noting that “easily-spotted breach-of-contract claims” in Tucker Act-adjacent APA 13 actions include rights “flowing from” the “performing of contracts” (alterations omitted)
How later courts described this case
- noting that “easily-spotted breach-of-contract claims” in Tucker Act-adjacent APA 13 actions include rights “flowing from” the “performing of contracts” (alterations omitted)
- noting that “an injunction directing the Army to execute the [contract]” is “a 1 thinly veiled request for specific performance,” a “traditional” breach-of-contract remedy
- “Thus, where the government’s waiver includes a 10 limitation about ‘what courts’ may hear a claim against it, we cannot defer to the plaintiff’s 11 choice of court; instead, we must ‘strictly’ construe the waiver to effectuate Congress’s 12 limitation on it.”
- adopting the two-part test from Megapulse, Inc. v. Lewis, 672 F.2d 959, 968 (D.C. Cir. 1982)
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED AERONAUTICAL No. 21-56377
CORPORATION; BLUE
AEROSPACE, LLC, D.C. No.
2:20-cv-01985-
Plaintiffs-Appellants, ODW-JDE
v.
UNITED STATES AIR FORCE; OPINION
UNITED STATES AIR NATIONAL
GUARD,
Defendants-Appellees,
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted December 9, 2022
Pasadena, California
Filed September 7, 2023
Before: MILAN D. SMITH, JR., DANIEL P. COLLINS,
and KENNETH K. LEE, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Dissent by Judge Collins
2 UNITED AERONAUTICAL CORP. V. USAF
SUMMARY *
Contract Disputes Act / Jurisdiction
The panel affirmed the district court’s dismissal for lack
of subject-matter jurisdiction of an Administrative
Procedure Act (APA) action brought by United Aeronautical
Corporation and Blue Aerospace, LLC (collectively, Aero)
against the U.S. Air Force and U.S. Air National Guard
(collectively, USAF) alleging that USAF improperly used
Aero’s intellectual property—data relating to the Mobile
Airborne Firefighting System (MAFFS)—in violation of
federal procurement regulations and the Trade Secrets Act.
Aero delivered a hard drive containing MAFFS-related
data to the United States Forest Service and executed a Data
Rights Agreement (DRA) granting the Forest Service
“unlimited rights to view and use” the data. The Forest
Service delivered that hard drive to USAF, and Aero sued
USAF for its receipt and use of the MAFFS data.
The APA waives sovereign immunity for actions in
federal district court by persons suffering legal wrong
because of agency action; however, when a statute vests
exclusive jurisdiction over a category of claims in a
specialized court, it “impliedly forbids” an APA action in
district court.
The panel agreed with the district court that the Contract
Disputes Act “impliedly forbids” jurisdiction over Aero’s
claims by vesting exclusive jurisdiction over federal-
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED AERONAUTICAL CORP. V. USAF 3
contractor disputes in the Court of Federal Claims. A claim
falls within the scope of the CDA’s exclusive grant of
jurisdiction if (1) the plaintiff’s action relates to (2) a
procurement contract (3) to which the plaintiff was a
party. Here, Aero’s claims that USAF improperly received
and used MAFFS data (1) relate to the DRA, (2) the DRA is
a procurement contract, and (3) Aero is a contractor for
purposes of the DRA.
The panel held that the test set forth in Megapulse, Inc.
v. Lewis, 672 F.2d 959 (D.C. Cir. 1982), is limited to
determining whether the Tucker Act—which grants
exclusive jurisdiction to the Court of Federal Claims over
breach-of contract actions for money damages—“impliedly
forbids” an ADA action because Megapulse addressed
implied preclusion only pursuant to the Tucker Act, not
pursuant to the CDA.
Dissenting, Judge Collins would reverse the district
court’s dismissal for lack of subject-matter jurisdiction, and
hold that the CDA does not “impliedly forbid” Aero from
bringing an APA action because Aero’s claims are not based
on a government contract, but instead on Aero’s independent
statutory rights under the Trade Secrets Act.
4 UNITED AERONAUTICAL CORP. V. USAF
COUNSEL
David M. Almaraz (argued), Grant Shenon APLC, Sherman
Oaks, California; Jonathan R. Hickman, Esquire Corporate
Services LC, Encino, California; for Plaintiffs-Appellants.
Paul B. Green (argued) and Joanne S. Osinoff, Assistant
United States Attorneys; David M. Harris, Assistant United
States Attorney, Civil Division Chief; Tracy L. Wilkison,
United States Attorney; United States Attorney’s Office, Los
Angeles, California, for Defendants-Appellees.
OPINION
M. SMITH, Circuit Judge:
United Aeronautical Corporation and Blue Aerospace,
LLC (collectively, Aero) filed suit against the United States
Air Force and Air National Guard (collectively, USAF) in
the U.S. District Court for the Central District of California.
Aero alleges that USAF has for some time violated federal
procurement regulations and the Trade Secrets Act, 18
U.S.C. § 1905, by improperly using Aero’s intellectual
property. The district court dismissed for lack of subject-
matter jurisdiction, concluding that the Contract Disputes
Act (CDA), 28 U.S.C. § 1491(a)(2), precludes jurisdiction
over Aero’s action by vesting exclusive jurisdiction over
federal-contractor disputes in the Court of Federal Claims.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This litigation relates to the Mobile Airborne
Firefighting System (MAFFS): an anti-retardant tank system
UNITED AERONAUTICAL CORP. V. USAF 5
that converts cargo planes so that they can combat fires. 1
From about 1980 to 2000, Aero Union—a different company
than the plaintiffs in this case—developed the original
MAFFS. In 2000, Aero Union contracted with the U.S.
Forest Service to develop an updated MAFFS prototype
(MAFFS II), which incorporated significant amounts of
Aero Union’s intellectual property that was developed from
1980 to 2000.
