Opinion

Estes Express Lines v. United States

Court: United States Court of Federal Claims
Filed: Aug 8, 2017
Status: Unpublished
On the bench: Lydia Kay Griggsby
Cited by: 0 cases
Authority: More cited than 3.9%

“While a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues.”

How later courts described this case

“While a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues.”
“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”
“The inquiry performed is the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”
movant bears the burden of showing that the undisputed material facts demonstrate that it is entitled to summary judgment in its favor

Written by the judges who cited it.

The opinion

In the United States Court of Federal Claims

No. 11-597C

Filed August 8, 2017

NOT FOR PUBLICATION

)

ESTES EXPRESS LINES, )

)

Plaintiff, ) Interstate Commerce Act; 49 U.S.C.

) § 14705; Summary Judgment, RCFC 56;

v. ) Privity of Contract; Assumption of Risk.

)

THE UNITED STATES, )

)

Defendant. )

)

Robert D. Moseley, Jr., Counsel of Record, Smith Moore Leatherwood LLP, Greenville,

SC, for plaintiff.

Daniel B. Volk, Trial Attorney, Martin F. Hockey, Jr., Deputy Director, Robert E.

Kirschman, Jr., Director, Chad A. Readler, Acting Assistant Attorney General, Commercial

Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for

defendant.

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

Plaintiff, Estes Express Lines (“Estes”), brings this breach of contract action to recover

certain freight charges allegedly due to Estes for providing transportation and freight

management services to the Marine Corps Community Services (“MCCS”). See generally

Compl. This matter is on remand from the United States Court of Appeals for the Federal

Circuit to consider whether the Interstate Commerce Act (“ICA”), 49 U.S.C. § 14705, applies to

Estes’s claim. Estes Express Lines v. United States, No. 11-597C (Fed. Cir. 2016); Pl. App. at

84.

The parties have filed renewed cross-motions for summary judgment, pursuant to Rule 56

of the Rules of the United States Court of Federal Claims (“RCFC”), upon the issues of whether

the Court may consider this matter under the ICA; whether Estes has entered into a valid contract

with the government; and, if so, whether the government is liable to Estes for certain freight

charges under that contract. For the reasons set forth below, the Court GRANTS-IN PART and

DENIES-IN-PART Estes’s renewed motion for summary judgment and GRANTS-IN PART

and DENIES-IN-PART the government’s renewed cross-motion for summary judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND1

A. Factual Background

This matter involves a long-standing dispute over unpaid freight charges. On October 31,

2007, the MCCS awarded contract number H0107-D-0005 to Salem Logistics, Inc. (“Salem”), a

freight broker (the “Salem Contract”). Def. Renewed Mot. at 1. Pursuant to the Salem Contract,

Salem provided MCCS with certain transportation, and freight management services, including

coordinating the pickup, transport and delivery of vendor products to and from various MCCS,

Marine Corps Exchange (“MCX”), and Navy Exchange (“NCX”) locations. Pl. Renewed Mot.

at 4. Under the Salem Contract, Salem billed MCCS for these services, and then Salem paid the

freight carriers that actually provided the transportation and freight services. Id. at 5.

1. Estes’s Freight Services

Between June 2008 and February 2009, Salem arranged for Estes to make various

shipments called for under the Salem Contract. Id. at 4. Although Estes did not execute a

written contract with Salem for these freight services, Estes handled the shipments under its

common carrier tariff. Id.; see also Pl. App. at 17-84. Pursuant to the Salem Contract, third-

party freight charges were billed to “Marine Corps Exchange c/o Salem Logistics.” Pl. Renewed

Mot. at 4-5; Def. Renewed Mot. at 3.

The facts recounted in this Memorandum Opinion and Order are taken from the United States Court of

Appeals for the Federal Circuit’s decision in Estes Express Lines v. United States, 739 F.3d 689 (Fed. Cir.

