The Prudential Insurance Company of America v. The United States, 801 F.2d 1295

The Prudential Insurance Company of America v. The United States

801 F.2d 1295

Fed. Cir.

1986

Check Treatment

*1 proceedings for and remand not inconsist- opinion.

ent with this part,

AFFIRMED REVERSED in

part, and REMANDED.

The PRUDENTIAL INSURANCE AMERICA,

COMPANY OF

Appellant,

v . STATES, Appellee.

The UNITED

Appeal No. 86-523. Appeals,

United States Court of

Federal Circuit.

Aug.

Thomas Adolph, Botts, H. Baker and Houston, Tex., argued appellant. for With him on the Conrad, brief was F. Walter Dallas, Tex. Matzen, Dept, Justice,

Martin W. D.C., Washington, argued appellee. him Henry With on the brief were F. Ha- bicht, II, Gen., Atty. Sepulveda- Asst. Silvia Stahr, Hambor and Washington, John T. D.C., Hardegree, Howard L. Gen. Services Admin., Worth, Tex., Fort of counsel. RICH, NICHOLS, Judge, Before Circuit Judge, ARCHER, Senior Circuit Cir- Judge. cuit ARCHER, Judge. Circuit Company The Prudential Insurance (Prudential) appeals America partial grant United States Claims Court’s summary judgment1 for the Company The Prudential Insurance States, America v. United Cl.Ct. that, (1985), matter special Prudential was not entitled to contract incurred remaining judg- accordingly, 1. The issues settled ment entered see n. 4. infra *2 30,1979. Company, It government’s holdover on November cover- of the result existing space occupied by We affirm. ed Cities Service its leasehold. space as well as additional in the Pinehol- Background building, including government-oc- low the cupied space. The new lease complete of the exposition A and full gave option also Cities Service the to cancel may be found in the facts uncontroverted occupy its entire lease it could not the Summarily, the opinion. Claims Court space by government by the encumbered entered into a fixed-term government had 1,1980. Service, February Pinehollow Cities on March space in the office lease for Houston, 2, 1980, Shortly after Texas. terminated its entire lease with Building in commenced, purchased government-occu- Prudential the lease Prudential because the lessor, Building pied space the Pinehollow was not available to Cities Ser- Building and re- Equities, Inc. required February Diversified vice date of building. manage the tained Diversified 1980. govern- agreement affоrded the The lease brought against Prudential suit lease for a option to extend the ment the government in the United States Claims timely government period, which the fixed $814,723’inspecial consequen- Court for or op- party then had the exercised. Either damages.4 tial This amount included sums any time the lease at tion to terminate (i) for: net loss of rental revenue from period ninety during effective the extension (ii) space; Cities Service real estate com- notice.2 Prudential exer- days giving after obtaining incurred in missions new ten- was termi- option and cised this ants; (iii) refurbishing expenses related to govern- 1979. The effective June nated (iv) tenants; operat- and increased new space its Pinehollow ment did not vacate ing expenses to the new tenants. related instead held over as a tenant-