In 2012, Aero—the plaintiffs in this case—purchased
Aero Union’s intellectual property in a foreclosure sale. In
2014, to support the Forest Service’s continued use of
MAFFS II, Aero delivered a hard drive containing MAFFS-
related data to the Forest Service and executed a Data Rights
Agreement (DRA) providing:
“[A]s set forth in [2000 Contract between
Aero Union and the Forest Service], the
technical data produced or specifically used
or related to [MAFFS II] developed pursuant
to such contract shall remain the property of
[Aero] (as the purchaser of assets of Aero
[Union] . . . ) and [the Forest Service] shall
have unlimited rights to view and use the
data required for the continued operation
1
For purposes of this appeal, we accept Aero’s allegations as true
because USAF’s motion to dismiss for lack of subject-matter jurisdiction
raised a facial, not factual, challenge. See Wolfe v. Strankman, 392 F.3d
358, 362 (9th Cir. 2004).
6 UNITED AERONAUTICAL CORP. V. USAF
and maintenance of [MAFFS II]”
(emphasis added).
Thereafter, the Forest Service delivered that hard drive to
USAF, which developed an upgraded system (iMAFFS) and
marketed that system internationally.
Aero sued USAF, not the Forest Service, for its receipt
and use of the MAFFS data. Specifically, Aero brought a
claim pursuant to the Administrative Procedure Act (APA),
5 U.S.C. §§ 701–06, alleging that USAF had violated and
continues to violate federal procurement regulations and the
Trade Secrets Act. USAF moved to dismiss, arguing that the
CDA vests exclusive jurisdiction over federal-contractor
disputes in the Court of Federal Claims. The district court
granted the motion with leave to amend. Aero filed an
amended complaint; USAF again moved to dismiss; and the
district court granted the motion, this time without leave to
amend. Aero timely appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review a district court’s dismissal for lack of subject-matter
jurisdiction de novo. Dogan v. Barak, 932 F.3d 888, 892
(9th Cir. 2019).
ANALYSIS
The district court correctly held that it lacked subject-
matter jurisdiction over Aero’s action. A private party may
sue the United States only if the United States has waived
sovereign immunity. Esquivel v. United States, 21 F.4th
565, 572 (9th Cir. 2021). If the United States has not waived
sovereign immunity, then the court where the suit is filed
UNITED AERONAUTICAL CORP. V. USAF 7
must dismiss the case for lack of subject-matter jurisdiction.
Id. at 572–73.
The APA waives sovereign immunity for actions in
federal district court by “person[s] suffering legal wrong
because of agency action.” 5 U.S.C. § 702. That waiver,
however, is subject to three limitations: (1) the plaintiff must
“seek[] relief other than money damages”; (2) the plaintiff
must have “no other adequate remedy”; and (3) the
plaintiff’s action must not be “expressly or impliedly
forbid[den]” by “any other statute.” See id. §§ 702, 704;
Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641,
645 (9th Cir. 1998). Where a statute vests exclusive
jurisdiction over a category of claims in a specialized court
(e.g., the Court of Federal Claims), it “impliedly forbids” an
APA action brought in federal district court. See Tuscon
Airport, 136 F.3d at 646; N. Star Alaska v. United States, 9
F.3d 1430, 1432 (9th Cir. 1993) (en banc) (per curiam).
This appeal concerns only the third limitation: The
parties dispute whether the CDA forbids Aero from
maintaining its APA claim in district court because it falls
within the category of claims that the CDA requires to be
litigated in the Court of Federal Claims. 2 We hold that it
2
Aero also brought a claim pursuant to the Declaratory Judgment Act
(DJA), 28 U.S.C. § 2201. The DJA “does not ‘extend’ the ‘jurisdiction’
of the federal courts.” Medtronic, Inc. v. Mirowski Fam. Ventures, LLC,
571 U.S. 191, 197 (2014) (citing Skelly Oil Co. v. Phillips Petroleum
Co., 339 U.S. 667, 671 (1950)). A DJA claim, therefore, “may not be
used as an end run around” the limits of the APA’s sovereign-immunity
waiver. See Alaska Dep’t of Nat. Res. v. United States, 816 F.3d 580,
586 (9th Cir. 2016) (citing McMaster v. United States, 731 F.3d 881, 900
(9th Cir. 2013)). Because the availability of Aero’s DJA claim depends
on the availability of its APA claim, we need only analyze the latter.
8 UNITED AERONAUTICAL CORP. V. USAF
does and affirm the district court’s dismissal for lack of
subject-matter jurisdiction.
I. The CDA “impliedly forbids” jurisdiction over
Aero’s claims
The CDA serves two related functions. First, it
establishes an administrative system for disputes relating to
federal procurement contracts: Federal contractors can
submit written claims to agency contracting officers, receive
written decisions regarding their claims within a specified
timeframe, and administratively appeal adverse decisions.
See 41 U.S.C. §§ 7101–7109. Second, it waives sovereign
immunity over actions “arising under” that administrative
system and vests exclusive jurisdiction over such claims in
only two venues: (1) the Court of Federal Claims, 28 U.S.C.
§ 1491(a)(2); 41 U.S.C. § 7104(b)(1), and (2) agency boards
of contract appeals, 41 U.S.C. §§ 7104(a), 7105. A litigant
can appeal the decision of either the Court of Federal Claims
or an agency board to the U.S. Court of Appeals for the
Federal Circuit. U.S.C. § 1295(a)(3), (b); 41 U.S.C.
§ 7107(a)(1).
Through § 1491(a)(2)’s “arising under” language, the
scope of the CDA’s sovereign-immunity waiver and
jurisdictional grant is expressly tied to the scope of the
administrative system that it creates. This grant broadly
extends to “dispute[s] concerning termination of a contract,
rights in tangible or intangible property, compliance with
cost accounting standards, and other nonmonetary disputes
on which a decision of [a government] contracting officer
has been issued.” 28 U.S.C. § 1491(a)(2).
Because the scope of the CDA’s administrative system
dictates the scope of the CDA’s “arising under”
jurisdictional grant, we look to the contours of the
UNITED AERONAUTICAL CORP. V. USAF 9
administrative system to determine whether a particular
claim is covered by the CDA and thus must be litigated in
the Court of Federal Claims. First, the CDA applies to
“claim[s] . . . relating to a contract.” 41 U.S.C. § 7103(a)(1)
(emphasis added). Second, the CDA applies only to claims
involving a “contractor,” which is “a party to a Federal
Government contract other than the Federal Government.”
