Crossing v. United States Postal Serv..

• Decision Date: 25 February 2011
• Docket Number: No. 10–2307.,10–2307.
• Citation: 637 F.3d 238
• Parties: ANSELMA CROSSING, L.P., Appellantv.UNITED STATES POSTAL SERVICE.
• Court: U.S. Court of Appeals — Third Circuit

637 F.3d 238

ANSELMA CROSSING, L.P., Appellant

v.UNITED STATES POSTAL SERVICE.

No. 10–2307.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit

LAR 34.1(a) Jan. 12, 2011.

Opinion Filed: Feb. 25, 2011.

Alfred A. Gollatz, Esq., MacElree Harvey, West Chester, PA, for Appellant.Paul W. Kaufman, Esq., Office of the United States Attorney, Philadelphia, PA, Michael J. Elston, Esq., United States Postal Service, Washington, DC, for Appellee.Before: SCIRICA, BARRY and VANASKIE, Circuit Judges.

OPINION OF THE COURT

BARRY, Circuit Judge.

This appeal requires us to determine whether the Contract Disputes Act of 1978 (“CDA”), Pub.L. No. 111–350, § 3, 124 Stat. 3677, 3816–26 (2011) (to be codified at 41 U.S.C. §§ 7101–7109),¹ bars breach of contract and “essentially contractual” claims against the United States Postal Service (“USPS”) in the district courts of the United States. We find that it does, and will affirm.

I.

The factual background of this case is not complicated and is largely undisputed. Anselma Crossing, L.P. (“Anselma”), is the owner and developer of a piece of real estate in Chester Springs, Pennsylvania. In November 2009, Anselma filed a complaint against the USPS—amended in February 2010—alleging that Anselma and the USPS agreed in March 2007 that the USPS would lease a post office building from Anselma which Anselma would construct at its site in or around 2010. The agreement was not reduced to writing. Anselma alleged that the USPS made representations to the local government that Anselma had been chosen as a new USPS site. In reliance on the agreement and the USPS's representations, Anselma claims to have spent substantial sums on engineering, professional, and environmental services directly related to constructing a building that would meet USPS requirements. At some point in late 2008, the USPS made an internal decision to rescind all formerly approved new projects, a decision which affected 400 projects, including the Anselma project. Anselma was informed of the USPS's decision when the USPS replied to inquiries from Anselma's Congressman in March 2009. Anselma sought $150,000 in damages under theories of breach of contract and promissory estoppel.

The USPS moved to dismiss the complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The District Court heard oral argument and granted the USPS's motion, reaffirming its decision in Spodek v. United States, 26 F.Supp.2d 750, 753 (E.D.Pa.1998), where, in a case similar to the one before us, it found that the CDA barred jurisdiction in the federal district courts over breach of contract claims against the USPS. This timely appeal followed.²

On an appeal from a dismissal for lack of jurisdiction, we exercise plenary review over legal conclusions and review a district court's findings of fact for clear error. CNA v. United States, 535 F.3d 132, 139 (3d Cir.2008).

II.

The question of whether a district court has jurisdiction to entertain a breach of contract claim against the USPS is simply stated but not so simply resolved. Indeed, to answer the question we must examine the interplay between the CDA and various provisions of the Postal Reorganization Act (“PRA”), 39 U.S.C. §§ 401, 409, 410, as well as the issue of sovereign immunity.

It is well settled that “[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The United States must consent to be sued, and “the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). The USPS is an “independent establishment” of the executive branch and, thus, is part of the government and cannot be sued absent a waiver. U.S. Postal Serv. v. Flamingo Indus. ( USA) Ltd., 540 U.S. 736, 744, 124 S.Ct. 1321, 158 L.Ed.2d 19 (2004) (citing 39 U.S.C. § 201). The government has waived the immunity of the USPS through the PRA, which gives the USPS the power to “sue and be sued in its official name.” 39 U.S.C § 401(1); see also Flamingo Indus., 540 U.S. at 741, 124 S.Ct. 1321. Relevant to this appeal, § 409(a) of the PRA states that “[e]xcept as otherwise provided in this title, the United States district courts shall have original but not exclusive jurisdiction over all actions brought by or against the Postal Service.” 39 U.S.C. § 409(a).