2014), as well as from plaintiff’s complaint (“Compl.”), the government’s appendix to its cross-motion

for summary judgment and response to plaintiff’s motion for summary judgment (“Def. App.”),

plaintiff’s renewed motion for summary judgment (“Pl. Renewed Mot.”), plaintiff’s appendix to its

renewed motion for summary judgment (“Pl. App.”), and the government’s renewed motion for summary

judgment (“Def. Renewed Mot.”). Except where otherwise noted, the facts recited herein are undisputed.

Generally, each shipment was identified by a bill of lading, a delivery receipt and a

freight bill. Pl. Renewed Mot. at 5. In addition, all bills of lading listed MCCS as the consignee,

while various third parties were listed as the shipper. Id. at 4-5; Pl. App. at 6-15.

Typically, Estes picked up freight from a third-party vendor, also known as a shipper.

Def. Renewed Mot. at 2. The shipper, in turn, would provide Estes with a bill of lading that the

shipper and Estes’s driver would sign when Estes picked up the freight. Id. After picking up the

shipment from the shipper, Estes’s driver would bring the bill of lading, along with the freight, to

an Estes’s terminal facility, where the bill of lading would be stored. Id.

Upon arrival at the delivery destination, Estes’s driver would obtain a signature from the

government confirming delivery on an Estes-generated delivery receipt. Pl. Renewed Mot. at 4

n.1. These delivery receipts do not itemize the charges for each shipment, but the receipts do

contain the signature of Estes’s driver, a description of the shipment, and the consignee’s and

shipper’s name and address. Pl. App. at 6.

For certain shipments, the government acted as both the shipper and consignee of freight

moving between MCCS and NCX. Pl. Renewed Mot. at 4. For these shipments, the shipments

were documented by a shipping order–rather than a bill of lading–a delivery receipt and freight

bill. Def. Renewed Mot. at 11-12; Def. App. at 4-5. In such cases, a government representative

signed the shipping order, which stated “Bill Salem Logistics.” Def. Renewed Mot. at 12. In

addition, the freight bills generated by Estes after a delivery, were addressed to “Marine Corps

Exchange c/o Salem Logistics” and mailed directly to Salem. Id. at 3.

2. Payment Dispute With Salem

Although MCCS paid Salem for some of the freight services performed by Estes, Salem

did not, in turn, pay Estes for all of these services. Def. App. at 15-16; Compl. ¶ 8. And so, on

February 27, 2009, MCCS terminated the Salem Contract for default. Def. Renewed Mot. at 3;

Def. App. at 8-9. MCCS also agreed to pay Estes directly for freight services rendered for which

MCCS had not yet paid Salem. Def. App. at 15-16, 45. To that end, on July 2, 2009, MCCS

paid Estes $28,931.28 for freight services for which it had not already paid Salem. Compl. ¶ 14;

Def. App. at 49.

This arrangement did not resolve Estes’s concerns about instances in which MCCS had

paid Salem, but Salem failed to pay Estes. Def. App. at 8-9, 25-32. On July 13, 2009, MCCS

informed Estes that it would not pay Estes “for amounts that MCCS has already paid to Salem

Logistics.” Id. at 45. And so, to date, Estes has not received payments for the freight services

that it provided for which the government had previously paid Salem.2 Id.; Compl. ¶ 14.

B. Relevant Procedural Background

On February 3, 2010, Estes brought an action to recover its unpaid freight charges against

several parties, including MCCS and NCX, in the United States District Court for the Middle

District of North Carolina. See Estes Express Lines v. Salem Logistics, Inc., et al., No. 1:10-cv-

00102 (M.D.N.C. 2011). On July 8, 2011, that case was transferred to this Court. See Estes

Express Lines v. United States, 108 Fed. Cl. 416, 420 (2013).