Id. §§ 7101(7), 7103(a)(1); see also 28 U.S.C. § 1491(a)(2)
(limiting jurisdiction to “any claim by or against, or dispute
with a contractor”). Third, as relevant here, the CDA applies
to contracts for “the procurement of property, other than real
property in being.” 41 U.S.C. § 7102(a)(1).
So, to summarize: a claim falls within the scope of the
CDA’s exclusive grant of jurisdiction if (1) the plaintiff’s
action “relat[es] to” (2) a procurement contract (3) to which
the plaintiff was a party. Aero’s action meets each
requirement, and thus the CDA “impliedly forbids” it.
A. Aero’s APA action “relat[es] to” the DRA
First, we must examine whether Aero’s claim “relat[es]
to” a contract. 41 U.S.C. § 7103(a)(1). We have not
previously construed the CDA’s “relating to” requirement.
USAF urges us to follow a Federal Circuit decision on a
related question and hold that a claim “relat[es] to” a
contract, and thus falls within the scope of the CDA, if it
“ha[s] some relationship to the terms or performance” of the
contract. Todd Constr., L.P. v. United States, 656 F.3d 1306,
1312 (Fed. Cir. 2011) (quoting Applied Cos. v. United States,
144 F.3d 1470, 1478 (Fed. Cir. 1998)).
We find the Federal Circuit’s reasoning to be persuasive
and adopt it here. In Todd, the Federal Circuit reasoned that
Congress’s “overall purpose to confer comprehensive
jurisdiction under the CDA” in the Court of Federal Claims
10 UNITED AERONAUTICAL CORP. V. USAF
counsels in favor of broadly interpreting “relating to.” Id. at
1311–12; see also United States v. Suntip Co., 82 F.3d 1468,
1474 (9th Cir. 1996) (“The intent behind [the CDA] is to
confine these government contract disputes to expert
tribunals created expressly for that purpose. That intent is
defeated if a contracting party may . . . compel the
government to litigate the merits of its contracting officers’
decisions in district court.”). It then turned to dictionary
definitions, finding that they treat “relating to” as a “term of
substantial breadth.” Todd, 656 F.3d at 1312. Finally, it
looked to Supreme Court precedent broadly interpreting
“related to” in other statutes, including in a similar
jurisdiction-conferring provision. Id. The Todd court
soundly applied traditional tools of statutory interpretation,
and we see no reason to depart from the result it reached.
Indeed, Aero concedes that Todd Construction “properly
analyzed” this “relating to” language.
To be sure, Todd presented a slightly different question.
Here, we are tasked with interpreting the statutory phrase
“claim . . . relating to a contract.” 41 U.S.C. § 7103(a)(1)
(emphasis added). Todd, on the other hand, construed
regulatory language that interpreted “claim,” as used in the
above phrase and throughout the CDA. 656 F.3d at 1311.
That regulation defined a “claim” as “a written demand . . .
seeking, as a matter of right, the payment of money in a sum
certain, the adjustment or interpretation of contract terms, or
other relief arising under or relating to the contract.” 48
C.F.R. § 2.101 (emphasis added). The “relating to” phrase
in the statute and regulation is the same, but the phrase
modifies different words in the two settings. In the CDA,
“relating to” modifies “claim.” In the regulation, it modifies
“relief.”
UNITED AERONAUTICAL CORP. V. USAF 11
The dissent argues that we should make the relief sought
the focal point of our “relating to” analysis—instead of
asking whether a plaintiff’s cause of action more generally
“relat[es] to” a contract. We need not decide in this case
which is the proper focal point: the cause of action generally
or the relief sought specifically. Here, our analysis under
both leads to the same result.
Starting with Aero’s cause of action generally, it has
“some relationship to the terms or performance” of the DRA.
Todd, 656 F.3d at 1312 (quoting Applied Cos., 144 F.3d at
1478). Aero brings an APA claim that USAF acted contrary
to law by violating the Trade Secrets Act. That Act, in turn,
simply prohibits government employees from disclosing
trade secrets “in any manner or to any extent not authorized
by law.” 18 U.S.C. § 1905. Therefore, the merits of this
case will, among other things, require a court to interpret the
DRA and determine whether the Forest Service was
authorized by that agreement’s “unlimited rights to view and
use” clause to disclose the MAFFS data to USAF.
Turning specifically to the relief that Aero sought, that
too has “some relationship to the terms or performance” of
the DRA. Todd, 656 F.3d at 1312 (quoting Applied Cos.,
144 F.3d at 1478). Aero, among other things, seeks a
declaration that the United States government generally “has
no ownership rights” in the MAFFS data and that USAF
does “not have the right to use” the MAFFS data “to develop
the iMAFFS system for . . . procurement to the international
market.” It blinks reality to argue that this requested relief
lacks “some relationship” to the DRA’s “unlimited rights to
view and use” clause. Such a declaration, which defines the
scope of the government’s MAFFS-data use rights,
12 UNITED AERONAUTICAL CORP. V. USAF
necessarily relates to the DRA, which grants the Forest
Service “unlimited rights to view and use” MAFFS data. 3
B. The DRA is a procurement contract
Second, we must examine whether the contract at issue
is one for “the procurement of property, other than real
property in being.” 41 U.S.C. § 7102(a)(1). USAF contends
that, through the DRA, it procured a property right in the
form of “unlimited rights to view and use” Aero’s purported
trade secrets. Aero’s argument comports with the statutory
text of the CDA, which extends the Court of Federal Claims’
jurisdiction to “dispute[s] concerning rights in . . . intangible
property.” 28 U.S.C. § 1491(a)(2) (emphasis added).
Moreover, it finds support in the Supreme Court’s decision
in Ruckelshaus v. Monsanto Co. 467 U.S. 986, 1000–04
(1984), where the Court held that trade secrets constitute
“property” for purposes of the Takings Clause. 4
Aero responds to USAF’s argument by analogizing the
DRA to a bailment contract, which one Court of Federal
Claims decision suggests does not constitute a procurement
contract covered by the CDA. See Telenor Satellite Servs.,
Inc. v. United States, 71 Fed. Cl. 114, 119 (2006) (“The
3
The district court stopped its analysis here. By declining to consider
whether Aero is a contractor and whether the DRA is a procurement
contract, the district court erred. However, that error was harmless: As
explained below, Aero’s action also fits the CDA’s second and third
jurisdictional requirements.
