Xp Vehicles, Inc. v. United States

In the United States Court of Federal Claims

No. 12-774C

(Filed: June 5, 2015)

*************************************

XP VEHICLES, INC., and *

LIMNIA, INC., * RCFC 12(b)(1); RCFC 12(b)(6); Motion to

* Dismiss; Subject Matter Jurisdiction; Failure

Plaintiffs, * to State a Claim; Loan Program; Loan

* Guarantee Program; Implied-in-Fact

* Contract; Duty of Good Faith and Fair

v. * Dealing; Implied Duty to Fairly Consider;

* Oral Assurances; Promissory Estoppel;

THE UNITED STATES, * Equitable Estoppel

*

Defendant. *

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Daniel Z. Epstein, Washington, DC, for plaintiffs.

Lisa L. Donahue, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Judge

Plaintiffs, XP Vehicles, Inc. (“XPV”), an advanced technology vehicle company, and

Limnia, Inc. (“Limnia”), an advanced technology energy system company, are Silicon Valley-

based innovative “green technology” sister companies that develop and produce advanced

technology vehicles. Plaintiffs allege that they each applied for a loan to the Advanced

Technology Vehicle Manufacturing Loan Program (“ATVM loan program”), which is

administered by the United States Department of Energy (“DOE”). In addition, Limnia alleges

that it applied for a loan guarantee to the Section 1703 Loan Guarantee Program (“Section 1703

LGP”), which is also administered by the DOE. According to plaintiffs, their respective

meritorious applications ultimately were denied because of corrupt political influence. Thus,

plaintiffs contend, the DOE did not review their applications in good faith and in accordance

with DOE regulations, policies, and promises, thereby breaching the parties’ implied-in-fact

contracts, and violating the DOE’s duty of good faith and fair dealing. Plaintiffs also argue that

promissory estoppel provides another basis for their entitlement to money damages against the

United States. Defendant moves to dismiss plaintiffs’ second amended complaint pursuant to

Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”).

For the reasons set forth below, the court grants defendant’s motion.

I. BACKGROUND

A. ATVM Loan Program

This case concerns plaintiffs’ respective applications to the ATVM loan program and

Limnia’s application for a loan guarantee to the Section 1703 LGP.1 The ATVM loan program

was created by the Energy Independence and Security Act of 2007 (“EISA”), codified at 42

U.S.C. § 17013, to move the United States towards greater energy independence and security,

among other goals. Pub. L. No. 110-140, 121 Stat. 1492. At the time that plaintiffs applied for

ATVM loans, the DOE administered the program through Steven Chu, United States Secretary

of Energy (“Secretary”); Lachlan Seward, Director of the Advanced Technologies

Manufacturing Loan Program; and their respective staff, advisors, and consultants. The pertinent

portion of the EISA sets forth that

[t]he Secretary shall provide facility funding awards . . . to automobile

manufacturers, ultra efficient vehicle manufacturers, and component suppliers to pay

not more than 30 percent of the cost of --

(1) reequipping, expanding, or establishing a manufacturing facility in the United

States to produce--

(A) qualifying advanced technology vehicles;

(B) qualifying components; or

(C) ultra efficient vehicles; and

(2) engineering integration performed in the United States of qualifying vehicles,

ultra efficient vehicles, and qualifying components.

42 U.S.C. § 17013(b). The EISA further states that the “Secretary shall carry out a program to

provide a total of not more than $25[ billion] in loans to eligible individuals and entities (as

determined by the Secretary) for the costs of [such] activities described” above. Id.

§ 17013(d)(1). The Secretary must select

eligible projects to receive loans . . . in cases in which, as determined by the

Secretary, the award recipient (A) is financially viable without the receipt of

additional Federal funding associated with the proposed project; (B) will provide

sufficient information . . . for the Secretary to ensure that the qualified investment is

expended efficiently and effectively; and (C) has met such other criteria as may be

established and published by the Secretary.

Id. § 17013(d)(3).

1

The court derives the facts in the “Background” section from the second amended

complaint and exhibits attached thereto.

2

B. XPV’s ATVM Loan Program Application

On November 10, 2008, XPV applied for $40 million in ATVM loan program funds in

order to mass produce an advanced technology, family-friendly SUV-style vehicle. XPV’s

operations included potential manufacturing facilities located in Michigan, California, Nevada,

and Utah. XPV’s team consisted of highly experienced industry sales executives, managers,

designers, and aerospace industry professionals. They designed XPV’s vehicle to be affordable;

to have a virtually unlimited range without requiring gasoline, a garage, or electrical cords for

battery recharge; to have the ability to recharge rapidly; to be produced quickly and cheaply; and

to be easily repaired. One of XPV’s key innovations was the use of polymer plastics and

skinned, expanded foam pressure membranes to replace metal doors, body panels, hoods, and

roofs on a lightweight alloy frame. This design provided for a curb weight of less than 1,400

pounds, which, in addition to contributing to the vehicle’s virtually unlimited range, was a “key

innovation” in improving vehicle safety because the polymer membranes functioned as a

wraparound, predeployed airbag. 2d Am. Compl. ¶ 16. The vehicle’s parts that were critical for

performance had either been tested or used in industry-proven “off-the-shelf” applications, such

as military applications, aerospace systems, and naval and homeland security deployments. Id.

¶ 17. At the time that it submitted its loan application, XPV was in discussions with private

sources of capital, pending customers, and financial partners, and was preparing to commence

production and sales.

The DOE stated that it would evaluate ATVM loan program applications on a “first in,

first out” basis, treat all applicants fairly, and use objective published criteria when reviewing

applications. Id. ¶ 19. In addition, the DOE promised to make funds available to qualified

applicants as early as the end of December 2008, but by no later than January 2009. On

December 2, 2008, the DOE acknowledged receipt of XPV’s application and requested

additional information regarding the projected market use of XPV’s vehicle. 2d Am. Compl.,

Ex. 1 at 2. XPV provided this information, and on December 31, 2008, its application was

deemed substantially complete. XPV’s application was among the first to be considered

substantially complete by the DOE. A representative from the DOE said that it would request

additional information from XPV as needed.

The DOE’s Microsoft Excel comparison matrices dated December 29, 2008, and March

2, 2009, placed XPV in the top five percent of all applicants. Based on the DOE’s

representations, XPV believed that the review process would take only weeks to be completed.

When the process exceeded that time frame, XPV repeatedly offered the DOE additional

engineering material, financial material, and other information to aid and expedite the DOE’s

review and approval of XPV’s application.

On April 23, 2009, Jason Gerbsman, the DOE’s Chief of Staff and Senior Investment

Officer at the Loan Programs Office Automotive Division, sent XPV a letter advising:

[XPV] has submitted a substantially complete application and has been assigned to

both a technical eligibility and merit review team, as well as a financial viability

analysis team. The technical team is very close to finishing their evaluations on both

eligibility and project merit, and the financial team will be launching a more detailed

3

and interactive due diligence phase of the [XPV] application review very soon.

Following the technical and financial evaluation under the second stage of the

process, we will move into the underwriting phase where our goal is to negotiate a

conditional commitment, including a detailed term sheet. This will be followed by

the fourth phase of the loan process where the final details will be negotiated and the

loan will be closed.

Id. ¶ 27. On May 26, 2009, Mr. Gerbsman offered XPV an in-person meeting to discuss “next

steps.” Id. ¶ 28. On May 28, 2009, an XPV representative met with Mr. Gerbsman, who

indicated that “everything was in order” with XPV’s application, that “everything looked good,”

and that XPV “appeared to be fully compliant and passed [the] technical review.” Id. ¶ 29.

Shortly thereafter, XPV discovered that Tesla Motors, Inc. (“Tesla”) and Fisker Motors,

Inc. (“Fisker”), both competitors of XPV, were receiving assistance from the DOE’s staff in

connection with their respective ATVM loan program applications. Fisker also received access

to the DOE staff’s time, offices, and conference rooms in the DOE’s headquarters at no charge.

Although XPV made a similar request for assistance from the DOE’s staff, its request was denied

because the DOE represented to XPV that its application was so good that special assistance was

not needed.

To further support its application, on June 15, 2009, XPV informed the DOE that it was a

semifinalist in Forbes’s “America’s Most Promising Companies List” for that year. Later that

month, an XPV corporate executive was contacted by a counterpart from another company that

had also applied for DOE funds through the ATVM loan program. The executive from the other

company advised that he had been “screwed over” by the DOE, and wanted to know if others

had similar experiences. Id. ¶ 33. He explained that his company experienced “bad dealings”

with two specific individuals: Matt Rogers, from McKinsey & Company, who was serving as a

“stimulus advisor” to Secretary Chu; and Steven Spinner, a DOE loan program official. Id.

According to the executive, Mr. Spinner had a conflict of interest because he was a Tesla advisor

and investor. The executive claimed that Mr. Rogers and Mr. Spinner were playing favorites

with government money.

On June 24, 2009, the DOE announced an award of $8 billion in ATVM loans, to be

divided among Ford Motor Company (“Ford”), Nissan North America, Inc. (“Nissan”), and

Tesla. Of that amount, the DOE awarded Tesla a $465 million loan at a rate of 1.6%. On June

29, 2009, XPV wrote to Mr. Gerbsman again, requesting action on its application, and stating

that other lenders were “hanging back” until after the DOE issued its term sheets. Id. ¶ 36. Over

the next seven weeks, Mr. Gerbsman and other DOE representatives reassured XPV that

“everything was fine,” that “everything [wa]s on track,” that XPV “appear[ed] to meet every

criter[ion]” with respect to its ATVM loan program application, and that defendant “should be

able to announce [a loan] any day now.” Id. ¶ 37.

