58 Fed. Cl. 479 | Fed. Cl. | 2003
OPINION
I. Introduction
Before the Court are Defendant’s Motion to Dismiss and, in the Alternative, for Summary Judgment (hereinafter “Def.’s Mot.”), and Plaintiff’s response and cross-motion for partial summary judgment (hereinafter “Pl.’s Resp.”). The United States (Defendant) seeks dismissal of the portion of count I based on the Assets Forfeiture Fund statute (hereinafter “AFF”) and seeks summary judgment on the breach of contract and unjust enrichment claims that John Doe (Plaintiff) has asserted against it. Plaintiff claims that Defendant has breached a contract that Defendant, through its agency, the Drug Enforcement Administration (hereinafter “DEA”), had allegedly entered into with Plaintiff for the purpose of obtaining information on certain drug activities. Because Plaintiff has not been able to create a genuine issue as to a material fact regarding the elements of an implied-in-fact contract, summary judgment for Defendant is appropriate on the breach of contract aspect of count I and on count II. Further, dismissal of the AFF portion of count I is appropriate because this Court lacks jurisdiction to hear claims based on that statute.
For the reasons set forth herein, Defendant’s Motion to Dismiss, and in the Alternative, for Summary Judgment is hereby GRANTED.
II. Background
On July 17, 1995, Plaintiff signed a Cooperating Individual Agreement (hereinafter “Agreement”) with Defendant.
Plaintiff was arrested on drug charges on October 26,1999, and, on November 19,1999. he was indicted for alleged violations of 21 U.S.C. § 952(a) and 18 U.S.C. § 2. Compl. ¶¶ 13-14. Plaintiff based his defense on public authority because he “believed that he was acting as an agent of [DEA] and had no intentions to commit a crime.” Id. Ex. 3, ¶ 5. Plaintiff was thereafter acquitted of all
On April 18, 2001, Plaintiff filed suit against the United States Department of Justice in the United States District Court for the Southern District of Florida. The case was transferred to this Court on January 9, 2002, because the district court lacked subject matter jurisdiction, as the claim was for a breach of contract claim over $10,000 against the federal government and such jurisdiction lies exclusively in this Court under the Tucker Act, 28 U.S.C. § 1491, et seq. Plaintiff alleges that the indictment was part of a malicious plan to avoid paying him the awards previously owed him. Compl. ¶ 17. He seeks reinstatement of the awards, compensation for time spent in federal prison while awaiting trial, and the costs of defending his criminal case. Id. ¶¶ 26-27.
Defendant filed the present motion on November 26, 2002. The motion originally sought dismissal of counts I and II of Plaintiffs complaint, or, in the alternative, summary judgment on count I. The Court later denied Defendant’s motion to dismiss count I for lack of jurisdiction over the breach of contract claim, and Defendant withdrew its motion to dismiss count II. On January 13, 2003, Plaintiff cross-moved for partial summary judgment for $199,800, the amount that the DEA had allegedly told Plaintiff it would pay for information that led to a seizure of $1.8 million. Pl.’s Resp. at 17.
III. Analysis
A. Motion to Dismiss Count I — The AFF Statute
Plaintiff alleges that this Court has jurisdiction to hear claim I under (1) 28 U.S.C. § 524(c), known as the Assets Forfeiture Fund statute; and (2) the Tucker Act, 28 U.S.C. § 1491(a)(1). Defendant has moved to dismiss the portion of count I that is based on the AFF, and this motion must be granted because this Court has no jurisdiction over claims brought pursuant to the AFF.
The AFF statute created a fund that can be used for law enforcement purposes. 28 U.S.C. § 524(c)(1). For the Court of Federal Claims to have jurisdiction under the AFF statute, it must be money-mandating. 28 U.S.C. § 1491(a)(1); United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Therefore, if the payment of money under the AFF is discretionary, the Court of Federal Claims will have no jurisdiction over it.
The terms of the AFF explicitly place complete discretion with the Government as to when an award will be made. Although the statute provides that the Asset Forfeiture Fund shall be available for “the payment of awards for information or assistance directly relating to violations of the criminal drugs laws,” 28 U.S.C. § 524(c)(1)(B), the statute also requires that “[a]ny award paid from the Fund ... shall be paid at the discretion of the Attorney General or his delegate, under existing departmental delegation policies for the payment of awards.” 28 U.S.C. § 524(c)(2) (emphasis added).
