OPINION
This matter comes before the court on the parties’ cross-motions for summary judgment. For the reasons set forth herein, Plaintiffs Motion for Summary Judgment on Counts I, IV and V is granted in part and denied in part. Defendant’s Motion to Dismiss or for Partial Summary Judgment on Counts I and IV-VI of Plaintiffs Amended Complaint is also granted in part and denied in part.
BACKGROUND
Transfer of Saint Elizabeths Hospital from the Federal Government to the Distñct of Columbia
For over 130 years, between 1855 and September 30, 1987, Saint Elizabeths Hospital (Hospital or Saint Elizabeths) was owned and operated by the United States as an inpatient mental health facility located in the District of Columbia (District or plaintiff). On November 8, 1984, Congress enacted the Saint Elizabeths Hospital and District of Columbia Mental Health Services Act, Pub.L. No. 98-621, 98 Stat. 3369 (1984) (codified at 24 U.S.C. §§ 225-225h (2000)) (Transfer Act or Act), which provided that the responsibility for the operations of the Hospital would be transferred from the federal government to the District on October 1, 1987. See 24 U.S.C. § 225b(a)(l). Congress found that allowing the District to undertake operation of the Hospital would increase efficiency and effectiveness of mental health care services and would further the goal of the District’s home rule. Id. § 225(a)(6)-(7). Accordingly, it was Congress’ desire that the District have its own mental health care system and that the District and the federal government bear equitable shares of the costs of the transition of the Hospital from the federal government to the District. Id. § 225(a)-(b).
The Act requires the United States to bear its equitable share of the costs of the transition of the Hospital from the federal government to the District for the overall creation of the District’s comprehensive mental health system. Id. § 225(b). Under the Act, these costs included, but were not limited to,
the full costs for the provision of mental health diagnostic and treatment services for the following types of patients:
(A) Any individual referred to the [District’s mental health] system pursuant to a Federal statute or by a responsible Federal agency; [or]
(B) Any individual referred to the [District’s mental health] system for emergency detention or involuntary commitment after being taken into custody (i) as a direct result of the individual’s action or threat of action against a Federal official, (ii) as a direct result of the individual’s action or threat of action on the grounds of the White House or of the Capitol, or (iii) under chapter 9 of Title 21 of the District of Columbia Code.
Id. § 225g(b)(1)-(1)(B). The above provisions applied to any individual referred to the District’s mental health system before or after November 8, 1984. Id. § 225g(b)(1)(C). The legislative history of the Act explains that the purpose of section 225g(b)(1) is to:
[A]uthorize[ ] the head of the appropriate federal agency to pay the District the full*298 costs of mental health care provided to so-called Federal mental health case individuals. These instances include any case which is referred pursuant [to] a Federal statute or by a responsible Federal agency, any case referred under chapter 9 of title 21 of the D.C.Code, any case referred as a result of an individual[’]s action or threat of action against a Federal official, and any case referred as a result of a criminal proceeding in a Federal court.
H.R.Rep. No. 98-1024, at 15 (1984), reprinted in 1984 U.S.C.C.A.N. 5810, 5825.
The Act also requires the United States, through the Department of Health and Human Services (HHS), to bear the costs to repair and renovate the Hospital to meet all applicable national and District codes and standards by October 1, 1993 for those portions of the physical plant and facility support systems of the Hospital to be utilized by the District under the final system implementation plan. See 24 U.S.C. § 225b(f)(2)(A). The final system implementation plan was a statutorily-mandated document that would serve as a blueprint for the creation of the District’s mental health system and was to be reviewed by Congress and the District’s City Council. See § 225b(b)-(c). Under the Act, the Mayor of the District was to prepare a preliminary system implementation plan which would be reviewed by the City Council and the Committee on the District of Columbia of the House of Representatives and the Committees on Labor and Human Resources and on Governmental Affairs of the Senate. Id. § 225b(b). After review and comment, the Mayor would prepare a final system implementation plan which would propose and describe the components of the District’s mental health system; identify the types of treatment to be offered to patients; and, inter alia, identify any capital improvements to facilities at the Hospital. Id. § 225b(c).
To assist in the development of a system implementation plan and in preparation for the transfer of the Hospital from the federal government to the District on October 1, 1987, the Act required the Secretary of HHS to contract for a physical plant audit of all existing facilities at the Hospital. The Act required that the audit be completed by January 1, 1986 to “recognize any relevant national and District codes and estimate the useful life of existing facility support systems.” Id. § 225b(f)(l). The Secretary of HHS contracted with AEPA Architects/Engineers of Washington, D.C. (AEPA) to conduct the physical plant audit. The AEPA audit was completed in late 1985 and submitted to Congress in January, 1986.
After the completion of the AEPA audit, the District submitted its final system implementation plan to Congress. In its final system implementation plan, the District proposed to take ownership of the majority of the East Campus of the Hospital. The District also proposed to take over five buildings on the West Campus.
The Act required the Secretary of HHS to repair and renovate the physical plant and facility support systems of the Hospital pursuant to the physical plant audit. See 24 U.S.C. § 225b(f)(2)(A). The Secretary of HHS was required to initiate these repairs and renovations no later than October 1, 1987, and complete them no later than October 1,1991. 24 U.S.C. § 225b(f)(2)(A) (1988). Via legislative amendment to the Act, the deadline was extended and HHS was permitted until October 1, 1993 to complete the repairs. Pub.L. No. 102-150, 105 Stat. 980 (1991) (now codified at 24 U.S.C. § 225b(f)(2)(A) (2000)). This amendment to the Act also permitted HHS an alternative to performing the repairs; HHS could provide funds to the District and have the District complete the necessary repairs and renovations itself. 24 U.S.C. § 225b(f)(2)(C). All other facilities and the infrastructure of the Hospital “not assumed by the District” were to be maintained by the Secretary of HHS in the condition described in the AEPA report, at least until October 1, 1987. Id. § 225b(f)(2)(B).
In its final system implementation plan, the District also proposed to use buildings located on the West Campus on a temporary basis. Accordingly, the District and HHS negotiated and entered into a Use Permit which permitted the District to occupy the non-transferred buildings on the West Campus during the transition period from Octo
In January of 1986, HHS submitted to Congress its appropriation request for fiscal year 1988. Included in its appropriation request was a request for funds that HHS projected would be needed to carry out its responsibilities under the Act to complete repairs and renovations of the Hospital. After HHS submitted its fiscal year 1988 appropriation request to Congress, the District expressed its view that the amount requested by HHS would be insufficient, and that more funds would be needed to bring the Hospital campus up to standards. HHS disagreed with the District, and advanced the view that the appropriation request, together with other amounts requested, would be sufficient to carry out the requirements of the Act.
On December 22, 1987, Congress passed Pub.L. No. 100-202, 101 Stat. 1329-91, and 1329-267 (1987), including two federal appropriation provisions to carry out the purposes of the Act. The first was a payment of $29 million to the District of Columbia pursuant to the Act, while the second was a subsidy appropriating $62,793,000 to carry out various provisions of the Act for the year 1988. Funds from the second appropriation were to be used for sections 4, 6 and 9 of the Act, as codified at 24 U.S.C. §§ 225, 225b, and 225g.
[t]his represented total payments of $62,185,911.10, of which $26,751,000 was for repair and renovation costs and $1,186,000 was for preservation and protection of the residual federal property on the St. Elizabeths campus. However, because an offset of $34,567,465.62 (representing money owed by the District to the U.S. Treasury for services provided by the federal government at St. Elizabeths) was applied to the transfer, the amount of funds actually transferred on April 14, 1988 was $27,618,445.48.
Id. at 7-8, ¶ 16.
The Claims
On September 30, 1993, the District filed a multi-count complaint against the United States. The complaint was amended twice, once on November 3, 1995 and again on December 12, 2003. In its six-count complaint, as amended, the District contends that various federal agencies, including the United States Secret Service (Secret Service), the Department of Veterans Affairs (VA), the Department of Labor, and the United States Marshals Service (Marshals Service), failed to pay the District for the full costs of mental health care and treatment provided to individuals referred to the Hospital under 24 U.S.C. § 225g. The complaint also alleges that HHS failed to provide the District with the funds to make repairs and renovations to the Hospital campus under 24 U.S.C. § 225b(f)(2), and that HHS failed to transfer all of the allotted monies under the Use Permit. On April 9, 1999, Count VI was settled as to all allegations against the Marshals Service except for plaintiffs claim for prejudgment interest. Count VI had alleged that the government failed to pay the District the full costs for the provision of mental health diagnostic services for persons referred to the District’s mental health system under 24 U.S.C. § 225g(b)(l)(C) by the Marshals Service in the amount of $2,794,358.08.
On June 12, 2003, defendant filed its motion to dismiss or for partial summary judgment on Counts I and IV-VI of plaintiffs amended complaint, which included its opposition to plaintiffs motion for summary judgment. Plaintiff filed its opposition to defendant’s motion to dismiss or for partial summary judgment and its reply to defendant’s opposition to plaintiffs motion for summary judgment on September 9, 2003. Defendant filed its reply to plaintiffs opposition to defendant’s motion to dismiss or for partial summary judgment on November 6, 2003 and plaintiff filed a sur-reply on December 8, 2003. Plaintiffs December 20, 2002 motion for summary judgment and defendant’s June 12, 2003 motion to dismiss or for partial summary judgment are the pending motions being considered by this court in this opinion.
Plaintiffs remaining claims are described as follows: In Count I, plaintiff claims that the Act requires the appropriate federal agency, beginning on October 1, 1987, to pay the District the full costs for the provision of mental health diagnostic and treatment services for certain categories of patients. These patients include, inter alia, (a) any individual referred to the District’s mental health system pursuant to a federal statute or by a responsible federal agency; or (b) any individual referred to the District’s mental health system for emergency detention or involuntary commitment after being taken into custody (i) as a direct result of the individual’s action or threat of action against a federal official, or (ii) as a direct result of the individual’s action or threat of action on the grounds of the White House or of the Capitol. See 24 U.S.C. § 225g(b)(l). According to plaintiff, the United States, through its agency the Secret Service, is financially responsible for the mental health and diagnostic and treatment services provided to at least 355 individuals who were provided mental health services by the District between October 1, 1987 and August 22, 2002. Plaintiff claims that the total cost of mental health diagnostic and treatment services owed for the 355 individuals is $11,010,262.51, plus any interest due. Compl. ¶ 12.
With respect to Count IV, plaintiff claims that, pursuant to 24 U.S.C. § 225b(f)(l), the United States, through its agency HHS, was required to conduct a financial and physical plant audit of all existing facilities at the Hospital by January 1, 1986. The physical plant audit was required to recognize any relevant national and District code violations and to estimate the useful life of existing facility support systems. 24 U.S.C. § 225b(f)(l). Defendant was required to initiate, no later than October 1, 1987 and complete no later than October 1, 1993, such repairs and renovations to the physical plant and facility support systems of the Hospital to be utilized by the District under the system implementation plan as part of the District’s comprehensive mental health system. Id. § 225b(f)(2)(A). According to plaintiffs motion, the estimated cost of repairing and renovating the buildings identified in the final system implementation plan was $32,980,624. PL’s Mot. at 17. Plaintiff now claims that defendant failed to complete or pay for the necessary repairs and renovations indicated in the audit, including, but not limited to, the power plant and steam distribution system, in violation of the Act in the amount of $12,305,624. Id. Plaintiff also claims an additional unpaid balance for asbestos removal of at least $2,028,000, id. at 28, and that defendant failed to provide for
With respect to Count V, plaintiff claims that as of October 1, 1987, defendant continued to hold title to most of the buildings and grounds on the West Campus. On September 30, 1987, HHS and plaintiff executed the Use Permit under which HHS allegedly granted permission to plaintiff to use and occupy most of the West Campus. The term of the Use Permit was from October 1, 1987 through September 30, 1991. According to plaintiff, under section 13 of the Use Permit, plaintiff agreed to be responsible for the preservation, maintenance and repair of any buildings on the West Campus not occupied or operated by plaintiff, and defendant agreed to reimburse plaintiff for the actual cost of such preservation, maintenance and repair up to $1,386,000. Plaintiff claims that HHS provided only $1,186,000 to the District, and is thus liable to plaintiff in the amount of $200,000.
With respect to the remaining claim for interest in Count VI, it appears that plaintiff continues to seek prejudgment interest on this count, although the parties settled other aspects of Count VI claims and filed a stipulation of partial dismissal of Count VI on April 12,1999.
DISCUSSION
I. Standard of Review
This matter is before the court on defendant’s motion to dismiss or for partial summary judgment on Counts I and IV-VI of plaintiffs amended complaint and plaintiffs motion for summary judgment on Counts I, IV and V.
Because defendant’s motion is one to dismiss the complaint under Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC) for failure to state a claim upon which relief can be granted, or, in the alternative, for summary judgment under RCFC 56, the court must first address the standard of review for defendant’s motion. RCFC 12(b) provides that “[i]f, on a motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in RCFC 56.” RCFC 12(b). Both parties have referred to extra-pleading materials in support of their respective positions. Once the court decides to accept extra-pleading material, it must convert the 12(b)(6) motion into a Rule 56 motion. De Brousse v. United States,
RCFC 12(b) provides that when an RCFC 12(b)(6) motion is converted into an RCFC 56 motion, the parties “shall be given a reasonable opportunity to present all material made pertinent to such a motion by RCFC 56.” RCFC 12(b); see Thoen v. United States,
The moving party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any
The court addresses the issues and burdens surrounding pending cross-motions for summary judgment. Separate motions for summary judgment from each party are not an admission that no material facts remain at issue. See Massey v. Del Labs., Inc.,
Defendant requests that this court rule in favor of its motion for summary judgment on the basis that no genuine issues of material fact exist and as a matter of law, plaintiff is not entitled to the relief it seeks. Plaintiff is afforded, in opposing defendant’s motion, a favorable view of the facts presented by the parties. The inquiry on defendant’s motion for summary judgment is whether, on the facts presented, defendant has discharged its burden of showing that it is entitled to judgment as a matter of law.