Estes filed the transfer complaint on October 17, 2011. Id. Thereafter, on January 6,

2012, the government moved to dismiss the complaint for lack of subject-matter jurisdiction and

for failure to state a claim upon which relief may be granted, pursuant to RCFC 12(b)(1) and

(b)(6). Id. On January 15, 2013, the Court dismissed Estes’s complaint for lack of subject-

matter jurisdiction, because Estes failed to show that there was privity of contract between Estes

and the government with respect to the transportation and freight services that Estes provided.

Id. at 421-22.

On February 13, 2013, Estes appealed the Court’s decision to the United States Court of

Appeals for the Federal Circuit. Notice of Appeal, Feb. 13, 2013. On January 3, 2014, the

Federal Circuit reversed the Court’s decision and remanded the case. See generally Estes

Express Lines v. United States, 739 F.3d 689 (Fed. Cir. 2014).

In its decision, the Federal Circuit held that the Court should not have dismissed the

complaint upon the ground that Estes had not established privity of contract, because the factual

circumstances of this case show that the bills of lading that Estes relied upon were sufficient to

establish privity of contract with the government. Id. at 693-94. Specifically, the Federal Circuit

found that:

Estes alleges that the total undiscounted amount of freight charges due from the government is

$91,344.20. Pl. Renewed Mot. at 6.

Each shipment handled by Estes was identified by a bill of lading, a freight bill, and

a delivery receipt. All bills of lading listed a MCCS or MCX destination as the

“consignee,” and most bills of lading identified the third-party vendor as the

“shipper.” In some instances, goods were moved from a Navy Exchange location

to an MCX location, or from one MCX location to another, in which case a

government entity was listed as the “shipper.” Pursuant to the Salem-MCCS

contract, all bills of lading further indicated that “third party freight charges” were

to be billed to “Marine Corps Exchange C/O Salem Logistics.” The delivery

receipts also specified that charges should be billed to the “Marine Corps

Exchange.” Each delivery receipt was signed by a representative of the MCCS or

MCX location to which the goods were delivered. Following delivery, Estes

invoiced “MCX, care of Salem” for freight charges.

Id. at 691. And so, the Federal Circuit concluded that:

Here, the undisputed facts are sufficient to establish that the Government is a

party to the bills of lading not only as the "bill to" party, but also as the shipper at

least in those instances in which goods were moved from one Government location

to another. MCCS expressly authorized, by contract, its designation as a party to

the bills of lading. Indeed, the Government concedes that all bills of lading were

generated consistent with the instructions in the MCCS-Salem contract. The

Claims Court also found that MCX accepted all shipments without exception, and

that a MCX representative signed each delivery receipt listing MCX as the "bill to"

party. Under these circumstances, the bills of lading are sufficient to meet Estes's

burden to show privity with the Government.

Id. at 693-94. The Federal Circuit did not, however, “express any opinion regarding the merits

of Estes’s claims and the issue of ultimate liability.” Id. at 694.

Following the remand and the completion of discovery, Estes filed a motion for summary

judgment on April 7, 2015. See generally Pl. Mot. On May 8, 2015, the government filed a

response to Estes’s motion for summary judgment and a motion to dismiss or, in the alternative,

for summary judgment upon the ground that the Court did not possess jurisdiction to consider

Estes’s claim under the Contract Disputes Act (“CDA”). See generally Def. Mot.

On September 29, 2015, the Court issued a Memorandum Opinion and Order, dismissing

the case for lack of subject-matter jurisdiction because Estes did not comply with the

requirements of the CDA before commencing this action. Estes Express Lines v. United States,

123 Fed. Cl. 538 (2015). On November 24, 2015, Estes appealed the Court’s decision to the

United States Court of Appeals for the Federal Circuit. See Notice of Appeal, November 24,

2015. On September 28, 2016, the Federal Circuit issued a per curiam decision remanding the

case to this Court, at the parties’ request, to consider whether the Interstate Commerce Act

provides the Court with jurisdiction to hear plaintiff’s claims. Estes Express Lines v. United

States, No. 2016-1298 (Fed. Cir. Sept. 28, 2016) (order granting joint motion to remand).