Plaintiff, however, argues that the AFF statute is money-mandating. His argument is based on an analogy between the AFF and the Tariff Act of 1930, 19 U.S.C. § 1619, which requires the payment of awards to claimants who have met specific statutory conditions of providing “original information involving a violation of the customs or navigation laws that has led to the recovery of a fine, penalty, or property.” Doe v. United States, 100 F.3d 1576, 1582 (Fed.Cir.1996). Because binding case law has interpreted 19 U.S.C. § 1619 to be money-mandating, id., Plaintiffs argument is that the AFF statute should be interpreted in the same manner.
Plaintiff disagrees that Hoch and its progeny are relevant here, arguing that they were overruled by the Federal Circuit in Doe, 100 F.3d 1576. Although Doe did eliminate one distinction between the two statutes discussed in Hoch, the other distinction is still viable. Doe stated that a statute need not state a sum certain to be money-mandating.
Congress provided no indication in either the statutory language or legislative history [of § 1619] that it intended to ... render awards wholly discretionary. Cf. 28 U.S.C. 524(c)(1)(C) (establishing Justice Department’s Assets Forfeiture Fund for, inter alia, “at the discretion of the Attorney General, the payment of awards for information or assistance leading to a civil or criminal forfeiture involving any Federal agency participating in the Fund”) (emphasis added).
Doe, 100 F.3d at 1581. Therefore, since nothing in the Doe decision would suggest that the AFF is money-mandating, and since the language of the statute indicates that the AFF is discretionary, this Court has no jurisdiction over the AFF portion of claim I.
Plaintiff also claims that, even if the AFF is not money-mandating, the DEA “cannot deny claims under section 524 for an arbitrary and capricious reason.” PL’s Resp. at 10. Plaintiff asserts that the language of 28 U.S.C. § 1491(b)(4), which says that “[i]n any action under this subsection, the courts shall review the agency’s decision pursuant to the standards set forth in section 706 of title 5,” (emphasis added), means that the Court has jurisdiction to review “arbitrary and capricious” agency decisions. PL’s Resp. at 11. However, Plaintiff ignores the fact that subsection (b) of § 1491 is irrelevant to this case, because it only applies to “solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement,” and not to review of agency decisions in general. 28 U.S.C. § 1491(b)(1). Furthermore, as Defendant correctly states in its motion, Plaintiff has failed to establish any basis for jurisdiction for this Court to review the DEA’s decision. Defs Mot. at 7.
Because the only statutes over which this Court has jurisdiction are money-mandating statutes, and because the AFF is discretionary in nature, it is appropriate to grant Defendant’s motion to dismiss count I based on the AFF.
Although this Court does not have jurisdiction under the AFF, it does possess jurisdiction under the Tucker Act, because claim I is a claim for monetary damages arising out of an alleged breach of contract by the United States, 28 U.S.C. § 1491(a)(1).
B. Summary Judgment Standard
Summary judgment “shall be rendered forthwith 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 material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted). However, courts “are not required to draw every conceivable inference from the record — only those inferences that are reasonable.” Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991), and a party must “make a showing sufficient to establish the existence of [every] element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Further, “[a] genuine issue for trial exists only when a reasonable jury could find for the party opposing the motion based on the record as a whole.” Roger v. Yellow Freight Sys., Inc., 21 F.3d 146, 149 (7th Cir.1994).
C. Defendant’s Motion for Summary Judgment on Count I — Breach of Contract
Plaintiff alleges that it had an implied-in-fact contract with the government; to prove this. Plaintiff must demonstrate (1) mutuality of intent; (2) consideration; (3) lack of ambiguity in the offer and acceptance; and (4) actual authority to bind the government. City of El Centro v. United States, 922 F.2d 816, 820 (Fed.Cir.1990). Although Plaintiff has stated in his affidavit that he had an oral contract with the DEA, PL’s Supp. Br. Ex. 1; PL’s Aff. 114, that bare assertion is not sufficient to create a genuine issue of material fact, for the reasons listed below. Further, Plaintiff has raised no genuine issue of material fact regarding actual authority, the fourth element required for a contract with the Government. Therefore, summary judgment is appropriate for Defendant on count I.
