 curement statutes and F.2d at 968. Since “within terms in point Ingersoll-Rand, the contract” a F.3d at 3. Barry, panel authority over- v. F.3d 1395 ... does not have the 17. LaShawn A. 87 court.”). (en banc) (D.C.Cir.1996) ("One three-judge three-judge panel rule another of the rights be in claim should decided claims over which the This CDA did If not regulations jurisdiction do not vest bar in Drap- merits. Commercial rights ery in mail then the dis- transporters, (holding Contractors. 133 F.3d at 3 jurisdiction trict to dis- that did grant court should motion the CDA not bar over plaintiffs’ if a regulation miss this claim. But does claims “that GSA’s cancella- in the mail tion right transport- suspension vest a action and ... decisions consti- ers, right then source of this is the tuted ‘de facto debarment’ or ‘blacklisting,’ regulation, notwithstanding thereby depriving that contract process.”). them due in Ingersoll-Rand issue arises rebuttal. is merits, On the certainly contract issues controlling, and there is no valid other may be relevant: Plaintiffs’ contracts with argument classifying the rights found may the USPS be considered in determin in regulation contractual. ing -disputed concerning factual issues whether agreed Plaintiffs to abide declaratory 3. Plaintiffs’ claim for Exxon contracts. But the contract issues injunctive and for arbi- rebuttal, would arise setting trary agency action without forth rights the source of upon which statutory authority Plaintiffs Again, base their claims. third cause of action is existence issues rebuttal that the Exxon contracts created points not change does the nature of the third-party obligations, obligating Plain source of the claimed. Commercial supply provisions, tiffs to certain fuel and Contractors, 4; Drapery 133 F.3d at Me statutory because the lacks au USPS gapulse, 672 F.2d at 968. thority obligate parties, third such obli gations arbitrary capricious. were and CONCLUSION arbitrary capri Plaintiffs assert and summary, “essentially contractu- cious action due process. violates Tolchin al” requires analysis standard of both the Court, Supreme (or source of and the relief (3rd Cir.1997) (“Due process may also be appropriate), for each Plaintiffs’ claims. government arbitrarily violated if the acts non-contractual, requested The relief capriciously. Grayned, or 408 U.S. seeking declaratory injunctive and mea- 2294.”). irrepara S.Ct. Plaintiffs assert (1) property rights sures to enforce whose ble harm. land, source is found the title to Nothing this claim relates to the con- (with liberty rights various claimed tractual relationship between Plaintiffs. exception perform right HCR The claim itself argued is structured and (2) contracts); rights whose source if, it hypo- such that would be the same (if regulations these vest- USPS thetically, had no contractual re- (3) all), ed at rights whose source is if, i.e., lationship hypo- the USPS: process the due free entitlement thetically, the attempted obligate arbitrary government and capricious all gas give stations to discounts to mail action that harms Plaintiffs’ interests. transporters, no gas stations had con- only “essentially contractual” claim is USPS, tractual with the then relationship con- liberty perform the HCR gas the stations the could assert exact claim, tracts for this source legal rights. same claimed and the relief are juris-

The source of the this claim is contractual. The district court has distinguishable all of the source of diction over the claims this case 424 well-pleaded complaint rule —the liberty to