On August 21, 2009, the DOE denied XPV’s ATVM loan program application. The

DOE indicated that XPV’s application was “determined to be eligible” based on the “evaluation

criteria” in 10 C.F.R. § 611.103, but that the DOE was “not in a position to award every eligible

application [for ATVM loan program funds].” Id. ¶ 39. The DOE further stated that necessity

4

required that it “choose applications that [we]re most likely to use proceeds in a way that w[ould]

best achieve the goals of the program,” and that XPV’s application had been rejected on that

basis after a “merit[s] review.” Id. In an electronic-mail message to DOE employee Chris

Foster, a subordinate of Mr. Seward, XPV requested the DOE’s merit review documents. XPV

also inquired how it was possible for a ten-month review of XPV’s application to be considered

“reasonable” without the DOE working with XPV’s engineers or senior project staff members

for “even one percent” of the time that the DOE’s staff spent working on the proposals submitted

by Tesla, Nissan, Ford, Fisker, or the other companies who were awarded ATVM loans. Id.

¶ 41. In XPV’s view, XPV did not receive the same favorable treatment as did those applicants

who were awarded loans. Mr. Foster did not respond to XPV’s inquiry. Then, on or about

August 26, 2009, an XPV representative called Mr. Foster, making the same inquiries as those

set forth in XPV’s electronic-mail message to which Mr. Foster did not respond. During that

telephone conversation, Mr. Foster reviewed XPV’s file, and advised that XPV’s application was

denied because: XPV’s SUV did not use E85 gasoline; XPV was not planning on building

“enough” vehicles; XPV was not planning on making government sales; XPV’s electric motors

and batteries were too futuristic and not developed for commercial use; XPV’s SUV was a

“hydrogen car”; and XPV had underestimated the cost of metal body fabrication. Id. ¶ 45.

After Mr. Foster related the DOE’s analysis of XPV’s vehicle’s flaws, the XPV

representative responded that the DOE’s factual predicate for the denial of loans was inaccurate

and lacked merit. During this latter portion of the telephone conversation, Mr. Seward entered

Mr. Foster’s office, directed him to terminate the call, and instructed Mr. Foster to advise XPV

that it would receive a letter from the DOE responding to its concerns.2 XPV did not receive a

letter during the next few weeks. On September 21, 2009, XPV wrote to Secretary Chu,

requesting reconsideration of the denial of its application. In its letter, XPV articulated its belief

that the reasons offered by the DOE for the denial of its application were not legitimate. On

October 23, 2009, Mr. Seward sent a letter to XPV, providing the DOE’s explanation for the

denial of XPV’s loan application.

C. Limnia’s ATVM Loan Program Application

On or about February 1, 2009, Limnia applied for $15 million in ATVM loan program

funds to produce a “best of breed and state of the art” advanced technology vehicle component

energy storage system using Limnia’s patented technology. Id. ¶ 69. The DOE’s Sandia

National Laboratories (“Sandia”) was designated as one of its subcontractors. The DOE denied

Limnia’s application on April 10, 2009, stating that the components in question “[did] not appear

to be designed for installation in an advanced technology vehicle . . . .” Id. ¶ 70. On April 11,

2009, Limnia requested reconsideration, contending that: the relevant patents stated that the

components in question were meant for use in advanced technology vehicles; Sandia’s vehicle

technologies group was the prime subcontractor for the project; and that the DOE had funded the

technology’s development specifically for such use. On May 13, 2009, the DOE denied

Limnia’s application again, indicating that the components were “not installed in the advanced

2

No information has been provided to the court regarding how Mr. Seward was alerted

to the fact that Mr. Foster had been contacted by the XPV representative to complain about not

being selected to receive ATVM loan program funds and to protest the bases for the DOE’s

rejection of XPV’s loan application.

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technology vehicle.” Id. ¶ 72. Additionally, the DOE requested more information, including

anticipated production volumes, the specific advanced technology vehicle into which Limnia’s

product would be installed, and details regarding the vehicle installation process of the product.

2d Am. Compl., Ex. 8 at 1-2. On June 3, 2009, Limnia complied. Limnia also asked for

reconsideration of its application, stating that the questioned components “must be installed prior

to use in an advanced technology vehicle[, are] designed for such installation, and therefore [are]

qualifying components.” 2d Am. Compl. ¶ 72. The DOE did not respond to that letter.

D. Section 1703 Loan Guarantee Program

In addition to the ATVM loan program, the DOE administers the Section 1703 LGP,

which was created by the Energy Policy Act of 2005 (“Energy Policy Act”). 42 U.S.C.

§§ 16511-16516. The Section 1703 LGP’s purpose is to support innovative clean energy

projects that are typically unable to obtain conventional private financing due to high technology

risks. The Energy Policy Act authorizes the DOE to guarantee up to 80% of a loan for projects

that “(1) avoid, reduce, or sequester air pollutants or anthropogenic emissions of greenhouse

gases; and (2) employ new or significantly improved technologies as compared to commercial

technologies in service in the United States at the time the guarantee is issued.” Id. § 16513(a).

At the time of the filing of the second amended complaint, the “DOE ha[d] approximately $34

billion of unused lending authority” for the program. 2d Am. Compl. ¶ 12. Congress provided

criteria by which to evaluate eligible projects and set loan and repayment terms. The DOE then

promulgated rules and regulations fleshing out the Energy Policy Act’s requirements.

E. Limnia’s Section 1703 LGP Application

On or about February 1, 2009, Limnia participated in a conference call with Secretary

Chu, United States Secretary of the Interior Kenneth Salazar, and John Podesta, a consultant

retained by the DOE. During that conference call, Secretary Chu said that he felt that the

“[Section 1703] LGP fees and process were unduly onerous and burdensome[, and] promised to

waive the application fee.” Id. ¶ 76. On February 10, 2009, Limnia filed an application with the

Section 1703 LGP, which included a cover letter stating that it was Limnia’s understanding that

the DOE had waived the application fee. On February 26, 2009, the application deadline, Myrtle

Gross, a DOE employee, called Limnia and stated that the initial application fee had not been

waived, and that $18,000 had to be wired to the DOE by midnight in order for Limnia’s Section

1703 LGP application to be considered. This was Limnia’s first and only notice that its

application fee had not been waived. Limnia possessed the funds to make the payment, but it

could not complete the transaction by the midnight deadline. Because it was unable to effectuate

the wire transfer, Limnia assumed that it was foreclosed from submitting its application. On

February 27, 2009, Daniel Tobin, the DOE’s Loan Programs Office Senior Investment Officer,

called Limnia and said that there were “a few days of flexibility” to send in its application fee,

and indicated that he would provide wire transmission instructions. Id. ¶ 80. Mr. Tobin also

promised to “prereview” Limnia’s application and to provide feedback for its investors. Id.

Over the next six weeks, Limnia contacted the DOE by sending electronic-mail messages and

letters, seeking instructions regarding wiring the application fee. Limnia received no response

from anyone at the DOE regarding such instructions or the prereview. On April 9, 2009, the

DOE dismissed Limnia from the Section 1703 LGP because of “non-remittance of the required

6

application fee . . . .” Id. Although Limnia requested reconsideration of the DOE’s decision,

Limnia’s request was denied.

F. Procedural History

Plaintiffs filed suit in the United States Court of Federal Claims (“Court of Federal

Claims”), and then subsequently amended their complaint. Thereafter, defendant filed a motion

to dismiss, and plaintiffs amended their complaint for a second time. After the filing of the

second amended complaint, defendant filed the present motion to dismiss. Plaintiffs set forth

four claims for relief in their second amended complaint: 1) “Equitable Estoppel (ATVM Loan

Program Applications)”; 2) “Promissory Estoppel (LGP Application)”; 3) “Implied-in-Fact

Contract (Fair Review of ATVM Loan Program Applications)”; and 4) “Breach of the Duty of

Good Faith and Fair Dealing (Implied-in-Fact Contract).” Id. at 27-30.

Plaintiffs allege that the DOE extended favorable treatment and preferences to Tesla and

others based on political influence. In essence, plaintiffs claim that the criterion for awarding

funds and loans under the programs was the pay-to-play rule of corrupt politics. According to

plaintiffs, awards were made only to those companies making monetary contributions to certain

political campaigns. Plaintiffs aver that “politics and pressure infected” the ATVM loan

program and the Section 1703 LGP, id. ¶ 84, where the DOE “fixed [these programs] to protect

and advance the business and political interests of government cronies,” id. ¶ 117. Plaintiffs

contend that the DOE did not review their applications in good faith and in accordance with

DOE regulations and policies, and that plaintiffs were improperly denied ATVM loan program

and Section 1703 LGP funds. Plaintiffs assert that the DOE’s demonstrated political favoritism

constituted a breach of implied-in-fact contracts with them, and that the DOE is estopped from

denying that such contracts exist. Further, plaintiffs contend that the DOE breached the implied

duty of good faith and fair dealing harbored within the parties’ implied-in-fact contracts.

Plaintiffs collectively request no less than $450 million in consequential and punitive damages,

reimbursement of their respective application fees, damages for defendant’s alleged breach of its

duty to fairly consider their applications, final agency review of Limnia’s Section 1703 LGP

application on the merits, and actual costs and attorney’s fees. Defendant filed a motion to

dismiss plaintiffs’ claims pursuant to RCFC 12(b)(1) and RCFC 12(b)(6). The motion has been

fully briefed, and the court deems oral argument unnecessary.

II. LEGAL STANDARDS

Defendant moves to dismiss plaintiffs’ complaint pursuant to RCFC 12(b)(1) for lack of

subject matter jurisdiction, and under RCFC 12(b)(6) for failure to state a claim upon which

relief can be granted. When considering a motion to dismiss for lack of subject matter

jurisdiction pursuant to RCFC 12(b)(1), as with a motion to dismiss pursuant to RCFC 12(b)(6),

the court accepts as true all undisputed factual allegations made by the nonmoving party, and

draws all reasonable inferences from those facts in the nonmoving party’s favor. Westlands

Water Dist. v. United States, 109 Fed. Cl. 177, 190 (2013).

7

A. RCFC 12(b)(1)

Whether the court has jurisdiction to decide the merits of a case is a threshold matter.