With respect to plaintiffs motion for summary judgment, plaintiff is held to the same standard. As the movant, plaintiff must show its entitlement to judgment as a matter of law after demonstrating an absence of any genuine disputes over material facts. Id. (stating that on cross-motions for summary judgment, “[ejach party carries the burden on its own motion to show entitlement to judgment as a matter of law after demonstrating the absence of any genuine disputes over material facts”); Bayou Land & Marine Contractors, Inc. v. United States,
II. Analysis
A. Jurisdictional Inquiry
Before reaching the substantive questions presented by this case, the court must first address its jurisdiction over plaintiffs claims. This inquiry is regrettably complex. Although all of the four remaining counts of the complaint are similar in that each states a request for a sum certain in money damages, they are also dissimilar in that they are founded on distinct theories of recovery and different aspects of the Transfer Act. Therefore, each count will be the focus of a separate discussion of this court’s jurisdiction over the type of claim at issue in that count.
Plaintiff bears the burden of establishing subject matter jurisdiction, see Alder Terrace, Inc. v. United States,
This court’s jurisdiction is based on the Tucker Act, 28 U.S.C. § 1491(a)(1) (2000). Pursuant to this statute, this court has
jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort.
Id. The Tucker Act functions as a jurisdictional statute, but plaintiffs in this court must, in addition, found their substantive right to bring an action on a specific source of law. United States v. Testan,
Pertinent to the ease at bar, the Supreme Court has recognized that not all statutes which provide an economic benefit are compensation mandating. See Bowen v. Massachusetts,
This “fair interpretation” rule demands a showing demonstrably lower than the standard for the initial waiver of sovereign immunity____ It is enough, then, that a statute creating a Tucker Act right be reasonably amenable to the reading that it mandates a right of recovery in damages. While the premise to a Tucker Act claim will not be “lightly inferred,” a fair inference will do.
United States v. White Mountain Apache Tribe,
The Federal Circuit explained and re-framed this jurisdictional inquiry in its recent decision in Fisher v. United States,
The Federal Circuit departed from this two-step inquiry and opted for a one-
Thus, the jurisdictional question in this case is whether the Transfer Act can be fairly interpreted as mandating compensation. A statute is money-mandating if the statute “ ‘grants the claimant, expressly or by implication, a right to be paid a certain sum.’ ” Ont. Power Generation, Inc. v. United States,
1. Subject Matter Jurisdiction Over Count 1
Count I, in particular, presents a novel jurisdictional issue related to the unique nature of the Transfer Act. The United States has committed to providing funding to the District for the treatment of certain types of mental health patients for whom the federal government accepts fiscal responsibility, based on the unique situation of the District in its roles as host to the federal government and as the transferee of Saint Elizabeths. 24 U.S.C. § 225g(b)(l)(A)-(C). Defendant argues that this court lacks subject matter jurisdiction over Count I of plaintiffs lawsuit because the Act is not a compensation-mandating statute for the mental health care needs of the particular types of patients described in the statute. Def.’s Reply at 1-6. Plaintiff disagrees, arguing that this court has jurisdiction under the Tucker Act because the Transfer Act “requires defendant to compensate the District for the services it has already provided to those specific individuals who Congress has expressly deemed a federal financial responsibility.” Pl.’s Sur-Reply at 2.
The Fisher court acknowledged that the Supreme Court has applied for decades what is known as the Mitchell test for determining whether a statute is a money-mandating source.
The plain language of the Transfer Act clearly mandates payment by the United States to the District for the mental health services for certain types of patients. 24 U.S.C. § 225g(b)(1) (stating that “the appropriate Federal agency is directed to pay the District of Columbia the full costs for the provision of mental health diagnostic and treatment services for the following types of patients”) (emphasis added). When a statute states that the United States “shall pay” compensation for a rendered service, such a statute is generally found to be money-mandating. Agwiak v. United States,
Nevertheless, Defendant launches a full-scale assault on this court’s jurisdiction over Count I in its reply brief,
a. The Bowen Court Finds Jurisdiction Over Certain Monetary Claims To Lie in the United States District Courts Under the APA
Chula TV
The court begins its discussion with a preBowen jurisdictional decision by the Federal
In the district court, plaintiffs won a judgment declaring that their amended applications should be reviewed under the experimental criteria system that was likely to bring greater grant amounts to each district, even though that system had been quickly abandoned by the Department of Education. Id. When an appeal of the judgment for plaintiffs in that case, originally filed in the Ninth Circuit, was transferred to the Federal Circuit by order of the United States Supreme Court, Chula Vista City Sch. Dist. v. Bennett,
Bowen
Less than a year later, the United States Supreme Court issued Bowen v. Massachusetts,
For the court’s present purposes, it is perhaps most useful to discuss the holding in Bowen by separating the Supreme Court’s commentary on the jurisdictional issue into two themes: the reasons why the dispute in that ease would not be transferred to the Claims Court and should remain in the district court; and, the circumstances under which monetary claims based on statutory rights should be filed, instead, in the Claims Court. The Supreme Court listed several reasons why the Bowen suit should not have been brought in, or transferred to, the
Under the APA, judicial review of federal agency decisions may only occur in a district court when “there is no other adequate remedy in a[nother] court.” 5 U.S.C. § 704. The Court explained that this provision was designed to rule out duplicative procedures for the review of agency actions, and cited examples of statutory grants of jurisdiction vested in courts other than district courts for the review of the decisions of particular boards and commissions. Bowen,
The Supreme Court reasoned that an adequate remedy in Bowen would require a court to be able to exercise equitable powers, give prospective relief, manage relationships between federal and state governments over time, and consider the state-law aspects of grant-in-aid programs. Id. at 905-08,
Section 702 contains another limitation on a district court’s jurisdiction over APA claims. 5 U.S.C. § 702. A district court may entertain claims “seeking relief other than money damages” from plaintiffs who are alleged to have suffered legal wrongs because of federal agency action. Id. In Bowen, the State sought declaratory and injunctive relief, as well as monetary relief.
The Supreme Court stated that the type of money damages claims barred by section 702 are those monetary claims seeking compensation for damage sustained by the failure of the federal government to pay what is due under a statute, not claims seeking to enforce the statutory mandate for the payment of money. Id. at 900,
Taking a larger view of the Medicaid Act, the Court also decided that jurisdiction for Medicaid disallowance disputes between federal and state governments was intended by Congress to be vested in the district courts. Id. at 908,
Finally, without specifying why, the Supreme Court remarked that the “situation” in Chula IV was different from the situation in Bowen, and pointed out that the Federal Circuit had found the Claims Court to be the “proper tribunal” to enforce the rights embodied in the federal statute at issue in Chula IV. Id. at 883 n. 1,
b. The Federal Circuit Applies the Jurisdictional Holding in Bowen to a Variety of Claims
Kate
In Katz v. Cisneros,
The Federal Circuit quickly disposed of the subject matter jurisdiction issue and found that federal question jurisdiction of the district court was not ousted simply because HUD alleged that the suit was based in contract and that contract cases against the United States are normally prosecuted in the Court of Federal Claims. Id. at 1207-08. The Circuit then turned to the Bowen analysis of limitations on the APA waiver of sovereign immunity pursuant to sections 702 and 704. The Circuit found that the types of relief requested in Katz were perfectly analogous to the relief requested in Bowen, such that the monetary aspects of the relief requested were not money damages but equitable relief. Id. at 1208-09. And, the Circuit held that an adequate remedy was not available to Katz in the Court of Federal Claims because his request for prospective relief would affect the ongoing relationships of the
One of the factual peculiarities of the Katz case was that the plaintiff was not in privity with the United States — his dealings were with local and state entities which passed through the HUD funding. Id. Absent privity of contract with the United States, the Circuit reasoned that Tucker Act jurisdiction, based on contract breach theories, would not permit Katz to proceed in the Court of Federal Claims. Id. Thus, the Circuit found additional support for its holding that APA jurisdiction, not Tucker Act jurisdiction, allowed this suit to remain in the district court, and that the suit could not be transferred to the Court of Federal Claims. Id. Despite a vigorous dissent from Judge Rader asserting that the nature of the suit was for breach of contract and that a full and adequate remedy was available in the Court of Federal Claims, id. at 1210-13, the Circuit found that this payment dispute under the United States Housing Act of 1937, 42 U.S.C. § 1437 et seq., belonged in the district court. Katz,
Kanemoto
A few months later, the Federal Circuit again had an opportunity to apply the Bowen analysis to the issue of whether a case begun in a district court should be transferred to the Court of Federal Claims, Kanemoto v. Reno,
After an extensive discussion of the limitations on the APA waiver of sovereign immunity found in sections 702 and 704, and a review of the holding in Bowen, the Circuit held that Ms. Kanemoto had an adequate remedy in the Court of Federal Claims and was thus precluded by section 704 from proceeding in the district court under the APA. Id. at 644-46. The Federal Circuit explained that “the ultimate relief Kanemoto seeks in all counts of the complaint is the payment to her of the $20,000 statutory amount of restitution.” Id. at 646. Because the monetary relief sought, if granted, would compel payment of the statutory amount of restitution, no declaratory or injunctive relief was required. Id. Although the Federal Circuit did not assign a label of either “money damages” or “specific relief’ to such an award, the Circuit did note that the Court of Federal Claims has the power to provide specific relief in the form of money. Id. (citing Bowen,
Brighton Village
About a year after Katz, the Federal Circuit revisited the jurisdictional question of whether a subsidized housing payment dispute involving HUD would lie in the Court of Federal Claims. Brighton Vill. Assocs. v. United States,
The Circuit commented that several features of Bowen were absent in subsidized housing payment contracts:
Bowen, however, did not address the Section 8 housing program, but the Medicaid program. In concluding that a Medicaid disallowance claim was not a contract action, Bowen relied on the congressional intent for the Medicaid program, the role of state law in Medicaid disallowance actions, and the long-term Medicaid interactions between the states and the Federal Government involving ever-shifting balance sheets. Bowen,487 U.S. at 903-05 & n. 39,108 S.Ct. at 2737 & n. 39. None of these features unique to Medicaid disallowance disputes applies to Section 8 housing contracts.
Id. at 1059 n. 3. The court relied instead on precedent, holding that, despite Bowen, “[t]he Court of Federal Claims has the power to award money damages on contract claims under the Tucker Act.” Id. at 1060 (relying on 28 U.S.C. § 1491(a)(1) and numerous cases). The Circuit distinguished the contrary result in Katz by stating that Brighton Village Associates was in privity with the United States in a housing payment agreement and thus contract law, not a statutory right to payment, was the source of the relief sought. Id. The Circuit also noted that Katz sought prospective relief, whereas Brighton Village Associates sought retroactive monetary relief. Id.
NCMS
The plaintiff in National Center for Manufacturing Sciences v. United States,
The Circuit discussed Bowen, Katz and Kanemoto, and applied the holdings of these decisions to the facts in NCMS. Id. at 198-202. Because the request for payment under the statute was not for compensatory money damages but for a statutory entitlement, NCMS did not run afoul of section 702 and the APA waived sovereign immunity for its $15,875,000 claim. Id. at 200. The court also held that an adequate remedy could not be provided by the Court of Federal Claims with an award of monetary relief. Id. at 200- 02. Rather, a prevailing NCMS would require injunctive relief reserving unspent USAF funds for NCMS, and the restrictions on the congressional appropriation embodied in either the statute or the cooperative agreement would require an ongoing, cooperative relationship between the parties. Id. at 201- 02. Therefore, section 704 proved no impediment, and NCMS was found to be akin to Bowen and Katz and distinguishable from Kanemoto — with jurisdiction in the district court under the APA.
The Circuit also decided that the Court of Federal Claims did not have the power to dispense the forms of equitable relief that were at issue in NCMS. Id. The existing cooperative agreement was only allotted a little more than half of the congressional appropriation. In order for NCMS to obtain
Brazos
In 1998, the Federal Circuit again addressed whether the holding in Bowen would support the transfer of a case from a district court to the Court of Federal Claims. Brazos Elec. Power Co-op., Inc.,
The Circuit first examined whether the power cooperative’s claim was for money damages. Id. at 787. Cancellation of a debt, the court reasoned, is just another form of monetary damages and, therefore, the relief requested was within Tucker Act jurisdiction. Next, the court examined whether section 704, the bar on APA suits when an adequate remedy exists in another court, prevented a waiver of sovereign immunity under the APA. The Circuit held that the power cooperative was seeking “a single, uncomplicated payment of money” and that this was an entirely adequate remedy.” Id. at 788. Unlike the situation in Bowen, where a court might have to oversee an ongoing Medicaid reimbursement relationship, in Brazos “[n]o prospective relief would be required and there would be no ongoing relationship to monitor and referee.” Id. Finally, the Circuit determined that the claims in Brazos were contractual in nature. Despite the incorporation of certain statutory terms and conditions in the note held by the United States, the contract dispute between the parties “d[id] not concern the administration of that statute.” Id. For these reasons, the District court did not have jurisdiction under the APA and the transfer of Brazos to the Court of Federal Claims was upheld.
Con Ed II
In 2001, the Federal Circuit again examined the Bowen jurisdictional holding and took the unusual step of vacating, en banc, a panel decision, Consol. Edison Co. of N.Y. v. United States Dep’t of Energy,
Twenty-two nuclear power utilities filed a suit in the United States District Court for the Southern District of New York seeking declaratory judgments and injunctive relief against the required payments under EPACT. Id. at 1380. The district court refused a request to transfer the case to the Court of Federal Claims and found that it had jurisdiction for the suit under the APA. Id. at 1382. On appeal, the Federal Circuit applied the holding in Bowen and initially affirmed the district court’s jurisdictional decision, Con Ed I,
I respectfully dissent from the majority opinion for two reasons. First, I believe that the majority’s analysis is in direct conflict with Supreme Court precedent, precedent of this court, and the statutory scheme promulgated by Congress, which provides for judicial review pursuant to the Administrative Procedure Act only when no other adequate remedy is available. Second, the majority opinion allows the plaintiffs an opportunity to collaterally attack a clear and controlling precedent of this court and moreover it frustrates the legislative purpose of the Tucker Act.
Id. at 648. In Judge Gajarsa’s view, “the district court lack[ed] jurisdiction under Section 702 because the [Court of Federal Claims] can provide an adequate remedy for the purposes of Section 704.” Id. at 654.