4
We recognize that an interest can sometimes constitute property for
constitutional purposes but not statutory ones. See, e.g., Shulman v.
Kaplan, 58 F.4th 404, 408, 410–12 (9th Cir. 2023) (holding that plaintiff
sufficiently pleaded a cannabis-related injury to property for Article III
standing but not for RICO statutory standing). But here, there is no
“statutory purpose or congressional intent,” id. at 410, behind the CDA
that warrants a departure from Ruckelshaus’s treatment of trade secrets.
UNITED AERONAUTICAL CORP. V. USAF 13
parties agree that this case is not governed by the Contract
Disputes Act because it does not involve a contract for the
procurement of goods or services. Rather, it involves an
alleged bailment contract for the possession and use of
certain electronic transmission equipment.”). We are not
persuaded by this analogy. To begin, Aero does not discuss
whether bailment (the granting of possession of personal
property to another for a temporary amount of time) applies
to intellectual property. But more critically, Aero does not
allege that it only temporarily granted intellectual property
rights to the Forest Service—an essential element of
bailment under the case law it cites. See Telenor, 71 Fed. Cl.
at 119 (bailment relationship “includes a return of the goods
to the owner” (quotation omitted)).
C. Aero is a contractor for purposes of the DRA
Third, we must examine whether Aero is a “contractor,”
which the CDA defines as “a party to a Federal Government
contract other than the Federal Government.” 41 U.S.C.
§ 7107(7). As the only party to the DRA other than the
Forest Service, Aero is clearly a contractor.
***
Because Aero’s action satisfies each of the prerequisites
of the CDA’s exclusive-jurisdiction provision and
sovereign-immunity waiver, we hold that the CDA
“impliedly forbids” Aero from invoking the otherwise-
applicable waiver of sovereign immunity contained in the
APA.
II. The Megapulse test for implied preclusion pursuant
to the Tucker Act does not apply to the CDA
Aero resists dismissal by arguing that Megapulse, Inc. v.
Lewis, 672 F.2d 959 (D.C. Cir. 1982), requires that its claim
14 UNITED AERONAUTICAL CORP. V. USAF
may be brought in district court. The Megapulse test,
however, is limited to determining only whether the Tucker
Act, not the CDA, “impliedly forbids” an APA action. The
CDA was not yet in effect when the parties in Megapulse
contracted with each other. And while the Tucker Act and
CDA share a common core, each statute confers a distinct
grant of exclusive jurisdiction to the Court of Federal
Claims. See Winter v. FloorPro, Inc., 570 F.3d 1367, 1372–
73 (Fed. Cir. 2009). Courts, therefore, must separately
analyze whether each statute “impliedly forbids” an APA
action. We use the Megapulse test to determine implied
preclusion pursuant to the Tucker Act, but we use the
analysis conducted above to determine implied preclusion
pursuant to the CDA. Here, we need not decide whether
Aero satisfies the Tucker Act’s Megapulse test because,
even if it does, the CDA still “impliedly forbids” bringing
this action in federal district court.
The Tucker Act dates back to the late nineteenth century,
see Tucker Act, ch. 359, § 1, 24 Stat. 505, 505 (1887), and
in its current form provides: “The United States Court of
Federal Claims shall have jurisdiction to render judgment
upon any 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.” 28 U.S.C.
§ 1491(a)(1) (emphasis added). “Generally speaking, the
Tucker Act does not permit the [Court of Federal Claims] to
grant equitable or declaratory relief.” N. Star, 9 F.3d at
1432; see 28 U.S.C. § 1491(a)(2) (listing limited forms of
non-monetary relief the Court of Federal Claims may award
“as an incident of and collateral to” damages). Due to this
limited remedial authority, a contract-based action falls
within the scope of the Tucker Act only if the plaintiff seeks
UNITED AERONAUTICAL CORP. V. USAF 15
money damages for the breach of a government contract.
See, e.g., Boaz Hous. Auth. v. United States, 994 F.3d 1359,
1364–65 (Fed. Cir. 2021).
Therefore, we interpret the Tucker Act to “impliedly
forbid” an APA action seeking injunctive and declaratory
relief only if that action is a “disguised” breach-of-contract
claim. Megapulse, 672 F.2d at 968. To determine whether
that is the case, we use a two-part test derived from the D.C.
Circuit’s Megapulse decision, which looks to (1) “the source
of the rights upon which the plaintiff bases its claims” and
(2) “the type of relief sought (or appropriate).” Doe v. Tenet,
329 F.3d 1135, 1141 (9th Cir. 2003) (quoting Megapulse,
672 F.2d at 968); N. Star Alaska v. United States, 14 F.3d
36, 37 (9th Cir. 1994) (same). If rights and remedies are
statutorily or constitutionally based, then districts courts
have jurisdiction; if rights and remedies are contractually
based then only the Court of Federal Claims does, even if the
plaintiff formally seeks injunctive relief. This test imposes
something akin to a well-pleaded complaint rule for Tucker
Act-adjacent APA actions. The Tucker Act does not bar an
APA action if the plaintiff’s rights and remedies, as alleged,
are noncontractual—even if it is inevitable that the
government will raise a contract provision as a defense. Cf.
City of Oakland v. BP PLC, 969 F.3d 895, 903 (9th Cir.
2020) (explaining that federal-question jurisdiction’s well-
pleaded complaint rule “depends solely on the plaintiff’s
claims for relief and not on anticipated defenses to those
claims” (quotation omitted)).
Megapulse involved facts similar to this case. The
plaintiff brought an APA action alleging that the Coast
Guard violated its intellectual-property rights and sought
injunctive relief preventing further disclosure. 672 F.2d at
961–63. The merits inevitably turned on an intellectual-
16 UNITED AERONAUTICAL CORP. V. USAF
property licensing clause in a contract between the plaintiff
and the Coast Guard. See id. at 961. Nonetheless, the court
held that the plaintiff’s rights were derived not from the
contract but from the Trade Secrets Act and that the relief
sought (an injunction preventing disclosure) was not akin to
the traditional remedies available for breach of contract
(damages or specific performance). Id. at 968–970. As
such, the Tucker Act did not “impliedly forbid” the
plaintiff’s APA action brought in district court.