See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998). “Without jurisdiction[,]

the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it

ceases to exist, the only function remaining to the court is that of announcing the fact and

dismissing the cause.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). The parties, or

the court sua sponte, may challenge the existence of subject matter jurisdiction at any time.

Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006). The plaintiff bears the burden of proving,

by a preponderance of the evidence, that the court possesses subject matter jurisdiction. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992); McNutt v. Gen. Motors Acceptance Corp., 298

U.S. 178, 189 (1936); Brandt v. United States, 710 F.3d 1369, 1373 (Fed. Cir. 2013); Reynolds

v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). The plaintiff cannot rely

solely on allegations in the complaint, but must bring forth relevant, adequate proof to establish

jurisdiction. See McNutt, 298 U.S. at 189. Ultimately, if the court finds that it lacks subject

matter jurisdiction, then it must dismiss the claim. Matthews v. United States, 72 Fed. Cl. 274,

278 (2006); see also RCFC 12(h)(3) (“If the court determines at any time that it lacks subject-

matter jurisdiction, the court must dismiss the action.”).

B. RCFC 12(b)(6)

A claim that survives a jurisdictional challenge remains subject to dismissal under RCFC

12(b)(6) if it does not provide a basis for the court to grant relief. Lindsay v. United States, 295

F.3d 1252, 1257 (Fed. Cir. 2002) (“A motion to dismiss . . . for failure to state a claim upon

which relief can be granted is appropriate when the facts asserted by the claimant do not entitle

him to a legal remedy.”). A motion to dismiss for failure to state a claim upon which relief can

be granted pursuant to RCFC 12(b)(6) tests the sufficiency of the complaint. Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555-56 (2007); see also RhinoCorps Ltd. Co. v. United States, 87 Fed.

Cl. 481, 492 (2009) (“A motion made under Rule 12(b)(6) challenges the legal theory of the

complaint, not the sufficiency of any evidence that might be adduced.”). The United States

Supreme Court (“Supreme Court”) explained in Twombly the degree of specificity with which a

plaintiff must plead facts sufficient to survive such a motion, stating that “a plaintiff’s obligation

to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action will not do.” 550 U.S. at 555

(citation omitted). Although a complaint need not contain “detailed factual allegations,” id. at

555, it should contain “enough facts to state a claim to relief that is plausible on its face,” id. at

570; see also id. at 555 (noting that “factual allegations must be enough to raise a right to relief

above the speculative level”). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp., 550

U.S. at 556). “[O]nce a claim has been stated adequately, it may be supported by showing any

set of facts consistent with the allegations in the complaint.” Bell Atl. Corp., 550 U.S. at 546.

Indeed, “[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is

entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),

overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-19 (1982).

8

C. Tucker Act

The ability of the Court of Federal Claims to entertain suits against the United States is

limited. “The United States, as sovereign, is immune from suit save as it consents to be sued.”

United States v. Sherwood, 312 U.S. 584, 586 (1941). A waiver of immunity “cannot be implied

but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4 (1969). The Tucker

Act, the principal statute governing the jurisdiction of this court, waives sovereign immunity for

claims against the United States not sounding in tort that are founded upon the Constitution, a

federal statute or regulation, or an express or implied contract with the United States. 28 U.S.C.

§ 1491 (2012). However, the Tucker Act is merely a jurisdictional statute and “does not create

any substantive right enforceable against the United States for money damages.” United States

v. Testan, 424 U.S. 392, 398 (1976). Instead, the substantive right must appear in another source

of law, such as a “money-mandating constitutional provision, statute or regulation that has been

violated, or an express or implied contract with the United States.” Loveladies Harbor, Inc. v.

United States, 27 F.3d 1545, 1554 (Fed. Cir. 1994) (en banc).

D. Contract Claims Against the United States Arising Under the Tucker Act

As explained above, the Tucker Act waives the government’s sovereign immunity from

suit to allow, among other claims, claims against the United States founded on an express or

implied contract with the United States. For a plaintiff to maintain a claim for breach of contract

under the Tucker Act, “there must be privity of contract between the plaintiff and the United

States.” Cienega Gardens v. United States, 194 F.3d 1231, 1239 (Fed. Cir. 1998); accord First

Annapolis Bancorp, Inc. v. United States, 644 F.3d 1367, 1373 (Fed. Cir. 2011) (“A plaintiff

must be in privity with the United States to have standing to sue the sovereign on a contract

claim.”); Flexfab v. United States, 424 F.3d 1254, 1265 (Fed. Cir. 2005) (noting that as a general

rule, the “government consents to be sued only by those with whom it has privity of contract”).

The parties to that contract must be the plaintiff and the defendant. See Silverman v. United

States, 679 F.2d 865, 870 (Ct. Cl. 1982). “A lack of privity deprives this court of jurisdiction.”

Carter v. United States, 98 Fed. Cl. 632, 636 (2011). There are some exceptions to this general

rule. See Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d 1279, 1289 (Fed. Cir.

1999); First Nelson Constr. Co. v. United States, 79 Fed. Cl. 81, 94-95 (2007). These exceptions

include suits by intended third-party beneficiaries, suits by subcontractors “by means of a pass-

through suit when the prime contractor is liable to the subcontractor for the subcontractor’s

damages,” and suits by government contract sureties “for funds improperly disbursed to a prime

contractor.” Hartford, 194 F.3d at 1289; accord Alpine Cnty., Cal. v. United States, 417 F.3d

1366, 1368 (Fed. Cir. 2005). “[T]he common thread that unites these exceptions is that the party

standing outside of privity by contractual obligation stands in the shoes of a party within privity.”

Hartford, 194 F.3d at 1289.

In addition, an implied-in-fact contract is a “substitute[] for direct privity.” Carter, 98

Fed. Cl. at 636. “An implied-in-fact contract requires a showing of the same contractual

elements as an express contract.” Last Chance Mining Co. v. United States, 12 Cl. Ct. 551, 555

(1987), aff’d, 846 F.2d 77 (Fed. Cir. 1988). When alleging that the federal government entered

into a contract, a plaintiff must establish “(1) mutuality of intent to contract; (2) consideration;

(3) an unambiguous offer and acceptance[;] and (4) ‘actual authority’ on the part of the

9

government’s representative to bind the government.” Schism v. United States, 316 F.3d 1259,

1278 (Fed. Cir. 2002) (en banc); accord Anderson v. United States, 85 Fed. Cl. 532, 542 (2009);

Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1326 (Fed. Cir. 1997). With respect to a

representative’s ability to bind the government, however, such created “approval must be within

the approving official’s authority in order to be operative.” New Am. Shipbuilders, Inc. v.

United States, 871 F.2d 1077, 1080 (Fed. Cir. 1989); accord Trauma Serv. Grp., 104 F.3d at

1327 (stating that a plaintiff “must allege facts sufficient to show that the Government

representative who entered into its alleged implied-in-fact contract was a contracting officer or

had implied actual authority to bind the Government”). “An implied-in-fact contract is founded

upon a meeting of the minds, which, although not embodied in an express contract, is inferred, as

a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their

tacit understanding.” Maher v. United States, 314 F.3d 600, 603 (Fed. Cir. 2002) (citing

Hercules v. United States, 516 U.S. 417, 424 (1996) (citing Balt. & Ohio R.R. Co. v. United

States, 261 U.S. 592, 597 (1923))). Ultimately, “[a] court will not . . . imply an agreement

between parties when there was none, nor can a court imply privity when there was no meeting

of the minds between the particular parties.” Carter, 98 Fed. Cl. at 636.

III. DISCUSSION

A. RCFC 12(b)(1)

1. Neither the EISA nor the Energy Policy Act Are Money-Mandating Statutes Within

the Meaning of the Tucker Act and Therefore Cannot Confer Jurisdiction on This Court

Plaintiffs contend that this court possesses jurisdiction to entertain their claims regarding

the denial of their respective applications to the ATVM loan program and Section 1703 LGP.

Pls.’ Opp’n 3, 14-15. However, plaintiffs fail to cite to a money-mandating statute or regulation

that confers jurisdiction on this court. The EISA and the Energy Policy Act created the ATVM

loan program and the Section 1703 LGP, respectively. See 42 U.S.C. §§ 17013, 16511-16516.

Plaintiffs have failed to identify any provision of either statute that gives them a right of action to

seek recovery of monetary damages in this court. Indeed, none exist. See id. Moreover, a

statute or regulation that creates a loan program or loan guarantee program is not assumed to be

inherently money-mandating. See Anderson, 85 Fed. Cl. at 542 (rejecting the plaintiff’s

argument that the general scheme of the agency’s loan guarantee program was money-

mandating). Rather, such statutes or regulations must contain “a substantive right to monetary

compensation . . . before jurisdiction may be established in this Court by virtue of the Tucker

Act.” Campbell v. United States, 16 Cl. Ct. 690, 696 (1989). For this reason, the court lacks

jurisdiction to entertain plaintiffs’ claims pursuant to any statute or regulation that they have

cited. Anderson, 85 Fed. Cl. at 543 (determining that the court possessed no jurisdiction with

respect to a denied loan guarantee program application because the statute that created the

program was not money-mandating); Campbell, 16 Cl. Ct. at 696 (holding that the court lacked

jurisdiction to hear the plaintiff’s claims regarding a loan program application because nothing in

the regulation that created the program was money-mandating, and that therefore, there was no

waiver of sovereign immunity under the Tucker Act); El Dorado Springs v. United States, 28

Fed. Cl. 132, 136 (1993) (finding that the court lacked jurisdiction over the plaintiff’s claims

10

regarding a mortgage insurance application to a federal agency because it did not invoke a

money-mandating statute).

