J.C. Driskill, Inc. v. Abdnor

• Decision Date: 17 April 1990
• Docket Number: Nos. 89-2639,89-2640,s. 89-2639
• Citation: 901 F.2d 383
• Parties: 36 Cont.Cas.Fed. (CCH) 75,843 J.C. DRISKILL, INC., Plaintiff-Appellant, and Hicks & Ingle Company of Virginia, Inc., Plaintiff, v. James ABDNOR, in his official capacity as Administrator of the Small Business Administration; Small Business Administration, Defendants-Appellees, and Jerry E. Bradshaw; Steve Nelson, Defendants. HICKS & INGLE COMPANY OF VIRGINIA, INC., Plaintiff-Appellant, and J.C. Driskill, Inc., Plaintiff, v. James ABDNOR, in his official capacity as Administrator of the Small Business Administration; Small Business Administration, Defendants-Appellees, and Jerry E. Bradshaw; Steve Nelson, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 383

901 F.2d 383

36 Cont.Cas.Fed. (CCH) 75,843

J.C. DRISKILL, INC., Plaintiff-Appellant, and Hicks & Ingle Company of Virginia, Inc., Plaintiff, v. James ABDNOR, in his official capacity as Administrator of

the Small Business Administration; Small Business

Administration, Defendants-Appellees,

and

Jerry E. Bradshaw; Steve Nelson, Defendants.

HICKS & INGLE COMPANY OF VIRGINIA, INC., Plaintiff-Appellant, and J.C. Driskill, Inc., Plaintiff, v. James ABDNOR, in his official capacity as Administrator of

the Small Business Administration; Small Business

Administration, Defendants-Appellees,

and

Jerry E. Bradshaw; Steve Nelson, Defendants.

Nos. 89-2639, 89-2640.

United States Court of Appeals Fourth Circuit.

Argued Dec. 6, 1989.

Decided April 17, 1990.

Michael Trevor Zugelder, argued (Robert R. MacMillan, on brief) Breeden, MacMillan & Green, (M.T. Bohannon, Jr., Bohannon, Bohannon & Hancock, on brief), Norfolk, Va., for plaintiffs-appellants.

Mark Keith Stevens, U.S. Small Business Admin., Washington, D.C., J. Phillip Krajewski, Asst. U.S. Atty., Norfolk, Va. (Stran L. Trout, U.S. Small Business Admin., Richmond, Va., Henry E. Hudson, U.S. Atty., Norfolk, Va., on brief), for defendants-appellees.

Before WIDENER, CHAPMAN and WILKINSON, Circuit Judges.

WIDENER, Circuit Judge:

Hicks & Ingle Company of Virginia, Inc. (Hicks & Ingle) and J.C. Driskill, Inc. (Driskill) appeal the district court's dismissal of their complaints against the Small Business Administration (the SBA) and its administrator to recover money owed the plaintiffs for work performed on a government construction project. Because the district court correctly concluded that it had no jurisdiction over plaintiffs' claims, we affirm.

I.

In reviewing the district court's dismissal of plaintiffs' actions, we must accept as true all factual allegations contained in the complaints. The original complaint in this case, which Hicks & Ingle filed, alleged the following material facts.

On December 31, 1986, the United States Navy named the SBA prime contractor for the construction of the Pay and Personnel Support Office at the Naval Air Station Oceana, Virginia Beach, Virginia. On the same day, pursuant to section 8(a) of the Small Business Act, 15 U.S.C. Sec. 637(a), the SBA entered into a subcontract with Batchelor's Contracting, Inc. (Batchelor's) in the amount of $1,450,339.84. ¹ On February 26, 1987, the SBA received what appeared to be valid performance and payment bonds, complete with affidavits of the sureties and certificates of their sufficiency. These documents identified Batchelor's as principal and defendants Jerry Bradshaw and Steve Nelson as the individual sureties. ² Although the bonds and surety affidavits were signed with the names of Bradshaw and Nelson, Hicks & Ingle questions the authenticity of the signatures. Hicks & Ingle flatly asserts that the signature of Ben Bartlett, the "Vice President/Bank Officer" who certified the sureties' sufficiency, is a forgery.