except perform the claim of for only allows artful-pleading doctrine —not HCR contracts. beyond courts look requires reasons, we For the aforementioned of a the source pleadings ascertain judgment of the district REVERSE majority Although claims. plaintiffs claims, for except for the claim court on all well-pleaded-com that under the correct of the HCR contracts. performance rule, question jurisdiction federal ex plaint COOK, Judge, dissenting. Circuit part if the only ists federal element is claim, Nat’l Gully v. First This the sole issue appeal concerns Bank, 96, 109, 57 L.Ed. 299 U.S. S.Ct. 81 court which court—the district or (1936), plaintiff manip is not free 70 subject mat- of Federal Claims—has Court omitting necessary jurisdiction by ulate jurisdiction the truckers’ claims ter over v. from its claim. Rivet federal elements Postal against the United States Service Bank, 470, 475, Regions 118 S.Ct. 522 U.S. (USPS). If, argues, USPS (1998) (“As 921, a corol 139 L.Ed.2d 912 contractual, essentially then the Con- rule, a lary well-pleaded defense (CDA) governs tract Act them Dispute by omit plaintiff may not defeat removal has the Court of Federal Claims exclusive necessary subject ting plead questions. federal jurisdiction. matter 41 U.S.C. ‘artfully pleads’ an a (governing plaintiff §§ all that If the thus 601-13 procuring claim, agency may uphold executive enters into court removal even services). if, truck- goods and But as the though question appears no federal on contend, (citation on ers their claims are based face of the and inter complaint.” statutory rights, then constitutional and omitted)); punctuation Tax nal Franchise subject juris- the district court has matter Trust, Bd. Constr. Laborers Vacation diction. 1, 13, 2841, 77 463 103 S.Ct. L.Ed.2d U.S. (1983) 420 that (stating when The court concluded that district action, only “original pleads state causes of essentially claims are it jurisdiction unavailable unless federal granted motion to dismiss for lack USPS’s substantial, appears disputed some subject majori- jurisdiction. matter The ele necessary of federal law is a truck- ty, accepting completely almost state well-pleaded ment of one of of their claims as con- ers’ characterization claims, or that one or the other claim is regulatory, concludes that stitutional ‘really’ (emphasis law” add one federal juris- subject the district court has matter ed)); Stores, Inc. Dep’t Federated v. Moi diction over of the claims. Because most tie, 397 n. 101 U.S. S.Ct. correctly the district court determined that (1981) re contractual, (agreeing 69 L.Ed.2d essentially all of claims are proper “respondents moval when had respectfully I dissent. jurisdiction by attempted to avoid removal I ‘artful[ly]’ casting ‘essentially their federal claims”). short, law claims’ as state-law majority deciding proposes that artful-pleading requires doctrine governs whether the CDA the truckers’ claims, past allega court the surface “look[] the district court have fol- should make tions to its own assessment of what rule and well-pleaded-complaint lowed the law under.” Int’l Armor arises based its decision truckers’ Moloney & Limousine Co. v. Coachbuild pleadings, evaluating any without issue (7th Cir.2001). ers, Inc., corollary raised in But a defense.