The question before us, then, is not whether an aggrieved party may bring a claim against the USPS—it can—but where the claim may be brought. With respect to claims sounding in contract, the CDA “established a comprehensive framework for resolving contract disputes between executive branch agencies and government contractors.” Menominee Indian Tribe v. United States, 614 F.3d 519, 521 (D.C.Cir.2010). The CDA applies to any express or implied contract entered into by an executive agency for the procurement of property, services, construction, repair, or the disposal of personal property. Pub.L. No. 111–350, § 3, 124 Stat. 3677, 3817 (2011) (to be codified at 41 U.S.C. § 7102(a)). Under the CDA, a claim for breach of contract must be presented to a designated contracting officer. A party may appeal a decision by the contracting officer to the relevant board of contract appeals or to the United States Court of Federal Claims. Id. at § 3, 124 Stat. at 3817–22 (to be codified at 41 U.S.C. §§ 7103–7105).³ “The CDA is intended to keep government contract disputes out of district courts; it limits review of the merits of government contract disputes to certain forums, both to limit the waiver of sovereign immunity and to submit government contract issues to forums that have specialized knowledge and experience.” United States v. Kasler Elec. Co., 123 F.3d 341, 346 (6th Cir.1997); see also S.Rep. No. 95–1118, at 1 (1978), reprinted in 1978 U.S.C.C.A.N. 5235, 5235 (noting that the purpose of the CDA is to “help to induce resolution of more contract disputes by negotiation prior to litigation; equalize the bargaining power of the parties when a dispute exists; provide alternate forums suitable to handle different types of disputes; and insure fair and equitable treatment to contractors and Government agencies”).

A.

Anselma argues that the plain language of § 401(1) of the PRA allows the USPS to “sue and be sued,” that federal district courts have original but not exclusive jurisdiction to hear claims against the USPS under § 409(a) of the PRA, and that the CDA does not bar breach of contract claims in the federal district courts. Anselma relies on our decision in Licata v. U.S. Postal Service, 33 F.3d 259 (3d Cir.1994), which raised but left open the precise question in this appeal.

In Licata, the plaintiff sued the USPS for breach of contract. Two issues were raised: (1) whether § 409(a) provided an independent basis for subject matter jurisdiction; and (2) whether the Tucker Act deprived the district courts of jurisdiction over the USPS. Only the first issue is relevant here. As to that issue, we disagreed with the line of cases holding that subject matter jurisdiction did not exist under § 409(a) without a separate valid cause of action. Id. at 262 (“[W]e believe that the Postal Service's argument ... that subject matter jurisdiction is absent without a cause of action is seriously flawed because whether or not a cause of action exists goes to the merits, not to the question of subject-matter jurisdiction.” (citation and internal quotation marks omitted)). Instead, we held that § 409(a) had a plain meaning that gave a “clear and unequivocal grant of jurisdiction to the district courts.” Id. at 261 (citation and internal quotation marks omitted). Accordingly, we held that “absent some other statutory bar, section 409(a) grants district courts subject matter jurisdiction over actions to which the Postal Service is a party.” Id. at 263. Importantly, we also clarified that § 401(1), the PRA's “sue and be sued” clause, addresses the USPS's waiver of sovereign immunity, while § 409(a) addresses subject matter jurisdiction, and that it was error to conflate the two provisions when considering whether the district court had jurisdiction over cases involving the USPS. Id. at 262. Sua sponte, we raised, but left open, the possibility that the CDA was a statutory bar to § 409(a)'s grant of jurisdiction, id. at 254 n. 6, the question we answer today.⁴

The USPS urges us to follow U.S. Postal Service v. Flamingo Industries (USA), Ltd., 540 U.S. 736, 124 S.Ct. 1321, 158 L.Ed.2d 19 (2004), decided ten years after Licata. In Flamingo Industries, the Court addressed the question of how to determine when the “sue and be sued” clause of 39 U.S.C. § 401(1) permits suits against the USPS. Plaintiffs there sued the USPS under federal antitrust law. The Court described a two-step process for determining whether the USPS could be subject to substantive liability. First, “[w]e ask ... whether there is a waiver of sovereign immunity for actions against the Postal Service. If there is, we ask the second question, which is whether the substantive prohibitions of the Sherman Act apply to an independent establishment of the Executive Branch of the United States.” Id. at 743, 124 S.Ct. 1321. In explaining why the second step was “important,” the Court stated that “[a]n absence of immunity does not result in liability if the substantive law in question is not intended to reach the federal entity. So we proceed to [the] second step to determine if the substantive antitrust liability defined by the statute extends to the Postal Service.” Id. at 744, 124 S.Ct. 1321. Applying its two-step process, the Court determined that under the first step, § 401(1) waived immunity. Under the second step, it determined that because neither the government nor the USPS was a “person” under the Sherman Act, the USPS “is not controlled by the antitrust laws.” Id. at...