On February 16, 2017, the parties filed renewed cross-motions for summary judgment on

the issues of whether the Court may consider this matter under the ICA; whether Estes has

entered into a valid contract with the government; and, if so, whether the government is liable to

Estes under that contract. See generally Pl. Renewed Mot.; Def. Renewed Mot. On March 16,

2017, the parties filed responsive briefs in connection with the parties’ renewed cross-motions

for summary judgment. See generally Pl. Renewed Resp.; Def. Renewed Resp.

On April 4, 2017, the Court directed the parties to file supplemental briefs addressing: (1)

if the Court determines that there is a valid contract by and between Estes and the government

with respect to the shipping services and bills of lading at issue in this litigation, whether the

government assumed the risk that Salem would not pay Estes for the shipment services; and (2)

whether there are any material facts that are in dispute, or unknown, with respect to whether the

government assumed the risk that Salem would not pay Estes for the shipment services and bills

of lading at issue in this litigation. See generally Scheduling Order. On May 4, 2017, the parties

filed their initial supplemental briefs. See generally Pl. Supp.; Def. Supp. On May 25, 2017, the

parties filed their responsive supplemental briefs. See generally Pl. Supp. Resp.; Def. Supp.

Resp.

These matters having been fully briefed, the Court resolves the pending renewed cross-

motions for summary judgment.

III. LEGAL STANDARDS

A. Jurisdiction And The Interstate Commerce Act

It is well-settled that subject-matter jurisdiction is a “threshold matter,” and that a case

may proceed no further if the Court lacks jurisdiction. Copar Pumice Co., Inc. v. United States,

112 Fed. Cl. 515, 527 (2013) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)). In this

regard, the United States Court of Federal Claims is a court of limited jurisdiction and

“possess[es] only that power authorized by Constitution and statute . . . .” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). And so, the Tucker Act grants

the Court jurisdiction over:

[A]ny claim 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) (2012).

In this action, Estes asserts breach of contract claims pursuant to the ICA. 49 U.S.C.

§ 14705. Section 14705 of the ICA provides:

(f) Government transportation.--This section applies to transportation for the

United States Government. The time limitations under this section are

extended, as related to transportation for or on behalf of the United States

Government, for 3 years from the later of the date of--

(1) payment of the rate for the transportation or service involved;

(2) subsequent refund for overpayment of that rate; or

(3) deduction made under section 3726 of title 31.

49 U.S.C. § 14705 (2012). And so, the ICA requires that a carrier bring a claim against the

government under the ICA within three years from the later date of either, receiving payment,

receiving a refund, or having a deduction made. Id. The Federal Circuit has also held that the

ICA operates as a waiver of the government’s sovereign immunity. Inter-Coastal Xpress, Inc. v.

United States, 296 F.3d 1357, 1365 (Fed. Cir. 2002). And so, a timely claim for payment under

a transportation contract with the United States may be brought directly to this Court pursuant to

the ICA. Sheridan Transp. Sys., Inc. v. Gen. Servs. Admin., 651 F. App’x 987, 988 (Fed. Cir.

2016).

B. Summary Judgment, RCFC 56

Under RCFC 56, a party is entitled to summary judgment when there is “no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC

56; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A fact is material if it might

affect the outcome of a case. See Anderson, 477 U.S. at 248 (“Only disputes over facts that

might affect the outcome of the suit under the governing law will properly preclude the entry of

summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”)

(citation omitted); see also Applied Med. Res. Corp. v. Tyco Healthcare Grp. LP, 534 F. App’x

972, 977 (Fed. Cir. 2013). An issue is genuine if a reasonable trier of fact could find for the non-

moving party. Anderson, 477 U.S. at 250 (“The inquiry performed is the threshold inquiry of

determining whether there is the need for a trial—whether, in other words, there are any genuine

factual issues that properly can be resolved only by a finder of fact because they may reasonably

be resolved in favor of either party.”); see Frolow v. Wilson Sporting Goods, Co., 710 F.3d 1303,

1310 (Fed. Cir. 2013).

