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MOTOROLA, INC. v. PERRY

March 5, 1996

MOTOROLA, INC., et al., Plaintiffs,
v.
WILLIAM PERRY, et al., Defendants.



The opinion of the court was delivered by: HOGAN

 In this action the plaintiffs seek to compel the defendants to issue Treasury checks as payment for goods and services supplied by the plaintiffs. The parties have filed cross-motions for summary judgment, which are now fully briefed. For the reasons discussed below, the defendants' motion for summary judgment *fn1" will be granted and the plaintiffs' motion for summary judgment will be denied.

 I. BACKGROUND

 The plaintiffs, Motorola, Inc. ("Motorola") and Arkansas-Louisiana Gas Company ("ALGC"), have brought suit against William Perry, in his capacity as Secretary of Defense ("DoD"), the Defense Finance and Accounting Service ("DFAS"), *fn2" and Charles A. Bowsher, in his capacity as head of the General Accounting Office ("GAO"). The plaintiffs claim to have sold various supplies to a United States Army facility, the Pine Bluff Arsenal, for which payment in the form of Treasury checks was authorized. The plaintiffs allege that in February 1984, Pine Bluff Arsenal caused a Treasury check to be issued to each plaintiff, in the amounts of $ 242,721.40 for Motorola and $ 244,500.76 for ALGC.

 The plaintiffs allege that although these checks were issued, the Treasury's records show that neither check was cashed. Moreover, the plaintiffs claim they never cashed or negotiated the checks in question. The checks, if they were indeed uncashed, outstanding and unpaid, became non-negotiable by operation of law on October 1, 1990. See 31 U.S.C. § 3328; 31 C.F.R § 240.3(a)(2) ("The Commissioner shall not be required to pay a Treasury check issued before October 1, 1989 unless it is negotiated to a financial institution no later than October 1, 1990.").

 On June 14, 1993, more than nine years after the first checks were issued, the plaintiffs asked DFAS to issue replacement checks. This request came after Intersource, Inc., a private company in the business of "locating funds held by government entities and owed to private entities," alerted the plaintiffs to the allegedly outstanding checks in question. Plaintiffs' Motion for Summary Judgment at 6-7. The defendants refused to issue replacement checks.

 The plaintiffs seek a declaratory judgment that defendants are required to reissue or are required to cause or authorize the Treasury to reissue to each plaintiff a replacement check for those that have expired. They also ask that defendants be "enjoined from continuing to refuse to reissue or to authorize or cause Treasury to reissue such replacement checks." Complaint at 1. Finally, plaintiffs also seek a declaratory judgment that the defendants' interpretation of 31 U.S.C. § 3702(b), a limitations provision on claims, is contrary to law.

 II. ANALYSIS

 Of the several defenses presented, only two require discussion. The defendants argue that (1) this court lacks subject matter jurisdiction over this action and (2) absent such jurisdiction, this matter should not be transferred to the Court of Claims. Each will be discussed in turn.

 A. Subject Matter Jurisdiction

 The plaintiffs have brought suit against agencies of the United States. These defendants enjoy sovereign immunity, unless it has been waived, and "'the terms of the consent to be sued in any court define that court's jurisdiction to entertain the suit'" A & S Council Oil Co., Inc. v. Lader 312 U.S. App. D.C. 270, 56 F.3d 234, 238 (D.C. Cir. 1995) (quoting United States v. Sherwood, 312 U.S. 584, 586, 85 L. Ed. 1058, 61 S. Ct. 767 (1941)).

 The defendants argue that while their immunity has been waived in cases such as this one, the terms of the waiver lay jurisdiction in the Court of Federal Claims. Specifically, the defendants argue that both the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491(1994), *fn3" and the Contracts Disputes Act of 1978, 41 U.S.C. §§ 601-613 (1987 & Supp. 1995) ("CDA") compel this conclusion.

 Although the Tucker Act and the CDA provide a waiver of sovereign immunity, the two statutes in conjunction prevent district courts from exercising jurisdiction in matters such as this one. The Tucker Act limits district court jurisdiction to civil actions and claims not exceeding $ 10,000 in amount Furthermore, the Tucker Act deprives district courts of jurisdiction over claims "founded upon any express or implied contract with the United States" and subject to sections 8(g)(1) and 10(a)(1) of the CDA 28 U.S.C. § 1346(a)(2).

 1. Monetary Cap. At first blush, the complaint would seem to fit within the Tucker Act's limitation on district court jurisdiction to controversies involving amounts less than $ 10,000. After all, the complaint requests declaratory and injunctive relief; monetary relief is unmentioned. However, a plaintiff may not sidestep Tucker Act jurisdictional requirements by artful pleading. Tucker Act jurisdiction may not be avoided by converting a complaint for monetary relief into a complaint for declaratory or injunctive relief Kidwell v. Dep't of the Army, Bd. for Correction of Military ...


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