application, the OHA explained, was plain on its face. See id. at 4 -5.
Because the material facts are undisputed, summary judgment may be rendered on the cross-motions. See Fed. R. Civ. P. 56(c).
In its complaint, the City of New York challenged the scope and validity of the Release. First, it argued that the OHA had failed to publish guidelines informing applicants for Stripper Well refunds that by applying they would render themselves ineligible for Subpart V refunds. Second, it contended that the waivers in the Stripper Well refund applications only applied to the money the DOE had received from the escrow fund in that case and did not preclude application for restitution from money already in the DOE's possession. Finally, the City of New York argued that the Release does not clearly waive the claims of affiliates.
Since the City of New York filed this action, the court with appellate jurisdiction over this matter
has rejected these contentions. In Burlington Ind., Inc. v. Watkins, 916 F.2d 722 (Temp. Emer. Ct. App. 1990), the Temporary Emergency Court of Appeals found that "the OHA did not fail in any duty to inform Subpart V claimants of the effect of the releases and waivers executed in the Stripper Well litigation. As noted above, the releases and waivers were very clear on their face." Id. at 724. Furthermore, in Mid-America Dairymen, Inc. v. Herrington, 878 F.2d 1448 (Temp. Emer. Ct. App. 1989), the Temporary Emergency Court of Appeals ruled that when a party executes a release in connection with an application for a Stripper Well refund, "it releases all of its claims and all of the claims of any of its affiliates to any further participation in Subpart V refund proceedings." Id. at 1457 (emphasis in original). Accordingly, the City has not contested defendants' motion for summary judgment on the grounds that the Release could not be used to bar Subpart V refunds or that it was not applicable to the City's application. See Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment and in Reply to Defendants' Opposition to Plaintiff's Motion for Summary Judgment at 1 n. 1.
The City does maintain that Linda Blankenfein did not sign a release on behalf of the City. The City bases this contention upon the undisputed fact that Blankenfein neither signed the Release nor swore that she had authority to execute it. The City argues that it is not bound by the Release because the Refiners Escrow Agreement requires that the Release be signed and a sworn statement of authority attached. See Refiners Escrow Agreement para. 4. This contention is not persuasive. The Revised Settlement Agreement "stipulates" that anyone who signs that agreement "shall be conclusively deemed and considered for all purposes to have simultaneously executed and delivered the Release." Id. para. 5.3.1. This stipulation applies "notwithstanding any contrary provision of the Original Settlement Agreement or of the Refiners Escrow Agreement." Id. Because Blankenfein signed the Revised Settlement Agreement, it must, therefore, "be conclusively deemed and considered for all purposes" that she executed the Release "notwithstanding" the contrary requirements of the Refiners Escrow Agreement.
The City tries to evade the plain language of the agreements it signed by arguing that as a matter of New York law an oath cannot be "deemed" to have been made. According to the City, an oath "must be in the presence of an officer authorized to administer it, and it must be an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath." Bookman v. New York, 200 N.Y. 53, 93 N.E. 190, 191 (1910) (citations omitted). There is, however, no independent requirement that a representative of the City swear an oath before releasing claims to restitution. Thus, there is no reason for a court to require an oath once the parties have expressly agreed to eliminate that requirement. Simply put, when the City signed the Revised Settlement Agreement, it agreed that only its signature on Revised Settlement Agreement, not on an oath or on the Release, was necessary to effect a waiver of its claims for restitution under Subpart V.
New York City contends that the Release is nonetheless not binding upon it because Linda Blankenfein did not have the authority to waive the City's claims. According to the City, as an Assistant Corporation Counsel, Blankenfein was required to obtain the approval of the Comptroller before waiving claims on behalf of the City. Because she acted beyond the scope of her authority, the City contends that under New York law the release she executed is null and void. See, e.g., Zanesville v. Mohawk Data Sciences, 97 A.D.2d 64, 468 N.Y.S.2d 271, 272 - 73 (N.Y. App. Div. 1983); Lutzken v. Rochester, 7 A.D.2d 498, 184 N.Y.S.2d 483, 485 (N.Y. App. Div. 1959). Defendants do not dispute that the release would be void if Blankenfein lacked the authority to waive the City's claims. Instead, they contend that Blankenfein had such authority. Defendants' contention is not persuasive.
Both parties assume that New York law determines the scope of Blankenfein's authority as an Assistant Corporation Counsel and the effect of any actions she may have taken outside the scope of that authority. The basis for this assumption is not immediately clear. In Clearfield Trust Co. v. United States, 318 U.S. 363, 87 L. Ed. 838, 63 S. Ct. 573 (1943), the Supreme Court held that
When the United States disburses its funds or pays its debts, it is exercising a constitutional function or power. . . . The authority [to do so] had its origin in the Constitution and the statutes of the United States and was in no way dependent on the laws [of any State]. The duties imposed upon the United States and the rights acquired by it . . . find their roots in the same federal sources. In absence of an Act of Congress it is for the federal courts to fashion the governing law according to their own standards.
Id. at 366 - 67, quoted in United States v. Kimbell Foods, Inc., 440 U.S. 715, 726, 59 L. Ed. 2d 711, 99 S. Ct. 1448 (1979). Applying these principles, the Supreme Court has consistently construed the terms of contracts involving the United States according to what has been called federal common law. See, e.g., Boyle v. United Technologies Corp., 487 U.S. 500, 504 - 05, 101 L. Ed. 2d 442, 108 S. Ct. 2510 (1988); United States v. Little Lake Misere Land Co., 412 U.S. 580, 592 - 94, 37 L. Ed. 2d 187, 93 S. Ct. 2389 (1973). Because the United States was a party to the Stripper Well settlement, interpretation of the terms of that agreement, including the terms of the Refiners Escrow Agreement, should be governed by federal common law. The inquiry does not, however, end here. Federal common law normally incorporates relevant state rules unless there is a need for a uniform national rule or the application of a particular state rule would frustrate federal interests. See Kimbell, 440 U.S. at 727 - 29. In this case, the DOE, the agency entrusted with administering the entitlement programs affected by the Stripper Well settlement, has not raised any such objections to the use of New York law. Accordingly, the validity of the release signed by Linda Blankenfein will be interpreted according to New York law.
Under that body of law, the release is void. The New York City Charter expressly limits the power of the Corporation Counsel to settle claims for or against the City:
He shall not be empowered to compromise, settle or adjust any rights, claims, demands or causes of action in favor of or against the city, and he shall not permit, offer, or confess judgment against the city, or accept any offer of judgment in favor of the city without the previous approval of the comptroller, except that with regard to matters involving excise and non-property taxes, such previous written approval shall be obtained from the finance administrator . . . .