1. Mutuality of intent, consideration, and lack of ambiguity
Plaintiff has not raised a genuine issue of material fact with regal’d to any of the first three elements of a contract with the Government. In Plaintiffs affidavit, he states that, on or about July 17,1995, he and DEA agents Teixeira and Mason “reached an oral agreement.” and that “[b]oth sides were clear on what the terms of this work would be.” PL’s Supp. Br. Ex. 1; PL’s Aff. 11114, 6. Plaintiff further states that the DEA “promised [him] 25% of all seizures [he] effectuated for them in exchange for information [he] provided to them that led to these seizures.” PL’s Supp, Br. Ex. 1; PL’s Aff. H 2. However, an affidavit that Plaintiff wrote himself is not alone sufficient to survive a motion for summary judgment:
The evidence that Plaintiffs placed before the [ ] court in support of the existence of these claimed oral agreements consisted predominantly of allegations contained in [plaintiff]’s self-serving affidavit .... [T]his Court has consistently repeated that “[s]elf-serving affidavits without factual support in the record will not defeat a motion for summary judgment.” In this case, there is a noticeable absence of evidence in the record to support the assertions contained in [the plaintiffl’s affidavit.
Shank v. William R. Hague, Inc., 192 F.3d 675, 682 (7th Cir.1999) (citations omitted) (emphasis added); see also Litton Indus. Prods., Inc. v. Solid State Sys. Corp., 755 F.2d 158, 164 (Fed.Cir.1985) (“[M]ere allegations by declaration or otherwise do not raise issues of fact needed to defeat a motion for summary judgment.”).
Something beyond Plaintiffs affidavit is needed before he can survive this summary judgment motion. For instance, the court in Shank found that plaintiffs failure to produce an affidavit or other evidence from any of the parties with whom he claimed to have
In contrast, Defendant has produced convincing evidence that no oral contract existed between Plaintiff and DEA. This is important because other courts have found that a plaintiffs lack of supporting evidence, combined with a defendant’s strong presentation of evidence, makes the existence of a contract even more unlikely. See, e.g., Shank, 192 F.3d at 682 (stating that the existence of the plaintiffs alleged contract was unlikely, because the parties the plaintiff claimed to have contracted with typically used written contracts, and the terms plaintiff claimed were “in direct conflict” with the terms those parties generally used). Similarly, in the case at bar, it would be inconsistent to find an oral contract with the DEA when “[t]he notion that DEA employees could contract in such a way so as to bind the agency to honor open-ended promises is [] not only inconsistent with the scheme set up by Section 524, but also would thwart the orderly delegation of limited authority.” Khairallah, 43 Fed.Cl. at 64.
Further, Defendant has produced evidence, by way of affidavits, that Special Agents Mason and Teixeira deny that they made promises of “any payments or rewards” to Plaintiff. 2003 Deck of Jessica Mason (hereinafter “Mason Aff.”) 1i 3; 2003 Deck of Carlos Teixeira (hereinafter “Teix-eira Aff.”) 1t 3; Def.’s Reply at A60-61. Defendant has also produced evidence of DEA agency procedures, which state that “advance commitment of funds must have the approval of the concerned SAC [special agent in charge] or CA [country attache].” Def.’s Supp. to Joint Prelim. Status Report Pursuant to Aug. 27, 2002 Special Procedures Order (hereinafter “Def.’s Supp.”) App. 8.b.; DEA’s Agents Manual H 6612.61(A)(2) (emphasis added). Plaintiff makes no allegation that the alleged contract in this case was approved by the special agent in charge or the country attache.
When a motion for summary judgment is made, “the party opposing a motion for summary judgment must take reasonable steps to provide the [ ] court sufficient evidence to create a genuine issue of material fact to defeat the motion,” Shank, 192 F.3d at 683, as summary judgment “is the ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of
2. Actual authority to bind the Government
Even if Plaintiff had been able to show that there was a genuine issue of material fact as to the first three elements of a contract with the Government, he would still be unable to survive Defendant’s motion for summary judgment because no one with actual authority to bind the Government had any interaction with Plaintiff.
a. Agent authority
Plaintiff has the burden of showing that the person who allegedly made promises to him had contracting authority to bind the Government. El Centro, 922 F.2d at 820-21. Plaintiff has failed to meet this burden.