2. The Court Dismisses Plaintiffs’ Second Claim for Relief, “Promissory Estoppel Claims

(Limnia’s Section 1703 LGP Application)”

In plaintiffs’ second claim for relief, Limnia contends that the DOE promised that its

Section 1703 LGP application fee would be waived. According to plaintiffs, the “DOE

recognized that the LGP application fees and process were unduly onerous and burdensome,” 2d

Am. Compl. ¶ 75, and Secretary Chu therefore “promised to waive [Limnia’s] application fee,”

id. ¶ 76. Consequently, on February 10, 2009, when Limnia filed its Section 1703 LGP

application, its cover letter stated “[its] understanding [that the] DOE had waived the application

fee.” Id. ¶ 77. Limnia asserts that promissory estoppel lies against the government because

Limnia was unaware that a filing fee was, in fact, required until the day of the filing deadline,

when it was contacted by a DOE representative who advised that the initial application fee had to

be wired by midnight in order for Limnia’s application to be considered. Id. ¶ 78. Limnia also

avers that once it was informed that it was required to pay the fee, the DOE then reneged on a

subsequent promise that it would allow Limnia to send its application fee after the deadline had

expired. Id. ¶¶ 80-81. Notwithstanding that the DOE advised that it would allow Limnia some

flexibility in sending the application fee, the DOE failed to provide the wire instructions that it

promised, and then dismissed Limnia from the Section 1703 LGP for failure to pay the

application fee. Id. ¶¶ 80, 132. Limnia claims that it relied on the DOE’s promises to waive the

application fee and to provide additional time to send the application fee, and as a consequence,

the DOE is estopped from refusing to accept Limnia’s application. Id. ¶ 134.

A claim for promissory estoppel arises when a promisor makes “a promise [that] the

promisor should reasonably [have] expect[ed] to induce action or forbearance on the part of the

promisee . . . and which d[id] induce such action or forbearance . . . .” Restatement (Second) of

Contracts § 90(1) (2012). It is “essentially an equitable cause of action whereby one who

reasonably relies on another’s promise can subsequently require [him] to make good on his

promise.” Carter, 98 Fed. Cl. at 638. Promissory estoppel “is another name for an implied-in-

law contract claim.” Id. (quoting Hubbs v. United States, 20 Cl. Ct. 423, 427 (1990)). The court

in Steinberg v. United States held that:

In order to prevail on a claim of promissory estoppel, a party must prove[:] first, that

there was a promise or representation made[;] second, that the promise or

representation was relied upon by the party asserting the estoppel in such a manner

as to change his position for the worse[;] and, third, that the promisee’s reliance was

reasonable and should have been reasonably expected by the promisor.

90 Fed. Cl. 435, 443 (2009) (citing Law Mathematics & Tech., Inc. v. United States, 779

F.2d 675, 678 (Fed. Cir. 1985)). Once these elements are met, “the promise will be

binding if justice so requires.” Id. Further, “[d]etrimental reliance is [only] an element of

a claim of promissory estoppel, a contract implied in law, [and] is not an element of a

contract in fact.” Steinberg, 90 Fed. Cl. at 444. “The distinction between ‘implied in fact’

and ‘implied in law,’ and the consequent limitation, is well established . . . .” Hercules,

11

516 U.S. at 423. An agreement implied in fact is “founded upon a meeting of minds,

which,” as described earlier, is inferred from the parties’ conduct in light of the

surrounding circumstances. Id. (citation and internal quotation marks omitted). “By

contrast, an agreement implied in law is a ‘fiction of law’ where ‘a promise is imputed to

perform a legal duty, as to repay money obtained by fraud or duress.’” Id. (quoting Balt. &

Ohio R.R. Co., 261 U.S. at 597). Simply put, the Tucker Act does not allow suits against

the government based on contracts implied in law. United States v. Mitchell, 463 U.S.

206, 218 (1983).

Here, Limnia asserts that it detrimentally relied on the DOE’s assurance that its Section

1703 LGP application would be processed and considered without Limnia remitting the requisite

fee. 2d Am. Compl. ¶¶ 130-31. Limnia therefore asserts a promissory estoppel claim, or a claim

for a contract implied in law. Limnia’s theory of liability has no legal validity in this court. It is

well settled that “[a]lthough the court’s jurisdiction extends to implied contracts as well as

express contracts, it can adjudicate only contracts implied in fact and not contracts implied in

law.” Tree Farm Dev. Corp. v. United States, 585 F.2d 493, 498 (Ct. Cl. 1978) (citing United

States v. Minn. Mutual Inv. Co., 271 U.S. 212, 217-18 (1926)). Implied-in-law contracts are

“claim[s] for which the United States has not waived its sovereign immunity.” Steinberg, 90

Fed. Cl. at 443 (citing Lion Raisins, Inc. v. United States, 54 Fed. Cl. 427, 431 (2002)); accord

Hercules, 516 U.S. at 423 (“We have repeatedly held that [Tucker Act] jurisdiction extends only

to contracts either express or implied in fact, and not to claims on contracts implied in law.”);

Russell Corp. v. United States, 210 Ct. Cl. 596, 537 (1976) (“This court, of course[,] has no

jurisdiction to render judgment against the United States based upon a contract implied in

law.”)); Twp. of Saddle Brook v. United States, 104 Fed. Cl. 101, 111 (2012) (“Promissory

estoppel theory does not fall within the jurisdiction granted to the court by the Tucker Act, and

. . . the government has not waived its sovereign immunity with regard to a promissory estoppel

cause of action.” (citation and internal quotation marks omitted)); Calvin v. United States, 63

Fed. Cl. 468, 471 n.7 (2005); Perpetual Fin. Corp. v. United States, 61 Fed. Cl. 126, 138-39

(2004). Accordingly, this court lacks jurisdiction to hear Limnia’s promissory estoppel claim.

Carter, 98 Fed. Cl. at 639 (dismissing the plaintiff’s claim pursuant to RCFC 12(b)(1) for lack of

subject matter jurisdiction, where the plaintiff “allege[d] that it relied to its detriment on the

government’s conduct and [wa]s thus entitled to monetary damages,” because the court lacks

jurisdiction over promissory estoppel claims); Steinberg, 90 Fed. Cl. at 444 (holding that the

court had no jurisdiction under RCFC 12(b)(1) to hear the plaintiff’s claim because detrimental

reliance is an element of promissory estoppel). Consequently, the court dismisses without

prejudice, for lack of jurisdiction, the second claim for relief in plaintiffs’ second amended

complaint.

3. The Court Dismisses Plaintiffs’ Purported Equitable Estoppel Claims in Their First

Claim for Relief, “Equitable Estoppel Claims (ATVM Loan Program Applications)”

Plaintiffs aver in their first claim for relief that the DOE “was required to follow

objective, published criteria in determining applicants’ eligibility for receiving ATVM loans.”

2d Am. Compl. ¶ 122. Further, plaintiffs assert that the DOE “repeatedly acknowledged verbally

and in writing” that plaintiffs “were qualified . . . applicants,” and that plaintiffs “were treated

accordingly by DOE staff responsible for administering” the program. Id. ¶ 123. According to

12

plaintiffs, the DOE “therefore formed an implied-in-fact contract with [plaintiffs] to remit

ATVM [l]oan [p]rogram funds.” Id. Plaintiffs contend that the DOE “reasonably expected and

intended for [plaintiffs] to rely on these promises and to trust that [the] DOE would follow the

law.” Id. ¶ 124. Plaintiffs assert that they did “in fact d[o] so,” by “expend[ing] substantial sums

of money and thousands of hours of time in preparing the applications and negotiating with [the]

DOE,” followed by “submit[ing] applications in response to [the] DOE[’s] solicitations, pa[ying]

the requisite application fees, . . . hir[ing] workers,” and “pursuing the loan in reliance on [the]

DOE’s verbal and written representations and on its obligation to fund all qualified applications

up to the limit of its lending authority.” Id. Plaintiffs contend that but for the DOE’s

“affirmative misconduct,” their applications would have been funded. Id. ¶ 125. Consequently,

plaintiffs aver, the DOE is “equitably estopped from denying the contract implied in fact that was

created by its solicitations [and by plaintiffs’ respective] ATVM applications.” Id. ¶ 127.

Plaintiffs also contend that defendant is “equitably estopped from using opaque and arbitrary

‘merit review’ criteria to deny [their] applications.” Id. ¶ 128.

Plaintiffs’ arguments, although labeled as “equitable estoppel” claims, are, in fact, “thinly

veiled claim[s] for promissory estoppel.” Carter, 98 Fed. Cl. at 638. The court “must [therefore]

determine which type of estoppel is pled here, regardless of how it is labeled in the [second

amended] complaint.” Id. at 639. Equitable estoppel “is a judicial remedy by which a party may

be precluded, by its own acts or omissions, from asserting a right to which it otherwise would

have been entitled.” Am. Airlines, Inc. v. United States, 77 Fed. Cl. 672, 679 (2007) (citations

omitted). For example, “a party who acquiesced to certain conduct could not later claim that

[that] conduct was wrongful.” Carter, 98 Fed. Cl. at 638. By contrast, as described earlier,

promissory estoppel is an “equitable cause of action” where one who “reasonably relies on

another’s promise can subsequently require [him] to make good on [that] promise.” Id. In other

words, “[p]romissory estoppel is used to create a cause of action, whereas equitable estoppel is

used to bar a party from raising a defense or objection it otherwise would have, or from

instituting an action which it is [otherwise] entitled to institute.” Knaub v. United States, 22 Cl.

Ct. 268, 276 (1991) (citation omitted). Ultimately, “promissory estoppel is a sword, and

equitable estoppel is a shield.” Id. Indeed, “th[is] court repeatedly has held that equitable

estoppel is a defensive doctrine, not the basis of a cause of action.” Lawndale Restoration Ltd.

P’ship v. United States, 95 Fed. Cl. 498, 507 (2010).