In resolving motions for summary judgment, the Court will not make credibility

determinations and will draw all inferences ‘“in the light most favorable to the party opposing

the motion.”’ Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88

(1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). In doing so, the Court

does not weigh the evidence presented, but instead must “determine whether there is a genuine

issue for trial.” Anderson, 477 U.S. at 249; Agosto v. INS, 436 U.S. 748, 756 (1978); see Am.

Ins. Co. v. United States, 62 Fed. Cl. 151, 154 (2004). And so, the Court may only grant

summary judgment when “the record taken as a whole could not lead a rational trier of fact to

find for the nonmoving party . . . .” Matsushita, 475 U.S. at 587 (citation omitted).

The above standard also applies when the Court considers cross-motions for summary

judgment. Principal Life Ins. Co. & Subsidiaries v. United States, 116 Fed. Cl. 82, 89 (2014);

see Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010). And so, when both parties

move for summary judgment, ‘“the court must evaluate each party’s motion on its own merits,

taking care in each instance to draw all reasonable inferences against the party whose motion is

under consideration.”’ Abbey v. United States, 99 Fed. Cl. 430, 436 (2011) (quoting Mingus

Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)).

C. Contract Claims Against The United States

To maintain a cause of action under the Tucker Act based upon a contract with the United

States, a plaintiff must show that there is a contract directly between itself and the government,

i.e., that there is privity of contract. Cienega Gardens v. United States, 194 F.3d 1231, 1239

(Fed. Cir. 1998) (citation omitted); see also Anderson v. United States, 344 F.3d 1343, 1351

(Fed. Cir. 2003). The Federal Circuit has held that the effect of finding privity of contract is to

find a waiver of sovereign immunity. Cienega Gardens, 194 F.3d at 1239 (citation omitted).

And so, the question of whether a contract exists is a mixed question of law and fact, but, where

the parties do not dispute the relevant facts, the privity issue reduces to a question of law. Id.

(citation omitted); Estes Express Lines, 739 F.3d at 693 (quoting Cienega Gardens, 194 F.3d at

1293).

The Tucker Act also grants this Court jurisdiction to consider claims based “upon any

express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1). The Court does

not, however, possess jurisdiction to consider claims against the United States “based on

contracts implied in law.” United States v. Mitchell, 463 U.S. 206, 218 (1983) (citing Merritt v.

United States, 267 U.S. 338, 341 (1925)); Aboo v. United States, 86 Fed. Cl. 618, 626 (2009)

(citation omitted), aff’d, 347 F. App’x 581 (Fed. Cir. 2009). And so, to bring a valid contract

claim against the United States in this Court, a plaintiff must establish either an express or

implied-in-fact contract with the government. Aboo, 86 Fed. Cl. at 626 (citations omitted). Such

a contract claim must also be for “actual, presently due money damages . . . .” King v. United

States, 395 U.S. 1, 3 (1969); see also Speed v. United States, 97 Fed. Cl. 58, 66 (2011) (citations

omitted).

In addition, plaintiff bears the burden of proving the existence of a contract with the

United States, and plaintiffs must show that there is “something more than a cloud of evidence

that could be consistent with a contract to prove a contract and enforceable contract rights.” D &

N Bank v. United States, 331 F.3d 1374, 1377 (Fed. Cir. 2003). To establish the existence of

either an express or implied-in-fact contract with the United States, a plaintiff must show: (1)

mutuality of intent; (2) consideration; (3) lack of ambiguity in the offer and acceptance; and (4)

actual authority to bind the government in contract on the part of the government official whose

conduct is relied upon. Kam-Almaz v. United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012)

(quoting Hanlin v. United States, 316 F.3d 1325, 1328 (Fed. Cir. 2003). A government official’s

authority to bind the United States must be express or implied. Roy v. United States, 38 Fed. Cl.