425 jurisdiction.” doc- apply pleading Courts the artful exclusive Megapulse, Inc. v. Lewis, 959, (D.C.Cir.1982). 672 in F.2d 967 trine not federal cases cases, variety in a also other when case, In this majority fails to recog plaintiffs attempt manipulate procedural artful pleading nize the truckers’ of their See, e.g., rules. v. Ins. Harrow Prudential contract claims as and regu constitutional (3d Cir.2002) Co., 244, F.3d 279 253 claims; latory in this failure sanc effect (“Plaintiffs cannot circumvent the exhaus- attempts tions truckers’ evade artfully tion requirement by pleading ben- jurisdictional A prop mandate CDA. duty fiduciary efit claims as breach of analysis er of the truckers’ claims must claims.”); Co., Liberty Hartz v. Mut. Ins. begin with understanding that “[t]he (4th Cir.2001) 474, styl- 269 (“By F.3d 476 plaintiffs title or characterization of its complaint ing her as one for breach of Rather, controlling.... claims is not it is contract, Hartz avoid Ma- attempts determination whether the action is ryland against bar tort No actions. essentially a dispute contract that con , pleading terming amount of artful such as Campanella trols.” 137 at F.3d 892 damages ‘consequential’ can disguise Titanium, 1136) (quoting RMI 78 F.3d (alteration what is seeking Hartz Moreover, original). “a —extra-contractual damages expenses, for additional medical plaintiff may jurisdictional avoid losses, distress.”); merely by business and emotional of the CDA alleging bar viola Plans, of regulatory statutory Ford 141 F.3d tions or provi v. NYLCare Health (5th Titanium, 243, Cir.1998) sions.” RMI (“Basing 250 arbi- 78 F.3d 1136 (quoting Ingersoll-Rand v. trability merely an action Co. United legal 74, (D.C.Cir.1985)). 780 F.2d 77 label attached to it would allow artful n Thus, the truckers’ characterization of pleading dodge dispute arbitration of a their claims as constitutional statutory (or ‘arising out or relating otherwise to’ has no whether bearing on the claims are on) legally dependent con- underlying contractual. Up Fed. State Credit Union tract.”); Kysar, Lambert v. 983 F.2d Walker, (2d Cir.1999) v. 198 F.3d 377 (1st Cir.1993) (“We cannot accept the' (rejecting plaintiffs “attempts to attempts to reward en- characr invitation evade an challenge terize action as APA this agreements forcement of forum selection A dispute”); rather than & S claims through pleading artful of tort Lader, Council Oil Co. v. (internal dispute.” the context of a contract (D.C.Cir.1995) (finding were claims con omitted)); punctuation Young Anthony’s plain tractual. and “It noting, is true Grottos, (9th Inc., Fish have they tiffs disavowed the notion that Cir.1987) (finding that the district court Instead, making they contract claims. “properly beyond looked face of say, the damages have suffered flow complaint to whether con- determine agency from unlawful action.... tract claim was fact a section 301 claim event, plaintiffs’ labeling impor is of little breach of bargaining agree- collective tance.”). pleaded ju- ment artfully to avoid federal risdiction”). CDA, In a involving case Furthermore, case the contractu- of Appeals D.C. Circuit Court ob- al foundation of the truckers’ served, “Courts have not hesitated to look pleadings, evident the truckers’ beyond pleadings of a case brought just from points.” USPS’s “rebuttal district court to if it determine involves indisputably truckers’ raises the (as claim over dispositive) which the Court Claims has well issue theory application has limited to the rela- validity the amendments to the of USPS, litigants when those party tive alleging truckers’ contracts with by voluntarily have been created re- that “Plaintiffs were never consulted instances, contract. In such interference conditions of these garding terms and generally with such contractual sup- and the fuel [between USPS taking a gives rise to a breach claim not they to be bound pliers], nor did consent (citations punctuation and internal ¶ claim.” (Second 5.4), Compl. thereby” Amended omitted)). attempting compel “is to and that USPS comply ... to with those con- B. Regulatory Claims (Sec- permission” tracts without argue further that The truckers USPS ¶ 8.3). Compl. ond Amended authority develop plan to the fuel lacked II regulations prohibit because USPS USPS interfering operation with the of its from A. The Fifth Amendment Claims businesses, and that contractors’ argue interfering that The truckers regulatory authority, absence USPS’s sup- to fuel right with their control their comply that the truckers with insistence ply, property them of their deprived USPS plan right fuel violates their to due just compensation. process without due or process. the truckers cite two Specifically, right But a to whether the truckers have regulations they that contend render the supply depends upon control their fuel Purchasing plan invalid: USPS’s Man- fuel whether their contracts with USPS afford objective any that (stating ual “[t]he right particular, such a whether —in purchasing action contract ob- is meet validly to their contracts re- amendments jectives, the supplier’s not control busi- quire comply the truckers with fuel ness”) Management and its Instructions majority recognizes, plan. As (stating “[purchases may fuel that apparent “Amendment 3 cause option made from source at the And Plaintiffs’ frustration.” while it is contractor”). not specific true that “Plaintiffs do seek however, argument, This conflicts with performance of this contract” [amended] position that amendments the truckers’ added), are in (emphasis effect seek- obligate their contracts do not them to ing of their specific performance pre- purchase designated suppli- fuel The truckers’ ob- amendment contracts. con- ers: amendments cannot be both

jection is the to the contract amendments (as tractually invalid the truckers contend claims; everything essence of their else is arguing that the not when amendments do a smoke-and-mirrors effort obscure the plan) constitute consent to fuel claims’ contractual nature. (as the contractually valid truckers con- arguing when that tend the amendments