Here, plaintiffs attempt to use promissory estoppel to create a cause of action where none

exists. The gravamen of plaintiffs’ putative equitable estoppel claim runs as follows: the DOE’s

conduct in advising them that their respective ATVM loan program applications had been

reviewed and found to be “qualified” by the agency created an irrevocable, binding promise

guaranteeing plaintiffs’ entitlement to ATVM loans.3 Plaintiffs assert that they relied to their

3

The court notes that the only instance wherein plaintiffs allege that Limnia was a

qualified ATVM loan program applicant is found in paragraph 123 of the second amended

complaint. In that paragraph, plaintiffs contend that “[a]t all times relevant, as [the] DOE

repeatedly acknowledged verbally and in writing, both XPV and Limnia were qualified ATVM

applicants[,] and were treated accordingly by DOE staff responsible for administering the loan

programs for a period of months,” and that the “DOE therefore formed an implied in fact

contract with XPV and Limnia to remit ATVM [l]oan [p]rogram funds.” These two sentences

13

detriment on defendant’s “promises” that plaintiffs were qualified applicants, and argue that

defendant should be required to fulfill such promises and remit the ATVM loans. 2d Am.

Compl. ¶ 124. As noted above, alleging detrimental reliance on a promise and contending that

that promise should be enforced constitutes a promissory estoppel claim. Thus, “[r]egardless of

how [plaintiffs] label[] the claim in the [second amended] complaint, this is a claim of

promissory estoppel.” Carter, 98 Fed. Cl. at 639. This court, as explained previously, lacks

jurisdiction to entertain promissory estoppel claims. Accordingly, the court dismisses without

prejudice, for lack of jurisdiction, the claims invoking “equitable estoppel” set forth in the first

claim for relief in plaintiffs’ second amended complaint.4 See id. at 639 (dismissing the

plaintiff’s “equitable estoppel” claim because, despite its label, it was actually a promissory

estoppel claim, as the plaintiff alleged that it relied to its detriment on the government’s

conduct).

B. RCFC 12(b)(6)

1. No Implied-in-Fact Contracts Arose Between Plaintiffs and Defendant

In their first and third claims for relief, plaintiffs contend that this court possesses

jurisdiction over their claims that are based on implied-in-fact contracts with the DOE. An

implied-in-fact contract is one of the government’s waivers of sovereign immunity under the

Tucker Act, see Loveladies Harbor, Inc., 27 F.3d at 1554, and a plaintiff’s allegation that one

exists between itself and the United States “is enough to confer subject matter jurisdiction in this

[c]ourt,” Penn. Dep’t of Pub. Welfare v. United States, 48 Fed. Cl. 785, 786 (2001) (noting that

the “allegation in [the] complaint that [the] claim was based upon [the] contract was enough to

confer subject matter jurisdiction in the Court of Federal Claims” (citing Trauma Serv. Grp., 104

F.3d at 1324)). Indeed, a claim does not fail for lack of jurisdiction merely because its success is

doubtful. Bell v. Hood, 327 U.S. 678, 682 (1946). Rather, “[f]ailure to state a proper cause of

action calls for a judgment on the merits and not for a dismissal for want of jurisdiction.”

Trauma Serv. Grp., 104 F.3d at 1324. Therefore, this court will address whether plaintiffs have

stated a claim upon which relief can be granted.

a. The Court Denies the Remaining Claims in Plaintiffs’ First Claim for Relief

i. Plaintiffs’ ATVM Loan Program Applications Did Not Create a Contract to Remit Funds

In addition to the promissory estoppel claims set forth in plaintiffs’ first claim for relief,

plaintiffs’ first claim also sets forth that the DOE was “obligated by statute to fund qualified

applications up to the limit of its Congressional authorization,” 2d Am. Compl. ¶ 120, and that

the DOE was “required to follow objective . . . criteria in determining applicants’ eligibility for

receiving ATVM loans,” id. ¶ 122. Plaintiffs thus claim that an “implied in fact [contract] was

stand in stark contrast to the detailed allegations set forth in the second amended complaint

detailing XPV’s application to the ATVM loan program and its interaction with the DOE.

4

To the extent that plaintiffs raise other promissory estoppel claims with respect to the

ATVM loan program, although not explicitly pled, those claims are denied for the same reasons.

14

created by [defendant’s] solicitations.” Id. ¶ 127. Further, plaintiffs aver that they submitted

applications and paid the corresponding application fees. Id. ¶ 124. Plaintiffs also assert that the

DOE “acknowledged verbally and in writing” that they “were qualified . . . applicants,” and that

the DOE had an “obligation to fund all qualified applications up to the limit of its lending

authority.” Id. Based upon these allegations, plaintiffs claim that defendant “therefore formed

an implied-in-fact contract with [each plaintiff] to remit ATVM [l]oan [p]rogram funds.” Id.

¶ 123.

As described earlier, when alleging that the federal government entered into an implied-

in-fact contract, a plaintiff must establish the same elements as an express contract, namely:

mutuality of intent to contract, an unambiguous offer and acceptance, consideration, and actual

authority on the part of the government's representative to bind the government. Anderson v.

United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003); Schism, 316 F.3d at 1278. Contrary to

plaintiffs’ assertion here, there is nothing inherent in an agency’s invitation to the public to apply

for a loan that constitutes an offer to contract, or that forms the basis for a contract once an

application is submitted, even if the application criteria are ostensibly met. It is well recognized

that “mere solicitations, invitations[,] or instructions from the [g]overnment are not offers to

contract that bind the [g]overnment upon [a] plaintiff’s completion of a form, even when the

solicitations, invitations or instructions are embodied in a statute or regulation.” Girling Health

Sys., Inc. v. United States, 22 Cl. Ct. 66, 71-72 (1990); accord Tree Farm, 585 F.2d at 500

(explaining that “invitations by the [g]overnment to file applications do not necessarily equal an

operative offer, the acceptance of which will result in a binding contract”).

More specifically, a statute and regulation that create a loan guarantee program “cannot

fairly be characterized as an offer to make loan guarantees to qualified applicants,” but rather,

“merely create a process for receiving and considering applications . . . .” Baker v. United

States, 50 Fed. Cl. at 489, 493 (2001). In rejecting the argument that a mere application to a

government loan program could result in a contract binding the government, the United States

Court of Claims (“Court of Claims”) explained that, with respect to a loan guarantee program, “it

requires a distor[t]ion of plain English to infer that [a] plaintiff’s making of an application in

conformity with [the stated requirements] would constitute an acceptance of an offer whereby

the [g]overnment intended to bind itself.” Tree Farm, 585 F.2d at 500. Indeed, “[i]t would do

violence to traditional contract theory, not to mention the operation of government, to hold that

any statute requiring some action by a citizen to obtain a benefit or protect a right constituted an

open offer to contract.” Last Chance Mining Co., 12 Cl. Ct. at 555-56. The case now before the

court is no exception—the lack of a formal government offer and acceptance, along with “the

total absence of a meeting of the minds,” demonstrates that no contract was formed. Tree Farm,

585 F.2d at 501 (noting that “[s]ince there is no implied-in-fact contract on the facts of this case

. . . the court [cannot] consider plaintiff’s claim”); accord Hanlin v. United States, 316 F.3d

1325, 1328 (Fed. Cir. 2003) (“An implied-in-fact contract is one founded upon a meeting of

minds and ‘is inferred, as a fact, from [the] conduct of the parties showing, in the light of the

surrounding circumstances, their tacit understanding.’” (quoting Balt. & Ohio R.R. Co., 261 U.S.

at 597)). Further, because the pertinent statutes and regulations that created the respective loan

and loan guarantee programs include evaluation criteria and specifically grant the DOE

discretion in administering these programs, it is evident that the mere submission of completed

paperwork for review and processing does not guarantee the grant of a loan or a loan guarantee.

15

Simply stated, any averments setting forth the elements necessary to prove the existence of a

contract are absent from plaintiffs’ second amended complaint.

ii. DOE Officials’ Representations to Plaintiffs During the Application Stage Did Not

Create a Binding Contract

Plaintiffs assert in their first claim for relief that DOE officials’ representations regarding

their respective ATVM loan program applications created implied-in-fact contracts. 2d Am.

Compl. ¶ 123; see also Pls.’ Opp’n 34-35. Before completing their evaluation of plaintiffs’

applications, DOE representatives stated that XPV was a “qualified applicant,” 2d Am. Compl.

¶ 21; that “everything was fine”; that “everything [wa]s on track”; that XPV “appear[ed] to meet

every criter[ion] with respect to its ATVM loan program application”; and that defendant

“should be able to announce [a loan] any day now,” id. ¶ 37 (internal quotation marks omitted).

Plaintiffs also aver that “[a]t all times relevant, as [the] DOE repeatedly acknowledged verbally

and in writing, both XPV and Limnia were qualified ATVM applicants[,] and were treated

accordingly by DOE staff responsible for administering the loan programs for a period of

months.”5 Id. ¶ 123. Plaintiffs contend that by making these representations, the DOE formed

implied-in-fact contracts to remit ATVM loan program funds to them. Id.

Plaintiffs’ legal arguments are contrary to the binding precedent of the United States

Court of Appeals for the Federal Circuit (“Federal Circuit”). As explained above, case law is

clear that to establish the existence of an implied-in-fact contract, plaintiffs must demonstrate

that all contractual elements are satisfied, including that the DOE officials with whom it

communicated possessed actual authority to bind the government. Anderson, 344 F.3d at 1353;

Schism, 316 F.3d at 1278; New Am. Shipbuilders, Inc., 871 F.2d at 1080. In plaintiffs’ second

amended complaint, they fail to allege the existence of an offer and acceptance demonstrating

the parties’ mutual intent to be bound, and there are no allegations describing a government

official with the requisite authority entering into a contract with plaintiffs on behalf of the

government. Quite simply, the second amended complaint is devoid of the factual averments

necessary to state a claim for an implied-in-fact contract.

Moreover, the Federal Circuit has instructed that “[o]ral assurances do not produce a

contract implied-in-fact until all the steps have been taken that the agency procedure requires;

until then, there is no intent to be bound.” New Am. Shipbuilders, Inc., 871 F.2d at 1080. In

addition, the ATVM loan program regulation specifically provides that the “DOE is not bound

by oral representations made during the [a]pplication stage, or during any negotiation process.”