In Con Ed II, Judge Gajarsa joined in the panel’s unanimous decision to adopt the result suggested by his dissent in Con Ed I,
The court now turns to the Federal Circuit’s commentary on the applicability of Bowen to different types of disputes, and next, to the Federal Circuit’s discussion of money judgments, res judicata, and retrospective versus prospective relief.
The court in Con Ed II rested its decision on section 704, finding that APA jurisdiction had been trumped by the existence of an adequate remedy in the Court of Federal Claims. Id. at 1385-86. Bowen, to be sure, had held that in that Medicaid reimbursement dispute, an adequate remedy did not exist in the Court of Federal Claims. The Federal Circuit proceeded to identify aspects of the dispute in Con Ed II that could be distinguished from the facts of Bowen.
First, the Federal Circuit declared that Bowen “does not enunciate a broad rule that
The Federal Circuit also explained how a money judgment in the Court of Federal Claims offers complete relief to a party seeking equitable relief such as a declaratory judgment and an injunction of required payments. Id. at 1384. The court reasoned that the nuclear power utilities in the district court, despite the drafting of their complaint, “in reality [were] seeking] only prospective monetary relief’ from the required payments under EPACT. Id. at 1385. In the Court of Federal Claims, these same plaintiffs had claims pending for retrospective monetary relief, seeking the return of their initial payments under EPACT. The Federal Circuit held that a money judgment in the Court of Federal Claims would provide an adequate remedy for both sets of claims.
The mechanism for providing such complete relief would be the principle of res judicata. Id. at 1384-85. Should the utilities win in the Court of Federal Claims, not only would they recoup their initial payments with interest, but the United States would be bound by the ruling under the principle of res judicata and could no longer require unlawful payments under EPACT. “[A]n explicit grant of prospective relief’ would not be necessary. Id. at 1384. Because the nuclear power utilities could receive an adequate remedy in the Court of Federal Claims, section 704 deprived the plaintiff-utilities “of duplicative district court adjudication.” Id. at 1386.
To the court’s knowledge, the holding in Con Ed II has not yet been commented on, approved or disapproved by the Supreme Court. The Federal Circuit has continued to apply the principles discussed in Con Ed II in other decisions weighing Tucker Act and APA jurisdiction.
Christopher Village
Although Christopher Village, L.P. v. United States,
The Federal Circuit explained that Con Ed II had held “that a litigant’s ability to sue the government for money damages in the Court of Federal Claims is an ‘adequate remedy’ that precludes an APA waiver of sovereign immunity in other courts.” Id. at 1327 (citing Con Ed II,
Doe
Only a couple of months after Christopher Village was issued, another panel of the Federal Circuit ejqilored the boundary between Tucker Act and APA jurisdiction. Doe v. United States,
The fact that the injunctive relief Doe sought would ultimately involve a transfer of money, i.e., a payment by the government to the medical service provider that would perform her abortion, did not bring her complaint under the Little Tucker Act; it is not enough that the injunctive relief sought by a plaintiff, if granted, would cause the defendant to expend money.
Id. at 1313-14 (citing Bowen,
Although the merits of plaintiff-Doe’s claim concerned an alleged unconstitutional violation of due process, the jurisdictional question turned on the nature of the relief she sought. Id. at 1310, 1313. The Federal Circuit analyzed her claims and found that the relief requested was “only an injunction requiring [the United States] to authorize payment for the abortion and related services, and a declaration that the statutory and regulatory prohibition on paying for aborting anencephalic pregnancies was unlawful.” Id. at 1313. The Circuit ruled out the possibility that Doe’s request for equitable relief was simply a claim for money damages in disguise, as was the case in Brazos, Con Ed II and Christopher Village. Id. First, the court noted that the injunction would force the government to provide a service, rather than a payment to the plaintiff. Second, the harms plaintiff sought to avoid were the psychological and physical effects of carrying an anencephalic fetus to term, harms that could not be remedied by a simple payment of money damages after the fact. Third, the court noted that prospective monetary relief would not have been available to redress the plaintiffs alleged inability to pay for an abortion, in that the government’s health care system “provides no mechanism for prospective financing of anticipated medical procedures, and hence there would be no money-mandating statute or
Finally, the Federal Circuit distinguished a similar appeal it had decided on the same day, Britell v. United States,
Britell is similar to this case in that it involved a military dependent who sought to have the military dependents’ medical care system pay for an abortion to terminate her anencephalic pregnancy. Despite the similarity in the facts, however, Britell differs procedurally from this case in an important respect. In Britell, the plaintiff obtained an abortion on her own and paid for it herself before filing suit against the government. Accordingly, her lawsuit simply sought reimbursement of the costs of the abortion and the related medical services. Her action was therefore clearly and solely for money damages and thus fell squarely within the Little Tucker Act. In this case, by contrast, Doe from the outset sought injunctive relief, not money damages. She claimed, and the district court ruled, that the after-the-fact payment of money damages would not have been an adequate remedy in her case. She was not requesting reimbursement, but was requesting the provision of a service that she was unable to obtain on her own. While the government’s payment of money to the [health-care] provider was required to ensure that Doe would receive that service, her request was nonetheless for equitable relief, not damages.
After the government provided Doe’s abortion pursuant to the injunction, Doe had no further claim against the government for money damages. In the aftermath of the abortion, the government moved to dismiss the complaint, presumably to set the stage for an action to recover the expenses of the abortion from Doe, and Doe moved for judgment on the pleadings, presumably to obtain a judgment that she could invoke to resist such an action. Unlike Britell, however, this case never became an action against the government for money damages, and it thus never became an action under the Little Tucker Act.
Id. at 1316-17 (citation omitted). Because the nature of the relief requested in Doe was not initially, and did not become, a request for money damages so as to deny APA jurisdiction under section 702, the district court had jurisdiction over the suit under the APA.
c. The Decisive Factor for Determining Whether This Court Has Jurisdiction under Bowen
The jurisdictional holding in Bowen is complex. Indeed, the subsequent decisions of the Federal Circuit interpreting the jurisdictional holding of Bowen, a few of which are described supra, offer a kaleidoscopic view of Bowen as it applies to various jurisdictional controversies. However, it is possible to discern one primary factor that in this case is determinative of whether this court, or a district court, has jurisdiction over the claims in Count I. The pivotal question is whether this court can provide the District with an adequate remedy in its quest for reimbursement for the mental health care of certain individuals described by the Transfer Act.
In this ease a money judgment would be an adequate remedy for the claims in Count I. The financial relationship linking the District and HHS implicated by the claims in Count I most resembles the relationship of the parties in Con Ed II. Embodied in their duplicative suits, the nuclear power utilities had retrospective and prospective claims concerning a tax they were required to pay regularly to the United States. See Con Ed II,
Nothing in Bowen commands a different result. Although the Bowen Court held in that case that the State’s claims did not run afoul of section 704 “because the doubtful and limited relief available in the Claims Court is not an adequate substitute for review in the District Court,”
Here, the Transfer Act, as it relates to mental health services, identifies in a few short phrases three categories of individuals whose care shall be reimbursed by the federal government. 24 U.S.C. § 225g(b)(l). There is no federal agency policy to interpret, no regulatory framework, and no local law issues that affect the simple transaction of HHS paying the bill for these mental health services. Thus, this court is an appropriate forum for resolving the claims in Count I, because none of the concerns of the Supreme Court in Bowen regarding the inter-governmental complexities of the Medicaid program are applicable to this case.
It is also clear that the payment issues in Bowen were far more convoluted than the payment issues here. Indeed, the size and complexity of a State’s ongoing Medicaid accounting relationship with the United States goes far beyond simple reimbursement by the federal government for delivered services:
Although the federal contribution to a State’s Medicaid program is referred to as a “reimbursement,” the stream of revenue is actually a series of huge quarterly advance payments that are based on the State’s estimate of its anticipated future expenditures. The estimates are periodically adjusted to reflect actual experience. Overpayments may be withheld from future advances or, in the event of a dispute over a disallowance, may be retained by the State at its option pending resolution of the dispute.
Bowen,
One of the reasons advanced by the Supreme Court in Bowen for its holding that the district court was the appropriate forum for a Medicaid disallowance dispute was that “the quarterly payments of federal [Medicaid] money are actually advances against expenses that have not yet been incurred by the State,” so that the Claims Court would have difficulty in awarding a money judgment when the State might not be able to show a specific sum was owed to it. Id. at 907,
Finally, although the jurisdictional analysis in Bowen does not depend on an argument based upon judicial economy, it does appear that protracted litigation over jurisdiction is
In the instant case, the court notes that defendant’s invocation of Bowen to challenge Tucker Act jurisdiction over ^the claims in Count I is somewhat perplexing.
2. Subject Matter Jurisdiction Over Count IV
Defendant argues, with respect to repairs and renovations of the Hospital, that this court lacks jurisdiction over the District’s claims in Count IV because the applicable section of the Transfer Act regarding the physical plant audit does not contain language directing the payment of funds to the District. The court must decide whether the Transfer Act mandates the payment of money for the repairs and renovations of Saint Elizabeths contemplated by the Act. See Fisher,
The court finds subject matter jurisdiction for the claims in Count IV. The Transfer Act required HHS to conduct a financial and physical plant audit of all existing facilities at the Hospital by January 1, 1986. Id. § 225b(f)(l). The physical plant audit was necessary to identify any relevant national and District code deficiencies and to estimate the useful life of the existing facility support systems. HHS was required to initiate, no later than October 1, 1987 and to complete, no later than October 1, 1993, such repairs
HHS contracted with AEPA to conduct and complete the audit by January 1986. Once the audit was completed, HHS was to complete the repairs and renovations identified in the audit by October 1, 1993. The 1991 amendment to the Act allowed the District and HHS to agree that the District would conduct the repairs and renovations itself. Id. § 225b(f)(2)(A), (C). The parties have acknowledged that such an agreement occurred. See Def.’s Reply at 10 (stating that correspondence between the District and HHS “further memorialize[s] an agreement between the Secretary and plaintiff as contemplated by [section 225b(f)(2)(C) of] the Transfer Act”); Pl.’s Reply at 30 n. 24 (“This obligation to provide the [repair and renovation] funds is triggered if HHS and the May- or agree, as they did, that HHS will provide the funds to the Mayor to complete the repairs and renovations instead of HHS completing the repairs and renovations itself.”).
The AEPA audit estimated building repair and renovation costs to total $15,983,366 for the buildings the District would permanently incorporate into its mental health system. Pl’s Facts H 24. The AEPA audit also estimated the costs of repairs to facility support systems and infrastructure, including the electrical distribution system, elevators, sanitary sewer system, storm sewer system, water distribution system, steam distribution system, steam plant, tunnels, roads, parking lots, and historical wall, to total $16,997,258. Id.; Pl’s App. at 810, 113 (Burnette Aff.). This cost estimate included the repairs and renovations of those portions of the facility support systems and infrastructure that supported the use of the permanent buildings. Pl’s App. at 810, ¶ 3 (Burnette Aff.). Thus, plaintiff alleges that the total liability of the United States, in 1986 dollars, was for $32,980,624 pursuant to the AEPA audit estimates for repairs and renovations. PL’s Mot. at 17.
Plaintiff claims that HHS did not provide sufficient funds to make the repairs and renovations necessary for the permanent buildings. Plaintiff asserts that defendant paid only $20,675,000 of the required $32,980,624, leaving a balance of $12,305,624 unpaid and owing. PL’s Mot. at 17. Factoring in an escalation adjustment for inflation over the years, and the unmet costs of asbestos removal, plaintiff now claims that defendant owes the District $21,187,856.68 for the repairs and renovations to Saint Elizabeths pursuant to 24 U.S.C. § 225b(f)(2)(A), (C). Pl’s Mot. at i.
Payment to the District for the repairs and renovations of the Hospital, once HHS and the District agreed that the District, not HHS, would conduct the work, is clearly mandated by the applicable Transfer Act provision: “The Secretary may enter into an agreement with the Mayor under which the Secretary shall provide funds to the Mayor to complete the repairs and renovations described in subparagraph (A)____” 24 U.S.C. § 225b(f)(2)(C). This provision sets a condition for payment by the United States, a condition which has been met in this case by the agreement between HHS and the District. This language, despite the use of the word “may,” is money mandating. See Doe v. United States,
Defendant argues that Bowen precludes this court’s jurisdiction over the claims in Count IV of the complaint. This argument has no merit. The District’s claims in Count IV amount to the one-time presentation of a bill to bring the transferred facility up to codes and standards. There will be no ongoing relationship between the parties nor will there be an open account to monitor, as there was in the Medicaid disallowance dispute in Bowen,
3. Subject Matter Jurisdiction Over Count V
Defendant does not challenge the court’s subject matter jurisdiction as to Count V. Count V of the complaint alleges HHS’s failure to meet certain contractual requirements embodied in the September 30, 1987 Use Permit entered into by defendant and plaintiff. Pursuant to this agreement, HHS allegedly granted permission to plaintiff to use and occupy most of the West Campus. The term of the Use Permit was from October 1, 1987 through September 30, 1991. Compl. U 43. According to plaintiff, defendant agreed in the Use Permit to reimburse plaintiff for the costs of preserving, maintaining and repairing vacant buildings located on the West Campus.
Count V alleges an express contractual agreement between the United States and plaintiff, which gives this court Tucker Act jurisdiction. “The requirements for a valid contract with the United States are: a mutual intent to contract including offer, acceptance, and consideration; and authority on the part of the government representative who entered or ratified the agreement to bind the United States in contract.” Total Med. Mgmt., Inc. v. United States,
4. Subject Matter Jurisdiction Over the Remaining Claim in Count VI
As noted supra note 3, the jurisdictional analysis of the claims in Count I applies with equal force here. Count I and Count VI both request payment for mental health services provided to patients allegedly identified by the Transfer Act as patients for whose care the federal government undertakes financial responsibility. Count VI, related to referrals from the Marshals Service, was settled by the parties, except for plaintiffs claim for prejudgment interest. The fact that only a claim for prejudgment interest remains does not affect the court’s jurisdiction over Count VI — according to Fisher, if the statute itself is money mandating but the relief requested is outside the scope of the statute, this court has jurisdiction and then must proceed to rule on the merits of the claim.