Additionally, if the truckers contend cor- regulations). inconsistent with USPS rectly validly the contracts do not contractually If the amendments are inval- their their restrict to control fuel id the truck- compel and therefore do supply, nevertheless has USPS the fuel comply plan, ers then abridged right, proper then the re- reg- cannot also violate amendments claim, a course would be breach by compelling ulations the truckers takings Hughes claim. See Commu- plan. with the fuel comply Galaxy, nications Inc. United (Fed.Cir.2001) (“[T]he perfectly inconsistency, although This taking compensable acceptable alternative-pleading as an strat- concept of egy, highlights outright, the contractu nevertheless the court can achieve the same al nature of truckers’ their claims because from compliance result —freedom with the ,of fuel plan contracts with USPS are at the core the court finds that such a —if sides of the result argument. appropriate, by granting both truckers’ Re a con remedy tractual such gardless argue reforming whether the truckers truckers’ contracts attempts that USPS’s them See require USPS. Ho v. States, 96, (2001) United 49 Fed. Cl. 100 purchase designated suppli fuel from the (“Reformation contracts, of a equitable contract is an ers violate the or that the con remedy may tracts invoked this court regulations, violate USPS their ... when the contract contains ... provi possibility claims are contractual. The sions that contrary are (citing law.” Am. attempts require that USPS’s the truck States, Tel. & Tel. Co. v. United 177 F.3d plan might ers adhere to the fuel violate 1368, (Fed.Cir.1999); 1376 McClure Elec. regulations does not transform a Constructors, Dalton, Inc. v. 709, 132 F.3d regulatory claim into one that is and not (Fed.Cir.1997); 711 Dairyland Power Ingersoll-Rand contractual. See Co. v. States, Coop. 1197, v. United 16 (D.C.Cir. F.3d 74, 780 F.2d United (Fed.Cir.1994))). 1985) (“The by question presented phrased could be whether Ill under forbids termination these Because all of truckers’ claims relate conditions. That termination also ar n USPS, to their contracts with regulations certain CDA guably violates other governs claims, subject and exclusive does not transform the action into one jurisdiction matter solely therefore lies regulations.”). based on those Oth Thus, erwise, Court of Federal Claims. I every government dissent agency because majority’s from the decision reversing bound regulations, to follow some set of district every court’s dismissal of the government could truckers’ contractor recast subject claims for matter'jurisdic- lack claims, regulatory its contract claims as tion. thereby nullifying the CDA. United Cf. Co., v. E Salvage States J & (4th Cir.1995) (“Effective enforcement jurisdictional limits of the CDA

mandates' that courts recognize contract clothing.”);

actions that dressed in tort Lines, Inc., v. Air Melanson United 931 CHABAD SOUTHERN OF OHIO & (9th Cir.1991) 561 n. (“Nearly LUBAVITCH; CONGREGATION Pe any contract can be restated as a Ritchey, Plaintiffs-Appellees, ter claim. grievance proce tort The RLA’s would it dure become obsolete if could be CINCINNATI, CITY OF Defendant- circumscribed artful pleading.”). Appellant. C. Available Relief No. 02-4340. Court of Federal Claims Appeals, United States Court of Finally, the truckers contend Sixth Circuit. jurisdiction

district court has because the Argued: Oct. 2003. grant Court Federal Claims cannot Filed: April Decided and 2004. injunctive relief seek. While the correctly truckers assert that the Court of grant

Federal Claims cannot

Case Details

Case Name: B & B Trucking, Inc. v. United States Postal Service

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 2, 2004

Citation: 363 F.3d 404

Docket Number: 02-1562

Court Abbreviation: 6th Cir.