10 C.F.R. § 611.105(b) (2008). Thus, as the Federal Circuit has made clear, “[i]t is irrelevant if

the oral assurances emanate from the very official who will have authority at the proper time[] to

sign the contract or grant,” because if the assurances are premature and “an approving official

exceeds his authority, the government can disavow the official’s words and is not bound by an

implied contract.” New Am. Shipbuilders, Inc., 871 F.2d at 1080. Accordingly, the DOE

officials’ statements regarding plaintiffs’ respective applications did not execute a contract, as

these representations were made during the application stage, well before the evaluation was

5

As the court noted above, there is only one instance where plaintiffs allege that Limnia

was a qualified ATVM loan program applicant. See supra note 3.

16

even completed or an actual offer to contract was made. The officials’ purported “approval” was

“legally ineffective and d[id] not bind the United States to an implied-in-fact contract or by

estoppel,” despite plaintiffs’ claims that they relied on such oral representations.6 Id. at 1081.

Accordingly, the court denies with prejudice the remaining claims in the first claim for relief of

plaintiffs’ second amended complaint.

b. The Court Denies Plaintiffs’ Third Claim for Relief, “Implied-in-Fact Contract (Fair

Review of ATVM Loan Program Applications)”

i. Plaintiffs Have Failed to Establish That the EISA or 10 C.F.R. § 611.103 Created a

Binding Contract That Included a Specific Term Requiring Defendant to Review

Plaintiffs’ ATVM Loan Program Applications Fairly

In their third claim for relief, plaintiffs allege that the DOE was obligated by contract to

consider their loan applications fairly. 2d Am. Compl. ¶¶ 138, 141; Pls.’ Opp’n 27-28.

According to plaintiffs, the EISA and 10 C.F.R. § 611.103 outlined objective criteria that the

DOE was required to follow when making loan decisions. 2d Am. Compl. ¶ 8; Pls.’ Opp’n 27-

28. Plaintiffs contend that the statute and the DOE regulation created a contractual obligation for

defendant to follow such objective criteria, and that the DOE failed to do so. 2d Am. Compl.

¶¶ 118, 138, 141; Pls.’ Opp’n 15, 27-28.

Plaintiffs’ contentions are incorrect. As a preliminary matter, a federal statute or

regulation does not inherently create a contractual relationship between an individual and the

United States. See Martinez v. United States, 48 Fed. Cl. 851, 862-63 (2001) (holding that a

federal regulation did not create privity of contract between the plaintiff and the government),

aff’d, 281 F.3d 1376 (Fed. Cir. 2002); Schuerman v. United States, 30 Fed. Cl. 420, 427 (1994)

(same). Indeed, the Supreme Court “has maintained that absent some clear indication that the

legislature intends to bind itself contractually, the presumption is that a law is not intended to

create private contractual or vested rights, but merely declares a policy to be pursued until the

legislature shall ordain otherwise.” Nat’l R.R. Passenger Corp. v. Atchison, 470 U.S. 451, 465-

66 (1985) (citation and internal quotation marks omitted). As the Supreme Court has further

explained, “[t]his well-established presumption is grounded in the elementary proposition that

6

XPV also relies on 10 C.F.R. § 609.10(b). See Pls.’ Opp’n 35. That regulation states

that the “DOE is not bound by oral representations made during the Pre–Application stage, [(]if

Pre–Applications were solicited,[)] or Application stage, or during any negotiation process.” 10

C.F.R. § 609.10(b). XPV contends that because the DOE representatives’ oral assurances were

made before this regulation was promulgated on December 4, 2009, the regulation is not

controlling. Pls.’ Opp’n 35. However, XPV’s argument is unavailing because 10 C.F.R. §

611.105(b)—which, as quoted above, provides that the DOE is not bound by oral representations

made during the application stage—went into effect on November 12, 2008, before the DOE

officials made their representations to plaintiffs in 2009. See generally 10 C.F.R. § 611.105; 2d

Am. Compl. ¶¶ 36-37. Nonetheless, even if 10 C.F.R. § 611.105(a) was not in effect at the time

that such statements were made to XPV, XPV’s argument would still not be persuasive because,

as noted earlier, the Federal Circuit has held that oral assurances do not create an implied-in-fact

contract before the agency’s procedure has been completed.

17

the principal function of the legislature is not to make contracts, but to make laws that establish

the policy of the state.” Id. at 466. Thus, “the party asserting the creation of a contract must

overcome this well-founded presumption and [courts are required to] proceed cautiously both in

identifying a contract within the language of a regulatory statute and in defining the contours of

any contractual obligation.” Brooks v. Dunlop Mfg. Inc., 702 F.3d 624, 630-31 (Fed. Cir. 2012).

In this case, the statute and regulation containing the criteria pursuant to which the DOE would

evaluate applications did not create a contract. Of significance is plaintiffs’ failure to identify

any language in the EISA or regulation that suggest contract formation. Neither contains “words

typically associated with contract formation, such as ‘offer’ or ‘acceptance.’” Id. at 631. Nor do

plaintiffs cite to any legislative history of the EISA or provide any other evidence that Congress

intended to contractually bind the DOE to any ATVM loan program applicant.

Further, as described earlier, the Supreme Court held in Testan that plaintiffs must either

rely on a statute that specifically authorizes money damages, or sufficiently allege the existence

of a contract. 424 U.S. at 400. Here, plaintiffs merely allege that the EISA created the ATVM

loan program, and that because misconduct occurred during the administration of that program,

plaintiffs did not receive their loans. Allegations of misconduct do not establish that a contract

between the DOE and plaintiffs existed, nor breach thereof.7 If the court were to accept

plaintiffs’ argument that the statute concerning a loan program, standing alone, created a

contract, then any disappointed qualified applicant could allege that the government owed them a

duty or an obligation. This rationale would render meaningless the Tucker Act’s money-

mandating requirement. Indeed, it “would blur the distinction between a claim founded on a

money-mandating statute or regulation and one founded on a contract with the United States.”

Baker, 50 Fed. Cl. at 489. The Testan court specifically rejected the notion that “the violation of

any statute or regulation relating to [a plaintiff’s claims] automatically creates a cause of action

against the United States for money damages.” Id. at 489 n.4 (“Where the United States is the

defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the

federal claim whether it be the Constitution, a statute, or a regulation does not create a cause of

action for money damages unless . . . that basis ‘in itself . . . can fairly be interpreted as

mandating compensation by the Federal Government for the damage sustained.’” (quoting 424

U.S. at 401-02) (internal citation omitted))). Accordingly, “[t]he United States cannot be

contractually bound merely by invoking [a] statute [or] regulation” that pertains to plaintiffs’

claims. Id. at 489 (citing Merrick v. United States, 846 F.2d 725, 726 (Fed. Cir. 1988)). “The

rule in Testan . . . cannot be avoided simply by characterizing the applicable statute or regulation

as creating an implied contract,” id., which is precisely what plaintiffs are attempting to do here.

ii. Defendant Did Not Enter Into a “Garden-Variety” Implied-in-Fact Contract to Fairly

Review Plaintiffs’ ATVM Loan Program Applications

In addition, Limnia asserts that although the “DOE denied [its ATVM loan program]

application on the grounds that the components in question ‘[did] not appear to be designed for

installation in an advance technology vehicle . . . [,]’ these grounds were false and a mere pretext

7

In addition, such allegations of misconduct raise tort claims and criminal matters,

subject areas beyond the scope of this court’s jurisdiction and subject to dismissal pursuant to

RCFC 12(b)(1).

18

to preserve ATVM [l]oan [p]rogram funds for government-favored companies and/or to protect

those companies from competition.” 2d Am. Compl. ¶ 70. Limnia alleges that when it requested

reconsideration of its application, id. ¶ 71, the DOE denied its application again, but then asked

for “more information,” id. ¶ 72. According to Limnia, it “responded with the requested

information” and “again requested reconsideration, pointing out that the questioned components

. . . must be installed prior to use in an advance technology vehicle and are, accordingly,

designed for such installation, and therefore [are] . . . ‘qualifying components.’” Id. ¶ 138.

Limnia states that the “DOE never responded to this letter.” Id. ¶ 73.

Along similar lines, XPV avers that despite its ATVM loan program application being

“qualified” to receive a loan, id. ¶ 21, its application was “‘set aside’ in favor of applications

from politically-connected government cronies[,] and [the] DOE had ‘fixed’ the ATVM loan

process to benefit political donors, cronies[,] and insiders,” id. ¶ 24. According to XPV, the

“DOE’s political leadership had no intention of approving [its] ATVM application under any

circumstances . . . because XPV competed with politically favored insider and crony

companies.” Id. ¶ 25.

Plaintiffs thus explain in their third claim for relief that the “DOE agreed to provide a fair

process and a level playing field among all applicants, whether they were politically connected

and had made large campaign donations or not.” Id. ¶ 138. Plaintiffs assert that the DOE

“breached its contractual obligations by denying [them a] fair opportunity and objective review.”

Id. ¶ 141. The DOE did so, plaintiffs allege, by “skewing, manipulating[,] and fixing the ATVM

[l]oan [p]rogram to benefit government favorites[,] . . . favoring political cronies over companies

that did not make political contributions or have influential patrons with [political] connections,”

and thus “wrongly denying [plaintiffs’] applications.” Id. Plaintiffs contend that even if the

statute did not create an implied-in-fact contract to consider their applications fairly, defendant

“breached a garden-variety implied-in-fact contract to fairly and objectively review” plaintiffs’

ATVM loan program applications. Pls.’ Opp’n 25. Contrary to plaintiffs’ assertions, however,

“merely because [a defendant] was willing to consider [the] plaintiff[s’] application[s, it] d[oes]

not mean that [it] was offering to contractually bind itself to make a disposition of the

application[s] on the merits rather than in some other manner.” Tree Farm, 585 F.2d at 501. The

DOE’s administration of the ATVM loan program, which included accepting and evaluating

applications, did not create a default binding contract of any kind.8

8

To the extent that plaintiffs’ allegations that the DOE’s decision to award loans was not

merits-based, but rather based upon corrupt political consideration, i.e., which companies

competing for the loans contributed the most amount of money to specific politicians, such

allegations are beyond this court’s jurisdiction because they constitute tort or criminal claims.

