Doe v. U.S.

• Decision Date: 15 November 1996
• Docket Number: No. 95-5047,95-5047
• Citation: 100 F.3d 1576
• Parties: JOHN DOE, Plaintiff-Appellant, v. THE UNITED STATES, Defendant-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

Page 1576

100 F.3d 1576

JOHN DOE, Plaintiff-Appellant, v. THE UNITED STATES, Defendant-Appellee.

No. 95-5047

United States Court of Appeals FEDERAL CIRCUIT

November 15, 1996

Appealed from: United States Court of Federal Claims, Judge Bruggink

Daniel C. Leib and Samuel J. Leib, Los Angeles, CA, argued, for plaintiff-appellant.

Rhonda K. Schnare, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, argued, for defendant-appellee. With her on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Jeanne E. Davidson, Assistant Director.

Before ARCHER, Chief Judge, PLAGER and SCHALL, Circuit Judges.

PLAGER, Circuit Judge.

This case requires us to decide whether the Court of Federal Claims continues to have jurisdiction under the Tucker Act, 28 U.S.C. Section(s) 1491 (1994), over an informant's claim for a reward under 19 U.S.C. Section(s) 1619 (1994) following certain amendments to that statute in 1986. The Court of Federal Claims is divided on the question. We conclude that after the 1986 amendments the statute, sometimes referred to as the "moiety statute," continues to be "money mandating," and that Tucker Act jurisdiction lies in the Court of Federal Claims over claims arising thereunder. Accordingly, we reverse the trial court's judgment to the contrary, and remand for further proceedings consistent with this decision. We correspondingly vacate the trial court's dismissal of Plaintiff-Appellant John Doe's ¹ claim for an accounting of forfeitures, if any, resulting from any original information provided by Appellant. Appellant separately alleged an implied-in-fact contract for a reward; given this record we affirm the trial court's grant of summary judgment to the defendant United States ("Government") on this claim. We also affirm the trial court's dismissal of Appellant's misrepresentation claim since there is no valid contractual cause of action on which to base such a claim.

BACKGROUND

After Appellant was arrested for drug trafficking, he agreed to provide information to the United States Customs Service ("Customs") and the United States Attorney concerning the illegal importation of drugs, in order to assist the Government's law enforcement efforts. The Government placed Appellant in the Federal Witness Protection Program in exchange for his cooperation. Appellant disclosed his information to a Customs Special Agent and to an Assistant United States Attorney ("AUSA"). Appellant alleges that these officials agreed with Appellant that in exchange for his information, Appellant would receive 25 percent (up to $250,000) of the assets seized by Customs based on original information that Appellant provided.² The Government disputes that such a promise was made.

Following the seizure of assets from drug traffickers about whom Appellant provided information to the Government, the Customs Special Agent requested that Appellant receive $250,000 (later reduced to $150,000) for his assistance. The Special Agent in Charge rejected this request on the grounds that Appellant had cooperated only after his arrest for drug smuggling; that Appellant had provided merely corroborative, not original, information for one of the seizures; that his information was not used in obtaining the search warrant leading to another of the seizures; and that his subsequent placement in the Witness Protection Program, and his avoidance of jail time, were substantial compensation for his cooperation.

Appellant filed suit against the Government in the Court of Federal Claims, asserting entitlement to an award under the federal moiety statute, 19 U.S.C. Section(s) 1619, and the implementing regulations, 19 C.F.R. Section(s) 161.11-161.16 (1994). Appellant also alleged that the Government breached an implied-in-fact contract to pay Appellant an award based on the recovery of property resulting from original information provided by Appellant. Appellant also claimed negligent misrepresentation by the Government in allegedly promising him an award, and sought declaratory relief, an accounting of the seizures allegedly resulting from the information he provided to Customs, and damages.

The Court of Federal Claims granted the Government's motion to dismiss the statutory claim, finding that the moiety statute was not "money mandating" and therefore did not support Tucker Act jurisdiction over the claim. Doe v. United States, 32 Fed. Cl. 472, 474-75 (1994). The trial court granted summary judgment to the Government on the contract claim, on the grounds that Appellant had provided no evidence that the Customs agent and AUSA with whom Appellant dealt had the requisite actual authority to bind the Government to an award. Id. at 475. The trial court also dismissed Appellant's claims for an accounting and declaratory relief, finding such relief beyond the trial court's authority to grant because the claims were not appended to a valid contract claim. The trial court likewise dismissed the negligent misrepresentation claim as a tort claim outside its jurisdiction. Doe, 32 Fed. Cl. at 473. This appeal followed.