June $35,000 sought recovery of Prudential also April until 1980. at-sufferance attorney fees. Prudential, on several occasions3 after govern- that the June demanded Opinion Claims Court space. its ment vacate Pinehollow Court, jurisdic- The Claims mindful of its govern- Through these communications the 1491(a)(1) (1982),5 tion under 28 U.S.C. (1) placed § on notice that: Pruden- ment was exрress pro- was no determined that there negotiating a one tial was with new govern- requiring vision in the contract tenants; (2) of its this new lease would ment to vacate at the end occupied govern- space include implied in and that an fact contract had ment; suffer con- Prudential could The court been established Prudential. damages if the did siderable then held a matter of law that an im- space. Prudential executed not vacate the tenant, plied covenant to vacate cannot be read the new lease with its Cities Service dispute, prоper provided: matter for sum- 2. of the lease and thus not Clause 13 mary judgment. The amount of the fair rental party may terminate this lease dur- Either stipulated agreed upon value thereafter days’ ing period by giving at least 90 renewal judgment accord- was entered writing party, and no notice in to the other ingly. date of rental shall accrue after the effective such termination. states, 1491(a)(1) part: pertinent 5.Section 1979; 14, 1979; July August and Novem- 3. The United States Claims Court shall have ber 1979. any jurisdiction judgment upon to render claim the United States founded either Congress the net fair The suit included a claim for Act of the Constitution or space any regulation department, in the Pinehol- rental value of the use of of an executive or building during government’s upon any express low holdover contract with unliqui- occupancy taking theory. liquidated The court or for under a the United sounding in cases not that the was liable but dated concluded was in tort.... the amount of the fair rental value into a fixed-term lease where landlord-tenant relationship under such a Thus, is the lessee. Prudential lease. at the beginning the landlord Insurance, 7 Cl.Ct. 714-15. obligated possession deliver premises and, to the lessee by the same The court further held that even if a token, at the end of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the term the lessee is space covenant to vacate the Pinehollow obligated to deliver up possession. This imputed against could be *3 argument is based on construction the of agreement, government under lease the the express terms of the agreement, and special would not be liable for the or conse- not on additional implied or in fact agree- quential damages claimed Prudential. ments through established parol or other conclusion, at In reaching Id. 717-18. this evidence. adopted general the rule of contract law only that a tenant is liable for special or Court, however, Claims focused its consequential damages they were fore- opinion large in measure on necessity the seeable at the time the lease was executed. of showing Prudential the existence anof at Id. 716-18. Under the circumstances implied in fact separate dis- and presented, the court concluded it was tinct from agreement, the lease in order to government not foreseeable аt the time the recover. It first noted that the Pinehollow executed its lease that the lessor would be express no contained requir- covenant damaged, government’s as a result the of ing government the to vacate at the end of holdover, by the loss of another Pinehollow term; that the common law reme- occupying lessee space leased far in excess dies for monetary compensation trespass, — occupied by government, of that the or that assumpsit or unlawful detainer —available damaged the lessor would by having to to a lаndlord a holdover tenant space subdivide the other lessee’s accom- to sounding actions in tort and did not plurality modate a of new tenants. fall jurisdictional within court’s the umbrel- provided Act;6 la the Tucker and that ISSUES damage state provisions law for holdover appealed Prudential has rulings both of applicable were not to the govern- federal the Claims Court and we to called ment. To implied establish an in fact cove- decide: requiring nant vacate term, a. Court, whether Claims the end of Court erred in the Claims that the obligat- relying Goodyear U.S., is Co. v. 276 U.S. ed under a fixed term lease 48 S.Ct. vacate L.Ed. 575 premises at the U.S., end of the in the H.F. Allen Orchards v. express

absence an implied or in fact (Fed.Cir.1984),ruled that there must be the so; requiring covenant it to do mutuality same of intent as in the case express covenant. whether, assuming b. obligation vacate,

breached an implied A contract is fact not created Claims concluding Court erred in that the by explicit or evidenced special would not be liable for parties, but inferred is as a matter of rea- damage sought by Pru- justice son or acts conduct of dential. parties. However, all the elements express of an contract must be shown

OPINION the facts or circumstances surrounding the A. appeal, intent, Prudential contends mutuality offer and transaction — Court, as it did before the acceptance, Claims that a authority to contract —so that lease for a obligates reasonable, fixed term the lessee it is necessary, even to vacate at the says end of that term. It court to that the assume intended implicit is or inherent to be bound. 1491(a)(1). 6. 28 U.S.C. § Sons, found Prudential set & Inc. v. Court United

