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EASTERN, INC. v. SHELLY'S OF DELAWARE

September 8, 1989

EASTERN, INC., et al., Plaintiff,
v.
SHELLY'S OF DELAWARE, INC., et al., Defendants



The opinion of the court was delivered by: GERRY

 This case is before the court on defendant United States Postal Service's motion to dismiss plaintiff Eastern, Inc.'s action against it for lack of subject matter jurisdiction. For the reasons stated below, defendant's motion will be granted.

 Factual Background

 "It is well established that in passing on a motion to dismiss . . . on the ground of lack of jurisdiction over the subject . . ., the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). Accordingly, we will accept plaintiff's allegations as true for purposes of this motion.

 Defendant United States Postal Service ("USPS") is an independent establishment of the executive branch of the government of the United States. On April 15, 1978, USPS and Defendant Shelly's of Delaware ("Shelly's"), a Delaware corporation engaged in the business of general construction contracting, entered into a contract for the construction of a new post office facility at Pennsville, New Jersey. On May 18, 1987, pursuant to the Miller Act, 40 U.S.C. §§ 270a-270d, Shelly's as principal and defendants James Kavalary and James McClain as sureties, executed a standard form payment bond obligating themselves to USPS. By this bond, the sureties bound themselves jointly and severally in the amount of $ 493,750.00 on the condition that if Shelly failed to pay any person supplying labor and material for the project, suit could be filed on the bond, prosecuted to final judgment and executed thereupon.

 Eastern filed a complaint with this Court in which it named, among others, Shelly's, Kittrel, and Jennings as defendants. Eastern alleged that they were liable to it for violation of the Miller Act, breach of contract, fraud and conversion. In addition, Eastern named the USPS as a defendant, alleging that as an unpaid subcontractor on the postal facility, it holds an equitable interest in the contract balance owed by the USPS to Shelly's and/or its sureties. USPS has moved under 12(b)(1) of the Federal Rules of Civil Procedure to dismiss this motion on the grounds that this court lacks subject matter jurisdiction over Eastern's claim against it.

 Legal Analysis

 The precise issue raised by this motion is whether a federal district court may exercise jurisdiction over a subcontractor's suit against the USPS. The thrust of defendant's argument is that the principle of sovereign immunity precludes Eastern from maintaining an action against USPS in district court. We begin our analysis, therefore, by examining the application of sovereign immunity to this case.

 It is fundamental that "the United States, as sovereign, is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." Lehman v. Nakshian, 453 U.S. 156, 160, 69 L. Ed. 2d 548, 101 S. Ct. 2698 (1981); United States v. Testan, 424 U.S. 392, 399, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976). Congress created the USPS pursuant to the Postal Reorganization Act of 1970 (PRA), 39 U.S.C. § 101 et seq., Congress provided a broad waiver of sovereign immunity for the USPS by enacting a "sue and be sued" clause in the PRA, which exposes the USPS to suit. 39 U.S.C. § 401(1). It is presumed that "when Congress launches a governmental agency into the commercial world and endows it with authority to 'sue and be sued' that agency is not less amenable to judicial process than a private enterprise under like circumstances." Franchise Tax Board v. USPS, 467 U.S. 512, 517-518, 81 L. Ed. 2d 446, 104 S. Ct. 2549 (1984) citing FHS v. Burr, 309 U.S. 242, 245, 84 L. Ed. 724, 60 S. Ct. 488 (1940).

 This presumption, however, can be overcome where the waiver of sovereign immunity would conflict with a "statutory scheme" or where "plain congressional intent" points toward a restrictive reading of the waiver. Active Fire Sprinkler Corp. v. United States Postal Service, 811 F.2d 747, 752 (2d Cir. 1987). Defendant argues that the Contract Disputes Act of 1978 (CDA), 41 U.S.C. § 601 et seq., is evidence of a "statutory scheme" or "plain congressional intent" which counsels a restrictive reading of the waiver provision of the PRA. This exception to the broad waiver of sovereign immunity, claims defendant, preempts this court's jurisdiction over the present action.

 It is clear that the CDA does restore a measure of the USPS's immunity. Congress enacted the CDA to provide a "comprehensive system for adjudicating contract claims against the government." Pre-Fab Products, Inc. v. United States Postal Service, 600 F. Supp. 89 (D. Fla. 1984). Under the CDA, in all actions brought by or against executive agencies of the United States which involve an express or implied contract entered into by that agency, jurisdiction is vested in either the Postal Service Board of Contract Appeals or the United States Claims Court. Id. By this act, Congress thus divested district courts of all jurisdiction over federal government contract disputes. McDonnell Douglas Corp. v. United States, 754 F.2d 365 (Fed. Cir. 1985). The USPS is expressly included as an "executive agency" for the purposes of the Act. 41 U.S.C. § 601(2). Thus, had the grounds for this action been a contract which Eastern had entered into with the USPS, this court clearly would have no jurisdiction over this case.

 Eastern, however, did not enter into a contract with the USPS. Eastern's only connection to the USPS is that it subcontracted with the general contractor who, in turn, contracted with the USPS. The question thus before us is whether the CDA's preemption of district court jurisdiction extends to actions brought by subcontractors. Eastern forcefully argues that this question should be answered in the negative. According to the plaintiff, the scope of the CDA is limited to actions brought by a party that has entered into a contract with an executive agency. The CDA by its terms, plaintiff points out, applies only to "express or implied contract[s] . . . entered into by an executive agency." 41 U.S.C. § 602(a). Eastern's action against the USPS, plaintiff claims, does not involve a contract entered into by the USPS and thus does not fall under the provisions of the CDA. Consequently, plaintiff retains the opportunity to bring an action against the USPS in district court.

 The plaintiff's arguments have some appeal. It is plain that the provisions of the CDA do not apply to subcontractors. See S.Rep. No. 1118, 95th Cong., 2d Sess. 16-17, reprinted in 1978 U.S. Code Cong. & Ad. News 535, 5250-51. It would, therefore, seem clear that the CDA does not preempt district court jurisdiction over a subcontractor's actions. A deeper probe of this issue, however, convinces us that this court ...


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