B. Arguments on the Merits
1. Count I: Reimbursement For Patient Services
In Count I of the complaint plaintiff seeks payment for defendant’s failure to pay for mental health diagnostic and treatment services for patients referred to the Hospital for mental health treatment by the Secret Service pursuant to 24 U.S.C. § 225g(b)(1)(A)-(B). In particular, plaintiff seeks $11,010,262.51 for the cost of providing mental health services to 355 patients that were referred to the Hospital from October 1,1987 through August 22, 2002. See Compl. ¶¶ 10,
Specifically, plaintiff seeks reimbursement for services provided to the people who were either referred to the District’s mental health system “by a responsible Federal agency,” 24 U.S.C. § 225g(b)(l)(A), or people who were “referred to the system for emergency detention or involuntary commitment after being taken into custody (i) as a direct result of the individual’s action or threat of action against a Federal official, [or] (ii) as a direct result of the individual’s action or threat of action on the grounds of the White House or of the Capitol,” id. § 225g(b)(l)(B), from October 1, 1987 through August 22, 2002. Compl. 1110; Pl.’s Reply at 4. Plaintiff claims that 206 individuals were taken into custody for action or threat of action at the White House; 74 individuals were taken into custody for action or threat of action against Secret Service protectees; 22 individuals were taken into custody at foreign embassies; and that 53 individuals were taken into custody in the exercise of federal responsibilities or as a result of other federal interests during the time period.
Defendant claims that plaintiff is not entitled to the relief sought in Count I because although defendant admits that employees of the Secret Service are believed to have made applications to the District’s mental health system for emergency hospitalization of certain persons, plaintiff has not demonstrated that reimbursement for the claimed costs of mental health services is mandated under the Act.
a. Payment from the Appropriate Federal Agency
The Act states that “the appropriate Federal agency is directed to pay the District of Columbia the full costs for the provision of mental health diagnostic and treatment services for [certain] types of patients.” 24 U.S.C. § 225g(b)(l). Defendant argues that the Secret Service is not the “appropriate Federal agency” that should bear the burden for costs for mental health care services, and accordingly, that the Secret Service does not owe plaintiff any money. Plaintiff comes to the opposite conclusion, arguing that “the Secret Service is the ‘appropriate federal agency1 to pay for the 355 individuals referred to Saint Elizabeths Hospital as a result of a federal interest or in the exercise of federal responsibilities, as required by 24 U.S.C. § 225g(b)(l).” Pl.’s Reply at 2. It is
It is regrettable that the statute does not clearly define which federal agency is the appropriate one to pay the District, but for the purposes of determining liability, it is only necessary, and this court’s sole mission, is to determine whether the United States must pay the District for its claims in Count I. Once liability has been established, if there is an unpaid liability of the United States, the parties are encouraged to settle on the amount due for the claims in Count I. Even if the court is eventually asked to intervene to determine the amount of a money judgment for plaintiffs claims in Count I, there is no requirement for this court to identify which federal agency or agencies bear the fiscal responsibility for that judgment entered against the United States. The court refrains from commenting on which federal agency is the “appropriate” one, because such commentary would be pure dicta.
b. Referral by a Responsible Federal Agency
The Act requires reimbursement from the United States for mental health diagnostic and treatment services when a “responsible Federal agency” has referred a patient to the District’s mental health system. 24 U.S.C. § 225g(b)(l)(A). The term “responsible Federal agency” is not defined in the statute. Plaintiff does not categorically assert that the Secret Service qualifies as a responsible federal agency, but instead asserts that the Secret Service is either the responsible or the appropriate federal agency under the statute, and that in any case, the Secret Service should pay the District for all referrals under section 225g(b)(l)(A) (stating that services pursuant to referrals by a responsible federal agency should be reimbursed) and section 225g(b)(l)(B)(i)-(ii) (stating that services pursuant to referrals for emergency detention or involuntary commitment under certain circumstances should be reimbursed). PL’s Mot. at 7-8. Defendant, on the other hand, argues that the Secret Service is not a “responsible Federal agency” under section 225g(b)(l)(A). Def.’s Mot. at 14. The court disagrees with defendant, and finds that the Secret Service is a “responsible Federal agency” pursuant to section 225g(b)(l)(A).
The court begins with the language of the statute. When interpreting statutory language, the court’s analysis always begins with the plain language of the statute, and then moves on to other extrinsic aids, such as legislative history, rules of statutory construction, and the construction placed on the statute by the agency which administers it; the ultimate objective being to discern, if possible, the intent of Congress. Johns-Manville Corp. v. United States,
These tenets are pertinent for the interpretation of an undefined term appearing in a statute. A court first looks to the plain meaning of the words used. Cassman v. United States,
First, the court must decide whether or not the Secret Service is an agency. The United States Secret Service was part of the Department of the Treasury until late 2002, at which time it became part of the newly
The common meaning of the word “agency” supports the court’s interpretation of that term within the Transfer Act. The word agency is commonly used when referring to the Secret Service. The Secret Service is considered a federal law enforcement agency for border security and protection. See 8 U.S.C. § 1701(4). The Secret Service is referred to as an agency that was transferred from the Department of the Treasury to the Department of Homeland Security. See Department of Homeland Security, Office of the Secretary, 69 Fed.Reg. 73,186 (Dec. 13, 2004). The Secret Service is now defined as an agency under the Department of Homeland Security. See Black’s Law Dictionary 1571 (8th ed. 2004) (“A law enforcement agency in the U.S. Department of Homeland Security responsible for providing security for the President, Vice President, certain other government officials, and visiting foreign diplomats, and for protecting U.S. currency by enforcing the laws relating to counterfeiting, forgery and credit-card fraud.”). It is logical to presume that the drafters of the Transfer Act would have considered the Secret Service to be a federal agency as well.
Next, the court must address whether the Secret Service is a “responsible Federal agency” under the Act. See 24 U.S.C. § 225g(b)(l)(A). This term is also undefined by the Transfer Act. Defendant valiantly tries to prove that Congress did not intend the Secret Service to be among those federal agencies that could be considered responsible for referrals to the District’s mental health system under section 225g(b)(l)(A), but these arguments are strained and of no avail. For instance, defendant argues that because some of the referrals by the Secret Service were done in the course of “offering] neighborly assistance to the Metropolitan Police” of the District, these referrals do not indicate responsibility on the part of the Secret Service for payment. Def.’s Mot. at 15. This argument conflates the idea of responsibility for payment, a concept found in section 225g(b)(l), with the definition of a responsible federal agency as a referral source, a concept found in section 225g(b)(l)(A).
The Secret Service “protects the President and Vice President of the United States and their immediate families; the White House; the Vice President’s residence; major Presidential and Vice Presidential candidates; former Presidents, their spouses, and their minor children; foreign diplomatic missions located in the metropolitan area of the District of Columbia; and foreign heads of state visiting the United States.” Def.’s Mot. at 15. Furthermore, “[w]hen directed by the President, the [Secret Service] is authorized pursuant to 18 U.S.C. § 3056(3) to assist in security operations at special events of national significance.” Id. These core responsibilities require the Secret Service to respond, on an as-needed basis, to the threatening behavior of persons exhibiting the symptoms of mental illness. The Secret Service’s response to these volatile situations must, of necessity, include the option of referring these individuals to the District’s mental health services system for diagnostic and treatment services. Therefore, pursuant to the Transfer Act provision codified at 24 U.S.C. § 225g(b)(l)(A), the Secret Service is a prime example of a “responsible Federal agency.”
Another of defendant’s principal arguments against including the Secret Service in the category of responsible federal agencies is that “there is no federal statute or regulation that identifies the Secret Service as an appropriate or responsible federal agency for such referrals.” Def.’s Reply at 15. It is true that the Transfer Act does not so identify the Secret Service in particular, and there is no regulation on this topic. But that is because “responsible Federal agency” is nowhere precisely defined — it is not as if the Secret Service had been left off a list found elsewhere in the statute. Following defendant’s logic to its ultimate conclusion, the statutory provision concerning referrals from “responsible Federal agenc[ies]” would be surplusage and have no meaning, because the statute neglected to list these agencies. The court must interpret the Transfer Act so as to give meaning to all of its provisions. See Horner v. Merit Sys. Prot. Bd.,
The legislative history of the Act shows that Congress, in an effort to facilitate the transition of the Hospital from HHS to the District, intended that the District be responsible for the cost and care of mental health patients who are simply District residents, but that the federal government should bear the cost of patients referred to the system under federal auspices; for example, under national programs or as a result of federal agencies protecting the seat of government. See H.R.Rep. No. 98-1024, at 15 (1984) (stating that section 225g(b) “authorizes the head of the appropriate federal agency to pay the
With respect to patients referred to the Hospital by the Secret Service, it is clear, based on the legislative history of the Act in conjunction with the plain wording of section 225g, that the federal government, and not the District, should be the entity covering the costs of those patients’ treatment in the District’s mental health system. The types of patients referred to the system by the Secret Service are patients for whom the United States meant to shoulder the cost of care under the Act, while the District was to focus on patients of local concern. Thus, the court finds that the Secret Service is a “responsible Federal agency” for the purpose of section 225g(b). Accordingly, the court finds defendant liable under the Act for the costs of those patients referred to the District’s mental health system by the Secret Service.
Plaintiff also states that although the vast majority of the patients referred to the District’s mental health system were referred by Secret Service personnel, some of the patients were referred to the system by the United States Park Police (Park Police) and the United States Capitol Police (Capitol Police). Pl.’s Mot. at 14 n. 9. With respect to the Park Police, the court finds that the Park Police is a federal agency, but not a responsible federal agency for the purposes of section 225g(b)(l)(A). The Capitol Police is not a federal agency and therefore it cannot be a responsible federal agency for the purposes of section 225g(b)(l)(A).
The National Park Service is a component of the Department of the Interior. 16 U.S.C. § 1 (2000); see also Pub.L. No. 64-235, § 1, 39 Stat. 535 (1916) (creating the National Park Service as a service under the Department of the Interior). Park Police officers are employees of the National Park Service authorized to make arrests and conduct investigations, and maintain law and order within the National Park system. 16 U.S.C. § la-6(b). The United States Park Police has also been referred to as a “sub-agency” of the Department of the Interior. See Saffron v. Wilson,
Under Title V of the United States Code which describes the organization of the federal government, the Department of the Interior is defined as an “Executive department.” 5 U.S.C. § 101. Because it is an executive department, the Department of the Interior is also an “Executive agency.” Id. § 105. Thus, for the same reasons that the court finds the Secret Service to be a federal
The United States Park Police has a law enforcement mission that greatly resembles the mission of the District’s Metropolitan Police, except that the Park Police officers focus primarily upon federal property. See D.C.Code Ann. § 5-201 (“The watchmen provided by the United States government for service in any of the public squares and reservations in the District of Columbia shall, after August 5, 1882, be known as the ‘United States Park Police.’ They shall have and perform the same powers and duties as the Metropolitan Police of the District.”); United States Department of Interior, National Park Service, United States Park Police, History, at http:// www.nps.gov/uspp/authistpag.htm (last visited August 11, 2005) (“The [Park Police] provides highly trained and professional police officers to prevent and detect criminal activity, conduct investigations, apprehend individuals suspected of committing offenses against Federal, State and local laws, ... [and,] [s]ince [1882], the duties of the U.S. Park Police have been synonymous with that of an urban police department.”). Although Park Police officers are “frequently requested to provide protection for dignitaries, such as the President of the United States and visiting foreign heads of state,” United States Park Police, History, at http: //www.nps.gov/uspp/authistpag.htm, this urban police force has a much broader mission “[t]o provide highly trained and professional police officers to prevent, investigate and detect criminal activity, and to apprehend violators of rules, regulations and laws, and provide assistance of a non-enforcement nature within designated areas of the National Park Service,” United States Park Police, Mission and Value Statement, at http://www.nps.gov/uspp/mission.htm. Although the Park Police is a federal agency, the mission of this urban police force based in metropolitan Washington, D.C.,
The urban police duties of the Park Police include executing search warrants in private homes, going undercover to make drug arrests and conducting traffic stops. See, e.g., Bolden v. United States,
Unlike the Secret Service and the Park Police, the Capitol Police does not fall under any executive department. The Capitol Police is an entity created by Congress and overseen by the Capitol Police Board, which consists of the Sergeant of Arms of the United States Senate, the Sergeant of Arms of the House of Representatives, and the Architect of the Capitol. See 2 U.S.C. §§ 1901, 1961. The duties of the Capitol
Because the Capitol Police is part of the legislative branch and is not part of the executive branch, the court cannot conclude that the intent of Congress was to include the Capitol Police in the category of entities referred to as federal agencies. In several sections of Title V of the United States Code, the Capitol Police would be excluded by the definition of an “agency.” See, e.g., 5 U.S.C. §§ 302, 551(1)(A), 804, 902, 5721. Accordingly, inasmuch as the Capitol Police cannot be considered a federal agency in the first instance, the Capitol Police cannot be properly characterized as a “responsible Federal agency” under the Transfer Act. Thus, any referrals from the Capitol Police to Saint Elizabeths do not fall within section 225g(b)(l)(A).
Referrals from the Capitol Police or the Park Police may, however, fall within sections 225g(b)(l)(B)(i), 225g(b)(l)(B)(ii) or 225g(b)(l)(B)(iii): “Any individual referred to the [District’s mental health] system for emergency detention or involuntary commitment after being taken into custody (i) as a direct result of the individual’s action or threat of action against a Federal official, (ii) as a direct result of the individual’s action or threat of action on the grounds of the White House or of the Capitol, or (iii) under chapter 9 of Title 21 of the District of Columbia Code [allowing referrals to Saint Elizabeths of individuals apprehended on federal property in nearby Virginia or Maryland].” 24 U.S.C. § 225g(b)(l)(B). Although the District may not rely on section 225g(b)(l)(A) in seeking reimbursement for referrals from the Capitol Police or the Park Police, sections 225g(b)(l)(B)(i)-(iii) clearly manifest the intent of Congress to pay for the mental health care for people who have threatened federal officials or who are taken into custody under the conditions and in the geographic areas specified by sections 225g(b)(l)(B)(ii)-(iii) and who are then referred to the District for emergency detention or involuntary commitment. This statutory commitment to payment places more preconditions on these referrals than the broader liability imposed by 225g(b)(l)(A), but reimbursement for these referrals nonetheless addresses the concerns of the drafters of the Transfer Act. Accordingly, the court finds defendant liable for those patients referred to the District’s mental health system by the Capitol Police or the Park Police when those referrals meet the conditions set by any of sections 225g(b)(l)(B)(i), 225g(b)(l)(B)(ii) and 225g(b)(l)(B)(iii).
c. Scope of Defendant’s Liability for Reimbursement
Because the court finds that the Secret Service is a “responsible Federal agency” under 24 U.S.C. § 225g(b)(l)(A), the court need not address whether the patients referred to District’s mental health system by the Secret Service also fall under section 225g(b)(l)(B) which covers patients who took action against or made threats of action against federal officials, or whose actions or threats of action were made on the grounds of the White House (or the Capitol) or who were apprehended on federal lands in nearby Virginia and Maryland. 24 U.S.C. § 225g(b)(1)(B)(i)-(iii). Despite the parties’ extensive briefing on what constitutes a “Federal official” and the meaning of the term “on the grounds of the White House,” the court need not make this determination for the purpose of determining the liability for reimbursement related to referrals by the Secret Service, a “responsible Federal agency” under section 225g(b)(l)(A). Instead, the government’s liability for payment is fixed by § 225g(b)(l)(A) for any referrals made by the Secret Service to Saint Elizabeths.