Defendant, however, has presented considerable evidence that no one with actual authority to bind the government made an express agreement with Plaintiff. According to the declaration of Ms. Christinia Sisk, Deputy Assistant Administrator for the Office of Acquisition Management of the DEA, she supervises all contract activities with the DEA. Def.’s Supp. Br. Discussing Janowsky v. U.S. and Institutional Ratification (hereinafter “Def.’s Supp. Br.”) Ex. 1; 2003 Decl. of Christinia Sisk ¶ 1. A delegation of procurement authority (DPA) executed by her or her predecessor is required for a DEA employee to enter into contractual obligations on behalf of the DEA, and thus the United States, Federal Acquisition Regulations, 48 C.F.R. §§ 1.601, 1.602-1; Def.’s Supp. Br. Ex. 1: Sisk Aff. ¶ 4. Ms. Sisk stated in her affidavit that none of the DEA agents who associated with Plaintiff possessed contractual authority to obligate the government to pay Plaintiff the monetary compensation he seeks. Def.’s Supp. Br. Ex. 1; Sisk Aff. ¶ 5. Further, the DEA agents with whom Plaintiff interacted could not have possessed implied actual authority because, “where, as here, an agency adopts internal procedures that preclude the employee from exercising such authority, it is totally inconsistent with the agency’s actions to imply that the agency delegated or granted actual contracting authority. Hence, in such cases, the doctrine of implied actual authority should not apply.” Cruz-Pagan v. United States, 35 Fed.Cl. 59, 63 (1996) (applying the test articulated in H. Landau & Co. v. United States, 886 F.2d 322, 324 (Fed. Cir.1989) to hold that DEA field agents do not have implied actual authority to enter into contracts with informants because contracting authority is not “an integral part of the duties assigned to [them]”).
Plaintiff has failed to rebut Defendant’s evidence. First, Plaintiff says that actual authority to bind the government was “unclear” and that Plaintiffs supervising agents, Mr. Carlos Teixeira and Ms. Jessica Mason, paid Plaintiff on numerous occasions through vouchers in which they were listed as “purchasers.” Pl.’s Resp. at 9. However, the authority to make payments for awards, information, or expenses does not include a delegation to contract on behalf of the Government. Def.’s Supp. Br. Ex. 1; Sisk Aff. ¶ 4. Plaintiff also states that the two agents “expressly told [him] that they had the authority to make these promises.” Pl.’s Aff. ¶ 4. However, this argument is not relevant, as the issue is whether the agents actually possessed the authority to enter into contracts on behalf of the DEA, not whether the Plaintiff believed that they had such authority. As the Supreme Court has said, “those who deal with the Government are expected to know the law and may not rely on the conduct of Government agents contrary to law.” Heckler v. Cmty. Health Serv. of Crawford County, Inc., 467 U.S. 51, 63, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984) (citation omitted); see also Harbert/Lummus Agrifuels Projects v. United States, 142 F.Sd 1429, 1432 (Fed.Cir.1998), cert. denied, 525 U.S. 1177, 119 S.Ct. 1111, 143 L.Ed.2d 107 (1999) (“The fact that [the plaintiff] may have believed that the CO [contracting officer] had authority is irrelevant; [the plaintiff] must prove that the CO had actual authority.”) (citation omitted). Therefore, the Court finds that Plaintiff has not produced enough
b. Institutional ratification
Plaintiff has a stronger argument, however, when he alleges that the element of authority to bind the Government is met by DEA’s “institutional ratification.” Ultimately, though, this argument must also fail.
Plaintiffs argument is based on the Federal Circuit’s rationale in Janowsky v. United States, 133 F.3d 888 (Fed.Cir.1998). PI. John Doe’s Supp. Brief (hereinafter “Pl.’s Supp. Br.”) at 1. In Janowsky, the court stated that a plaintiff alleging a breach of contract by the government must prove that he or she contracted with an agent authorized to bind the government. Id. at 891. The court found that summary judgment was inappropriate because a genuine issue of material fact existed as to whether the Federal Bureau of Investigations (FBI) had ratified the plaintiffs proposed contract by allowing the sting operation at issue to continue and by retaining the resulting benefits. Id. at 892. The pertinent factors relied upon by the Federal Circuit were that the agents lacking contracting authority had some similar type of authority, that at least some agents were aware of a proposed agreement detailing the plaintiffs contractual remuneration, and that the Government received a direct benefit from the unauthorized contract. Id. at 889-92. The Federal Circuit further stated, in Harbert/Lummus Agrifuels, that ratification requires the ratifying officials to have actual or constructive knowledge of the unauthorized acts and to demonstrate acceptance of the contract. 142 F.3d at 1433.
