Kelly v. United States

BONNIE KELLY, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee

No. 2022-1209

United States Court of Appeals, Federal Circuit

April 6, 2022

This disposition is nonprecedential.

Appeal from the United States Court of Federal Claims in No 1:21-cv-01129-MBH, Senior Judge Marian Blank Horn.

Bonnie Kelly, Omaha, NE, pro se.

Ann Motto, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant-appellee. Also represented by Brian M. Boynton Patricia M. McCarthy, Franklin E. White, Jr.

Before Lourie, Bryson, and Prost, Circuit Judges.

PER CURIAM.

Bonnie Kelly appeals the United States Court of Federal Claims' order dismissing her complaint for lack of jurisdiction and for failure to state a claim upon which relief can be granted. Because the Court of Federal Claims correctly concluded that Ms. Kelly failed to allege facts sufficient to show that she was in privity of contract with the United States or that she was a third-party beneficiary of any contract with the United States, we affirm.

Background

On March 22, 2021, Ms. Kelly filed a complaint in the Court of Federal Claims alleging breach of contract against the United States Department of Housing and Urban Development ("HUD"). Ms. Kelly alleges that, as a former Procurement and Contract Director of the Housing Authority for the City of Omaha ("OHA"), she was instrumental in HUD's discovery of misappropriation of funds at OHA and that, as a result, she is entitled to "up to 30%" of the $1, 103, 287 and proceeds from property sales that HUD recovered. The United States moved to dismiss Ms. Kelly's claims for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted. The Court of Federal Claims, observing that it lacks jurisdiction to hear claims against state or local officials or that are not based upon any express or implied contract with the United States, granted the motion because Ms. Kelly had failed to allege facts showing that she was in privity of contract with the United States or that she was a third-party beneficiary of any contract with the United States. Kelly v. United States, No. 21-1129C (Fed Cl. Sept. 30, 2021). Ms. Kelly appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

Discussion

A plaintiff must establish subject-matter jurisdiction by a preponderance of the evidence. M. Maropakis Carpentry Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010). We review a Court of Federal Claims decision dismissing a complaint for lack of jurisdiction de novo. Id. We likewise review de novo the grant of a motion to dismiss for failure to state a claim. Inter-Tribal Council of Ariz., Inc. v. United States, 956 F.3d 1328, 1338 (Fed. Cir. 2020). In conducting either review, we treat the complaint's factual allegations as true and construe them in the light most favorable to the non-moving party. Jones v. United States, 846 F.3d 1343, 1351 (Fed. Cir. 2017); Pixton v. B & B Plastics, Inc., 291 F.3d 1324, 1326 (Fed Cir. 2002). A complaint should be dismissed if it fails to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

The Court of Federal Claims was correct to dismiss Ms. Kelly's complaint for lack of jurisdiction and for failure to state a claim. As relevant here, the Court of Federal Claims' jurisdiction is limited to claims "against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(1). We have observed that "[t]he elements of an implied-in-fact contract are the same as those of an oral express contract." Night Vision Corp. v. United States, 469 F.3d 1369, 1375 (Fed. Cir. 2006). In either case, then, a plaintiff must allege "(1) mutuality of intent to contract; (2) consideration; and[] (3) lack of ambiguity in offer and acceptance." City of Cincinnati v. United States, 153 F.3d 1375, 1377 (Fed. Cir. 1998). In cases against the United States, the plaintiff must also allege that "[t]he government representative whose conduct is relied upon [had] actual authority to bind the government in contract." Id. As the Court of Federal Claims explained, Ms. Kelly failed to allege facts supporting the existence of a contract with the United States, that the Government breached a contract, or that any HUD employee had authority to offer her a portion of the recovered funds. Accordingly, Ms. Kelly could not show that the Court of Federal Claims had jurisdiction over her claims, nor had she stated a claim upon which relief could be granted.

Ms Kelly's primary argument on appeal is that a contract does exist-namely, an Annual Contribution Contract ("ACC") between HUD and OHA-and that she is a third-party beneficiary of that contract. The problem for Ms. Kelly, which the Claims Court noted in its dismissal order, is that her...