Aero relies on Megapulse to argue that the district court
has jurisdiction here because (1) its rights come but from
federal procurement regulations and the Trade Secrets Act,
not the contract; and (2) it seeks injunctive relief preventing
further use of its intellectual property and a declaration that
the USAF lacks any rights to the MAFFS data, not the
breach-of-contract remedies of money damages or specific
performance. USAF contends that this case is
distinguishable from Megapulse because the plaintiff in that
case developed its proprietary data before entering into any
government contract and requested quite limited injunctive
relief (return of only six documents). See Megapulse, 672
F.2d at 966.
We need not decide whether these differences warrant a
different jurisdictional decision pursuant to the Tucker Act’s
Megapulse test. That decision addressed implied preclusion
only pursuant the Tucker Act; it did not consider implied
preclusion pursuant to the CDA. Indeed, the contracts at
issue in Megapulse were not subject to the CDA. The last
contract in that case was formed in 1975, id. at 399–400, but
the CDA applies only to contracts formed after 1978, and a
key amendment to the CDA did not take effect until 1992,
see 28 U.S.C. § 1491 notes (effective dates of 1978 and 1992
amendments).
UNITED AERONAUTICAL CORP. V. USAF 17
Congress passed the CDA in 1978, adding subsection
1491(a)(2)’s second sentence that originally read: “The
Court of Claims shall have jurisdiction to render judgment
upon any claim by or against, or dispute with, a contractor
arising under the Contract Disputes Act of 1978.” Pub. L.
No. 95-563, § 14(i), 92 Stat. 2383, 2391; Todd Constr. L.P.
v. United States, 85 Fed. Cl. 34, 38–39 (2008). Following
the addition of this language, there was confusion about the
availability of declaratory relief pursuant to the CDA. See
Todd, 85 Fed. Cl. at 39–40. A little over a decade later,
Congress resolved this ambiguity when it passed the Federal
Courts Administration Act of 1992, which further amended
subsection 1491(a)(2) to clarify that CDA jurisdiction
encompasses “nonmonetary disputes.” Pub. L. No. 102-572,
§ 907(b)(1), 106 Stat 4506, 4519 (emphasis added).
Given these legislative amendments, the court in
Megapulse simply did not have the question before it that we
do: whether the CDA’s jurisdictional grant, separate from
that of the Tucker Act, “impliedly forbids” application of the
APA’s sovereign-immunity waiver. Nor do we see any
reason to adopt Megapulse as the test for determining
whether the CDA precludes district court jurisdiction over
an APA claim. The Tucker Act and CDA confer exclusive
jurisdiction over different sets of claims, so they necessarily
preclude different sets of APA claims—even if an implied-
preclusion analysis pursuant to each will often lead to the
same result.
The Tucker Act grants exclusive jurisdiction to the Court
of Federal Claims over breach-of-contract actions for money
damages. Therefore, the Megapulse test asks whether an
APA action is simply a disguised breach-of-contract action.
18 UNITED AERONAUTICAL CORP. V. USAF
The CDA, by contrast, grants exclusive jurisdiction to
the Court of Federal Claims over actions “relating to” a
procurement contract—some of which will look a lot like
Tucker Act claims. But unlike the Tucker Act, the CDA also
empowers the Court of Federal Claims to hear “nonmonetary
dispute[s]” and issue declaratory relief therein. Therefore,
to determine whether there is implied preclusion pursuant to
the CDA, we must ask whether an APA action is a disguised
CDA action. To do so, we employ the analysis conducted in
the previous section that determines whether an APA litigant
could bring a similar action pursuant to the CDA and obtain
similar relief.
For the reasons explained in the previous section, Aero’s
action satisfies each of the criteria necessary to fall within
the CDA’s exclusive-jurisdiction provision and waiver of
sovereign immunity. Indeed, had Aero exhausted its
administrative remedies, it could have maintained a
remarkably similar action in the Court of Federal Claims—
substituting the Forest Service as a defendant. 5 Aero asks
the district court to interpret its agreement with the Forest
Service, evaluate whether the Forest Service’s provision of
the MAFFS data to USAF exceeded the use rights granted
by the DRA, and grant injunctive and declaratory relief. The
CDA authorizes federal contractors to submit claims
“relating to” a government contract, 41 U.S.C. § 7103(a)(1)–
(2); authorizes judicial review of agency decisions, id.
5
USAF argues that dismissal for lack of subject-matter jurisdiction is
alternatively appropriate because Aero failed to exhaust its
administrative remedies pursuant to the CDA. Aero does not assert that
it ever submitted a claim to a Forest Service contracting officer, as
required by the CDA. In light of this concession and our holding that the
CDA applies to Aero’s action, dismissal was also proper on exhaustion
grounds.
UNITED AERONAUTICAL CORP. V. USAF 19
§ 7104(b)(1); incorporates standards of review similar to
those of the APA, id. § 7107(b); and, as explained more fully
below, empowers the Court of Federal Claims to issue
declaratory relief, 28 U.S.C. § 1491(a)(2) (jurisdiction
extends to “nonmonetary disputes”). The availability of
such an action in the Court of Federal Claims “impliedly
forbids” Aero from bringing its action in district court.
III. The Dissent’s Remaining Arguments Do Not Alter
This Conclusion
The dissent offers several other arguments for why the
CDA does not deprive the district court of jurisdiction over
Aero’s APA action, even though Aero could have brought a
remarkably similar action in the Court of Federal Claims.
None displaces the conclusion that we reached in this
decision.
A. The Well-Pleaded Complaint Rule Has No
Bearing On Whether the United States Has
Waived Its Sovereign Immunity
First, the dissent argues that our reading of the CDA
“erase[s] the distinction between a claim and a defense,” and
thus cannot be squared with the well-pleaded complaint rule,
which allows a plaintiff to avoid bringing a matter within the
jurisdiction of a particular forum by limiting the types of
claims it asserts. However, the well-pleaded complaint rule
is an interpretation applicable to a single statute: 28 U.S.C.
§ 1331. We have long interpreted that provision to require
that, for a court to be able to exercise its statutorily conferred
federal-question jurisdiction, “a federal question [must]
appear[] on the face of the complaint.” City of Oakland v.
