Furash & Company appeals the decision of the United States Court of Federal Claims dismissing its contract suit against the United States for lack of jurisdiction.
Furash & Co. v. United States,
I
In 1997, Furash entered into a contract with the Federal Housing Finance Board (“Finance Board”). Under the сontract, Furash was to provide consulting services directed toward assessing the value that federal home loan banks perceive in belonging to the federal home loan bank system, which the Finance Board administers. After a dispute developed over Fu-rash’s timely completion of its report, the Finance Board terminated the contract for default.
Furash then filed suit against the United States in the Court of Federal Claims, seeking to have the default termination converted to a termination for the convenience of the government. In addition, Furash contended that it was entitled to retain progress payments previously made and to be paid for additional work performed at the Finance Board’s direction. The government moved to dismiss Fu-rash’s complaint on the ground that thе Finance Board is a non-appropriated funds instrumentality (“NAFI”) and that the Court of Federal Claims lacks jurisdiction over claims arising from contracts entered into by the Finance Board. The court agreed and dismissed the action, holding that the non-appropriated funds doctrine precluded the court from exercising jurisdiction under either the Tucker Act, 28 U.S.C. § 1491, or the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613 (“CDA”). This apрeal followed.
II
Furash argues that the trial court erred when it concluded that the non-appropriated funds doctrine bars the court from exercising jurisdiction under the Tucker Act. Through the Tucker Act, Congress waived the federal government’s sovereign immunity and defined the jurisdiction of the Court of Federal Claims with respect to claims “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.” 28 U.S.C. § 1491;
see United States v. Mitch
*1339
ell,
The jurisdictional grant in the Tucker Act is limited by the requirement that judgments awarded by the Court of Federal Claims must be paid out of appropriated funds. 28 U.S.C. § 2517. Based on that requirement, it has been held that absent some specific jurisdictional provision to the contrary the Court of Federal Claims lacks jurisdiction ovеr actions in which appropriated funds cannot be used to pay any resulting judgment.
See L’Enfant Plaza Props., Inc. v. United States,
Congress addressed the non-appropriated funds doctrine in 1970, when proposals were made to abolish the doctrine by legislation. Rather than abolish the doctrine altogether, however, Congress chose to create a narrow exemption from the doctrine for certain entities, the military post exchanges and the exchange councils of the National Aeronautics and Space Administration.
See McDonald’s Corp. v. United States,
complete removal of sovereign immunity for all nonappropriated fund activities would be undesirable.... Clearly, Congress ought not to expose the Federal Government to liability for all nonap-propriated fund activities unless [data regarding potential liability] is assembled. Under the [bill as enacted] the sovereign immunity of the United States would be removed only with respect to the post exchange types of operations whiсh are conducted within the Defense Department and the National Aeronautics and Space Administration.
H.R.Rep. No. 91-933 (1970), reprinted in 1970 U.S.C.C.A.N. 3477, 3478-79.
In applying the non-appropriated funds doctrine, this court has held that the Court of Federal Claims must exercise jurisdiction absent a clear expression by Congress that it intended to separate the agency from general federal revenues.
See L’Enfant Plaza,
We agree with the trial court that there has been a clear expression by *1340 Congress that the Finance Board’s operations are to be funded through assessments against federal home loan banks, not from general fund revenues, and that the Court of Federal Claims therefore lacks Tucker Act jurisdiction over this case. The Finance Board’s assessment authority is granted at 12 U.S.C. § 1438(b), which provides:
(1) In general
The Board may impose a semiannual assessment on the Federal Home Loan Banks, the aggregate amount of which is sufficient to provide for the payment of the Board’s estimated expenses for the рeriod for which such assessment is made.
(2) Deficiencies
If, at any time, amounts available from any assessment for any semiannual period are insufficient to cover the expenses of the Board incurred in carrying out the provisions of this chapter during such period, the Board may make an immediate assessment against the Banks to cover the amount of the deficiency for such semiannual period.
(3) Surpluses.
If, at thе end of any semiannual period for which an assessment is made, any amount remains from such assessment, such amount will be deducted from the assessment on the Banks by the Board for the following semiannual period.