Tort liability theories asserted against the government are ill-advised in this court because it

“specifically lacks jurisdiction in cases sounding in tort.” Tree Farm, 585 F.2d at 498; accord 28

U.S.C. § 1491(a)(1); Keene Corp. v. United States, 508 U.S. 200, 214 (1993); Jefferson v.

United States, 104 Fed. Cl. 81, 89 (2012). The mere labeling of a claim is not dispositive of the

nature of a claim. For example, the mere labeling of a tort claim as one sounding in contract

cannot confer jurisdiction on the Court of Federal Claims. It is well settled that this “‘court lacks

jurisdiction if the essence of the claim lies in tort.’” Flowers v. United States, 80 Fed. Cl. 201,

213 (2008) (quoting Cottrell v. United States, 42 Fed. Cl. 144, 149 (1998)). It is equally well-

settled law that this court lacks jurisdiction over claims arising under the criminal code. Joshua

19

iii. The Court’s Bid Protest Jurisdiction Cannot Be Expanded to Encompass Plaintiffs’ Loan

Program Application Claims

Plaintiffs also rely on Heyer Products v. United States, a bid protest case in which the

plaintiff, a bidder who had submitted a proposal and lost, protested the award of the contract to

another bidder, claiming that the government had engaged in “discrimination and favoritism,” or

“bad faith.” 140 F. Supp. 409, 410 (Ct. Cl. 1956). The Heyer court denied the defendant’s

motion to dismiss the plaintiff’s complaint for failure to state a claim. Id. at 414. The court

reasoned that if the plaintiff’s “allegations [we]re true, [the defendant] practiced a fraud on [the]

plaintiff and on all other innocent bidders[,] induc[ing] them to spend their money to prepare

their bids on the false representation that their bids would be honestly considered.” Id. at 413.

The court stated that it was an “implied condition of the request for offers” that “each of [the

bids] would be fairly considered,” and that a bidder has the “right to have his bid honestly

considered.” Id. at 412-13. The court thus held that the parties’ “implied contract ha[d] been

broken, and [that the] plaintiff [could] maintain an action for damages for its breach.” Id. Here,

plaintiffs allege that the “DOE breached its contractual obligations by denying [plaintiffs] the

fair opportunity and objective review that they had bargained for and [that the] DOE had agreed

to provide . . . .” 2d Am. Compl. ¶ 141. Plaintiffs further aver that defendant manipulated and

fixed the ATVM loan program to benefit government favorites and also favored political cronies

over companies—such as plaintiffs—who lacked political connections or failed to make political

contributions. Id. Based upon the reasoning in Heyer, plaintiffs argue that because the “ATVM

and LG programs were operated like procurements,” Pls.’ Opp’n 21, the government’s “implied

v. United States, 17 F.3d 378, 379-80 (Fed. Cir. 1994) (affirming that the Court of Federal

Claims had “‘no jurisdiction to adjudicate any claims whatsoever under the federal criminal

code’”); Kania v. United States, 650 F.2d 264, 268 (Ct. Cl. 1981) (noting that “the role of the

judiciary in the high function of enforcing and policing the criminal law is assigned to the courts

of general jurisdiction and not to this court”).

Moreover, reviewing an agency’s decision to determine if misconduct or abuses occurred

constitutes review pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706

(1994), an inquiry that is reserved exclusively for the district courts. See Webster v. United

States, 90 Fed. Cl. 107, 121 (2009) (determining that the court could not hear plaintiff’s claims

regarding the agency’s alleged “wrongful acts” to the extent that they sounded in tort and APA

liability because such jurisdiction was reserved for the district courts); Ashgar v. United States,

23 Cl. Ct. 226, 230 (1991) (holding that the court had no “general review authority under the

APA” to “review [an] agency’s decision and procedures” when the plaintiff alleged that an

agency had “violated its own internal regulations and procedures” because “such general review

authority has been assigned to the district courts of the United States”). As the Federal Circuit

has held, this court “lacks the general federal question jurisdiction of the district courts, which

would allow it to review the agency’s actions and to grant relief pursuant to the Administrative

Procedure Act.” Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997); accord Lion

Raisins, Inc. v. United States, 416 F.3d 1356, 1370 n.11 (Fed. Cir. 2005) (“Of course, no APA

review is available in the Court of Federal Claims.”). The court is not bound by plaintiffs’

labeling of a claim. Their challenge to the DOE’s administration of its loan and loan guarantee

programs raises tort, criminal, and APA claims. The court lacks jurisdiction over tort, criminal,

and APA claims, and such claims are therefore dismissed pursuant to RCFC 12(b)(1).

20

contractual duty to fairly consider” bids applies here, as well, id. at 17. Plaintiffs’ factual

predicate is incorrect—this case does not arise under this court’s bid protest jurisdiction;

consequently, plaintiffs’ arguments are not persuasive.

The Tucker Act establishes the court’s bid protest jurisdiction, providing it with authority

to hear “an action by an interested party objecting to a solicitation by a [f]ederal agency for bids

or proposals for a proposed contract or to a proposed award or the award of a contract or any

alleged violation of statute or regulation in connection with a procurement or a proposed

procurement.” 28 U.S.C. § 1491(b)(1). The Federal Circuit has stated that a procurement

“includes all stages of the process of acquiring property or services, beginning with the process

for determining a need for property or services and ending with contract completion and

closeout.” Res. Conservation Grp., LLC v. United States, 597 F.3d 1238, 1244 (Fed. Cir. 2010);

41 U.S.C. § 111 (2012). In this case, the ATVM loan program and the Section 1703 LGP did not

involve a procurement, nor operate like one, as plaintiffs assert. Plaintiffs did not respond to a

government solicitation for bids or proposals to acquire goods or services. Instead, plaintiffs

applied for loans and a loan guarantee, respectively, pursuant to statutes and regulations. No

solicitations, bids, or contracts for goods or services were involved. Thus, the Heyer court’s

ruling that bids should be considered on the merits does not apply to plaintiffs’ claims because

their ATVM loan program and Section 1703 LGP applications seeking loans and a loan

guarantee from the government, respectively, were entirely distinct from procurements for goods

or services. Indeed, the Court of Claims held in binding precedent in Tree Farm that the

plaintiff’s application for a loan guarantee in that case “f[ell] outside of the ambit of Heyer and

its progeny.” 585 F.2d at 498. The court explained that because the “plaintiff [wa]s not a

disappointed bidder, but merely an applicant seeking governmental guarantees of the financing

for its proposed development, it [wa]s manifest that plaintiff d[id] not fall within the established

parameters of the Heyer principles.” Id. at 499.

Plaintiffs attempt to distinguish the facts presented in their case from those in Tree Farm to

argue that the Tree Farm holding does not apply. Pls.’ Opp’n at 19. Specifically, plaintiffs

assert that Tree Farm did not involve favoritism, whereas Heyer did. Id. Plaintiffs contend that

for that reason, the Heyer decision is apt, while the holding in Tree Farm declining to extend

Heyer has no application. Id. Plaintiffs’ argument is unconvincing. The Tree Farm court’s basis

for declining to extend Heyer’s implied duty of fair consideration was that Tree Farm involved a

loan guarantee application, not a disappointed bidder in a procurement. 585 F.2d at 499.

Consequently, the court in Tree Farm refused to extend the Heyer implied duty to the loan

guarantee context. Id. The Tree Farm court also noted that in Heyer, the plaintiff alleged that

the agency had engaged in preferential treatment when awarding the contract, whereas in Tree

Farm, there were no allegations of bad faith. Id. The Tree Farm court explained, however, that

this distinction was merely an additional consideration when it declined to extend the Heyer rule

to a loan guarantee setting, rather than being the central reason. Id. Thus, because the Tree Farm

court concluded that there was no implied duty of fair consideration in the loan guarantee

context, as no procurement was involved, its holding is salient here. Accordingly, because this

case does not concern a procurement, plaintiffs cannot invoke Heyer’s implied duty of fair

consideration to create an implied-in-fact contract in connection with their respective loan and

loan guarantee applications. See Baker, 50 Fed. Cl. at 498 (declining to extend Heyer to the

plaintiff’s loan guarantee application, and thus finding no implied-in-fact contract); N. Indian

21

Hous. & Dev. Council v. United States, 12 Cl. Ct. 417, 423 (1987) (holding that, as in Tree

Farm, the plaintiffs did not fall “within the parameter of the Heyer principles because they were

not disappointed bidders,” thereby barring the court from hearing the plaintiffs’ claims).

Plaintiffs also argue that the Heyer doctrine has been extended to cases outside of the

procurement or competitive bidding context, and should thus be extended to their claims, as well.