BP PLC, 969 F.3d 895, 903 (9th Cir. 2020). Here, in
assessing whether Aero’s claims are of the type that fall
within § 1331, we complied with the well-pleaded complaint
20 UNITED AERONAUTICAL CORP. V. USAF
rule. By alleging violations of federal statutes and
regulations pursuant to the APA’s cause of action, Aero’s
complaint asserts a federal question and satisfies § 1331.
As the dissent acknowledges, § 702 of the APA does not
provide “an independent basis for subject matter
jurisdiction”—whether the federal courts are empowered to
hear the type of claims that the plaintiff asserts. Tucson
Airport, 136 F.3d at 645. Instead, that section provides a
limited waiver of sovereign immunity—whether, and
pursuant to what conditions, has the United States consented
to be sued for a claim that is otherwise within a federal
court’s jurisdiction. Though the dissent recognizes this
distinction, it fails to offer a good reason for exporting the
well-pleaded complaint rule from the former context
(federal-question jurisdiction) to the latter (waiver of
sovereign immunity).
Indeed, the two inquires have very different background
presumptions that counsel against the reflexive use of the
well-pleaded complaint rule in sovereign-immunity
analyses. Section 1331 analyses begin with a dual-
sovereignty presumption: “Under [our] system of dual
sovereignty, we have consistently held that state courts have
inherent authority, and are thus presumptively competent, to
adjudicate claims arising under the laws of the United
States.” Tafflin v. Levitt, 493 U.S. 455, 458 (1990). Because
state courts and federal courts are, as a general matter,
equally competent to adjudicate federal issues, we—when
applying § 1331—defer to the plaintiff as “the master of the
complaint” and allow him or her “to have [a] cause heard in
state court” by “eschewing claims based on federal law.”
See Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc.,
535 U.S. 826, 831 (2002) (citation omitted). In other words,
our § 1331 analysis lets litigants choose where to bring a
UNITED AERONAUTICAL CORP. V. USAF 21
claim (state or federal court) because each is competent to
hear it.
Sovereign immunity analysis, on the other hand, begins
with a presumption of government immunity: “An action can
be brought by a party against the United States only to the
extent that the Federal Government waives its sovereign
immunity.” Esquivel, 21 F.4th at 572 (citation omitted).
“[I]t rests with Congress to determine not only whether the
United States may be sued, but in what courts the suit may
be brought.” McGuire v. United States, 550 F.3d 903, 913
(9th Cir. 2008) (emphasis added) (quoting Minnesota v.
United States, 305 U.S. 382, 388 (1939)). Waivers of
sovereign immunity are, in turn, “construed strictly in favor
of the sovereign.” McGuire v. United States, 550 F.3d 903,
912 (9th Cir. 2008). Thus, where the government’s waiver
includes a limitation about “what courts” may hear a claim
against it, we cannot defer to the plaintiff’s choice of court;
instead, we must “strictly” construe the waiver to effectuate
Congress’s limitation on it.
Our analysis of the APA’s waiver followed the latter
sovereign-immunity-specific approach—not the section-
1331-specific approach that the dissent urges. The APA
waives sovereign immunity over certain claims in district
court unless “any other statute . . . impliedly forbids the relief
which is sought.” 5 U.S.C § 702. We held that the CDA
“impliedly forbids” certain contract-related actions by
requiring they be brought in the Court of Federal Claims or
before an agency contracting board (with appellate review
then before the Federal Circuit). A plaintiff cannot sidestep
the “impliedly forbids” limitation on the APA’s waiver of
sovereign immunity through clever pleading.
22 UNITED AERONAUTICAL CORP. V. USAF
B. Our Opinion Follows Circuit Precedent
Second, the dissent argues that our holding “ignores our
prior caselaw.” However, our opinion is wholly consistent
with the decisions that the dissent contends are contrary to
our interpretation of the CDA as it currently stands. The
dissent quotes Concrete Tie of San Diego Inc. v. Liberty
Constr., Inc., 9 F.3d 800 (9th Cir. 1993) for the proposition
that we have “‘narrowly’ construed” the “CDA’s preclusive
effect.” But that case concerned the pre-1992-amendment
CDA’s impact on jurisdiction conferred by the Small
Business Act’s sue-and-be-sued clause. See id. at 801–02.
That case said nothing about how the availability of
declaratory relief pursuant to the post-1992-amendment
CDA affects whether an APA action is “impliedly
forbid[den].” See 5 U.S.C. § 702. The other decision the
dissent cites is to a similar effect—even stating that it was
construing a “virtually identical” clause as Liberty
Construction had. Wright v. U.S. Postal Serv., 29 F.3d 1426,
1430 (9th Cir. 1994). In Wright, we once again considered
the interaction of a sue-and-be-sued clause with the CDA.
See id. Neither case, as this one did, discussed how the APA
interacts with the CDA—a unique context given the former’s
implied-preclusion limit on its waiver. These cases,
therefore, are fully consistent with our decision.
C. Our Opinion Considers a Different Kind of Claim
Than Sister-Circuit Precedent Has
Third, the dissent argues that our decision “creates a
circuit split with at least four circuits that expressly apply
Megapulse in assessing whether the CDA impliedly forbids
reliance on the APA.” But the sister-circuit decisions that
the dissent cites are, after further inspection, distinguishable.
UNITED AERONAUTICAL CORP. V. USAF 23
If depicted as a Venn diagram, the Tucker Act and
CDA’s two circles would have a large common area. A
classic Tucker Act action is a breach-of-contract claim for
money damages. E.g., Boaz Hous. Auth., 994 F.3d at 1364–
65. Similarly, CDA claims often involve the “seeking, as a
matter of right, the payment of money in a sum certain” for
the breach of a contract. 48 C.F.R. § 2.101. Thus, actions
seeking damages for the breach of a contract would form a
large common area in the Tucker Act–CDA Venn diagram.
But each statute also covers ground that the other does not.
On one side as the Federal Circuit explained in FloorPro,
third-party beneficiary contractors can sue pursuant to the
Tucker Act, while they cannot do so pursuant to the CDA.