In the present case, Plaintiffs attempt to satisfy this element of a valid contract turns on a factual analysis of the factors necessary for ratification. Viewing the facts in the light most favorable to Plaintiff, as is required by Anderson, 477 U.S. at 255, 106 S.Ct. 2505, it appears that the agents working with Plaintiff did have some authority (such as the authority to administer vouchers for his efforts) and that Defendant did benefit from information provided by Plaintiff, both of which are facts that Defendant does not appear to contest. See DPFUF ¶¶ 4-5. As Plaintiff states, “[The DEA] knew of Plaintiffs work, it allowed him to continue working as an informer, and it accepted the fruits ... of that work.” Pl.’s Resp. at 17. Although Plaintiffs statement appears to be true, there are three flaws in his reasoning: (1) the DEA’s level of knowledge is insufficient; (2) no affirmative action was taken by the DEA that could justify a finding of imputed knowledge; and (3) agency procedures were not followed.
First, knowledge “of Plaintiffs work” is not enough. For there to be ratification, the ratifying officials must “have actual or constructive knowledge of the unauthorized facts ... [which] ‘can only be based upon a full knowledge of all the facts upon which the unauthorized action was taken.’ ” Harbert/Lummus Agrifuels, 142 F.3d at 1433 (emphasis added) (quoting United States v. Beebe, 180 U.S. 343, 354, 21 S.Ct. 371, 45 L.Ed. 563 (1901)). Knowledge is the key distinguishing factor in all cases discussing institutional ratification; that is, in the absence of some indication, beyond mere assertions, that officials with ratifying authority knew of the unlawful promise, institutional ratification has not been upheld.
Thus, the question is whether DEA agents with procurement authority had actual or constructive knowledge of contractual promises to compensate Plaintiff and whether they accepted those promises. In Plaintiffs affidavit, he claims that he was told “that the payments had even been approved by high ranking [sic] officials at DEA.” Pl.’s Supp. Br. Ex. 1; Pl.’s Aff. ¶ 11. However, nowhere in Plaintiffs pleadings does he claim that these “high-ranking officials” knew of the content of the alleged promises made to him by agents Teixeira and Mason. According to the declaration of Ms. Christinia Sisk, who supervises all contract activities with the DEA, she has not ratified “any unauthorized commitments to make an award payment [to Plaintiff] ... on behalf of DEA.” Def.’s Supp. Br. Ex. 1; Sisk Aff. ¶ 3. Further, according to an affidavit by Mr. James Whetstone, Ms.
In many cases, one indicator of knowledge is the presence of some written communication between the parties. For example, in Pern v. United States, a case quite similar to the present case, the court denied compensation to a former confidential informant based on an alleged oral promise, rejecting institutional ratification where “there [wa]s no convincing evidence of any unauthorized promise or contract on which a ratification can even be advanced.” 53 Fed.Cl. 381, 405 (2002). The court convincingly distinguished Janowsky and Dolmatch Grp., Ltd. v. United States, 40 Fed.Cl. 431 (Fed.Cl.1998), saying that, in those cases, “there was undisputed documentation of the proposed contracts at issue.” Id. Although Janowsky did not explicitly mention the knowledge requirement, the plaintiff in that case had submitted a proposed contract to the FBI special agent in charge. The special agent in charge, in response, formulated and submitted to the plaintiff a “different proposed agreement, with the FBI Headquarters’ August 1985 modifications.” 133 F.3d at 889-90 (emphasis added). This language indicates that the FBI had reviewed Janowsky’s proposal and had made changes. It also suggests that it was likely that FBI headquarters knew of the plaintiffs mistaken reliance on a written payment contract. Similarly, in Dolmatch, 40 Fed.Cl. 431, the court denied summary judgment because there was at least some possibility, supported by conflicting evidence, that an official with ratifying authority knew about the plaintiffs expectation of compensation. Hence, there was a slim chance, supported by the fact that the official had received written communication, that the official knew of and acquiesced to the promise. Id. at 438-39. No such documentation is available in the present case, with the exception of the Agreement, which mentions nothing with regard to Plaintiffs expectation of compensation, and which Plaintiff admits “was only an acknowledgment by [him] of what [he] could not do while performing [his] duties.” Pl.’s Supp. Br. Ex. 1; Pi’s Aff. ¶ 4 (emphasis in original).
