Ove Gustavsson Contracting Company v. Floete
| Decision Date | 25 May 1960 |
| Docket Number | No. 313,Docket 25888.,313 |
| Citation | 278 F.2d 912 |
| Parties | OVE GUSTAVSSON CONTRACTING COMPANY, Inc., Plaintiff-Appellant, v. Franklin G. FLOETE, Administrator of General Services Administration and Michael Brennan, Contracting Officer and Chief, Design and Construction Division, Public Buildings Service, General Services Administration, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Anthony B. Cataldo, New York City, for plaintiff-appellant.
Stephen Kurzman, Asst. U. S. Atty., New York City (S. Hazard Gillespie, U. S. Atty., New York City, on the brief), for defendants-appellees.
Before LUMBARD, Chief Judge, MEDINA, Circuit Judge, and JAMESON, District Judge.*
In the spring of 1958 appellant, Ove Gustavsson Contracting Company, entered into an agreement with the United States to construct a building described as a dehumidification hutment to be used by the government for the storage of precision machinery. The contract price was $47,000 and the job was to be completed in October 1958. Work was not begun until November 1958, and on January 12, 1959, when the building was still uncompleted, Michael Brennan, contracting officer for the General Services Administration notified appellant that the government was terminating the contract because of the contractor's failure to complete the work satisfactorily. Within thirty days thereafter appellant appealed this decision of the contracting officer to the Administrator of the General Services Administration in accordance with the "disputes" provision of the contract between the parties; that appeal is still pending. In September 1959 another contractor completed construction of the hutment.
Appellant brought this action in February 1959, naming as defendants Franklin Floete, Administrator of the General Services Administration, and Michael Brennan, contracting officer of the General Services Administration, who had signed the contract with appellant on behalf of the government. The complaint alleged that the jurisdiction of the district court was founded upon § 10 of the Administrative Procedure Act, 5 U.S.C.A. § 1009, and sought an injunction against the awarding of another contract for completion of the hutment, a declaratory judgment that the government's contract with appellant was still in full force and effect and that its termination was unlawful, and damages. The district court denied a preliminary injunction, and, since the hutment is now completed, the claim for injunctive relief is now moot. Thereafter, defendants moved for dismissal of the complaint under Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S. C.A. The district court held that Floete was an indispensable party to the action and that venue as to him was improper. It also held as to defendant Brennan that there was no diversity of citizenship and that no other basis of federal jurisdiction was shown. The court dismissed the complaint. We affirm the judgment, though we place our decision on grounds different from those of the district court.
Although the appellant stated in his complaint that the suit is against two government officials in their individual capacity, the action is in reality against the United States. A request for a declaratory judgment upon a contract to which the government is a party is plainly a request for relief against the United States. McKay v. Central Elec. Power Co-op., 1955, 96 U.S.App.D.C. 158, 223 F.2d 623; Aktiebolaget Bofors v. United States, 1951, 90 U.S.App.D.C. 92, 194 F.2d 145. The claim for damages seeks an award for breach of contract by the United States; appellee Brennan signed the contract only as an authorized representative of the United States and would not be personally liable for any breach. Any damages awarded would be payable from the Treasury of the United States. The suit is one "to collect a debt allegedly owed by the government," Mine Safety Appliances Co. v. Forrestal, 1945, 326 U.S. 371, 375, 694, 66 S.Ct. 219, 221, 90 L.Ed. 140, and consequently must comply with the requirements for such suits. One such requirement imposed by Congress under the Tucker Act, 28 U.S.C. § 1491, is that when the amount sought from the government for an asserted breach of contract exceeds $10,000, suit must be brought in the Court of Claims. Since the damages sought here exceed $10,000, the district court lacked jurisdiction to entertain the suit, even had the United States been made a party and properly served with process. 28 U.S.C. § 1346 (a) (2).
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