The Claims 407, 411, 123, 125-26, either ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the lease itself or “no facts forth 68 S.Ct. 92 L.Ed. 32 surrounding its execu- in the circumstances (1947); Metropolitan National Bank v. in- indicate such mutual tion which would United in fact cove- here.” Since tent (1945); Keydata put theory of the case forth nant not the Corp., 205 Ct.Cl. at 480. Prudential, surprising that such it is not law, general A rule of landlord-tenant missing. facts are parties, applied private between is that the required to deal here with We are expiration agree- or termination of a lease of the Pinehollow lease terms rights ment terminates all of the lessee in determine, matter of whether premises, and it becomes the lessee’s impose may properly be construed to duty possession to surrender of the lease- implicit obligation or on the lessee an cove hold to the lessor. 49 AM.JUR.2D Land- premises possession of the nant to return *4 (1970); and Tenant 1013 RE- lord § period, at the end of to the lessor (SECOND) STATEMENT OF PROPERTY failure to do so constitutes a and whether a 14.6, 14.6, Reporter’s Note to Section § agreement. of the lease United breach Cf. (1977)(in lease, making Note 2 a the tenant 53, Bostwick, 53, 4 Otto 94 U.S. v. States contracted, effect, has to surrender the 66, (1876). 24 L.Ed. 65 premises upon the termination of the settled that contracts to B. It is well by holding the tenant over has lease— breached the is a which the —and covenant, lease). It is a ei- convey a though a lease concern and express implied, ther of all leases for a very also much a property interest it is definite term that the lessee vacate the will normally governed by feder- contract—are expiration leasehold termination law, law of the state where al Bishop Nesqual- of the lease. Catholic performed. are made or United Gibbon, 155, 170, ly v. Allegheny, 322 U.S. County States v. 779, 785, (1985); 49 AM. 908, 913-14, 174, 183, 88 64 L.Ed. S.Ct. JUR.2D 1013. § States, (1944); 767 1209 Forman v. United 875, (Fed.Cir.1985); Keydata F.2d 879 rеcognized One federal circuit court has States, Corp. 205 v. United Ct.Cl. implied obligation running against (1974); George 504 F.2d S. Groves 1115 government as a lessee to vacate its lease cf. 660, (1973). States, v. 202 674 United Ct.Cl. expiration lease. Georgia hold at the of its sufficiently Leases are not different from States, 148, Kaolin v. United 249 F.2d Co. for an inde- other federal contracts to call (5th Cir.1957),aff'g 149 De Fore v. United pendent analytical principles set of 484, (M.D.Ga.1956). F.Supp. 145 490 rules, States, 294 Perry v. United cf. implicitly Another federal circuit court has (1935); 79 912 For S.Ct. L.Ed. recognized obligation the inherent to va man, 879; v. F.2d at Torncello United lessee, against pri cate albeit between (1982), Ct.Cl. parties, vate v. Atlantic Co. Richfield question no particularly there is when Zarb, (Temp. 532 F.2d 1365 and n. 1 property interest about the nature of the Emer.Ct.App.1976). Numerous state transferred, merely question of the but obligation. See, courts have also noted this agree obligations lessee’s the lease under (cases e.g., 49 AM.JUR.2D 986 n. 1 ment. at 482. Keydata Corp., 205 Ct.Cl. therein); (SECOND) cited RESTATEMENT To existing the extent federal law not PROPERTY, Reporter’s OF Notes to Sec permits an determinative of the issue and 14.6, (cases therein). tion Note cited areа of merits of com choice between the provide The above-referenced authorities peting principles, in modern the best deci ample support for the that conclusion there discussion, general sion including implied obligation running is an contractual principles of contract and landlord-tenant upon should account. Priebe a lessee to vacate a leasehold be taken into expiration or termination of a lease.7 All of these are based on tortious con- Moreover, proposition logic has behind duсt—unlawful or depriva- unauthorized principles it and is consistent with other precondition tion of property of which is —a lessor, lease, A a fixed law. under that the tenant has no contractual or other temporarily relinquishes to the lessee the legal right possession to retain occupan- limited, exclusive, right prop- to use the cy premises of the beyond leased the lease erty predetermined period. for a The tem- term. These actions thus assume that an porary nature of the transfer is founded obligation to expiration vacate аt the date understanding inherent, aof lease is if not expressly stat- possession up will be delivered to the lessee ed, in agreement. lease, at the commencement and that upon expiration of the lease the lessee’s Part of reasoning of the Claims rights property limited in the will terminate Court which influenced its decision was rights and the full property, includ- that if a covenant to vacate could im- ing possession, will revert to the lessor. plied by the mere fact that the lease was ample There is authority that there is an granted term, for a limited cov- рrovide contractual enant to vacate would be redundant or possession beginning lessee with at the superfluous. agreements Lease today rou- 1155; of the lease term. See A.L.R.3d tinely spell great out in detail the lessee’s 216, 221; 49 AM.JUR.2D RESTATE- §§ obligations, including specific provisions re- (SECOND) MENT OF PROPERTY §§ lating vacating premises. Among Although the cases for the obverse doing so, other reasons for the landlord *5 fewer, be attributable to the usually seeking is to obviate the need for greater efficacy ease and in obtaining non- judicial proceedings, provide specif- more cоntractual relief holding as a result of ically vacating, the lessee’s duties in and to over.8 provide liquidated damages for failing for As a matter interpretation, of contract to vacate promptly. None of these renders the decision of the Claims Court has the implied an nugatory; they supple- covenant voiding anomalous effect of express pro- an implicit requirement ment and enforce the By holding vision of the lease. as a matter of a fixed term lease to vacate on the implied of law that an covenant to vacatе termination date. cannot be read into a fixed term lease agreement, ending date on which the that, We conclude due to definite expires lease or terminates is correlatively term of the lease and the nature of the agreement read out of the and made mean- relationship, implied landlord-tenant ingless. logic Such construction defies duty part every to vacate is an inherent precedent interpreting for contracts. agreement par fixed term lease unless the Petrofsky Trading d/b/a Co. v. Petrof 222 express United Ct.Cl. explicitly ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ties an intention to the (1980). contrary.9 support General for such a con Supreme clusion is found in the Court’s recognized opin- The Claims Court in its opinion Bostwick, in United States v. 4 variety ion that a of common law writs are (1876). Otto U.S. L.Ed. 65 ejecting, available to the landlord for securing damages from, a holdover tenant. The Bostwick Court stated that: tenant, deprivation prop- only 7. Unlawful or proximate unauthorized the holdover erty by a holdover tenant also constitutes holding tor- result of the over. conduct. See tious ing. note 8 and text follow- Compare Part C. infra infra 9.Our review of the rеcord does not reveal PROPERTY, (SECOND) 8. RESTATEMENT OF express intention to exclude such an 14.6, Reporters Notes to Section Note states: obligation agree- from the Pinehollow lease tort, The other view is that over is a ment. for which need not be foreseeable is, foreseeability there unless excluded time12 which is mea- every sured. of some cove- operation by the implied obligation agreement, nant or court, predecessor Our the Court of to so use the part of the lessee on the Claims, foreseeability has stated that unnecessarily injure not to