Defendant reads the Transfer Act too narrowly in this regard. Defendant argues that Congress could not have intended the Secret Service to be included in section 225g(b)(l)(A) as a responsible federal agency
As specifically set forth in subsections 225g(b)(l)(B)(i) and (ii), there are only carefully delineated categories of individuals for which a federal agency can be found to be responsible subsequent to a referral for emergency detention or involuntary commitment: an individual referred as a direct result of an action or threat of action against a federal official ..., or an individual referred as a direct result of an action or threat of action on the grounds of the White House. In specifically identifying only these categories of individuals referred for emergency detention or involuntary commitment, Congress intended to not hold federal agencies responsible for other individuals referred for emergency detention or involuntary commitment.
Def.’s Mot. at 16 n. 10. Defendant’s statutory interpretation cannot be correct, because it ignores the multiple qualifying possibilities for federal reimbursement listed in the Transfer Act, and because defendant’s interpretation would make section 225g(b)(l)(A) superfluous.
The plain language and structure of the Act support another reading. In section 225g(b)(l)(A), the United States commits to paying for the care of two categories of federal interest mental health patients: those specifically designated by any federal statute and those referred by a responsible federal agency, such as, see swpra, the Secret Service. In section 225g(b)(l)(B), the United States commits to paying for the care of three categories of federal interest mental health patients who are defined not by a referral source, (which might be, or might not be, a responsible federal agency mentioned in section 225g(b)(l)(A)), but by the acts of these individuals or the locations where their acts have been committed. Thus, in section 225g(b)(l)(B)(i), threats and actions against federal officials are a qualifying category for federal reimbursement of mental health care by the District; in section 225g(b)(l)(B)(ii), threats or actions on the grounds of the White House or on the grounds of the Capitol are a qualifying category for federal reimbursement; and in section 225g(b)(l)(B)(iii), “Mentally 111 Persons Found in Certain Federal Reservations” in neighboring Virginia and Maryland, as defined by Chapter 9 of Title 21 of the District’s Official Code,
Although there may be some overlap in these qualifying categories, none of the categories are superfluous. Take, for example, the case of a non-resident mentally ill individual who visits the District, because she is drawn to the nerve center of national government. Her entry into the District’s mental health system for diagnosis and treatment is intended by Congress to not burden the District’s budget. If she is apprehended by the Secret Service on the grounds of the White House after yelling that she is going to kill the President, and she is then transported to Saint Elizabeths, several provisions of the Transfer Act, sections 225g(b)(l)(A), 225g(b)(l)(B)(i), and 225g(b)(l)(B)(ii) all apply and mandate reimbursement from the United States for her mental health services.
For referrals from the Capitol Police and Park Police, there are three terms which are undefined in the Transfer Act that limit the extent of defendant’s liability for reimbursement of mental health services. The first is “Federal official,” as a target of action or threats of action. 24 U.S.C. § 225g(b)(l)(B)(i). The parties have not briefed their positions on the meaning of this term as it relates to referrals from the Capitol Police and Park Police, although their briefs do consider the question in the context of Secret Service referrals. In that context, the parties appear to have contemplated that “Federal official” would include high-level federal office-holders such as the President and Vice-President who are protected by the Secret Sendee. See Pl.’s Reply at 10 n. 6 (“There is no need to address whether this term [Federal official] includes ‘any United States employee[,]’ as all of the individuals for whom the District is making a claim under 24 U.S.C. § 225g(b)(l)(B)(i) are persons who the Secret Service is responsible for protecting under 18 U.S.C. § 3056.”) (quoting Def.’s Mot. at 6); Def.’s Reply at 17 (“As it relates to the Secret Service’s responsibility, the term ‘Federal official’ as used in section 225g(b)(l)(B)(i) applies only to those individuals the Secret Sendee is charged with protecting pursuant to 18 U.S.C. § 3056.”). Because this term may not be the subject of controversy as it relates to the small number of referrals from the Capitol Police and Park Police, the court is hesitant to add a gloss to the plain meaning of the term “Federal official.” In the interests of providing some level of guidance, however, although the court does not fix the exact parameters of the term “Federal official” under the Transfer Act, such a term would certainly include, at the very least, highly visible representatives of the sovereign, such as the President, Vice-President, cabinet members, members of Congress, and Supreme Court justices.
The second undefined term limiting defendant’s liability for referrals from the Capitol Police and the Park Police is “on the grounds of the White House,” 24 U.S.C. § 225g(b)(l)(B)(ii), as the locus of actions or threats of action prompting the taking of individuals into custody. The parties vigorously debate the geographic boundaries of the grounds of the White House. See Def.’s Mot. at 7-8 (“[N]ot even those individuals arrested at the gate of the White House fall within the terms of the Transfer Act. Rather it is only those individuals who have trespassed onto the White House grounds by methods such as attempting to climb the White House fence, attempting to rush through the White House gate, throwing objects onto the White House grounds, or handcuffing themselves to the White House fence, who would fall within the purview of the statute.”); id. at 19 (stating that “the phrase ‘on the grounds of the White House’ refers only to the area within the perimeter of the fence around the White House”); Pl.’s Reply at 4 (“Defendant’s argument fails to recognize that, unlike your typical private home, the security needs of the White House extend well beyond its fence____”). Plaintiff argues, persuasively, that the intent of Congress would be thwarted if the large number of “federal interest mental health patients” apprehended just outside the White House fence and referred to Saint Elizabeths for threatening some action within the fence were not covered by section 225g(b)(l)(B)(ii).
Indeed, the language of section 225g(b)(l)(B)(ii) manifests this intent of Congress. It is not only “action” on the grounds of the White House that creates a qualifying
The third term undefined by the Transfer Act limiting defendant’s liability for referrals from the Capitol Police and the Park Police is “on the grounds of ... the Capitol,” 24 U.S.C. § 225g(b)(l)(B)(ii), as the locus of actions or threats of action prompting the taking of individuals into custody. The parties have not briefed their positions on the definition of this term, and this term may not be in controversy. In any case, the area referred to as the “United States Capitol Grounds” has been defined by statute, 40 U.S.C. § 5102 (2000), and this definition delimits the area of the grounds of the Capitol as used in 24 U.S.C. § 225g(b)(l)(B)(ii). The grounds of the Capitol include approximately 274 acres of “buildings ... [and] lawns, walkways, streets, drives, and planting areas,” contained in contiguous and non-contiguous parcels radiating out from the United States Capitol. See Architect of the Capitol, Grounds, at http://www.aoc.gov/ cc/grounds/index.cfm (last visited Aug. 11, 2005); see also Architect of the Capitol, Map of the Capitol Grounds, at http://www.aoc. gov/ec/grounds/cc_map_grounds.cfm.
d. “Full Costs for the Provision of Mental Health Diagnostic and Treatment Services”
Although the United States is liable for the “full costs” of the mental health services provided by the District to individuals whose referrals qualify for reimbursement under 24 U.S.C. § 225g(b)(l), defendant attempts to reduce those reimbursable costs by narrowly interpreting the Transfer Act to limit those costs to the forty-eight hour period following each referral. See Def.’s Mot. at 24 (stating that the Secret Service “can only be found to be responsible for payment of mental health diagnostic and treatment services provided to individuals it referred ... for the first 48 hours of the person’s detention”). This interpretation is not plausible nor correct. Defendant’s argument is premised on this court finding liability for referrals only under 24 U.S.C. § 225g(b)(l)(B)(i)-(ii). For the Secret Service, however, the court has found liability under 24 U.S.C. § 225g(b)(l)(A). None of the language in section 225g(b)(l)(A) could be interpreted as limiting “the full costs” for services to the full costs of only the first forty-eight hours of services.
Indeed, it would be illogical for there to be language in the Act to limit reimbursement to only forty-eight hours’ worth of treatment when clearly there is no language which limits the treatment of qualifying patients under the Transfer Act to merely some fraction of that which mental health experts at the Hospital deem necessary. The purpose and intent of the statute is spelled out in the letter of the law as well as in the legislative history of the Act, which explicitly states that the federal government is to shoulder the full expenses of “federal interest” mental health patients, as identified under the Transfer Act. There is no limiting language to support the government’s assertion that only some fraction of those expenses should be covered. In the face of statutory language which clear
Even where liability for referrals to Saint Elizabeths is, in the case of referrals from the Capitol Police and Park Police, only found in 24 U.S.C. § 225g(b)(l)(B)(i)-(iii), the context of these statutory provisions militates against an interpretation limiting reimbursement liability to services provided within forty-eight hours. The portion of the Transfer Act dealing with payment by the United States is not modified or limited but simply refers to “the full costs for the provision of mental health diagnostic and treatment services for the following types of patients.” 24 U.S.C. § 225g(b)(l). In contrast, the portions of the Act describing the qualifying categories of referrals limits the qualifying referrals in sections 225g(b)(l)(B)(i)-(iii) to those “for emergency detention or involuntary commitment.” Relying on this language, defendant imports various code provisions of the District of Columbia Code to explicate the circumstances of emergency detention and involuntary commitment and to interpret these as setting time period limitations on defendant’s reimbursement liability. Def.’s Mot. at 20-27. None of this interpretation is pertinent however, because the language in section 225g(b)(l)(B)(i)-(iii) describes qualifying referrals in a list of qualifying categories of referrals, and cannot be read to be descriptive of limitations on the period of time for which the United States will be liable for the costs of treatment of those patients. See supra discussion of the language and structure of 24 U.S.C. § 225g(b)(l) in Section II.B.l.c. of this opinion. The court finds that the language of 24 U.S.C. § 225g(b)(l)(B)(i)-(iii) does not limit the liability of the United States to the first forty-eight hours of diagnosis and treatment for persons referred by the Capitol Police and Park Police, and would not so limit the liability of defendant for reimbursement related to referrals of the Secret Service, should this court have erred in finding liability for these referrals under 24 U.S.C. § 225g(b)(l)(A).
Finally, defendant contests the billing rate the District claims for mental health services at Saint Elizabeths. Plaintiff asserts that the District has claimed the full costs of mental health services at “the billing rates approved by the United States, through its Medicare Fiscal Intermediary.” Pl.’s Mot. at 13 n. 7. Plaintiff describes the inpatient billing rate as an “all-inclusive rate [that] includes room and board, and physician and ancillary services.” Pl.’s Reply at 27. The outpatient billing rate is also described as all-inclusive. Id. at 27 n. 20. Plaintiff asserts that the billing rates claimed in this lawsuit “refleet[ ] the reasonable and actual costs of services, as determined by the United States, through [the Centers for Medicare and Medicaid Services].” Id. at 27. According to plaintiff, the United States itself charged these all-inclusive rates, as regulated by the Medicare Fiscal Intermediary, when it operated Saint Elizabeths.
For these reasons, the court grants in part plaintiffs motion for summary judgment on Count I, finding the United States liable for reimbursing the full costs of mental health services for all individuals referred by the Secret Service, as well as those referrals by the Park Police and Capitol Police to Saint Elizabeths which meet the qualifying criteria described supra. Defendant’s liability for reimbursement is not limited to the first forty-eight hours of treatment. The mental health services provided by the District shall be reimbursed at rates established by the Medicare rate for the relevant services. The issue of quantum for Count I is stayed. The court denies defendant’s motion for partial summary judgment as to Count I.
2. Count IY: Costs to Repair and Renovate the Hospital
For Count IV of the complaint, plaintiff now seeks to recover roughly $21 million for
Defendant argues further that the parties entered into an accord and satisfaction, agreeing that a Congressional appropriation of $26.7 million represented payment in full of defendant’s obligation under the Act for the repairs and renovations. Defendant relies on a letter which purportedly states that the $26.7 million transfer satisfied the government’s responsibilities under 24 U.S.C. § 225b(f)(2)(A) to complete renovations of facilities identified in the District’s preliminary system implementation plan. Def.’s Mot. at 41. Defendant argues that Congress’ appropriation of funds for the transfer of the Hospital, and plaintiffs acceptance of those funds, satisfies HHS’s obligations under the Act. This is especially true, defendant argues, in light of the fact that the District could have sought additional appropriations from Congress if it had needed them.
Plaintiff, on the other hand, argues that in preparation for the transfer of the Hospital to the District on October 1, 1987, and to ensure that the District would not inherit the heavy financial burden of repairing and renovating what HHS, itself, described as many obsolete buildings, the Act mandated that HHS incur the financial expense of making the necessary repairs and renovations. As previously discussed, to determine these costs the Act required the Secretary of HHS to contract for a physical plant audit of all existing facilities at the Hospital, which was to be completed by January 1, 1986. HHS contracted with AEPA to evaluate the physical plant and facility support systems under national and District codes and standards. The Act provided that HHS begin, no later than October 1, 1987, and complete, by October 1, 1991, such repairs and renovations to the buildings and infrastructure of the Hospital identified by the District as required for its new comprehensive mental health system. The section was later amended to extend the deadline for completion of repairs and renovations to October 1, 1993, 24 U.S.C. § 225b(f)(2)(A), and to allow HHS to provide the necessary funds to the District, instead of requiring HHS to make the repairs and renovations itself. See Pub.L. No. 102-150, 105 Stat. 980 (1991).
