Kinzley v. United States, 503-79C.

• Decision Date: 23 September 1981
• Docket Number: No. 503-79C.,503-79C.
• Parties: Betsy KINZLEY, Personal Representative of Judd Kinzley, Deceased, v. The UNITED STATES.
• Court: U.S. Claims Court

661 F.2d 187

Betsy KINZLEY, Personal Representative of Judd Kinzley, Deceased, v. The UNITED STATES.

No. 503-79C.

United States Court of Claims.

September 23, 1981.

Francis G. Fleming, Phoenix, Ariz., atty. of record, for plaintiff.

Zinora Mona Mitchell, Washington, D. C., with whom was Acting Asst. Atty. Gen. Thomas S. Martin, Washington, D. C., for defendant.

William D. Holeman, Dept. of the Interior, Washington, D. C., of counsel.

Before FRIEDMAN, Chief Judge, SKELTON, Senior Judge, and KUNZIG, Judge.

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

FRIEDMAN, Chief Judge, delivered the opinion of the court:

This suit seeks damages for the breach by the Bureau of Indian Affairs (Bureau) of an oral contract to employ the plaintiff¹ as the Program Coordinator of its Indian Construction Company Program (Program) for one year at a monthly salary of $2,500 and reasonable expenses. Both parties have moved for summary judgment, and we heard oral argument. We hold that the plaintiff had an enforceable personal services contract with the Bureau, but we reserve for trial the question whether the parties modified the contract when the plaintiff accepted a temporary civil service appointment covering the same work. We also dismiss the plaintiff's claim for damages flowing from the loss of other contracts.

I.

The following facts are not disputed. In September 1976, the Bureau of Indian Affairs and the Department of Health, Education and Welfare (HEW) entered into an agreement to undertake jointly a national program to assist Indian tribes in developing their own construction companies. HEW agreed to finance the program and the Bureau to administer it for a one-year period from October 1, 1976 to September 30, 1977.

As part of this agreement, the Bureau agreed to "designate an Agreement coordinator before October 1, 1976 for the purpose of coordinating activities directed toward achieving the purpose" of the program. Early in September 1976, Bureau officials discussed with the plaintiff the possibility of employing him in that capacity. He already had served as an "Indian Action Team Director" in connection with similar Indian construction programs in the Northeast.

The Bureau officials who participated in these discussions included Peter J. Martin, Chief of the Indian Technical Assistance Center, Denver, Colorado, and two officials in the Bureau's Washington, D. C., offices: John Jollie, Chief of the Division of Job Placement and Training (Mr. Martin's immediate supervisor), and Dan McDonald, Director of the Tribal Resources Development Program (Mr. Jollie's supervisor). According to a memorandum by Mr. Jollie, these officials "agreed that the plaintiff would be the ideal person to be the agreement coordinator" and, faced with "extreme time constraints because of the timing of the interagency agreement, ... informed the plaintiff that they would make every effort to secure his services for the coordinator's position."

The defendant admits in its motion that these "discussions culminated in a verbal agreement between plaintiff and BIA representatives under which plaintiff was to perform as Program Coordinator for one year, commencing in September 1976, at a compensation rate of $2,500.00 per month, plus expenses." On or about September 13, 1976, the plaintiff accepted the position and began his duties.

Shortly thereafter, Mr. Jollie wrote a letter, at the request of the plaintiff, to Valley National Bank, a creditor of the plaintiff. This letter stated that "we have entered into an agreement with" the plaintiff to perform the designated services and stated the plaintiff's compensation under "our agreement." The letter, however, did not state the expected duration of the employment. Mr. Jollie signed this letter in his official capacity, and it was on an official Bureau letterhead. The letter was undated, but its contents show that it was sent shortly after the plaintiff and Bureau officials reached agreement. Mr. Jollie wrote that "because government contracting procedures are quite complex it is conceivable that Mr. Kinzley will not receive his first draw before the third or fourth week of November."

According to the defendant's exhibits, the Bureau officials decided that Mr. Martin would arrange to employ the plaintiff by preparing and submitting a purchase order, "a process which he had used" with other personal service contracts. Sometime in October 1976, however, Mr. Martin went on extended sick leave and never processed the purchase order. To remedy this, Mr. Jollie prepared and submitted a requisition and a purchase order on December 1 and 2, 1976, respectively, to cover, at the agreed rate, the services the plaintiff had rendered and the expenses he had incurred up to that time. This payment for the period September 13 to November 30, 1976, was for $7,592.

