ELR Citation: ELR 20586
No(s). 97-15052 (9th Cir. Feb 12, 1998)

The court holds that the Administrative Procedure Act (APA) §702 does not waive the federal government's sovereign immunity in a war contractor's suit for specific performance of a settlement contract in which the government agreed to assume liability for all claims incurred in connection with the contractor's wartime manufacturing. The contractor claimed that the government's failure to assume the contractor's defense in a CERCLA action for remediation of groundwater and soil contamination violated the Contract Settlement Act (CSA) and the U.S. Constitution. The court first holds that the APA does not waive sovereign immunity with respect to the contractor's CSA claims. The contractor's claims satisfy the first two conditions necessary for an APA waiver of sovereign immunity. The contractor's claims are not for money damages. The contractor seeks specific performance of the settlement contract, and specific performance is not an action for money damages under APA §702. In addition, the contractor does not have an adequate remedy in the Court of Federal Claims, because that court is not authorized to grant the equitable relief that the contractor seeks. However, because the Tucker Act impliedly forbids the contractor's claims, the necessary third condition for a waiver of APA sovereign immunity bars the contractor's claims. The Tucker Act provides the Court of Federal Claims with exclusive jurisdiction over any claim against the United States founded upon an express or implied contract with the United States that seeks money damages in excess of $10,000. Therefore, the Tucker Act impliedly forbids declaratory and injunctive relief, such as the specific performance requested by the contractor. Because the contractor is asking the court to decide what its contract rights are, its CSA claims do not exist independent of the settlement contract. And the CSA does not impose a substantive duty on the government to defend those claims. The court next holds that the Tucker Act bars the contractor's constitutional claims because they are contractually based. All of the contractor's constitutional claims are premised on the notion that the United States has some contractual obligation to the contractor under the settlement contract. If the settlement contract imposes no such obligation, the United States owes no duty to the contractor giving rise to an alleged constitutional violation. The court also holds that an action for mandamus does not lie against the Secretaries of Defense and the Air Force because the Secretaries had no clear ministerial duty to defend the contractor. Unless an officer of the United States acts without statutory authority, the officer's acts are the acts of the sovereign, immune from suit to the same extent as the United States itself is immune. Because the contractor cannot show the necessary clear lack of authority for the Secretaries' actions, those acts must be imputed to the United States and are subject to sovereign immunity. Therefore, the mandamus count is barred by APA §702 and the Tucker Act.

[The district court's decision in this litigation is published at 26 ELR 21337.]

Counsel for Plaintiffs
Herbert L. Fenster
McKenna & Cuneo
370 17th St., Ste. 4800, Denver CO 80202
(303) 634-4000

Counsel for Defendant
Paul Yanowitch, Ass't U.S. Attorney
U.S. Attorney's Office
5806 Judiciary Center Bldg.
555 4th St. NW, Washington DC 20001
(202) 514-7566

Before Nelson and Tashima, JJ.