To be sure, section 1438 does not expressly prohibit congressional appropriation of funds to the Finance Board. The absence of such an express statement in the authorizing statute, however, does not end the inquiry. Under the test set forth in L’Enfant Plaza, what matters is whether the agency’s authorizing legislation makes clear that Congress intends for the agency — or the particular activity that gave rise to the dispute in question — to be separated from general federal revenues.
Denkler v. United States,
The same analysis applies to the closely parallel language in the authorizing legislation for the Financе Board. Section 1438 provides a scheme that includes not only a standard assessment but also an immediate assessment that may be used to make up deficiencies. Absent statutory amendment, there is therefore no situation in which appropriated funds would be used to make up a deficiency. The Finance Board’s funds are similarly isolated from general fund revenues in the event that the assessmеnts result in a surplus, as the statute provides that any surplus will be credited to the assessed banks rather than to the general fund of the Treasury.
*1341
The scheme set out in section 1438 distinguishes this case from
L’Enfant Plaza.
In that case, the authorizing legislation did not provide a means for the Comptroller of the Currency to make special assessments in response to financial deficiencies, and Congress had periodiсally financed the Comptroller’s operations through appropriation when the funds received by the Comptroller from regulated banks were insufficient to cover expenses.
The conclusion that the non-appropriated funds doctrine applies in this case is further supported by 12 U.S.C. § 1422b(c), which addresses the character of the funds received by the Finance Board:
Receipts of the Board derived from assessments levied upon the Federal Home Loan Banks and from other sources ... shall be deposited in the Treasury of the United States. Salaries of the directors and other employees of the Board and all other expenses thereof may be paid from such assessments or other sources and shall not be construed to be Government Funds or appropriated monies, or subject to apportionment for the purposes of chapter 15 of Title 31, or any other authority.
That statute not only directs that Finance Board funds are to be maintained distinct from general funds even when deposited with the Treasury, but also adds the proviso that the funds are not to bе construed as appropriated monies. We do not agree with Furash’s argument that the reference to “appropriated monies” means only that the funds used to pay the Board’s expenses are not considered appropriated monies for apportionment purposes. Rather, we read the statutory language, particularly in light of the use of a comma and the word “or” before the words “subject to apportionment,” to mean that the funds used to pay the Board’s expenses are (1) not construed to be government funds or appropriated monies; and (2) not subject to the apportionment rules in chapter 15 of title 31 of the United States Code.
Finally, the Finance Board’s authorizing statute contains a specific exception to the schеme under which Finance Board expenses are not paid by appropriated funds. In 12 U.S.C. § 1438a, the statute provides that studies or investigations directed by law or requested by Congress “shall be considered as nonadministrative expenses.” As the trial court explained, that means that those costs will be paid for from appropriated funds. We agree with the trial court that that statute does not altеr the status of the Finance Board as a non-appropriated fund instrumentality. Instead, it confirms that, except with respect to that specific activity, which is not at issue in this case, the Finance Board’s expenses are not expected to be defrayed by appropriated funds.
The statutory provisions governing the funding of the Finance Board’s operations thus make clear that, with thе single narrow exception discussed above, Congress intended the Finance Board to be a financially self-sufficient instrumentality designed to operate without the benefit of general appropriated funds. Accordingly, *1342 the Tucker Act does not give the Court of Federal Claims jurisdiction over this case.
Ill
Furash next argues that even if jurisdiction under the Tucker Act is barred by the non-appropriatеd funds doctrine, the Court of Federal Claims still has jurisdiction under the CDA. The CDA applies “to any express or implied contract (including those of the non-appropriated fund activities described in sections 1346 and 1491 of title 28) entered into by an executive agency for — ... (2) the procurement of services.” 41 U.S.C. § 602. The parties agree that the Finance Board is an executive agency as defined by the CDA. Aсcordingly, Furash argues, the Court of Federal Claims has jurisdiction over the dispute in this case even if the Finance Board is a non-appropriated fund instrumentality.