DISCUSSION

I. Tucker Act Jurisdiction of Claims Under 19 U.S.C. Section(s) 1619

We accord complete and independent review to the question of whether Appellant's claim for a reward under section 1619 comes within the Court of Federal Claims' jurisdiction under the Tucker Act. Gould, Inc. v. United States, 67 F.3d 925, 928 (Fed. Cir. 1995). The Tucker Act provides jurisdiction over any claim "founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. Section(s) 1491(a)(1) (1994). For jurisdiction to lie under the Tucker Act, "the allegation must be that the particular provision of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain sum." Eastport Steamship Corp. v. United States, 372 F.2d 1002, 1007 (Ct. Cl. 1967). The question is therefore whether section 1619 "can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." United States v. Testan, 424 U.S. 392, 400 (1976) (quoting Eastport, 372 F.2d at 1009).³

Prior to 1986, the federal moiety statute read in relevant part:

Any person not an officer of the United States who . . . furnishes to a United States attorney, to the Secretary of the Treasury, or to any Customs officer original information concerning any fraud upon the customs revenue, or a violation of the customs laws or the navigation laws, perpetrated or contemplated, which detection and seizure leads to a recovery of any duties withheld, or of any fine, penalty, or forfeiture incurred, may be awarded and paid by the Secretary of the Treasury a compensation of 25 per centum of the net amount not to exceed $50,000.

19 U.S.C. Section(s) 1619 (1980); Tariff Act of 1930, Pub. No. 361, Section(s) 619, 46 Stat. 590, 758. In Tyson v. United States, 32 F. Supp. 135 (Ct. Cl. 1940), a suit for the informer's fee provided under the Act, the Government argued that because the statute provided that the Secretary "may," rather than "shall," make an award when statutory conditions for recovery are met, the Secretary's decision to deny an award was final and conclusive. As a consequence, the statute would not be "money mandating" and the court would be without Tucker Act jurisdiction to review the decision. Id. at 136. The Court of Claims, this court's predecessor, disagreed. The court reasoned:

Congress did not intend to leave to the caprice or whim of the Secretary an informer's right to the award. It intended to confer upon the informer an absolute right to demand the payment of the award when he had met the conditions precedent thereto laid down by Congress . . . . [W]hen the information was the first information which the Secretary had had, and when that information led to the recovery of duties, or of a fine, penalty, or forfeiture, then the informer was entitled as of right to the payment of the award, and if the Secretary of the Treasury arbitrarily or capriciously refused to pay it, the informer had the right to file suit in court to compel that payment. This is a Government of laws, not of men.

Id. (citations omitted). The court held that Congress conferred on the Secretary jurisdiction to determine the facts, and the Secretary's determination was final and conclusive "subject only to review by the courts to determine whether or not there was any evidence to support his findings or whether or not the proceedings were regular." Id. at 137. Thus, "[i]f the Secretary's determination against the claim was supported by no evidence, if it was arbitrary or capricious, or if the proceedings were fatally defective, because, for instance, no opportunity for a hearing had been given the plaintiff, we think a suit would lie in this court to review his determination and to recover the award . . . ." Id.

Subsequent cases in the Court of Claims continued to recognize and reflect jurisdiction over section 1619 claims. E.g., Cornman v. United States, 409 F.2d 230 (Ct. Cl. 1969); see also id. at 237 n.2 (Collins, J., dissenting); Lacy v. United States, 607 F.2d 951 (Ct. Cl. 1979); Allen v. United States, 229 Ct. Cl. 515 (1981) ("A claim under 19 U.S.C. Section(s) 1619 is within our jurisdiction."); Wilson v. United States, 135 F.2d 1005, 1009-10 (3d Cir. 1943) (construing facially permissive language of pre-1986 version of section 1619 to mandate payment of award when claimant met statutory conditions, and therefore to support Little Tucker Act claim; citing Tyson, 32 F. Supp. 135); Taylor v. United States, 550 F.2d 983 (4th Cir. 1977) (same); Rickard v. United States, 11 Cl. Ct. 874 (1987) (same).

In concluding that section 1619 was "money mandating," the cases have...