184, 187-89 (1997), dismissed, 124 F.3d 224 (Fed. Cir. 1997). And so, “the [g]overnment,

unlike private parties, cannot be bound by the apparent authority of its agents.” Id. at 187.

In this regard, a government official possesses express actual authority to bind the United

States in contract “only when the Constitution, a statute, or a regulation grants it to that agent in

unambiguous terms.” Jumah v. United States, 90 Fed. Cl. 603, 612 (2009) (quoting Tracy v.

United States, 55 Fed. Cl. 679, 682 (2003) (internal quotation marks omitted), aff'd, 385 F.

App’x 987 (Fed. Cir. 2010); see also City of El Centro v. United States, 922 F.2d 816, 820 (Fed.

Cir. 1990). On the other hand, a government official possesses implied actual authority to bind

the United States in contract “when the employee cannot perform his assigned tasks without such

authority and when the relevant agency’s regulations do not grant the authority to other agency

employees.” SGS-92-X003 v. United States, 74 Fed. Cl. 637, 652 (2006) (citations omitted); see

Aboo, 86 Fed. Cl. at 627 (implied actual authority “is restricted to situations where ‘such

authority is considered to be an integral part of the duties assigned to a [g]overnment employee’”

(quoting H. Landau & Co. v. United States, 886 F.2d 322, 324 (Fed. Cir. 1989)) (brackets

existing)). In addition, when a government agent does not possess express or implied actual

authority to bind the United States in contract, the government can still be bound by contract if

the contract was ratified by an official with the necessary authority. Janowsky v. United States,

133 F.3d 888, 891–92 (Fed. Cir. 1998).3

IV. LEGAL ANALYSIS

The parties have filed renewed cross-motions for summary judgment on three issues: (1)

whether the Court possesses jurisdiction to consider this matter under the Interstate Commerce

Act; (2) whether Estes has entered into a valid contract with the government; and, if so, (3)

whether the government is liable to Estes for certain freight charges under that contract. See Pl.

Renewed Mot.; Def. Renewed Mot. The undisputed material facts in this matter show that the

Court may consider Estes’s claim under the ICA. In addition, the undisputed material facts and

the Federal Circuit’s January 3, 2014, decision show that Estes has entered into a valid contract

with the government. Estes has not, however, demonstrated that the government is obligated to

pay the freight charges in dispute under that contract. And so, for the reasons set forth below,

the Court GRANTS-IN-PART and DENIES-IN-PART Estes’s renewed motion for summary

Ratification may take place at the individual or institutional level. SGS-92-X003 v. United States, 74

Fed. Cl. 637, 653-54 (2006). Individual ratification occurs when a supervisor: (1) possesses the actual

authority to contract; (2) fully knew the material facts surrounding the unauthorized action of his or her

subordinate; and (3) knowingly confirmed, adopted, or acquiesced to the unauthorized action of the

subordinate. Id. at 654 (quoting Leonardo v. United States, 63 Fed. Cl. 552, 560 (2005)). In contrast,

institutional ratification occurs when the government “seeks and receives the benefits from an otherwise

unauthorized contract.” Id. (citation omitted); see Janowsky v. United States, 133 F.3d 888, 891-92 (Fed.

Cir. 1998).

judgment; GRANTS-IN-PART and DENIES-IN-PART the government’s renewed cross-

motion for summary judgment; and DISMISSES the complaint.

A. The Court Possesses Jurisdiction To Consider Estes’s Claim

As a threshold matter, the undisputed material facts in this matter show that the Court

possesses subject-matter jurisdiction to consider Estes’s claim to recover outstanding freight

charges under the ICA. It is well-established that a carrier may bring a claim to recover charges

pursuant to a transportation contract with the United States directly to this Court under the ICA.

Sheridan Transp. Sys., Inc., 651 F. App’x at 988. In this regard, section 14705 of the ICA

provides that a carrier providing transportation or service for the government must begin a civil

action to recover charges for the transportation or service provided within three years from the

later of the date of:

(1) payment of the rate for the transportation or service involved;

(2) subsequent refund for overpayment of that rate; or

(3) deduction made under section 3726 of title 31.

