OPINION
This ease comes before the Court on Defendant’s Motion to Dismiss. We find that Plaintiff lacks standing to bring suit in this Court and GRANT Defendant’s Motion to Dismiss.
I. BACKGROUND
The facts are taken from the parties’ filings. Plaintiff, Travelers Casualty and Surety Company of America (Travelers), filed a Complaint asking for damages resulting from an alleged breach of an implied contract. Plaintiff issued a crime liability insurance policy to S & K Sales Company (S & K). Plaintiff has filed this claim as assignee and subrogee to S & K after it paid out a claim pursuant to the insurance policy.
S & K is a “vendor/manufacturer representative” for various vendors and manufacturers from whom Army and Air Force Exchange Service (AAFES) has purchased goods to be resold in their retail stores. S & K would facilitate “vendor-sponsored promotions” at AAFES locations. To facilitate promotions for the vendors’ products, S & K would reimburse AAFES for the difference between the wholesale price of the product and the discounted price of the product, so that AAFES would remain whole when a vendor placed products on sale. S & K asserts that this course of business has been in place throughout S & K’s almost 70-year history of working in military retail facilities operated by AAFES.
CUSTOMER CERTIFICATION
I (we) understand that this is not a promotional offer and that the monies paid are not simply a price reduction and that I (we) agree to perform on the Merchandising Options as presented by S & K Sales Co. and agree to submit the required proof of performance. Should, for any reason, the merchandising performance not be accomplished during the scheduled promotion period, I (we) will reimburse S & K Sales Co. upon receipt of an invoice, for the unearned allowances previously paid.
S & K would also submit a Promotional Reimbursement form to the vendor authorizing the promotion. The vendor would reimburse S & K for any payment made to AAFES for the merchandise. AAFES had specific procedures set forth in its Exchange Operating Procedures manual with regard to administering the vendor-sponsored promotions.
In 2003, S & K employed Celeste Reinhardt as a vendor representative for AAFES stores in Hawaii. Starting in 2005, instead of presenting AAFES with checks to facilitate promotions, she would present S & K checks “paid to the order of AAFES” at AAFES stores and receive cash (and on one occasion, merchandise) in exchange. S & K did not discover the embezzlement until July 2007, after Ms. Reinhardt had cashed checks totaling $250,944.
S & K sent a claim for reimbursement to AAFES in April 2009, but AAFES refused to pay based upon the absence of a contractual relationship. S & K then filed a claim with Travelers under its Crime Plus insurance policy. Travelers paid $230,944 under the policy and S & K executed a Release and Assignment that purports to assign Travelers all of S & K’s rights against any person or organization responsible for the loss.
II. DISCUSSION
A. Standard of Review
In ruling on a motion to dismiss for lack of subject matter jurisdiction pursuant to the U.S. Court of Federal Claims Rule 12(b)(1), the Court accepts as true the undisputed allegations in the complaint and draws all inferences in favor of the plaintiff. Cardiosom, LLC v. United States,
Absent an unequivocal consent to suit, the U.S. Court of Federal Claims lacks authority to grant relief against the United States. United States v. Testan,
For a claim founded upon contract to fall within the Tucker Act’s waiver of sovereign immunity and therefore within the jurisdiction of this Court, a plaintiff must adequately plead the elements necessary to establish the existence of a contract (Trauma Service Group v. United States,
B. Standing
The threshold issue in this case is whether the Government has waived sover
The Government only consents to be sued by those with whom it is in privity of contract. Erickson Air Crane,
Plaintiff relies on its status as an assignee of S & K’s rights to sue any person or organization responsible for S & K’s loss. Complaint ¶ 1. However, this assignment does not meet the requirements of the Anti-Assignment Act, which provide that “a transfer or assignment of any part of a claim against the United States Government ... may be made only after a claim is allowed, the amount of the claim is decided, and a warrant for payment of the claim has been issued.” 31 U.S.C. § 3727(a), (b). Plaintiff cannot rely on its status as an assignee.
Despite the plain language of the Anti-Assignment Act, Plaintiff argues that this statute does not apply because the assignment in question does not implicate the purposes of the Act. See Centers v. United States,
We disagree with Plaintiff. The purposes of the Act are implicated in this case. Travelers is not an original claimant and the Government cannot set off any claims or counterclaim against Travelers as it otherwise would be able to in a suit against S & K. S & K received $230,244 under the crime liability policy — $20,000 less (the amount of the deductible) than the $250,244 claimed as a loss. This differential raises the risk of successive litigation and multiple liability.
Plaintiff argues that it has standing by virtue of equitable subrogation. This Court has recognized two instances where a Plaintiff may be subrogated to an original claimant’s claim: “when the surety takes over contract performance or when it finances completion of the defaulted contract.” Insurance Co. of the West v. United States,
There is no case law that would lead this Court to conclude sovereign immunity may be waived to allow a general liability insurer to bring suit against the Government under the Tucker Act. Plaintiff points to Insurance Co. of the West as supporting a waiver of sovereign immunity in this case because the Court stated, “[njeither the Federal Tort Claims Act nor the Tucker Act is limited to claims asserted by the original claimant ... The language of both acts contains an unequivocal expression waiving sovereign immunity as to claims, not particular claimants.” Id. at 1373-74.
The main holding in this case re-affirms the well-established principle that a surety may step into the shoes of a government contractor and sue the Government as the contractor’s subrogee under the Tucker Act. In Centers, we concluded that the language set forth in Insurance Co. of the West is merely dicta. Centers,
Furthermore, the rationale behind equitable subrogation does not apply to allow general liability insurers to sue the Government. In the surety context, there are mutual obli
The Balboa court’s interpretation that the Tucker Act authorizes suit by a person who is “as much a party to the Government contract as the contractor” would hardly demand the conclusion that Congress also intended to authorize suit by parties who have no direct responsibility for contract performance and no other obligation owed directly to the government. [The general liability insurer’s] relationship to the government seems far better analogized to that of a subcontractor, which the Balboa court reasoned, “has no obligation^ running directly to or from the Government ... and therefore possesses no enforceable rights against the United States.”
We agree with the Court’s rationale in Federal Ins. Co. Plaintiff did not fully step into S & K’s shoes; instead, Plaintiff merely was assigned S & K’s right to sue. Plaintiff does not have standing to sue for breach of contract in this Court.
III. CONCLUSION
For the reasons stated above, we hereby GRANT Defendant’s Motion to Dismiss. The Clerk is directed to enter judgment for the Defendant and DISMISS the Complaint. Parties are to bear them own costs.
IT IS SO ORDERED.