Liberty Const., In re, s. 91-56519

• Decision Date: 12 November 1993
• Docket Number: 91-56520,Nos. 91-56519,s. 91-56519
• Citation: 9 F.3d 800
• Parties: , 39 Cont.Cas.Fed. (CCH) P 76,595 In re LIBERTY CONSTRUCTION. CONCRETE TIE OF SAN DIEGO, INC., United States, For the Use of dba Atlas Construction Supply, Plaintiff, v. LIBERTY CONSTRUCTION, INC., a California corporation, et al., Defendants. Lucille KURTIN, et al., Third-Party-Plaintiffs-Appellants, v. SMALL BUSINESS ADMINISTRATION, Third-Party-Defendant-Appellee. LIBERTY CONSTRUCTION, INC., a California corporation, Third-Party-Plaintiff-Appellant, v. SMALL BUSINESS ADMINISTRATION, Third-Party-Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 800

9 F.3d 800 62 USLW 2317, 39 Cont.Cas.Fed. (CCH) P 76,595 In re LIBERTY CONSTRUCTION.
CONCRETE TIE OF SAN DIEGO, INC., United States, For the Use
of dba Atlas Construction Supply, Plaintiff,
v.
LIBERTY CONSTRUCTION, INC., a California corporation, et
al., Defendants.
Lucille KURTIN, et al., Third-Party-Plaintiffs-Appellants,
v.
SMALL BUSINESS ADMINISTRATION, Third-Party-Defendant-Appellee.
LIBERTY CONSTRUCTION, INC., a California corporation,
Third-Party-Plaintiff-Appellant,
v.
SMALL BUSINESS ADMINISTRATION, Third-Party-Defendant-Appellee. Nos. 91-56519, 91-56520. United States Court of Appeals,
Ninth Circuit. Argued and Submitted April 8, 1993.
Decided Nov. 12, 1993.

Jeffrey N. Garland, Styn & Garland, San Diego, CA, for appellant Kurtin.

Laura J. Colburn, San Diego, CA, for appellant Liberty Const.

Robert H. Plaxico, Asst. U.S. Atty., San Diego, CA, for appellee Small Business Admin.

Appeal from the United States District Court for the Southern District of California.

Before: FARRIS, NORRIS, and REINHARDT, Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

Liberty Construction, a minority owned business, entered into a contract with the Small Business Administration to build a warehouse for the Navy. After being sued by subcontractors under the Miller Act, Liberty and its sureties (jointly referred to as appellants) cross-complained against the SBA for indemnification. They sought damages in excess of $500,000 on claims that the SBA breached its fiduciary, statutory, and regulatory duties by awarding Liberty the contract when it knew that Liberty was incapable of performing the contract at a profit and by failing to provide Liberty with technical and managerial assistance during construction of the warehouse.

The district court dismissed the cross-complaints for lack of subject matter jurisdiction, rejecting appellants' arguments that the district court had jurisdiction under the Federal Tort Claims Act and the "sue and be sued" provision of the Small Business Act, 15 U.S.C. Sec. 634(b)(1). ¹ Because we hold that

Page 801

the district court had jurisdiction over the claims against the SBA under its "sue and be sued" provision, ² we reverse and remand for further proceedings on the merits. ³

In Munoz v. Small Business Admin., 644 F.2d 1361, 1364 (9th Cir.1981), we held that the SBA's "sue and be sued" provision vested jurisdiction in the district court over claims against the SBA that were similar to those asserted by appellants in this...