See 49 U.S.C. § 14705. And so, the Court may entertain Estes’s claim under the ICA if Estes

brought this claim within three years of receiving payment from MCCS.

In this case, the undisputed material facts show that MCCS paid Estes $28,931.28 for

freight services that the government had not already paid to Salem on July 2, 2009. Compl. ¶ 14;

Def. App. at 49. The undisputed material facts also show that, on July 13, 2009, MCCS

informed Estes that the government would not pay Estes “for amounts that MCCS has already

paid to Salem Logistics.” Def. App. at 45. In addition, it is without dispute that, on February 3,

2010, Estes brought an action against MCCS and several other defendants in the United States

District Court for the Middle District of North Carolina to recover these outstanding freight

charges. See generally Estes Express Lines v. Salem Logistics, Inc., No. 1:10-cv-00102

(N.C.M.D. filed Feb. 3, 2010).4 Given this, Estes has brought its claim within three years of

receiving payment from MCCS. And so, the Court possesses jurisdiction to consider Estes’s

On July 8, 2011, the district court transferred the case to this Court and Estes filed the transfer complaint

on October 7, 2011. Estes Express Lines v. Salem Logistics, Inc., No. 1:10-cv-00102 (N.C.M.D.

July 8, 2011) (order transferring case); Docket Entry No. 1.

claim under the ICA and the Court GRANTS Estes’s renewed motion for summary judgment on

this threshold jurisdictional issue.

B. Estes Has Established The Existence Of A Contract With The Government

1. The Federal Circuit Has Settled The Question Of Whether

Estes Has Entered Into A Contract With The Government

The undisputed material facts and the Federal Circuit’s January 3, 2014, decision in this

matter also demonstrate that Estes has entered into a valid contract with the government for

transportation services. In their renewed cross-motions for summary judgment, the parties

disagree about whether the Federal Circuit has settled the question of whether Estes has entered

into a valid contract with the government. Specifically, Estes argues that the Federal Circuit has

resolved this question in Estes’s favor, because “the Federal Circuit expressly held that ‘we

conclude that the bills of lading are sufficient to establish privity.’” Pl. Renewed Resp. at 3. The

government counters that the Federal Circuit only rendered a jurisdictional ruling in that decision

and the government further argues that the Federal Circuit has not decided the merits of Estes’s

contract claim. Def. Renewed Mot. at 9-10.

For the reasons discussed below, the Court agrees with the government that the Federal

Circuit has not addressed the ultimate question of whether the government is contractually liable

to Estes in this case. But, the Court reads the Federal Circuit’s January 3, 2014, decision to

conclude that Estes has entered into a valid contractual relationship with the government with

respect to transportation services at issue in this case.

In the January 3, 2014, decision the Federal Circuit recognized that:

To maintain a cause of action under the Tucker Act based on a contract,

Estes must show that there is a contract directly between itself and the Government,

i.e., that there is privity of contract. The effect of finding privity of contract is to

find a waiver of sovereign immunity. Whether a contract exists is a mixed question

of law and fact, but where “the parties do not dispute the relevant facts, the privity

issue reduces to a question of law, which we review de novo.”

Estes Express Lines, 739 F.3d at 693 (quoting Cienega Gardens, 194 F.3d at 1239) (internal

citations omitted). The Federal Circuit also found that the factual circumstances of this case

show that the bills of lading that Estes relies upon are sufficient to establish privity of contract

with the government. See generally Estes Express Lines, 739 F.3d 689. Specifically, the Federal

Circuit held that the undisputed evidence in this case showed that:

Each shipment handled by Estes was identified by a bill of lading, a freight bill, and

a delivery receipt. All bills of lading listed a MCCS or MCX destination as the

“consignee,” and most bills of lading identified the third party vendor as the