Plaintiff claims that the Act requires HHS to pay for repairs and renovations to the buildings and facility support systems of the Hospital. See 24 U.S.C. § 225b(f)(2)(A). According to the AEPA audit, the estimated cost of repairing and renovating the buildings and associated support systems identified in the final system implementation plan was $32,980,624.
In order to determine what exactly was required of the parties by the Act, the court looks to the Act itself. The Act required HHS to obtain a physical plant audit for use in preparing the system implementation plan. Per the statute, the audit would assist the Mayor in the development of the system implementation plan. The physical plant audit was to be completed by January 1, 1986. 24 U.S.C. § 225b(f)(l). In addition, the Act required HHS to conduct a financial audit of
The system implementation plan would “identify those positions, programs, and functions at [the] Hospital which are proposed for assumption by the District, [and] those facilities at [the] Hospital which are proposed for utilization by the District under a comprehensive mental health system”; “identify any capital improvements to facilities at [the] Hospital ... proposed for delivery of mental health services”; and “identify the specific real property, buildings, improvements, and personal property to be transferred ... needed to provide mental health and other services provided by the Department of Human Services under the final system implementation plan.” Id. § 225b(c). The Act required HHS to begin the proposed repairs and renovations no later than October 1,1987 and complete them by no later than October 1,1993. See id. § 225b(f)(2)(A).
In 1991, Congress amended the Transfer Act to reflect that HHS had the option of paying the District to do the repair work itself. Id. § 225b(f)(2)(A), (C). In this regard, the Act states that “the Secretary may enter into an agreement with the Mayor [of the District of Columbia] to complete the repairs and renovations ... and to make other capital improvements that are necessary for the safe and cost effective delivery of mental health services in the District, except that $7,500,000 of the funds provided the Mayor under such agreement shall be used to make capital improvements to facilities not located at [the] Hospital.” Id. § 225b(f)(2)(C).
After passage of the Act, HHS sought and obtained Congressional approval to provide the District with funds appropriated for purposes related to the Transfer Act. According to defendant, in 1987 Congress appropriated approximately $26.7 million for the specific purpose of carrying out 24 U.S.C. § 225b. Def.’s Mot. at 32 (citing Pub.L. No. 100-202, Title II,
The issue to be determined here is whether HHS has already satisfied its statutory obligation to the District, or, rather, is the District entitled to an additional sum pursuant to the Transfer Act for the repairs and renovations of the Hospital campus.
a. Congressional Appropriations To Fulfill the Purposes of the Transfer Act
To assist the court in discerning whether the United States’ obligation to the District under the Act has been satisfied, the court reviews the legislative history of the appropriations related to the Act. In 1987, Congress made two appropriations to the District in accordance with the Act. The first was for $29 million. See Pub.L. No. 100-202, 101 Stat. at 1329-91 (1987). Congress did not specify for what purpose this appropriation was to be used. The second appropriation was for $62,793,000. Pub.L. No. 100-202, 101 Stat. at 1329-267 (1987). The language of this appropriation reflects that Congress set aside certain monies:
To carry out the Saint Elizabeths Hospital and District of Columbia Mental Health Services Act, $62,793,000, together with any unobligated balances from “Saint Elizabeths Hospital, Construction and Renovation” (except those balances determined by the Secretary of Health and Human Services to be necessary to carry out existing Federal renovation contracts), all of which shall be available in fiscal year 1988 for payments to the District of Columbia as authorized by sections 2, 4, and 9 of the Act; and in addition, $2,609,000 which shall be available through September 30, 1989*335 for Federal activities authorized by sections 6 and 9 of the Act: Provided, That funds appropriated under this heading may be used for multi-year contracts with the District of Columbia for maintenance of Saint Elizabeths Hospital: Provided further, That any amounts determined by the Secretary of Health and Human Services to be in excess of the amounts requested and estimated to be necessary to carry out sections 6 and 9(f)(2) of the Act shall be returned to the Treasury.27
Pub.L. No. 100-202, 101 Stat. at 1329-267.
Defendant asserts that Congress appropriated $26.7 million for HHS to furnish the District with funds for renovations and repairs to the Hospital and that this appropriation, along with the $3.8 million in unobligated funds also disbursed to the District, satisfies the government’s obligation to the District. This appropriation does not, however, necessarily fulfill the mandate under the Transfer Act for repairs and renovations. Although an exhibit referred to by defendant indicates that on April 13, 1989 the District acknowledged that it received approximately $26.7 million pursuant to the Act for Hospital renovations, Def.’s App. at 300,
Merely because Congress has appropriated money and transferred funds to the District does not mean that the government’s obligation has been fulfilled under the final system implementation plan or under the Act, or that the District is precluded from seeking additional funds owed to it. The referenced appropriation and transfer simply mean that the District has received some funds to pay for repairs and renovations. An appropriation with limited funding is not assumed to amend substantive legislation creating a greater obligation. See N.Y. Airways, Inc. v. United States,
Although defendant cites a number of HHS documents, excerpts of testimony and reports from the legislative history of appropriations related to the Transfer Act that
b. Defendant’s Accord and Satisfaction Argument
Defendant argues that plaintiffs acceptance of the congressional appropriation constituted an accord and satisfaction of plaintiffs claims under the Transfer Act for repair and renovation monies. Plaintiff, on the other hand, argues that there has been no legally enforceable accord and satisfaction of the District’s claim for Count IV because Michael English, the District employee whose signature appears on the letter claimed by the government to constitute the accord and satisfaction, see Def.’s App. at 300, had no legal authority to settle the claim. Even if he did, plaintiff argues, he did not agree in that letter that the appropriation satisfied federal responsibilities for the final system implementation plan, which, according to plaintiff, is the operative, legally binding document that determines the extent of liability on the part of the United States. Plaintiff also argues that there was no meeting of the minds with respect to the alleged accord and satisfaction because Mr. English signed the letter under economic duress.
Prior to addressing the issue as to whether defendant’s statutory obligation is discharged by the alleged accord and satisfaction, the court notes that defendant failed to plead accord and satisfaction as an affirmative defense as required under RCFC 8(c) (listing accord and satisfaction as an affirmative defense which “shall” be pled). An affirmative defense is usually waived if not raised in defendant’s answer. See Crocker v. United States,
In this instance, no prejudice has resulted in the assertion of defendant’s accord and satisfaction defense because both parties have fully and adequately briefed the issue in their submissions to the court. See Al-Kurdi,
Defendant has not established a valid accord and satisfaction under the facts as presented. In its most common form, an accord and satisfaction exists as “ ‘a mutual agreement between the parties in which one pays or performs and the other accepts pay
“A claim is discharged by the doctrine of accord and satisfaction when ‘some performance different from that which was claimed as due is rendered and such substituted performance is accepted by the claimant as full satisfaction of his claim.’ ” Case, Inc. v. United States,
In applying the law of accord and satisfaction, the court must first determine whether proper subject matter is present. Proper subject matter is present when the subject matter of the underlying agreement between the parties is the same as that set forth in the documents which are alleged to modify the agreement and to provide the basis for the accord and satisfaction.
The second element of accord and satisfaction is that the parties must be competent to negotiate the modification of the agreement. Thomas Creek Lumber,
The doctrine of apparent authority, which can operate to bind private parties by the acts of their agents, does not apply to the actions of government officials.
In this instance, plaintiff argues that Michael English, Chief Administrative Officer for the District’s Commission on Mental Health Services, did not have the authority to bind the District to a release of claims for further reimbursements from the Act, and the court agrees with plaintiff that no valid accord and satisfaction was created between the parties for this reason. The government has presented no evidence that Michael English had express actual authority to settle this claim on behalf of the District. Under D.C.Code Ann. § 2-406 (2001) (previously codified at D.C.Code Ann. § 1-1206 (1981)), only the Mayor is authorized to compromise any “claim or suit” on behalf of the District. Defendant has proffered no evidence that the District’s Mayor delegated authority to compromise claims to Mr. English. Thus, Mr. English is not alleged to have had implied actual authority either. Because Mr. English was not a competent party to enter into an accord and satisfaction of the District’s claims in Count IV, defendant’s affirmative defense fails. Because one of the four essential elements of accord and satisfaction is not present, the court need go no further in its analysis.
The court notes, however, that even if defendant had satisfied the first two elements of accord and satisfaction, the factual inquiry into the “meeting of the minds” element of accord and satisfaction might also prove fatal to defendant’s defense. Although Mr. English’s letter does state that a unit of the District’s government, the Commission on Mental Health Services “concurs” that the $26.7 million appropriation “satisfies Federal responsibilities” under the Act for “renovations of facilities identified in the District of Columbia Preliminary System Implementation Plan,” Def.’s App. at 300, this statement fails to resolve the issue. An ambiguity remains as to whether the aforementioned appropriation was accepted in full satisfaction of the federal liabilities under the Transfer Act for renovations identified in the final system implementation plan, arguably a document of greater legal significance in determining the liability of the United States under 24 U.S.C. §§ 225b(c)(7), 225e(b), as opposed to the preliminary system implementation plan.
When the discharge of claims alleged to have occurred in an accord and satisfaction is ambiguous, the court may examine extrinsic evidence to determine the intent of the parties. See Jackson Constr. Co. v. United States,
The evidence proffered by plaintiff indicates that Mr. English believed that the $26.7 million appropriation was an insufficient sum to bring the Hospital into compliance with applicable codes. See Pl.’s Supp. App. at 72-74. Mr. English’s deposition testimony also stated that his signature was the result of pressure from HHS and was required in order to obtain and be able to utilize funding for the Hospital. Id. at 66-67. Finally, Mr. English testified that the letter was drafted by the HHS official managing the Saint Elizabeths transition, not by Mr. English. Id. at 64-66. Although a factual inquiry into the dispute over the parties’ alleged meeting of the minds is not appropriate at the summary judgment phase of this litigation, see, e.g., Celotex,
The court finds that no accord and satisfaction was entered into by the District and the United States for the claims in Count IV. Accordingly, defendant’s motion for partial summary judgment on this issue is denied. The court finds that the United States is liable under the Act for the costs to repair and renovate the Hospital and that defendant has failed to establish that this statutory obligation was discharged.
c. Plaintiffs Claim for Escalation Costs
Plaintiff claims that in addition to the $12,305,624 that the federal government has failed to transfer to the District for repairs, plaintiff is entitled to escalation costs for inflation up through November 2002 which brings the total amount owed to the District to $19,159,856.58. PL’s Facts 1126. The parties dispute whether defendant is liable for escalation costs for inflation under the Act. Defendant argues that because the Act provides no waiver of sovereign immunity for escalation costs, defendant cannot be held liable. Although defendant is liable for the costs to repair and renovate the Hospital, for the reasons discussed below, the court finds that plaintiff is not entitled to escalation costs.
Statutory entitlement to prejudgment interest or a cost escalation factor must be established for the United States to be held liable for these types of claimed costs. “In the absence of express congressional consent to the award of interest separate from a general waiver of immunity to suit, the United States is immune from an interest award.” Library of Congress v. Shaw,
Shaw is the seminal case on this issue and deserves a brief discussion. Shaw was a suit arising under Title VII’s fee-shifting provision, 42 U.S.C. § 2000e-5(k). See
According to the Federal Circuit, “in the absence of a clear, explicit waiver of sovereign immunity from liability for interest, the United States government ... pays all judgments and amounts due in what economists call ‘nominal dollars’ rather than in economic ‘real dollars.’ ” Sandstrom v. Principi,
In Sandstrom, the plaintiff sought interest for past-due benefits from the Department of Veterans Affairs, arguing that without interest which would compensate him in real dollars, he would suffer significant loss because the timely-paid benefits would have had greater real value than his nominal dollar award. Id. at 1378. The Court of Appeals for Veterans Claims denied plaintiffs request on the basis of sovereign immunity. Id. The Federal Circuit agreed with the lower court, stating that “[u]nder the longstanding ‘no-interest rule,’ sovereign immunity shields the U.S. government from interest charges for which it would otherwise be liable, unless it explicitly waives that immunity.” Id. at 1379. The Federal Circuit reasoned:
“The case, therefore, falls within the well-settled principle, that the United States are not liable to pay interest on claims against them, in the absence of express statutory provision to that effect. It has been established, as a general rule, in the practice of government, that interest is not allowed on claims against it, whether such claims originate in contract or in tort, and whether they arise in the ordinary business of administration or under private acts of relief, passed by Congress on special application. The only recognized exceptions are, where the government stipulates to pay interest and where interest is given expressly by an act of Congress, either by the name of interest or by that of damages.”
Id. at 1379-80 (quoting Angarica v. Bayard,
The plaintiff in Sandstrom contended that because his request was for a cost-of-living increase, and not for interest, the no-interest rule should not apply.
In U.S. Shoe, the Federal Circuit found that no prejudgment interest was due on unconstitutional taxes exacted by the Harbor Maintenance Tax, 26 U.S.C. § 4461(b) (2000), a tax imposed on commercial cargo port use.
Plaintiff argues that the escalation amount sought here is “not meant to compensate the District for either a ‘loss in the use of money or the value of money,’ ” but rather functions to update the 1986 AEPA cost estimate to a 2003 cost estimate which would satisfy the Act’s directive that HHS provide funds that will be sufficient to complete the repair and renovations to Saint Elizabeths. See Pl.’s Reply at 58 (quoting Shaw,
In Masonry Masters, the District of Columbia Circuit discussed cost-of-living adjustments to attorney’s fees awarded under the Equal Access to Justice Act, 28 U.S.C. § 2412 (EAJA).
The amount of fees awarded under this subsection shall be based on prevailing market rates ..., except that ... attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor ... justifies a higher fee.
28 U.S.C. § 2412(d)(2)(a) (1994). The district court had applied a “historic” enhancement to the base attorney’s fee rate, to correct for cost-of-living increases that occurred during the litigation over the substantive matters in the suit. Masonry Masters,
The District of Columbia Circuit disagreed. Id. at 712. First, the court found that adding a “current” enhancement for attorney’s fees, over and beyond the inflationary adjustment to the rate per hour for services provided in a particular year of the substantive litigation, accomplished more than a reasonable correction to EAJA’s statutory base rate. Instead, it compensated for a delay in payment by providing an interest component. Id. at 711. Second, the court noted that EAJA did not provide an express waiver of sovereign immunity for an interest payment and therefore, such an award was impermissible. “Waivers of immunity from interest must be clearly stated in the language of the statute.” Id. at 712.