Pls.’ Opp’n at 19-20. However, the decisions upon which plaintiffs rely are inapposite because

those cases arise from government procurements. See, e.g., Refine Constr. Co. v. United States,

12 Cl. Ct. 56, 62 (1987) (describing a case in which the government agency reviewed the

plaintiff’s bid during a sole source procurement in order to award a contract for construction

services); Acrow Corp. of Am. v. United States, 97 Fed. Cl. 161, 167 (2011) (describing a case

in which the Army issued a solicitation to award a contract for construction services, bids were

submitted, and the plaintiff brought a bid protest action). Moreover, in Tree Farm, the Court of

Claims expressly addressed and rejected the argument that plaintiffs raise in this litigation,

namely, that Heyer extends beyond procurements. In Tree Farm, the court explained that in

Keco Industries v. United States, 428 F.2d 1233 (1970), it held that “the Heyer rule extended to

all procurement situations.” Tree Farm, 585 F.2d at 499. The Tree Farm court stated, “[w]e

emphasize the words ‘all procurement situations’ because Heyer, even as clarified by Keco

Industries, has not been extended beyond the disappointed bidder fact pattern,” and “[t]he limited

scope of Heyer is manifest in our [other] h[o]ldings[,]” as well. Id. Thus, in Tree Farm, the

Court of Claims explicitly refused to extend its holding in Heyer beyond the procurement setting,

and this remains binding precedent. Accordingly, this court, like all other courts that have been

invited by parties to depart from this binding precedent and extend the Heyer rule, declines to

extend Heyer. See New Am. Shipbuilders, 871 F.2d at 1080 (citing Tree Farm in refusing to

“extend[]” the Heyer rule “requiring fair consideration of a bid[] for a contract of competitive bid

procurement” to the plaintiff’s objection to not receiving a federal grant, where the plaintiff was

negotiating with the government to provide construction services); Baker, 50 Fed. Cl. at 497-98

(holding that it would “follow[] Tree Farm” in “declin[ing] to extend Heyer” beyond the

procurement context to a loan guarantee application); El Dorado, 28 Fed. Cl. at 136-37

(discussing Tree Farm when “declin[ing]” to extend the Heyer rule “outside of the procurement

setting,” and thus rejecting the plaintiff’s argument that it “could have an implied contract with

the government to consider its application in good faith”).

In addition, plaintiffs rely on Resource Conservation Group, a case in which the Navy

issued a solicitation for proposals to lease its property. 597 F.3d at 1240. In that case, the

Federal Circuit explained that this court’s “implied-in-fact jurisdiction over nonprocurement

solicitations survived the enactment of [28 U.S.C. § ]1491(b)(1).” Id. at 1245 n.11. In the case

at bar, plaintiffs claim that that statement should be interpreted as expanding this court’s

jurisdiction to nonprocurement solicitations. Pls.’ Opp’n 20-21. Plaintiffs are mistaken. The

Federal Circuit made that statement in Resource Conservation Group while discussing the

enactment of 28 U.S.C. § 1491(b)(1) and the change that it brought about. 597 F.3d at 1243-46.

Specifically, the court described how previously, bid protest jurisdiction was shared by this court

and the federal district courts, and how the introduction of section 1491(b)(1) placed that

jurisdiction exclusively with this court. Id. at 1243. The court also indicated that “[b]efore [the]

enactment of section 1491(b)(1), the Court of Federal Claims exercised jurisdiction over

solicitations for the sale of government property, just as it did in the procurement area.” Id. at

22

1245-46. Referring to this court’s jurisdiction over solicitations for the sale of government

property, the court stated that “[t]he new statute on its face does not repeal the earlier

jurisdiction.” Id. at 1246. The court explained that “Congress intended the 1491(b)(1)

jurisdiction to be exclusive [of the district courts] where 1491(b)(1) provided a remedy (in

procurement cases) . . . [but] it seems quite unlikely that Congress would intend that statute to

deny a pre-existing remedy without providing a remedy under the new statute.” Id.

Subsequently, the Federal Circuit held, “Congress did not intend to alter or restrict the

Court of Federal Claims’ existing jurisdiction in cases not covered by the new statute. . . . We

conclude that the court’s implied-in-fact jurisdiction over non-procurement solicitations survived

the enactment of 1491(b)(1).” Id. Thus, instead of extending this court’s jurisdiction to

nonprocurement solicitations, as plaintiffs erroneously claim, the Federal Circuit merely

confirmed the contours of the court’s existing jurisdiction over solicitations for the sale of

government property that was present prior to the enactment of section 1491(b)(1). Moreover, it

appears that the Federal Circuit’s ruling was a narrow ruling regarding jurisdiction over the sale

of government property; nothing indicates that it applies to an application for a loan or loan

guarantee. Consequently, the implied duty of fair consideration that Heyer laid out does not

apply to plaintiffs’ nonprocurement loan and loan guarantee application claims. The court thus

denies with prejudice the remaining implied-in-fact contract claims in the third claim for relief of

plaintiffs’ second amended complaint.9

9

Moreover, the mere fact that a company can manufacture or produce a quality product

does not automatically entitle that company to an award under a government loan program.

Plaintiffs have not pointed to any statute or regulation that compels the DOE to provide plaintiffs

with a detailed explanation for its decision to select other applications for the award of loans or

loan guarantees under the ATVM loan program and the Section 1703 LGP, respectively. In

essence, plaintiffs seek a detailed debriefing with an explication and justification by the DOE for

its decision to select other companies to participate in the ATVM loan program and the Section

1703 LGP. The DOE is under no such obligation. Indeed, plaintiffs’ failure to receive a loan

award is not, in itself, evidence that the loan and loan guarantee programs were not properly

administered; requesting review of the agency’s decision-making process constitutes an APA

inquiry, which, as described earlier, is beyond this court’s jurisdiction. See Califano v. Sanders,

430 U.S. 99, 105 (1977) (“[T]he APA is not to be interpreted as an implied grant of subject-

matter jurisdiction to review agency actions . . . ”) Union Bank & Trust Co. v. United States, 27

Fed. Cl. 403, 404 (1992) (stating that the APA “provides for judicial review of an agency

decision that is arbitrary and capricious, an abuse of discretion, unsupported by substantial

evidence, or unwarranted by the facts,” and that it “does not establish jurisdiction in this court

over claims for money” damages, thus barring this court from reviewing agency decisions “using

APA standards”), aff’d, 6 F.3d 788 (Fed. Cir. 1993). However, as plaintiffs have likened their

claims to bid protest claims, the court notes the well-settled law that government contract

officials are presumed to “exercise their duties in good faith.” Am-Pro Protective Agency, Inc.

v. United States, 281 F.3d 1234, 1239 (Fed. Cir. 2002). A protestor seeking to overcome this

“strong presumption” bears a heavy burden of proof. Id. at 1238-39. Consequently, where, as

here, there is no regulation requiring the DOE to provide an explanation for its decision, the

presumption of regularity renders an explanation unnecessary “unless that presumption has been

rebutted by record evidence suggesting that the agency decision is arbitrary and capricious.”

23

B. The Court Denies Plaintiffs’ Fourth Claim for Relief, “Breach of the Duty of Good

Faith and Fair Dealing (Implied-in-Fact Contract)”

Plaintiffs further contend that their purported implied-in-fact contract with defendant to

conduct a “fair and level review of their ATVM [l]oan [p]rogram applications . . . contained an

implied duty of good faith and fair dealing obligating the parties not to do anything which would

have the effect of destroying or injuring the right of the other to receive the fruits of its

contractual bargain.” 2d Am. Compl. ¶ 144. However, as defendant has rightly noted, Def.’s

Mot. 25, “the existence of th[e] covenant [of good faith and fair dealing] depends on the

existence of an underlying contractual relationship . . . .” Scott Timber Co. v. United States, 692

F.3d 1365, 1372 (Fed. Cir. 2012); accord Precision Pine & Timber, Inc. v. United States, 596

F.3d 817, 830 (Fed. Cir. 2010). As explained herein, no contract was ever formed between

plaintiffs and the DOE; consequently, the duty of good faith and fair dealing did not attach.

Scott Timber Co., 692 F.3d at 1372 (noting that “there is no claim for a breach of th[e] covenant

[of good faith and fair dealing] where a valid contract has not yet been formed”); Westlands

Water Dist., 109 Fed. Cl. at 205 (“. . . [P]laintiff has failed to show a contractual duty . . . or any

implied contract . . . . Therefore, there is no contractual . . . duty to which the implied duty of

good faith and fair dealing can attach.”). Accordingly, the court denies with prejudice the fourth

claim for relief of plaintiffs’ second amended complaint.

IV. CONCLUSION

Plaintiffs do not invoke a money-mandating constitutional provision, federal statute, or

regulation that confers jurisdiction on this court. The court also lacks jurisdiction over plaintiffs’

promissory estoppel claims.10 In addition, plaintiffs fail to state a claim upon which relief could

be granted for any implied-in-fact contract with defendant. The court is not bound to accept

plaintiffs’ legal arguments concerning the effect of their respective applications to the ATVM

loan program and the Section 1703 LGP. Consequently, because no contract has been properly

alleged, there is no duty of good faith and fair dealing that attaches to defendant.11

Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1338 (Fed. Cir.

2001)

10

In their prayer for relief, plaintiffs request, inter alia, an award of punitive damages.

However, it is well settled that the court lacks jurisdiction to award punitive damages against the

United States. Garner v. United States, 230 Ct. Cl. 941, 941 (1982); Schortmann v. United

States, 82 Fed. Cl. 1, 3 (2008) (noting the court’s earlier dismissal of that portion of the

plaintiffs’ complaint requesting punitive damages because such relief is not available in the

Court of Federal Claims); Greene v. United States, 65 Fed. Cl. 375, 379 (2005); Fields v. United

States, 53 Fed. Cl. 412, 420 (2002); Christos v. United States, 48 Fed. Cl. 469, 478 n.22 (2000);

Cooper v. United States, 47 Fed. Cl. 115, 117 (2000).

11

To the extent that plaintiffs raise other arguments in defense of their assertion of

jurisdiction or in an attempt to state a claim upon which the court could grant relief, such

arguments are summarily denied as lacking merit. Additionally, the court need not reach other

grounds that defendant has proffered for dismissing plaintiffs’ claims. Finally, the court does not

need to address the issue of whether transfer to the district court is appropriate. On January 10,

24

Accordingly, the court GRANTS defendant’s RCFC 12(b)(1) motion to dismiss for lack

of subject matter jurisdiction with respect to plaintiffs’ promissory estoppel claims, and

GRANTS defendant’s RCFC 12(b)(6) motion to dismiss for failure to state a claim upon which

relief can be granted as to plaintiffs’ remaining claims. Plaintiffs’ second amended complaint is

DISMISSED. No costs. The clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ Margaret M. Sweeney

MARGARET M. SWEENEY

Judge

2013, plaintiffs filed a complaint raising similar allegations in the United States District Court

for the District of Columbia, No. 13-cv-37 (D.D.C. Jan. 10, 2013).

25