570 F.3d at 1371–72. On the other side, as we explained
here, the CDA generally allows declaratory relief in
“nonmonetary disputes,” while the Tucker Act authorizes
declaratory relief only in limited circumstances. See 28
U.S.C. § 1491(a)(2).
Each of the sister-circuit decisions that the dissent cites
falls within the large overlapping area of the Tucker Act–
CDA Venn diagram and all involved claims that were easily-
spotted breach-of-contract claims. The D.C. Circuit
considered claims that the plaintiff framed as “flow[ing]
from their performing [of] contracts,” and even expressly
sought damages—notwithstanding that damages are
unavailable pursuant to the APA. A & S Council Oil Co. v.
Lader, 56 F.3d 234, 240 (D.C. Cir. 1995). The Second
Circuit decision was similar; the plaintiff expressly sought
“an injunction directing the Army to execute the facility
lease”—a thinly veiled request for specific performance. Up
State Fed. Credit Union v. Walker, 198 F.3d 372, 374, 376–
77 (2d Cir. 1999). Similarly, in the Third Circuit decision,
the government brought suit “seeking rescission of the
24 UNITED AERONAUTICAL CORP. V. USAF
contract”—yet another breach-of-contract remedy. United
States v. J & E Salvage Co., 55 F.3d 985, 987–89 (4th Cir.
1995). And in the Sixth Circuit decision, the plaintiffs
asserted rights and regulatory violations that were wholly
“depend[ent] upon whether contracts with [the Postal
Service] afford[ed] such a right.” B & B Trucking, Inc. v.
U.S. Postal Serv., 406 F.3d 766, 769–70 (6th Cir. 2005) (en
banc). Each of these decisions followed the Tucker Act’s
Megapulse test with little to no discussion of the CDA’s
statutory text. Though doing so was imprecise, it was
ultimately immaterial in those cases because each involved
a claim that fell squarely within the two statute’s common
overlap: breach-of-contract actions. In each case, whether
the implied-preclusion analysis was rooted in the Tucker Act
or the CDA, the result was the same: dismissal of the
plaintiffs’ claims.
Here by contrast, this case implicates an area that the
CDA covers but the Tucker Act does not; in other words, it
falls outside of the Venn diagram’s middle-ground overlap.
We do not understand our sister circuits’ decisions to require
blind adherence to the Megapulse test in such a situation.
Indeed, doing so would directly contradict the CDA’s text.
The CDA, unlike the Tucker Act, extends to “nonmonetary
disputes,” including requests for declaratory relief regarding
“rights in intangible property.” 28 U.S.C. § 1491(a)(2)
(emphasis added). The Megapulse test, if applied in cases
like this one, would risk rendering that aspect of the CDA a
dead letter. Given materially similar facts to Megapulse, a
plaintiff could always side-step the CDA because the
plaintiff’s asserted rights would be extracontractual (derived
from patent, trademark, copyright, or trade secret law) and
its remedies would be extracontractual (an injunction
preventing misuse). Presented with a case in which the
UNITED AERONAUTICAL CORP. V. USAF 25
Megapulse test would run roughshod over the CDA’s text,
we chose to follow the text. None of the decisions the dissent
cites stands for the proposition that, if presented with a case
like this, our sister circuits would do otherwise.
D. Aero Can Seek Declaratory Relief in the Court of
Federal Claims
Fourth, the dissent argues that our decision “could
seriously impede the ability of plaintiffs to obtain injunctive
relief.” That may be correct as a factual matter—depending
on how the Federal Circuit resolves the question it reserved
in Todd, 656 F.3d at 1311 n.3 (reserving the question of
whether the Court of Federal Claims may issue injunctive
relief in addition to declaratory relief in CDA cases). But we
are unsure what legal significance that observation has, since
the government is free to waive its immunity only for certain
forms of relief.
In any event, Aero could seek declaratory relief in a
CDA action that would not be materially different from the
injunctive relief it would be able to seek in an APA action.
Indeed, “there is little practical difference between
injunctive and declaratory relief.” California v. Grace
Brethren Church, 457 U.S. 393, 394 (1982). The primary
difference is that declaratory relief “is a much milder form”
of relief because it is not backed by the power of contempt.
Steffel v. Thompson, 415 U.S. 452, 471 (1974) (quoting
Perez v. Ledesma, 401 U.S. 82, 125–26 (1971) (Brennan, J.,
concurring in part)). But in suits against government
officials and departments, we generally assume that they will
comply with declaratory judgments. See Poe v. Gerstein,
417 U.S. 281, 281 (1974) (per curiam) (“[T]here was ‘no
allegation here and no proof that respondents would not, nor
26 UNITED AERONAUTICAL CORP. V. USAF
can we assume that they will not, acquiesce in the
[declaratory judgment] decision . . . .’” (citation omitted)).
E. We Lack Jurisdiction to Consider the
Government’s Signature-Based Argument
Finally, the dissent expressed concern that “the
Government—while vigorously arguing for CDA
preclusion—also argues that the DRA is invalid and
unenforceable on the grounds that it was not signed by a
‘contracting’ officer.” We share the dissent’s concern that
the government appears to have taken a heads-I-win, tails-
you-lose approach to arguing this appeal. We also note that
in the two pages the government dedicates to its signature-
based argument, it cites no CDA-specific precedent for its
novel argument that technical non-compliance with a
contracting regulation would vitiate a CDA cause of action
even if an agreement is otherwise an “express or implied
contract.” 41 U.S.C. § 7102(a). That said, we do not
ultimately resolve USAF’s signature-based argument
because we lack jurisdiction over it. USAF raised it as a
Rule 12(b)(6) failure-to-state-a-claim argument, not a Rule
12(b)(1) lack-of-subject-matter-jurisdiction argument.
Because we affirmed the district court’s dismissal for a lack
of subject-matter jurisdiction, we cannot proceed to reach
this merits argument. 6
6
Our determination we lack jurisdiction to decide whether the DRA is a
valid contract is fully compatible with our finding that the DRA qualifies
as the requisite procurement contract needed to give rise to CDA
jurisdiction. Contrary to the dissent’s argument, the threshold
jurisdictional question of whether a procurement contract is at issue in
the dispute for the purpose of establishing CDA jurisdiction has no
bearing on the merits-based question of whether that procurement
UNITED AERONAUTICAL CORP. V. USAF 27
CONCLUSION
For the foregoing reasons, the district court’s dismissal
for lack of subject-matter jurisdiction is AFFIRMED.
