“In suing for a breach of contract plaintiff must rely on the express terms of the contract and cannot, as it has attempted to do here, import into the agreement terms outside of those expressly contained in the agreement.”
How later courts described this case
- “In suing for a breach of contract plaintiff must rely on the express terms of the contract and cannot, as it has attempted to do here, import into the agreement terms outside of those expressly contained in the agreement.”
- claim for funds in accordance with a federal disaster assistance agreement were reviewable in the Claims Court
- Disaster Assistance Agreement pursuant to the Federal Disaster Act
- Disaster Assistance Agreement under the Federal Disaster Act
Written by the judges who cited it.
The opinion
Nichols, Judge,
concurring:
I join in the court’s decision and in its opinion, which I deem clearly right, except to the extent stated. However, I note that defendant made a strong argument that the authorization in 42 U.S.C. § 1855b, as it then was, to make “contributions” to “States and local governments” did not include authority to make binding contracts, but only gratuitous contributions, which might be withheld at pleasure. As to this it relied on the closing sentence of the section:
* * * The Federal Government shall not be liable for any claim based upon * * * a discretionary function or duty on the part of a Federal agency or an employee of the Government in carrying out the provisions of this section.
*536 Though, this language is cryptic in a contract 'authorization context, defendant argued from legislative history, not un-persuasively, that it was meant to safeguard the United States from being sued by any state that did not think its allocation of Federal disaster relief sufficient.
The court, to refute this, cites State of Arizona v. United States, 204 Ct. Cl. 171 , 494 F. 2d 1285 (1974). However, the conclusion there reached, that the United States was contractually liable to pay Arizona its agreed share of Federal Aid for Highway funds, was not difficult to arrive at in light of 23 U.S.C. § 106 (a), which declares that the Secretary’s approval of a State highway project:
* * * shall be deemed a contractual obligation of the Federal Government for the payment of its proportional contribution thereto. * * *
There is no such provision to aid us here. The Supreme Court in United States v. Testan, 424 U.S. 392 (1976), has recently demanded, or seemed to demand, that we look for statutory language of just this kind before holding the Government liable in any Tucker Act ( 28 U.S.C. § 1491 ), litigation. If not expressed, it should at least be clearly implied. I fail to find it in the Disaster Relief legislation.
This difficulty could obtain at the outset and perhaps could be met upon the making of a formal contract, as here, to the extent of the contract terms. Since Texas loses anyway, it is perhaps unnecessary to go into the impact of the Testan doctrine now. It will probably be a long time before we all easily agree as to just what otherwise valid claim is barred because of Testan . Defendant’s position leaves much uncertainty as to how it would have implemented the statute, since it presumably would not wish to put itself in the position of having made contracts that could not be authoritatively construed by a court if any dispute arose. Similar problems may arise under the current provision for Disaster Relief in 42 U.S.C. § 5121 and if. This is much more elaborately worked out, but the provisions giving me trouble seem to recur.
Instead of holding flatly that the Federal-State Disaster Assistance Agreement here involved was just as much a contract as the one in the Arizona case, I would have 'assumed arguendo that this was so, and gone on to demonstrate, as the *537 court persuasively does, that the supposed 'contract does not provide basis for the claim Texas makes in this case.