The purchase order was approved after a meeting in December 1976, among the plaintiff, Mr. Jollie, Theodore Krenzly, Acting Deputy Commissioner of the Bureau, and members of Mr. Krenzly's staff. At this meeting, the participants agreed that such a purchase order was "both a legal and an appropriate" way to pay the plaintiff for services he had rendered. The Bureau officials at the meeting, however, wanted to use a different method in the future.

The Bureau sent the plaintiff a Treasury check for $7,592 on January 18, 1977.

In December 1976, after the meeting, Jose Zuni, Director of the Bureau's Office of Administration, assumed responsibility for the Program. In late December, he arranged to place the plaintiff in a temporary civil service position as a Program Analyst for the Bureau at a GS-13, step 1, salary level. As originally arranged, the appointment was to begin December 27, 1976, and run for a month. It was later extended, however, through February 25, 1977. During this 2-month period, the plaintiff received $2,525.04 as salary.

Shortly before the expiration date of the plaintiff's extended temporary appointment, the Bureau's Acting Deputy Commissioner (Mr. Krenzly) informed the plaintiff that the Bureau would be unable to employ him further except by temporary employment at a GS-13 grade. When the plaintiff's appointment expired on February 25, 1977, however, the Bureau did not extend it further. The defendant concedes that the Bureau informed the plaintiff that his services were not needed after conclusion of the temporary appointment. The plaintiff performed no services for the Bureau thereafter.

On March 30, 1977, the plaintiff submitted a claim to the Acting Commissioner of Indian Affairs seeking damages for the breach of his contract by the Bureau. In evaluating this claim, the Interior Department's Acting Assistant Solicitor, on November 2, 1977, sent a memorandum to Mr. Jollie which stated that the plaintiff's "discussions" with Bureau officials had "culminated in a verbal agreement" for the plaintiff "to perform personal services for the BIA under the interagency Agreement for one year commencing in September 1976 at $2,500 per month plus additional payment for expenses."

On April 26, 1978, the Assistant Secretary for Indian Affairs rejected the plaintiff's claim except for $1,938.18 for the services the plaintiff had performed without compensation between December 1 and 26, 1976. The plaintiff rejected this offer and filed this suit.

II.

A. The defendant contends that the plaintiff's claim based upon his agreement with Bureau officials is unenforceable against the government because it is not supported by documentary evidence as 31 U.S.C. § 200(a) requires. That statute permits "no amount" to "be recorded as an obligation of" the United States

unless it is supported by documentary evidence of —

(1) a binding agreement in writing between the parties thereto, including Government agencies, in a manner and form and for a purpose authorized by law, executed before the expiration of the period of availability for obligation of the appropriation or fund concerned for specific goods to be delivered, real property to be purchased or leased, or work or services to be performed; or

....

(7) employment or services of persons or expenses of travel in accord with law; or services performed by public utilities ....

The plaintiff's claim satisfies those requirements.²

There are four documents that reflect and confirm the plaintiff's employment contract:

(i) The letter Mr. Jollie sent to the plaintiff's creditor, in early autumn 1976, which twice described the plaintiff's arrangement with the Bureau as an "agreement." The letter did not, as the defendant contends, suggest that the arrangements with the plaintiff were still tentative, but rather stated that the Bureau had "entered into an agreement with" the plaintiff, and described the provisions that "our agreement includes ...."

(ii) The requisition and purchase order which authorized payment to the plaintiff, at the contract rate, for the services he already had rendered. They explained that the plaintiff was performing the services contemplated under the interagency agreement.

(iii) The November 2, 1977 memorandum of the Interior Department's Acting Assistant Solicitor which recognized there had been the very verbal agreement upon which the plaintiff relies and the existence of which the defendant has admitted.

(iv) The April 26, 1978 letter from the Assistant Secretary recognizing that the plaintiff was entitled to $1,938.18 "for uncompensated services ... under the oral agreement, which was in effect from September 13, 1976 to December 27, 1976."

These documents must be viewed against the background of the interagency agreement stating that the program it outlined would run for "one (1) year beginning October 1, 1976, and ending September 30, 1977" and that, to implement the program, the Bureau would "designate an Agreement coordinator before October 1, 1976 ...."

These four documents, perhaps individually and...