The District of Columbia Circuit found that EAJA’s cost-of-living enhancement language fell short of an unambiguous statutory waiver of immunity. Id. The court found that the provision of EAJA allowing fee increases was not comparable to other statutory provisions found to have waived the sovereign immunity of the United States from liability for interest awards. For example, the court noted that in response to Shaw, Congress amended Title VII to provide government employees “‘the same interest to compensate for delay in payment [as is] available ... in cases involving nonpublic parties.’” Id. (quoting 42 U.S.C. § 2000e-16(d) (1994)). Because similarly unambiguous waiver language did not appear in the EAJA fee enhancement provision, the court concluded that EAJA did not waive the government’s immunity from interest on fees.
Masonry Masters does not help plaintiff’s cause. The EAJA section relied upon by the court in Masonry Masters contained specific language allowing for a correction of the statutory base fee rate to reflect a reasonable market rate. It did not permit a further adjustment to compensate for delays in payment that occurred after the attorney’s services were performed. The Federal Circuit has interpreted that EAJA adjustment provision in the same way, and that precedent forbids this court from expanding the liability of the United States for interest beyond the strict parameters established by statute:
In analyzing whether Congress has waived the immunity of the United States, we must construe waivers strictly in favor of the sovereign, and not enlarge the waiver “ ‘beyond what the language requires.’ ” The no-interest rule provides an added gloss of strictness upon these usual rules.
Chiu v. United States,
The Transfer Act contains no language concerning adjustments to costs. Instead, the Act contemplates the disbursement of funds by HHS to the District, earmarked for repairs and renovations to be completed by the District, in an amount sufficient to correct identified deficiencies in existing buildings and infrastructure. 24 U.S.C. § 225b(f)(2)(A), (C). There is nothing in this statutory language which could be read to waive the United States’ sovereign immunity from liability for interest because of a delayed payment of the full amount mandated by the statute, which was to be paid as part of the overall transfer of the Hospital in late 1987. Nor can the court find any support in the Transfer Act for plaintiffs contention that the liability of the United States was fixed, not by the contemporaneous interpretation of the AEPA audit estimate of the
Plaintiff argues that the Transfer Act, “[o]n its faee[,] ... requires that the AEPA cost estimates be adjusted [to 2003 costs] in order to achieve the statutory directive.” PL’s Reply at 61. The provision alleged to accomplish this inflationary adjustment, an adjustment which, according to the caselaw cited, swpra, would be the equivalent of a waiver of sovereign immunity from interest, is “[t]he Secretary [of HHS] may enter into an agreement with the Mayor [of the District] under which the Secretary shall provide funds to the Mayor to complete the repairs and renovations described in [section 225b(f)(2) ](A).” 24 U.S.C. § 225b(f)(2)(C). This is the sole provision in the Transfer Act upon which plaintiff relies for its escalation of costs argument.
This provision cannot be read to compensate the District for the delay in payment of the total amount due at the time of the Hospital’s transfer in 1987. This is exactly the type of argument rejected in Shaw, Chiu and Lichtman, where the plaintiffs attempted to contort statutory terms such as “reasonable” attorney’s fees, “cost of living” adjustments and “securing justice” into waivers of sovereign immunity from prejudgment interest. See Shaw,
It is clear that the cost escalation sought by plaintiff here is an impermissible award of interest. Plaintiff originally sought $12,305,624 in “1986 dollars,” allegedly owed to the District for repair costs, but increased that figure to $19,159,856.58 for what plaintiff refers to as an update to these costs
to the present by using the cost escalation factors developed by the United States Corps of Engineers ____ [T]he escalation factor for the period from 1986 through 2002 is 55.70% .... The total repair and renovation costs ... in January 1986 dollars is $12,305,624. With cost escalation through 2002, the total repair and renovation cost is $19,159,856.58.
Pl.’s App. at 902-03, ¶¶ 3-4. The inflationary factor sought by plaintiff is precisely the type of award barred by the no-interest rule unless there has been an express waiver of sovereign immunity. Here in the Transfer Act, there is no such waiver.
When Congress waives sovereign immunity from interest, the waiver is typically found within the statute itself. Adams v. United States,
“[Tjhere can be no consent by implication or by use of ambiguous language. Nor can an intent on the part of the framers of a statute or contract to permit the recovery of interest suffice where the intent is not translated into affirmative statutory or contractual terms. The consent necessary to waive the traditional immunity must be express, and it must be strictly construed.”
Chiu,
The court may not embark on a search thorough legislative history for waivers of sovereign immunity from prejudgment interest when a statute is either silent or ambiguous on the topic of such waivers. See Marathon Oil Co. v. United States,
The legislative history of the Transfer Act is silent as to whether HHS would be liable for any escalation costs or its equivalent, prejudgment interest. Plaintiff places great weight on HHS documents which tend to show that HHS included a line item for cost escalation due to a delay that would occur subsequent to the January 1986 cost estimates of the AEPA audit, when describing the funds needed for repairs and renovations to Saint Elizabeths pursuant to the Transfer Act. See Pl.’s Reply at 56-57; Def.’s App. at 170 (FY 1988 Justification of Appropriation Estimates); id. at 196 (Program of Requirements for the Renovation of Buildings to Comply with [the Transfer Act]). These documents, viewed with all favorable inferences due to plaintiff in resisting summary judgment on this issue, merely show that HHS provided Congress with updated versions of the estimates in the AEPA audit, upon which Congress acted. There is no support for plaintiffs suggested inference that in acting on those updated cost estimates, Congress adopted a statutory scheme for continually inflating payments based upon updated cost estimates after the passage of the Transfer Act, in order to provide the District with prejudgment interest or cost escalations. Rather, the only logical conclusion to be reached from a review of the data provided Congress by HHS is that a sum certain was proposed, based on AEPA figures that had been adjusted for as much as three and a half years of inflation, and that Congress appropriated funds in an initial attempt to satisfy the liability of the United States under the Act. The court has found, supra, that those initial appropriations may not fully satisfy defendant’s liability for the repair and renovations of Saint Elizabeths. However, the court must conclude
For these reasons, the court finds that plaintiff is not entitled to escalation of the repair and renovation costs of Saint Elizabeths to present day costs.
d. Summary of Liability for Claims in Count IV
The court has found that defendant is liable for the full costs of repairs and renovations mandated by the Transfer Act, and that this liability may not have been fully satisfied by initial appropriations in 1987 and was not discharged by accord and satisfaction. On the other hand, the court has found that the District is not entitled to escalation of the repair and renovation costs of Saint Elizabeths to update any award to reflect increases beyond the estimates of those costs that were produced by the contemporaneous review of the AEPA audit at the time of the Hospital’s transfer to the District. Having established the liability of the United States, the court now encourages the parties to consider reaching an agreement as to the remaining issue of quantum in Count IV, as an attractive alternative to further litigation to determine whatever damages are owed to the District.
Accordingly, plaintiffs motion for summary judgment for Count IV is granted in part as to the liability of the United States for any unpaid balance on funds due under the Transfer Act for repairs and renovations of Saint Elizabeths. The issue of quantum for Count IV is stayed. Defendant’s motion for partial summary judgment for Count IV is granted in part as to escalation costs, and denied in part as to the defense of accord and satisfaction.
3. Count V: Costs for the West Campus
In Count V of the complaint, plaintiff seeks recovery of $200,000 for HHS’s alleged failure to meet the contractual requirements of the Use Permit. Defendant counters that the Use Permit sets forth conditions that plaintiff has not met, and in any event, that plaintiff’s claim was satisfied by payments HHS made in 1988. At issue are costs for the preservation and maintenance of buildings left vacant on the West Campus that were not transferred to the District, but for which the District accepted responsibility during a four-year transition period.
The Use Permit states that:
During the term of this Agreement, the District shall also be responsible for the preservation, maintenance and repair of any buildings on the West Campus not occupied or operated by the District, and shall be reimbursed by the Government up to $1,386,000, for the actual costs thereof. The District shall be reimbursed under this paragraph for the cost of preservation, maintenance and repair of any building initially used or occupied by the District and subsequently vacated only from the date the District provides written notice to the [federal] Government of such vacation.
Def.’s App. at 283, ¶ 13. Plaintiff claims that HHS has paid it approximately $1,186,000 under this clause and that the District is owed the remaining $200,000.
Defendant argues that, on its face, the Use Permit requires HHS to reimburse the District only under certain conditions, those being that: (1) the costs must be associated with “preservation, maintenance and repair” of buildings on the West Campus that are “not occupied or operated by the District”— that is, are vacant; and (2) with respect to buildings that become vacant during the term of the Use Permit, HHS is obligated to reimburse only for costs accruing after notice of vacation is provided to HHS by the District. Defendant asserts that the District may state a claim for $200,000 only if these conditions are met. Defendant argues that the District has not made this showing, challenging the documentation and accounting upon which plaintiff’s claim is based. Defendant also makes a satisfaction argument, that $6.1 million for repairs and renovations of Saint
Plaintiff argues that HHS failed to reimburse the District for the costs of preserving, maintaining and repairing the federally-owned buildings on the West Campus that the District did not use between October 1, 1987 and September 30, 1991, as HHS had promised in the Use Permit. Plaintiff claims that the cost of preserving, maintaining and repairing the nine federally-owned buildings on the West Campus was $2,147,760.71. Pl.’s Mot. at 28-29. The Use Permit capped the reimbursable amount at $1,386,000. According to plaintiff, HHS transferred only $1,186,000 — $200,000 less than it should have. Plaintiff contends that it provided a complete accounting to defendant, including supporting documentation for the costs of providing maintenance, administrative and utility services to the vacant buildings from 1988 through 1991.
The parties both agree that they entered into a valid agreement allowing for the District’s temporary use and occupancy of the West Campus of the Hospital though September 30, 1991, which included a term providing that HHS would reimburse the District for the preservation of vacant buildings up to a certain amount. See Pl.’s Facts 1142; Def.’s Facts 1125; Def.’s App. at 280-85. It is important to note that defendant’s argument that any shortfall alleged by plaintiff was satisfied by the $6.1 million allegedly transferred for repairs and renovations is not pertinent to the Use Permit dispute. Defendant’s alleged $6.1 million payment to the District for repairs and renovations relates to plaintiffs claims in Count IV, claims founded on section 225b of the Act. The $200,000 claim in Count V is a contractual claim for damages under a separate agreement between the parties, the Use Permit. Although there is some overlap in the factual setting underlying these two types of claims, and even though all of these issues arise out of the transfer of the Hospital to the District, the two obligations of the United States are distinct.
Defendant tries to blur the distinction between these two obligations of the United States. The first obligation was to perform or pay for renovations to Saint Elizabeths, pursuant to 24 U.S.C. § 225b(f)(2)(A), (C), to bring up to code facilities that the District needed for its system implementation plan. The second and separate obligation created by the Use Permit was to pay the District to preserve from further deterioration vacant federal buildings that were not going to be used by the District as part of the system implementation plan. The Use Permit, although referencing the Transfer Act and the AEPA audit to describe the repair responsibilities of the District for occupied buildings, see Def.’s App. at 283, U11, makes no reference to funding that would be provided pursuant to the Act for repairs and renovations. The Use Permit also has no term which can be construed to imply that payment obligations under the Use Permit could be satisfied by the District drawing from allocations made pursuant to the Transfer Act for repairs and renovations.
Both parties concede that HHS has transferred $1,186,000 to plaintiff under the Use Permit. Pl.’s Mot. at 29; Def.’s Mot. at 53. The $1,386,000 figure contained in paragraph 13 of the Use Permit is a ceiling on reimbursements. The paragraph does not state that plaintiff is entitled to a total of $1,386,000, but that plaintiff “shall be reimbursed up to $1,386,000.” Def.’s App. at 283 (emphasis added). Accordingly, unless plaintiff can demonstrate that it performed repairs which cost the full $1,386,000 “for the
The court finds that there is a genuine issue of material fact as to whether plaintiff is entitled to recover $200,000 under the Use Permit. Although plaintiff has submitted an affidavit and a summary spreadsheet concerning expenditures of $2,147,760.71 for the preservation of the vacant buildings, Pl.’s Facts ¶ 44; Pl.’s App. at 919 n. 8, 944, this evidence is in dispute. Defendant argues that plaintiff has not proved that the costs of repairs made by the District exceeded $1,186,000, Def.’s Reply at 21, and argues that plaintiffs figures do not accurately reflect costs reimbursable under the Use Permit, id. at 22. Defendant relies on the Declaration of James E. Pittman of HHS, Def.’s App. at 9-10, which, despite its cursory treatment of this topic, raises questions concerning the accuracy of plaintiff’s accounting for its reimbursable building preservation costs.
For this reason, the court grants plaintiff’s motion for summary judgment on Count V only in part, on the issue that HHS funds allocated for the repair and renovation of Saint Elizabeths were not available to satisfy the reimbursement liability of the United States for $1,386,000 under the Use Permit. The court denies plaintiffs motion in part, because genuine issues of material fact prevent the granting of summary judgment as to plaintiffs unpaid building maintenance expenses pursuant to the Use Permit. The court denies defendant’s motion for partial summary judgment as to Count V. The court strongly suggests that the parties review the accounting data relevant to this disputed claim and achieve a settlement based on the evidence which appears to be readily available but which is not before the court.
4. Count VI: Prejudgment Interest
Plaintiff seeks prejudgment interest for the claims in Count VI of the complaint that have been otherwise settled. The court has already addressed the general topic of prejudgment interest in Section II.B.2.C. supra, as it applies to the claims in Count IV of the complaint, and incorporates that analysis here. The claim for prejudgment interest for mental health services provided to individuals referred by the Marshals Service turns on whether the term “full costs,” 24 U.S.C. § 225g(b)(l), would incorporate a waiver of sovereign immunity of the United States from interest on delayed reimbursement of those services.
“In the absence of express congressional consent to the award of interest separate from a general waiver of immunity to suit, the United States is immune from an interest award.” Shaw,
Accordingly, defendant’s motion for partial summary judgment on the issue of the prejudgment interest claimed in Count VI of the complaint is granted.