Further, in Khairallah, a case of strikingly similar facts, the plaintiff claimed that the DEA had promised him 25% of the value of assets seized as a result of his confidential information, 43 Fed.Cl. at 58. The plaintiff in that case proceeded on legal theories akin to the ones Plaintiff presents, but the court found that the most persuasive evidence of institutional ratification consisted of an alleged "intercession” by an Assistant Administrator for DEA Operations, who had contracting authority, and who instructed the field office to “ ‘expedite the paperwork to make sure plaintiff would get paid.’ ” Id. at 64. Even with this evidence, however, the Court of Claims rejected Plaintiffs argument, saying.
Ratification requires knowing acquiescence to an unauthorized agreement by a superi- or who has contracting authority. [Therefore], plaintiff must produce evidence that [the official] acted in such a manner as to manifest “knowing acquiescence” to [the] agreement ____ [A]t the time of the alleged “ratification,” plaintiff was asserting an entitlement based on Section 524. There is no reason to think that [the official] would have viewed the request any differently. The statement [of the official] ... is thus fully consistent with the discretionary payment of awards under Section 524, and is no evidence that [the official] was ratifying a contractual arrangement.
Id. at 64-65 (citations omitted). This Court agrees with the reasoning in Khairallah. A statement instructing the field office to expedite paperwork has nothing to do with the substance of the plaintiffs claim, but is instead only relevant to the timing. Therefore, it makes sense that such a statement would not be evidence of ratification of the contract. The situation is very similar here. Plaintiff would have to assert and produce evidence that an officer of ratifying authority constructively or actually knew of the alleged oral promises made by Special Agents Mason and Teixeira. Plaintiffs allegation that DEA “ratified” payment by obligating funds in the amount of $199.800 under Section 524 does not suffice, because there is no evidence that
Second, Plaintiff cannot show that there was active acceptance of his alleged contract; therefore, he cannot charge the DEA with imputed knowledge of the contract either. See Harbert/Lummus Agrifuels, 142 F.3d at 1433. For a claim of imputed knowledge to succeed, the acceptance by the DEA would have to be active in nature, and silence will not suffice. Id. at 1433-34 (“In the absence of either actual or constructive knowledge of the unilateral contract, the CD’s [contracting officer’s] silence cannot be a ratification of the unilateral .contract. Moreover, ratification must also be based on a demonstrated acceptance of the contract.”) (emphasis added). In the Harbert/Lummus Agrifuels case, the Federal Circuit said that “[t]he mere fact that Harbert/Lummus continued performing its construction activities would not have put the CO [contracting officer] on notice of the existence of a new, unilateral contract because Harbert/Lummus had been performing its construction activities before the offer____” Id. at 1433.
Finally, “agency procedures must be followed before a binding contract can be formed.” Harbert/Lummus Agrifuels, 142 F.3d at 1433 (citation omitted). In Dolmatch Grp., the court denied summary judgment to Defendant, partially because the governmental body’s internal regulations pertaining to the delegation of contracting authority were vague, 40 Fed.Cl. at 439. In contrast, the DEA’s procedures on contracting authority are not vague: “A CS [confidential source] may be paid on a commission basis. However, the use of this approach must be minimized. Any such advance commitment of funds must have the approval of the concerned SAC [special agent in charge] or CA [country attache].” Def.’s Supp.App. 8.b.; DEA’s Agents Manual ¶ 6612.61(A)(2) (emphasis added). Neither Special Agent Teixeira nor Special Agent Mason held the position of SAC or CA, and Plaintiff never alleges that either agent was the special agent in charge or the country attache. PL’s Supp. Br. Ex. 1; Pl.’s Aff. ¶ 4 (referring to Teixeira and Mason as “Special Agents”). Further, the DEA’s manual also provides
For the reasons stated above, the Court must grant Defendant summary judgment on count I of Plaintiffs complaint.