On May 3, 1987, Hicks & Ingle agreed with Batchelor's to accept a sub-subcontractor award from Batchelor's for the purpose of performing $242,800 worth of plumbing, heating, ventilation, and air conditioning work on the project. Hicks & Ingle accepted this award in the belief that the SBA had required Batchelor's to provide valid Miller Act payment and performance bonds with sufficient and authentic individual sureties. Plaintiff began performance of its subcontract and Batchelor's paid plaintiff on time for work performed through September 1987. Batchelor's did not pay Hicks & Ingle, however, for work performed in October, November, and December 1987 and January 1988. Thus, Hicks & Ingle contends that Batchelor's owes it $61,995.81 for work actually performed, plus $22,577.35 in contractual retainage, for a total of $84,573.16. Batchelor's is not a party to this suit because it filed a petition under Chapter 11 of the Bankruptcy Code on September 22, 1987, which petition, however, did not include plaintiffs or this project in its schedules.

Plaintiff Driskill is another sub-subcontractor that remains unpaid in the amount of $54,544 for work performed on the project pursuant to a subcontract with Batchelor's. Driskill joined this action by filing an intervening complaint, which also set forth claims against the SBA and its administrator, James Abdnor. ³ Because the intervening complaint tracks the language of Hicks & Ingle's original complaint and sets forth the same theories for relief, we address both complaints together.

II.

Plaintiffs' theory that the SBA and Abdnor are liable for Batchelor's failure to pay is grounded in duties imposed upon the SBA by the Small Business Act, the Miller Act, and relevant Federal Acquisition Regulations. Specifically, plaintiffs allege that defendants breached their legal duty to determine, before awarding the subcontract to Batchelor's, that Batchelor's was capable of performing and completing the subcontract. See 15 U.S.C. Sec. 637(a)(1)(A); 13 C.F.R. Sec. 124.302(c). In addition, plaintiffs contend that defendants were obligated to require Batchelor's to post valid performance and payment bonds and to verify the adequacy of the individual sureties on those bonds, and that defendants failed to do so. See 40 U.S.C. Sec. 270a; 48 C.F.R. Sec. 19.809-1(b)(5); 48 C.F.R. Sec. 28.202-2. In sum, plaintiffs assert that defendants' failure to investigate Batchelor's and the sureties properly, as well as defendants' failure to notify plaintiffs of Batchelor's bankruptcy, "breached [defendants'] statutory, regulatory, and fiduciary duty of care and fair dealings which Defendants ... owed Plaintiff[s]." Accordingly, plaintiffs seek the imposition of an equitable lien against any contract balances in the SBA's possession, as well as a money judgment against the SBA and Abdnor. The district court determined that it had no jurisdiction and dismissed plaintiffs' claims, Hicks & Ingle Co. v. Abdnor, 703 F.Supp. 464, 466 (E.D.Va.1989), and plaintiffs now appeal.

III.

Plaintiffs seek to establish federal question jurisdiction over their claim for an equitable lien based upon 28 U.S.C. Sec. 1331 for jurisdiction and 15 U.S.C. Sec. 634(b)(1) for waiver of sovereign immunity. ⁴ Under Sec. 634(b)(1) they claim that Congress, by authorizing the administrator to "sue and be sued," waived the sovereign immunity that the SBA otherwise would enjoy as an agency of the federal government. Plaintiffs read section 634(b)(1) as a complete waiver of the SBA's sovereign immunity and rely almost exclusively on the two decisions in Kennedy Electric Co. v. United States Postal Service, 367 F.Supp. 828 (D.Colo.1973), aff'd on other grounds, 508 F.2d 954 (10th Cir.1974), to support the district court's jurisdiction. Plaintiffs' reliance on Kennedy, however, is misplaced.

In Kennedy a subcontractor performed work on a post office building but was never paid because the general contractor became insolvent and the Postal Service (then the Post Office Department) had failed to require the posting of Miller Act bonds. The district court in Kennedy imposed an equitable lien in favor of the subcontractor on all undisbursed and wrongfully disbursed contract funds, and the Tenth Circuit affirmed. Thus, on facts somewhat similar to those we consider here, the Tenth Circuit in Kennedy determined that the Postal Service "is just as amenable to the judicial process as is a private enterprise." Kennedy, 508 F.2d at 960. The difficulty with this theory of recovery, however, lies in a critical distinction between the statute waiving sovereign immunity at issue in Kennedy and the one in question here.

The statute that regulates the Postal Service, 39 U.S.C. Sec. 401(1), contains a general "sue and be sued" clause that was held to waive the Postal Service's sovereign immunity. The relevant portion of the Small Business Act, 15 U.S.C. Sec. 634(b)(1), uses similar language, but also contains a specific limitation of the waiver:

(b) In the performance of, and with respect to, the functions, powers, and duties vested in him by this chapter the Administrator may--

(1) sue and be sued in any court of record of a State having general jurisdiction, or in any United States district court, and jurisdiction is conferred upon such district court...