1 Cl. Ct. 58 | Ct. Cl. | 1982
OPINION
The original petition herein alleged a taking without just compensation in violation of the Fifth Amendment of the United States Constitution. More than 2 years later an amended petition was filed alleging breach of an implied-in-fact contract. Plaintiffs have previously pursued two unsuccessful efforts to secure relief in the U.S. District Court on the same facts but different theories. The case is now before this court on cross-motions for summary judgment.
Statement of Facts
From 1959 to 1973 plaintiffs (a corporation and its president) operated a women’s clothing manufacturing business on leased premises in Boston, Massachusetts. The building, originally owned by the OrvinHenry Realty Trust, was acquired in 1969 by Tufts University, a privately owned educational institution.
In early 1971, Tufts informed plaintiffs that they would be obliged to vacate the leased premises upon the expiration of the current lease on June 30, 1971. Tufts planned to remodel and occupy the building for its own purposes, namely, to conduct experiments in cancer research funded by a grant from the National Institutes of Health.
Tufts subsequently extended plaintiffs’ lease four times to afford plaintiffs a further opportunity to relocate.
The circumstances immediately surrounding the application to HEW are in dispute and give rise to plaintiffs’ present allegation of a contract implied-in-fact. Plaintiff Paul Gold asserts by affidavit that at a meeting on or about June 21, 1971 with HEW officials, the Regional Director of HEW Region 1 promised him relocation assistance once his application was filed, or alternatively (in the event the application was denied) that HEW would fully reimburse his company from grant funds which Congress had allocated to HEW.
That version of the facts is vigorously denied in multiple affidavits offered by defendant. Its agents assert that at no time did they make the promises alleged by plaintiffs. On the contrary, they assert that they expressed their belief that plaintiffs were not eligible for assistance under the Relocation Assistance Act, but that an application should nevertheless be submitted so that the matter could be determined officially. Parlane’s application submitted on October 7, 1971 was in fact denied in March of 1972.
Parlane then sought a declaratory judgment against defendant in the U.S. District Court for Massachusetts. On cross-motions for summary judgment, the court held that plaintiff was not entitled to relocation assistance under the Act.
Undaunted, Parlane brought a second action in the same U.S. District Court,
The court held in its Memorandum and Order of June 12, 1978,
[Jjurisdiction is lacking because the proper forum for a contract claim against the United States in excess of $10,000 may be heard only by the Court of Claims [11 ] pursuant to 28 U.S.C. § 1346(b)(2).
On the issue of whether Tufts acted independently in taking the property, the court observed that:
[Tjhe record shows Tufts finally occupied the entire premises in May, 1973. Par-lane no longer had a leasehold interest at that time except as tenant by sufferance, the lease having finally expired on February 28, 1973. Tufts was the rightful owner and pursued its ownership by summary process pursuant to state law.
Accordingly, this action represents the third effort by plaintiffs to pursue their various theories of relief. A petition was filed here December 11, 1978 alleging a “taking” without just compensation contrary to the Fifth Amendment. The petition was amended April 22, 1981 to substitute a demand for judgment
This third (and hopefully last) action is also without merit. The prior decisions of the U.S. District Court
It is axiomatic that:
One who purports to contract with the United States assumes the risk that the official with whom he deals is clothed with the actual authority to enter the contract alleged.[16 ]
The United States is not bound by its agents acting beyond their authority.
The foregoing considered, defendant’s motion for summary judgment is granted, plaintiffs’ cross-motion for summary judgment is denied, and plaintiffs’ petition shall be dismissed.
. June 31, 1971-June 30, 1972; June 30, 1972-September 30, 1972; September 30,1972-Janu-ary 31, 1973; January 31, 1973-February 28, 1973.
. 42 U.S.C. § 4601 et seq.
. Trustees of Tufts College v. Parlane Sportswear Co., Inc., Docket No. 339131, Suffolk County, Massachusetts.
. Parlane Sportswear Co., Inc. v. Weinberger, 381 F.Supp. 410 (D.Mass.1974).
. Id. at 411.
. Id. at 412.
. Id. 513 F.2d 835 (1st Cir.), cert. denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 252 (1975).
. See Dawson v. HUD, 592 F.2d 1292 (5th Cir.1979); Young v. Harris, 599 F.2d 870 (8th Cir.1979); Conway v. Harris, 586 F.2d 1137 (7th Cir.1978); Moorer v. HUD, 561 F.2d 175 (8th Cir.1977), cert. denied, 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978).
. Parlane Sportswear Co., Inc. v. The United States and Trustees of Tufts College, aka Tufts University, Civil Action No. 74-5884-MA.
. Unpublished.
. Now U.S. Claims Court under the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, 96 Stat. 25 (1982).
. By plaintiff Parlane for $2,500,000, and by plaintiff Gold, (president and owner of substantially all of Parlane’s stock) for $650,000.
. The first of which was affirmed by the 1st Circuit, whose decision is in accord with those of three other circuits (see notes 7 and 8, supra).
. See, for example, Yosemite Park and Curry Co. v. United States, 217 Ct.Cl. 360, 370, 582 F.2d 552, 558 (1978).
. Moreover, plaintiffs had no property interest in the premises within the contemplation of the Act when they were evicted by Tufts. Their lease had by then expired.
. See Yosemite, note 14, supra, 217 Ct.Cl. at 370, 582 F.2d 552, citing Haight v. United States, 209 Ct.Cl. 698, 538 F.2d 346, cert. denied, 429 U.S. 841, 97 S.Ct. 116, 50 L.Ed.2d 110 (1976).
. See Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947); Jackson v. United States, 216 Ct.Cl. 25, 41, 573 F.2d 1189 (1978); Porter, et al. v. United States, 204 Ct.Cl. 355, 366, 496 F.2d 583 (1974), cert. denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 761 (1975); Putnam Mills Corp. v. United States, 202 Ct.Cl. 1, 9, 479 F.2d 1334 (1973).