prоperty as consequential damages under implied obligation part This parties it.... contract law is based what the itself, contemplated as of time the as much so as if incor- contract the contract made. Northern Helex Co. v. United by express language. It porated into it Ct.Cl. F.2d 714-15 relation of landlord and results from the (see pp. cases cited therein 720- parties which the tenant between 21). private parties, As between the Su creates. contract recognized preme Court has that the proper use requirement flows Just who breaches a cоntract can be held relationship, a re- from the landlord-tenant responsible consequences may for such flows from a lease quirement to vacate reasonably supposed to be within the containing fixed or a definite termi- contemplation at the time the nation date. Refining contract was made. Globe Co. v. Co., Landa Cotton Oil Having that the Pinehollow determined 754, 755-56, (1902). required agreement impliedly general rule for dam the end of the to vacate at ages property similarly law is that (as by the extended renewal lease term must be foreseeable the tenant/lessee period),10 ipso jure it follows at the time the lease is executed. RE breached (SECOND) STATEMENT OF PROPERTY 27,1979 April by holding from June over 14.6, 14.6, Reporter’s Note to Section 15, 1980. (1977). has, Note RESTATEMENT however, general modified the rule mak In our conclusion that C. view of ing the holdover tenant liable for those there to va was a contractual damages which were foreseeable at cate, the Claims Court’s we must address time the lease was breached. granting partial sum *6 alternative basis for rule, Id. We conclude that the better and so, mary judgment. doing In we must applicable is as in the one that federal law there was a material determine whether contract, interpreting a Coun the respect issue of fact with to foresee 183, ty Allegheny, 322 U.S. at at S.Ct. of special consequen or ability of the claimed 913-14, that, is for to be recovera damages.11 tial of this Prior to our review special, they ble as or must case, however, facet of must resolve the we by the be foreseeable tenant at the time the question appropriate point-of- agreement is as to the executed.13 necessary consequеnce 10. A of this conclusion 12. The Claims Court concluded that foreseeabil- jurisdiction is upon Court had based ity special consequential damages that Claims is deter- contract, the Pinehollow lease mined as of the time the contract was executed. 1491(a)(1) (1982). agreement. 28 U.S.C. argues appeal foreseeability Prudential on that agree- should be measured at the time the lease argued appeal 11. that Prudential has ment is breached. summary judg apply Claims Court did not by ment this court in Le standard enunciated Although may place this a more difficult bur- TRW, Inc., (Fed.Cir. melson v. seeking consequential damages den on a lessor 1985), engaged fact-finding, because it in made tenant, as a holdover inferences, improper and resolved doubts in fa may lessors have an alternate avenue of relief government. vor of the Takings under the Clause of the Fifth Amend- duty as to whether the to determination Laundry ment. See Kimball Co. v. United may vacate is an which in S.Ct. 93 L.Ed. 1765 question a lease and is is a (1959); Likewise, Corp., United States v. General Motors point-of-time reviewed as such. measured, (1945). foreseeability from which is dis- infra, question cussed is a of law. that, The Claims Court noted at the time of execution of its lease in 1973. Pruden exe- Pinehollow lease pointed tial has not evidence of by cuted in it was not foreseeable record concerns, to show that such factual that, over, if and when held relevant to a prospective client, real or damaged it would cause the landlord to be communicated to the the loss of a tenant for the that time. General statements as to lost property leased but also the loss of a leases, profits, lost or liability to new ten property lease for other in exсess that ants delay occupying for in a leasehold are occupied by government, by having and merely conclusory speculative in na property that other subdivide for new ture and are insufficient to withstand a say tenants. We cannot that the court motion summary judgment. erred in that Prudential’s claimed opposing summary judgment must show an consequential damages were too remote evidentiary conflict on the record a i.e., speculative, proba- not natural and counter statement of facts or facts set consequences flowing govern- ble forth in knowledgeable detail affiant. Co., ment’s holdover. Northern Helex Mere conclusory denials or statements are F.2d at 720. insufficient. Barmag Barmer Maschinen argues Prudential that resolution of the Ltd,., AG v. Machinery, Murata fabrik foreseeability premature, issue was that (Fed.Cir.1984). F.2d 835-36 there was no direct evidence on the issue of While modern leasing prac- commercial foreseeability, and Claims Court may tices establishing have relevance in improperly engaged speculation ig- in foreseeability of consequential dam- favoring posi- nored evidence Prudеntial’s ages, allusions to modern commercial leas- any delay tion. Prudential asserts that ing practices in availability space damage wholly can cause abstract lease, to a landlord the form of a lost genuine insufficient to demonstrate a issue profits, liability lost to a new tenant for 56(f) of material fact. Rule of the Rules of that, delay and in the context of modern (corre- the United States Claims Court leasing practice, commercial it is foreseea- 56(e), Fed.R.Civ.P.) sponding pro- to Rule ble that a holdover tenant cause the pertinent part vides that: opportunity landlord to lose an summary judgment When a motion for space than, to, equal which is smaller supported provided made and in this larger space. than the leased We find rule, party may an adverse not rest arguments these singularly unpersuasive allegations the mere and denials of his and insufficient to show the existence of a pleading, response, by but his affidavits material issue of fact. rule, provided or as otherwise The uncontroverted evidence record specific showing must set forth facts *7 option shows that Prudential exercised its genuine there is a issue for trial. If he to terminate its lease with the respond, summary judgment, does not so on March 1979. And while the record appropriate, shall be entered precision does not indicate with the exact him. negotia- date on which Prudential started any specific not set forth Prudential did lease, tions with Cities Service a new its, showing compa- facts what or other the most favorable inference is that nies’, were, leasing practices commercial began following immediately Prudential’s present any nor did evidence to show option. exеrcise of its termination With communicated, practices that these timing, Prudential has failed to show known, agents to the of the at that a material issue of fact existed con- the time the Pinehollow lease was exe- cerning government’s ability to foresee any showing cuted. In the absence of a dealings with Prudential’s Cities Service or n genuine fact, any occupying large other tenant issue of material we are un- such a part Building say improper Pinehollow at the date able to it was for the Claims grant government's motion for compendium