D. Defendant’s Motion for Summary Judgment on Count II — Unjust Enrichment
Plaintiff contends that this Court has jurisdiction over count II, under the theory that unjust enrichment can be brought as an implied-in-fact contract claim.
It is undisputed that the Court of Federal Claims has no jurisdiction over implied-in-law contracts. Hercules, Inc. v. United States, 516 U.S. 417, 423, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996); El Centro, 922 F.2d at 823 (“[T]he Government has long been held immune for such claims for relief.”) (citation omitted). However, the Court does have jurisdiction over implied-in-fact contracts under the Tucker Act. See Hercules, 516 U.S. at 423, 116 S.Ct. 981; Gould, Inc. v. United States, 67 F.3d 925, 928 (Fed. Cir.1995). An implied-in-fact contract is “founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.” Baltimore & Ohio R.R. Co., v. United States, 261 U.S. 592, 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed. 816 (1923) (citation omitted).
However, for Plaintiff to survive Defendant’s motion for summary judgment with regard to count II, a contract must have existed at one time between Plaintiff and the Government. Since Plaintiff has been unable to show a genuine issue of material fact to as to whether an implied-in-fact contract was present.
Plaintiff contends that Defendant “received the benefit of numerous seizures worth millions of dollars ... with its full appreciation and knowledge.” Compl. 129, and that Defendant “accepted and retained this benefit.” Compl.¶ 30. Therefore, he cites to a variety of cases to support his proposition that he is entitled to compensation under the theory of unjust enrichment. However, all of the cases Plaintiff mentions are distinguishable, in that a contract had once existed in each case, but was later deemed invalid. See United States v. Amdahl Corp., 786 F.2d 387, 393 (Fed.Cir. 1986), in which the Federal Circuit states, “[t]he contractor is not compensated under the contract, but rather under an implied-in-fact contract.” This is an important distinction for two reasons: (1) the use of the above language suggests that the plaintiff had originally had an express contract, and must resort to an unjust enrichment theory only because the original express contract was found to be invalid; and (2) the Federal Circuit has interpreted that language from Amdahl to mean that a party “can be compensated under an implied-in-fact contract when the [plaintiff] confers a benefit to the government in the course of performing a government contract that is subsequently declared invalid.” Gould, 67 F.3d at 930.
For instance, Gould is distinguishable from the present case because it involved a written contract that was later found to be illegal. Id. at 927; see also Urban Data Sys., Inc. v. United States, 699 F.2d 1147, 1154 (Fed.Cir.
Thus, unlike in Amdahl, where the contract was held to violate applicable statutes, and Prestex, Inc. v. United States, where the contract was held to be invalid because the contracting officer had exceeded his authority, it is much more difficult to show an initial bona fide contract instrument for the case at bar. See Amdahl, 786 F.2d at 393; Prestex, 162 Ct.Cl. 620, 320 F.2d 367, 371 (1963). Simply put, there was no express or implied-in-fact contract in the current case to begin with. As stated by this court in Perri, 53 Fed.Cl. at 409:
The cases cited by plaintiff are factually distinguishable from the case at bar ... because they involved bona fide contract instruments which became or were determined to be illegal or void at some point in the undertaking between the parties. There was no question in each of those cases that the plaintiff and the Government had intended to enter into a contract and that the Government had received benefits as a result of the plaintiffs performance of the intended contracts ____
[Here] the record contains no evidence of any contract instrument or oral agreement, legal or illegal, authorized or unauthorized, giving credence to the existence of the compensation promise alleged by the plaintiff.
All the cases Plaintiff cites to involve fully executed written instruments, where all elements of a contract are unambiguously present. Plaintiff has not presented any such evidence. Although some of the cases above involved contracts in which a government agent exceeded his or her authority, in each of those cases, all of the other elements of a valid contract with the Government were present. Therefore, Defendant must be granted summary judgment on count II.
E. Plaintiffs Cross-Motion for Partial Summary Judgment
Plaintiff moves for summary judgment on his claim for $199,800. To recover, Plaintiff bases his claim on the AFF statute. Specifically, Plaintiff states that Defendant has admitted that it owes Plaintiff $199,8000. Pl.’s Resp. at 17. Plaintiff seems to be referring to Defendant’s proposed findings of uncontroverted facts (¶ 6), in which Defendant states that on April 13, 1999. Mr. Teixeira submitted a request for payment under the AFF statute in the amount of 20% of the currency seized on June 29, 1998, a total of $199,800.