In support of its argument, Furash relies on a passage from this court’s decision in
United States v. General Electric Corp.,
That conclusion is consistent with other court and Board of Contract Appeals decisions holding the non-appropriated funds doctrine applicable to CDA cases.
See Research Triangle Inst. v. Bd. of Governors of the Fed. Reserve Sys.,
Section 2517, by its terms, applies to all judgments of the Court of Federal Claims “[ejxcept as provided by the Contract Disputes Act of 1978.” In the CDA, as in the Tucker Act, Congress did not create a general exception for non-appropriated *1343 fund instrumentalities, but instead incorporated the language from the Tucker Act that created an exception for the post exchange non-appropriated fund instrumen-talities that were the subject of the 1970 Tucker Act amendments. Thus, in 41 U.S.C. § 602, Congress provided that the Act applied to any express or implied contract “including those of the nonappropri-ated fund activities described in [the Tucker Act].”
The provenance of that limited exception to the non-appropriated funds doctrine strongly supports the government’s argument that the doctrine applies in the same fashion to the CDA as it does to the Tucker Act. Furash argues that the purpose of the parenthetical language in section 602 of the CDA was not to identify non-appropriated fund instrumentalitiеs covered by the CDA, but rather to identify non-executive agencies that are so covered. The more natural reading of the text, however, suggests that the parenthetical language was intended to make an exception to the non-appropriated funds limitation and not to the executive agency limitation. The parenthetical language describes the military exchanges as “the nonappropriat-ed fund activities described in [the Tucker Act],” which implies that other non-appropriated fund activities are not included.
The language of the CDA supports the government’s position in another respect as well. The CDA provides that judgments entered under the Act will be paid in accordance with the provisions of 31 U.S.C. § 1304, the “judgment fund” statute. 41 U.S.C. § 612(a). That statute, in turn, provides that thе judgment fund can be used to pay judgments arising from contracts with the military exchanges and NASA exchange councils, but that those entities must reimburse the government for the amount paid from the judgment fund. 31 U.S.C. § 1304(c). The CDA has a similar reimbursement provision, but it applies only to “agencies whose appropriations were used for the contract,” 41 U.S.C. § 612(c), which would not apply to non-appropriated fund instrumentalities. Thus, under Furash’s interpretation of the CDA, reimbursement of the judgment fund would be required of all appropriated fund instrumentalities and those non-appropriated fund instrumentalities specifically identified in the Tucker Act, but not other non-appropriated fund instrumentalities. That result is so anomalous that it seems plain that the CDA was not intended to reach non-appropriated fund instru-mentalities other than the military exchanges and the NASA exchange councils.
Any lingering doubt on this score is dispelled by the legislative history of the CDA, which makes clear that Congress did not intend for the CDA to apply to non-appropriated fund instrumentalities except for those specifically identified in the Act. As explained in the Senate report:
The bill expressly states its applicability to those nonappropriated fund activities over which the courts presently have jurisdiction under 28 U.S.C. 1346 and 1491. Consideration was given to including all nonappropriated fund activities. However, since the court’s present jurisdiction over nonappropriated fund contracts is limited to certain post exchanges, and as there appears to be no problem with remedies relating to other nonappropriаted fund activities, it was deemed unnecessary to include all or any additional nonappropriated fund activities within the scope of the bill.
S.Rep. No. 95-1118, at 18 (1978), reprinted in 1978 U.S.C.C.A.N. 5235, 5252. That language is squarely contrary to Furash’s position. Based on the language of the statute, as explicated by the legislative history, we regard it as inescapable that Congress was aware of the non-appropriated funds doctrine and thаt it did not intend *1344 for the CDA to expand the court’s jurisdiction to reach non-appropriated fund activities other than those specifically identified in the Tucker Act and incorporated by reference in the CDA.
In sum, we agree with the government that the statutes governing the Finance Board’s funding make it clear that Congress intended the Finance Board to operate free from appropriated funds. Accordingly, the Court of Federal Claims properly concluded that it lacks jurisdiction under either the Tucker Act or the CDA to adjudicate Furash’s claims in this case.
AFFIRMED.