Court to The case is a of about all the summary judgment. partial breaches shipbuilding of a contract it is possible Navy Department for the to com- modified, affirm the decision of As we plans, mit: government- defective defective the Claims Court. material, long delays furnished in payment, AFFIRMED. etc., complication with the further Congress took the view the contracts were NICHOLS, Judge, Senior concur- Circuit illegal, position rejected. a the court The ring. to, did, vigor- court had override other join Judge opinion, I in Archer’s able but awarding anything, ous resistance to respecting my desire to add a few words $129,811.43 (without the actual award of problems own with the resolution of this years’ delay payment), interest for 20 in which, authorities, case we are con- grossly place insufficient to the con- writing to arrive at. we on strained Were good position in tractor a as he would slate, prefer I would a clean make Pru- enjoyed if the per- have had dential whole for the losses it has suffered formed, perfectly because of a rule made government, by holding because the over clear: term, prevented per- its leasehold it from plaintiff We hold that can fоrming its contract with Cities Service. damage recover those items of which are opinion properly The relies on Northern proximate result of the acts of the States, Helex Co. v. United Ct.Cl. Government. What those items are is (1975), denied, 524 F.2d cert. somewhat difficult to determine. For a L.Ed.2d 146 damage appear to be direct ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍there must which I dissented at and cases cited (not intervening no incident caused Perhaps therein. a realistic assessment of defaulting party) complicate the situation is the Holmesian doctrine that certainty confuse the of the result bе- contracting party who breaches a con damage; tween the cause and the equity, tract not enforceable or under produce inevitably cause must the effect law, really enjoys option tort to withhold naturally, possibly nor even performance payment anticipa of some probably. damage The must be such as money equivalent of ted what is withheld. parties, was to have been foreseen Holmes, Oliver Wendell Common who are assumed to have considered the (Howe Ed.1963) Law 236. Thus he cannot situation, contract, and the usual realistically illegally. be said to act events; course of but eliminated from doctrine in established con this consideration must be condition goes tract law back to a case cited and peculiar of affairs to the contractor indi- quoted in Myerle Northern Helex: v. Unit vidually particular in the case and not of (1897), opinion by ed Ct.Cl. general application under similar condi- Davis, J, one of ablest of that Nine steps tions. There must not be two be- Century teenth court. damage. tween cause and We have fol- decedent, Myerle’s Burgess, Phineas lowed this rule the decision toas shipbuilder, New York was induced different items of claim shown in the Navy Department shipyard to establish a Conclusion of Law. Sausolito, California, in 1876 where he Myerle v. United 33 Ct.Cl. at 27. perform ostensibly contracted work *8 Thus, interference with other repair warship, Monadnock, of a business re- sulting from the breach really to build a was excluded from new one of that name. progressed damages. inadequacy slowly The work until of “foresee- suspended ability” distinguish was thereafter for lack of alone to from fund- allowable loss, ing plain. until 1883 with the of cost or new Monadnock unallowable items considered, Burgess’ though antecedently still on the stocks in shipyard, inju- Even blocking acceptance his ry only “possible,” of other work. to the other is not breach, “probable;” but even in case of a Judge