Plaintiffs argument is flawed, however, because it assumes that the AFF statute is money-mandating. As explained above, the AFF statute gives full discretion to the Attorney General or his designee to determine when funds are dispersed as a reward for information.
Therefore, it is appropriate to deny Plaintiffs cross-motion for partial summary judgment.
IV. Conclusion
This Court has no jurisdiction over the AFF statute because that statute is not money-mandating. Therefore, Defendant’s motion to dismiss as to count I, based on lack of jurisdiction over the AFF statute, is GRANTED.
Further, Plaintiff and Defendant did not have a valid contract at any point in time. As a result, there is no genuine issue of material fact, and Defendant is entitled to judgment as a matter of law on the breach of contract portion of count I and on count II of Plaintiffs complaint. For the reasons stated above, Defendant’s motion for summary judgment is hereby GRANTED.
As a result of the Court’s findings that it has no jurisdiction over claims based on the AFF statute and that Plaintiff and Defendant did not enter into a contract, Plaintiffs cross-motion for partial summary judgment is DENIED.
The Clerk’s Office is instructed to dismiss the AFF basis of count I with prejudice and enter judgment for Defendant on the breach of contract portion of count I and on count II.
. There is also evidence that Plaintiff signed another such agreement on May 7, 1998. See Def.’s Proposed Findings of Uncontroverted Fact (hereinafter “DPFUF”) at Al.
. Plaintiff also initially requested that he be permitted to take discovery before a summary judgment ruling was made. Pl.’s Resp. at 5. Plaintiff later amended this request at the June 12, 2003 hearing, in which he instead requested supplementation of the record, which the Court permitted. June 12, 2003 Tr. at 60.
. Section 1691, prior to 1986, contained such a sum certain, while the AFF never has. See Doe, 100 F.3d at 1579; Hoch, 33 Fed.Cl. at 44-45.
. In its Order dated June 12, 2003, the Court denied Defendant’s motion to dismiss Plaintiff’s contract claim, as based on the Tucker Act.
. Plaintiff does, however, repeatedly emphasize the fact that Defendant admitted that the DEA had, at one time, "obligated” itself to pay two awards to Plaintiff, but has since "deobligated" itself. Pl.’s Resp. at 3-4. However, Defendant points out that it uses the terms "obligate” and "deobligate” only in the context of governmental accounting. Def.’s Reply at 5-6. Defendant also cites a portion of A Dictionary for Accountants by Eric L. Kohler, which defines "deobligation,” as used in government accounting, as ”[t]he cancellation of an encumbrance ..., thereby releasing, to an unencumbered balance, funds previously reserved." Def.’s Reply at A63. Defendant also correctly points to the Hoch court’s implication that the Attorney General's discretion under the AFF includes the discretion to withhold an award that was previously recommended. Def.’s Reply at 5; 33 Fed.Cl. at 45 (“This court may not evaluate such discretionary decisions and consequently cannot reach plaintiff’s substantive arguments ....”).
. See discussion infra.
. It is not even clear whether anyone with ratification authority actually signed off on a payment to Plaintiff. In fact, Defendant denies this. See June 12, 2003 Tr. at 42.
. Plaintiff claims that Harbert/Lummus is not on point, because it does not address the concept of institutional ratification. Pl.'s Supp. Br. at 4. But Plaintiff appears to place too much weight on an unimportant semantic distinction. While the Court in Harbert/Lummus Agrifuels did not use the term “institutional ratification," this appears to be primarily because the plaintiffs in that case could identify an individual officer who was physically present when the disputed promise was made. 142 F.3d at 1433. There was no need, then, for plaintiffs to explore the vagaries of "institutional” ratification, where the issue was clearly whether the empowered officer had — obviously on behalf of the institution — ratified the contract. This does not mean, however, that knowledge does not enter the discussion over institutional ratification, where, as here, the Plaintiff cannot identify a single individual who knew or should have known of the unlawful promise.
. See discussion of count I at Part C., supra.
. See discussion supra Part A.
. See discussion, supra Part C.