CONCLUSION
The court finds that subject matter jurisdiction to entertain this matter exists under 28 U.S.C. § 1491(a)(1), because the Transfer Act is a money-mandating statute for the claims in Counts I, IV, V and VI. Accordingly, it is hereby ORDERED as follows:
(1) Plaintiff’s Motion for Summary Judgment on Counts I, IV and V, filed December 20, 2002, is GRANTED in part with respect to Count I as to plaintiffs claim for patients referred to the District’s mental health system under 24 U.S.C. § 225g. Defendant is liable for the reimbursement of the full*349 costs of mental health services for all individuals referred by the Secret Service, 24 U.S.C. § 225g(b)(l)(A), as well as those referrals by the Park Police and Capitol Police to Saint Elizabeths which meet specified qualifying criteria, 24 U.S.C. § 225g(b)(l)(B). Defendant’s liability for reimbursement is not limited to the first forty-eight hours of treatment. The mental health services provided by the District shall be reimbursed at rates established by the Medicare rate for the relevant services. The issue of quantum for Count I is STAYED until further order of the court, and the parties are encouraged to resolve this issue through settlement. Defendant’s Motion to Dismiss or for Partial Summary Judgment on Counts I and PV-VI of Plaintiffs Amended Complaint, filed on June 12, 2003, is DENIED as to Count I.
(2) Plaintiffs motion for summary judgment is GRANTED in part with respect to Count IV as to plaintiffs claim for costs to repair and renovate the Hospital under 24 U.S.C. § 225b. Defendant is liable for any unpaid balance on funds due under the Transfer Act for repairs and renovations of Saint Elizabeths. 24 U.S.C. § 225b(f)(2)(A), (C). Plaintiffs motion for summary judgment as to Count IV is DENIED in part as to escalation costs. The issue of quantum for Count IV is STAYED until further order of the court, and the parties are encouraged to resolve this issue through settlement. Defendant’s motion for partial summary judgment as regards Count IV is GRANTED in part as to escalation costs, and DENIED in part as to the defense of accord and satisfaction.
(3) Plaintiffs motion for summary judgment regarding Count V is GRANTED in part, on the issue that HHS funds allocated for the repair and renovation of Saint Elizabeths were not available to satisfy the reimbursement liability of the United States of up to $1,386,000 under the Use Permit, and DENIED in part as to the United States’ liability for $200,000 because the facts underlying this claim are disputed. The court encourages the parties to settle the claim in Count V. The court DENIES defendant’s motion for partial summary judgment as to Count V.
(4) Defendant’s motion for partial summary judgment is GRANTED with respect to prejudgment interest on otherwise settled claims of Count VI.
(5) As there is no just reason for delay, pursuant to RCFC 54(b), the Clerk’s office is directed to ENTER judgment as stated in this opinion.
(6) The parties shall CONFER and FILE a Joint Status Report on or before November 18, 2005, proposing how to proceed toward a final resolution of plaintiffs outstanding claims in the subject matter.
(6) Each party shall bear its own costs.
Notes
. The second appropriation also gave the District $2,609,000 for 1989 to be used pursuant to 24 U.S.C. §§ 225d and 225g.
. Defendant also challenges the court’s subject matter jurisdiction to entertain this matter under RCFC 12(b)(1). The court addresses this argument in Section II.A., infra..
. The jurisdictional analysis here is also applicable to the Count VI claims for reimbursement for mental health services for patients referred by the Marshals Service, even though the only remaining portion of those claims is plaintiff's claim for prejudgment interest on the amount that was paid in partial settlement of the claims in Count VI of the complaint.
. Defendant's only allusion to this court's jurisdiction over Count I in its opening brief is in a one-sentence footnote concerning a jurisdictional aspect of the relief sought by the District and citing Bowen,
. Although the court refers to the Tucker Act in the singular, there are three Tucker Acts providing waivers of sovereign immunity: “the (Big) Tucker Act, 28 U.S.C. § 1491; the Little Tucker Act, 28 U.S.C. § 1346(a)(2); and the Indian Tucker Act, 28 U.S.C. § 1505.” Fisher,
. The Hollywood Associates Limited Partnership, of which Alfred J. Katz was general partner, was the legal entity developing the property. The court refers to the plaintiff partnership as Katz.
. Other entities administering the housing program at the state and local level were also named as co-defendants.
. The Circuit also pointed out that in NCMS the United States had fought against jurisdiction in the district court and had argued for transfer to the Court of Federal Claims before the Circuit, but also intended to move for dismissal on the basis of lack of jurisdiction in the Court of Federal Claims if the transfer were to be successful.
. The Con Ed II opinion, although not an en banc decision of the Circuit, appears to have had extensive support within the Circuit at the time, because the judges unanimously voted to rehear the appeal and voted in favor of "retum[ing] this appeal to the merits panel." Con Ed II,
. The concurrence in Con Ed II suggested that the Circuit was "under-ruling” Bowen and stated that "it remains to be seen whether the Supreme Court will [disagree with Con Ed II]." Con Ed II,
. The complaint was filed in district court and asserted jurisdiction under both the Little Tucker Act, 28 U.S.C. § 1346(a)(2) (2000), and the APA. Doe,
. The other principal inquiry in Bowen was whether the State was seeking money damages, a type of claim excluded from APA jurisdiction by section 702, or specific relief. However, as the Federal Circuit has shown in Con Ed II and in Kanemoto, when an adequate remedy exists in the Court of Federal Claims and APA jurisdiction is ousted pursuant to 5 U.S.C. § 704, there is no need to decide whether the relief requested is in essence money damages or equitable relief in the form of money. See Con Ed II,
. HHS describes Medicaid as
a jointly funded cooperative venture between the Federal and State governments to assist States in the provision of adequate medical care to eligible needy persons. Medicaid is the largest program providing medical and health-related services to America's poorest people. Within broad national guidelines which the Federal government provides, each of the States:
establishes its own eligibility standards; determines the type, amount, duration, and scope of services;
sets the rate of payment for services; and administers its own program.
*317 Thus, the Medicaid program varies considerably from State to State, as well as within each State over time.
United States Department of Health and Human Services, The Centers for Medicare and Medicaid Services, Overview of the Medicaid Program, available at http://www.cms.hhs.gov/medicaid/ mover.asp (last visited August 10, 2005).
. Defendant has settled similar claims in Counts II, III and most of Count VI, and has admitted to some payment liability for the claims in Count I. See Def.'s Mot. at 1 n. 2 (stating that "defendant does not dispute that it owes the District for the payment of some patient services”).
. The court notes that plaintiff's dollar figure for the claims in Count IV has varied over time. Compare Compl. ¶ 40 (asserting, as of November 3, 1995, that plaintiff is owed "$60,497,253 ... and further escalation costs until paid” for Count IV claims) with Pl.’s Mot. at i (asserting, as of December 20, 2002, that plaintiff is owed $21,197,856.68 for Count IV claims). The court cites the figure used in plaintiff’s motion for summary judgment as the most recent request for relief.
. In support of this position, plaintiff gives examples of patients for whom the District presents a claim. For example, one patient appeared at the northwest gate of the White House stating that he was the "son of God” and that God had sent him to speak to the President. Pl.’s App. at 392-93. As a result, the Secret Service agent concluded that this person was mentally ill, and was likely to harm himself or others if not hospitalized. Pl.’s Mot. at 8-9. The agent completed the application for emergency hospitalization and the patient was admitted to the Hospital where he received, according to plaintiff, mental health diagnostic and treatment services for nine days at a cost of $2,790. Id. at 9. Plaintiff alleges that this patient was referred to the District’s mental health system under the Act as a direct result of his action or threat of action against a federal official and therefore, the Secret Service is the appropriate federal agency to pay for the costs of treatment. Plaintiff asserts that each patient claimed under Count I was referred to the Hospital by a federal authority as a result of a federal interest or in the exercise of federal responsibilities. Plaintiff claims that the Secret Service "has not paid a cent” to the District since October 1, 1987. Id. at 13.
. Exhibits 2 through 5 of plaintiff's supplemental appendix list patients taken into custody and referred to the District’s mental health system, but plaintiff does not identify which entity, among the Secret Service, the Park Police and the Capitol Police, made each referral.
. The court analyzes the "agency” issue as it pertains to the Secret Service as part of the Department of the Treasury, as it was for all of the years for which reimbursement related to Secret Service referrals to Saint Elizabeths is claimed in Count I. The same analysis would apply to the Secret Service as part of the Department of Homeland Security, which, like the Department of the Treasury, is an executive department. See 6 U.S.C.A. § 111 (Supp. I 2005).
. Once an entity has been defined to be an agency, if that agency is part of the federal government, the term "federal agency” should logically be applied in most instances, and is used in that fashion in Tide V. See 5 U.S.C. § 804 (2000) (stating that ”[f|or purposes of this chapter ... [t]he term 'Federal agency’ means any agency as that term is defined in section 551(1)”).
. Defendant’s third argument against the court’s finding of liability under section 225g(b)(l)(A) is discussed infra in Section II. B.l.c.
. There are also units of the Park Police based in San Francisco and New York City. United States Park Police, History, at http:// www.nps.gov/uspp/ authistpag.htm.
. Another area included as an appropriate referral catchment area is Saint Elizabeths hospital itself. D.C.Code Ann. § 21-902 (2001).
. Plaintiff provides a summation of rates for inpatient mental health care services at the Hospital for various time periods. Pl.'s Facts V 9. According to plaintiff, from October 1, 1987 until
According to plaintiff, under the automated billing system for the Hospital, patient census information is transmitted monthly from the automated clinical system to the automated billing system. Id. 1110. Clinical staff members verify the inpatient census each night, and make any changes in leave status for each patient in the automated clinical system. Based on the patient census information transmitted from the automated clinical system to the automated billing system, the patient is billed for inpatient services only for the days the patient is actually receiving services on the ward. There is no charge for leave days of any kind, including unauthorized leave, temporary leave, or convalescent leave. In addition, the automated billing system is designed to automatically exclude the date of discharge from the bill. If the patient is on temporary leave or convalescent leave, he or she may receive services at an outpatient mental health clinic affiliated with the Hospital. In that case, the patient is charged at the applicable outpatient rate for services received. Defendant disputes the accuracy of the records offered by plaintiff and claims that plaintiff may have overestimated some bills due to inaccuracies in the deduction of leave days from total hospital stays or for other reasons.
. Plaintiff, in its second amended complaint of December 12, 2003, added a request for Prompt Payment Act, 31 U.S.C. § 3901 et seq. (2000), interest for its claims in Count I. The parties' briefs for the cross-motions decided here were all filed prior to December 12, 2003, and do not address plaintiff's request for interest on Count I claims. Because this issue has not been briefed by the parties, the court declines to discuss plaintiff’s request for Prompt Payment Act interest for Count I claims in this opinion and leaves this issue for a later date, in the event that the parties are unable to reach an agreement on this matter during their quantum negotiations.
. This figure was considerably higher in the complaint: $60,497,253. Compl. 1140.
. This figure differs from the figure reported in the complaint, in which the AEPA audit is said to have estimated $56,460,562 for the costs of necessary repairs and renovations to Saint Elizabeths. Compl. II38. This difference of approximately twenty-three million dollars is unexplained.
. The remaining language of the appropriation states:
In fiscal year 1988 the maximum amount available to Saint Elizabeths Hospital from Federal sources shall not exceed the total of the following amounts: the appropriations made under this heading, amounts billed to Federal agencies and entities by the District of Columbia for services provided at Saint Elizabeths Hospital, and amounts authorized by titles XVIII and XIX of the Social Security Act. This maximum amount shall not include Federal funds appropriated to the District of Columbia under "Federal Payment to the District of Columbia” and payments made pursuant to section 9(c) of Public Law 98-621. Amounts chargeable to and available from Federal sources for inpatient and outpatient services provided through Saint Elizabeths Hospital as authorized by 24 U.S.C. 191, 196, 211, 212, 222, 253, and 324; 31 U.S.C. 1535; and 42 U.S.C. 249 and 251 shall not exceed the estimated total cost of such services as computed using only the proportionate amount of the direct Federal subsidy appropriated under this heading.
Pub.L. No. 100-202, 101 Stat. at 1329-267 to 1329-268.
. The Act itself also specified particular appropriations. Section 225g(a) of the Act obligated the Secretary of HHS to appropriate funds for grants to the District subsidizing a comprehensive mental health system in the following amounts: $30,000,000 for fiscal year 1988, $24,000,000 for fiscal year 1989, $18,000,000 for fiscal year 1990 and $12,000,000 for fiscal year 1991. 24 U.S.C. § 225g(a).
. Defendant’s exhibit is a letter dated April 13, 1989 in which the District’s Commission on Mental Health Services (CMHS) acknowledged that the District had received $26.7 million from HHS for Hospital renovations. The letter is signed by Michael J. English, Chief Administrative Officer of CMHS.
. In applying the doctrine of accord and satisfaction to a statutory entitlement claim, rather than to a contract claim, the concept of a preexisting and underlying agreement establishing legal rights must be read broadly to include a money-mandating statutory provision. Here in Count IV, instead of a contract right, the parties have argued and the court has analyzed plaintiff's claims as being created through statutory entitlement. A claim may be based on either a contractual or statutory right, and the defense of accord and satisfaction may be raised in either context. See O’Connor,
. “Apparent authority is the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other's manifestations to such third persons." Restatement (Second) of Agency § 8 (1958). This authority “is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.” Id. § 27. "[A] party contracting with the government cannot rely upon apparent authority but instead has the burden of knowing the law and ascertaining whether the one purporting to contract for the government is staying within the bounds of his or her authority." Johnson v. United States,
. Defendant nowhere makes a counterclaim for unauthorized overpayment by HHS for the repairs and renovations of the Hospital, or for misuse of funds by the District. Nor does defendant argue that the doctrine of setoff should apply to Count V. Because defendant has not asserted these counterclaims or this defense, plaintiff has not briefed them, and the court will ignore defendant’s comment that "if anything!,] it is plaintiff who owes defendant.” Def.'s Mot. at 54.
. Plaintiff did not respond to defendant's arguments against the award of prejudgment interest for the otherwise settled claims in Count VI.