may not be allowable. Davis’ for- is, believe, apply

mulation I about what we and, applying present it to our

today

case, the result we reach is unavoidable. I any showing power in Prudential’s

doubt

to make could sufficed to have obtain a My

different result. dissent in Northern treating

Helex was naive ostensible “foreseeability”

test of as the real one. inadequacy damages case of has contract breach become

anomalous in contrast to the generosity damages today

with which are awarded sup-

other contexts. While imagined

posed provide a disincentive legal others, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍violating rights enjoy here even incen-

tives commit such violation some cir-

cumstances, equitable when relief and tort

liability I are both unavailable. am not

advocating judicial lawmaking, however. appear

The matter would to call for con-

gressional attention as it involves the waiv- sovеreign immunity.

er of Pasternack, London, England,

Howard pro submitted se. Willard, Gen., Atty.

Richard K. Asst. Cohen, Director, David M. Thomas W. Pet- PASTERNACK, Appellant, Howard ersen, Asst. Director and Paul J. Ehlen- bach, Branch, Litigation Dept, Commercial v. Justice, D.C., Washington, submitted for STATES, Appellee. The UNITED respondent. Major Hippie, Richard Office Appeal No. 86-772. Gen., Judge Dept, Advocate of Air Force Terzian, Counsel, Dept, Robert Gen. Appeals, United States Court of Defense, Schools, Dependents’ of counsel. Federal Circuit. FRIEDMAN, Judge, Before Circuit Sept. BENNETT, Judge, Senior Circuit SMITH, Judge. Circuit BENNETT, Judge. Senior Circuit Appellant’s claim for tuition and related schooling overseas for his two chil- costs dren, 1981-84, covering years was de- nied the United Claims States Court J.). (Margolis, We affirm.