228 Ct. Cl. 886 | Ct. Cl. | 1981
Plaintiff is the successor to a company which agreed with the Housing Authority of the Chickasaw Nation of Oklahoma to build and sell to that Authority housing for elderly Indians at Ardmore, Oklahoma. The Housing Authority also had a Consolidated Annual Contributions Contract (ACC contract) with the Department of Housing and Urban Development (HUD) under the Housing Act of 1977, 42 U.S.C. § 1401 et seq. (1970) and the Department of Housing and Urban Development Act, 5 U.S.C. § 624 (now codified as
The petition states a claim against the United States for the amount of the increase; this claim was transferred here by the United States District Court for the Western District of Oklahoma.
Plaintiff moves for partial summary judgment on the threshold issue of whether this court can entertain this suit. The contentions are that (i) Congress has expressly waived sovereign immunity for a suit of this type in this court, (ii) plaintiff is in privity of contract with the United States or is a third-party beneficiary of the Government’s contract with the Housing Authority, and (iii) plaintiff had an implied contract with the United States.
Recognizing that at least two of our prior decisions (Housing Corporation of America v. United States, 199 Ct. Cl. 705, 468 F.2d 922 (1972) and Correlated Development Corp. v. United States, 214 Ct. Cl. 106, 566 F.2d 515 (1977)) stand squarely in its way, plaintiff asks that its motion be considered by the court en banc, so that those holdings can be reconsidered. All the active judges having voted against a hearing en banc, the court has denied the request, and this panel will therefore act on the motion. The panel is, of course, bound by the earier decisions.
We have several times considered claims against the United States by construction contractors (like plaintiff) for housing projects financed or insured by HUD. In addition to Housing Corporation and Correlated Development Corporation, supra, see Aetna Casualty & Surety Co. v. United
On the question of whether Congress has waived immunity in the housing legislation, plaintiff stresses the express legislative consent to sue HUD which exists in the National Housing Act, now 12 U.S.C. §1702 (1976), and the U.S. Housing Act, now 42 U.S.C. 1404a (1976). These consents-to-sue are said to be general waivers of sovereign immunity, subjecting the United States to full suit under the Tucker Act in cases like this. But Aetna Casualty & Surety Co, supra, held quite the contrary — that those provisions allowing suit against HUD (with its separate funds) are not equivalent to Congressional consent to reach the general fund of the Treasury via an action under the Tucker Act. Those consents-to-sue reach only the funds in the hands of HUD. In addition, Aetna ruled (as did United Electric Corp. v. United States, 227 Ct. Cl. 236, 647 F.2d 1082, cert. denied, 454 U.S. 836 (1981)) that such separate consents-to-sue allow the tribunal (generally a District Court) to apply principles of non-consensual equitable restitution, of tort law, and of contracts implied-in-law which are not available to us under the Tucker Act.
The new point on the issue of privity is that (apparently unlike the agreements in our earlier cases) plaintiffs
Lastly, plaintiff argues that it should have the chance to prove that it had a contract implied-in-fact with the United States. Defendant has not moved for summary judgment, or to dismiss,
For these reasons and on the basis of our previous decisions, it is ORDERED, without oral argument, that plaintiffs motion for partial summary judgment is denied and the case is remanded to the Trial Division for further proceedings consistent with this order.
Defendant has not even responded to plaintiffs motion; its request for a further extension of time to do so was denied.