COLLINS, Circuit Judge, dissenting:
Plaintiffs filed this suit under § 702 of the Administrative
Procedure Act (“APA”), 5 U.S.C. § 702, seeking injunctive
and declaratory relief against Defendants United States Air
Force and United States Air National Guard based on
Defendants’ alleged misuse of Plaintiffs’ intellectual
property. The majority affirms the district court’s dismissal
of this action for lack of subject matter jurisdiction, holding
that the Contract Disputes Act (“CDA”) “impliedly forbids”
Plaintiffs from bringing an APA action in federal district
court. But the CDA does not impliedly forbid reliance on
the APA where, as here, Plaintiffs’ claims and relief are
based, not on a Government contract, but rather on
Plaintiffs’ independent statutory rights under the Trade
Secrets Act. The majority’s contrary decision misconstrues
the CDA, contravenes Ninth Circuit precedent, creates a split
with four other circuits, and undermines the ability of
contractors to obtain injunctive relief in federal court against
Government violation of their statutory rights. Accordingly,
I respectfully dissent.
I
The intellectual property at issue in this case relates to
the Mobile Airborne Firefighting System (“MAFFS”),
contract is valid and enforceable. The dissent’s criticism unfortunately
collapses the crucial distinction between jurisdiction and merits.
28 UNITED AERONAUTICAL CORP. V. USAF
which is fire-retardant tank system used to convert cargo
planes into fire-fighting aircraft. From about 1980 to 2000,
Aero Union, a separate company from Plaintiffs, developed
the original MAFFS through its own privately funded
research and development. In 2000, Aero Union contracted
with the U.S. Forest Service (“USFS”) to develop an updated
MAFFS prototype, called “MAFFS II.” MAFFS II relied
significantly on Aero Union’s independently developed
intellectual property, which Plaintiffs refer to as the “Pre-
MAFFS II Proprietary Data.” Under the terms of the 2000
contract, Aero Union retained ownership of the Pre-MAFFS
II Proprietary Data, subject to the USFS’s limited use rights.
The contract terminated in 2012.
Following the termination of the 2000 contract, Plaintiffs
purchased Aero Union’s intellectual property, including the
Pre-MAFFS II Proprietary Data, in a foreclosure sale. To
support the USFS’s ongoing use of MAFFS II, Plaintiffs
executed a Data Rights Agreement (“DRA”) in 2014, which
provided that the USFS “shall have unlimited rights to view
and use the data required for the continued operation and
maintenance of the [MAFFS II] product.” The DRA also
reaffirmed, however, that the “Pre-MAFFS II Proprietary
Data, and the technical data produced or specifically used or
related to the [MAFFS II system] developed pursuant to [the
2000] contract shall remain the property of [Plaintiffs] (as
the purchaser of assets of Aero [Union] . . . ).” Pursuant to
the DRA, Plaintiffs provided the USFS with a hard drive
containing Pre-MAFFS II Proprietary Data. The USFS
subsequently delivered that hard drive to Defendants, which
developed a competing system to market internationally
without Plaintiffs’ consent.
Plaintiffs then sued Defendants (but not the USFS) under
the APA, challenging Defendants’ unlawful use of the
UNITED AERONAUTICAL CORP. V. USAF 29
MAFFS data. The district court dismissed Plaintiffs’ claims
for lack of subject matter jurisdiction, holding that any such
claims had to be brought before the Court of Federal Claims
(“CFC”). Plaintiffs timely appealed.
II
As a general matter, no suit may be brought against the
United States unless it has waived its sovereign immunity.
See Esquivel v. United States, 21 F.4th 565, 572 (9th Cir.
2021). The APA provides a limited waiver of sovereign
immunity that allows plaintiffs who have “suffer[ed] legal
wrong because of agency action” to file suit against the
United States in federal district court. 5 U.S.C. § 702. 1 To
maintain such a suit, plaintiffs generally must satisfy three
conditions: (1) they must “seek[] relief other than money
damages,” id.; (2) they must have “no other adequate
remedy,” id. § 704; and (3) the relief sought must not be
“expressly or impliedly forbid[den]” by “any other statute
that grants consent to suit,” id. § 702. See Tucson Airport
Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 645–46 (9th
Cir. 1998). The majority holds that the third requirement is
not met here, because, in its view, exclusive jurisdiction over
Plaintiffs’ assertedly contract-related claim rests in the CFC.
I disagree. There are two grants of jurisdiction to the CFC
that are potentially relevant here, but neither impliedly
forbids this suit.
1
As we have recognized, the APA supplies the cause of action and the
waiver of sovereign immunity, but the APA is not itself “an independent
basis for subject matter jurisdiction in the district courts.” See Tucson
Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 645 (9th Cir. 1998)
(citing California v. Sanders, 430 U.S. 99, 105 (1977)). Rather,
jurisdiction in APA cases rests on 28 U.S.C. § 1331. See Allen v. Milas,
896 F.3d 1094, 1099 (9th Cir. 2018).
30 UNITED AERONAUTICAL CORP. V. USAF
A
First, the Tucker Act grants the CFC jurisdiction over,
inter alia, “any claim against the United States founded . . .
upon any express or implied contract with the United
States.” 28 U.S.C. § 1491(a)(1). Applying long-settled law,
I conclude that the Tucker Act does not impliedly forbid this
suit.
Because the Tucker Act authorizes the CFC to grant
“equitable relief” only “in limited circumstances,” the
general rule is that “the Tucker Act does not permit the
[CFC] to grant equitable or declaratory relief in a contract
dispute case.” North Star Alaska v. United States, 9 F.3d
1430, 1432 (9th Cir. 1993) (en banc) (North Star I). 2 We
have held that, because “the Tucker Act ‘impliedly forbids’
declaratory and injunctive relief” in suits founded on
Government contracts, it “precludes” invocation of the
waiver of sovereign immunity in § 702 of the APA, which
applies only to equitable relief. North Side Lumber, 753
F.2d at 1485; see also North Star I, 9 F.3d at 1432.
However, because the Tucker Act’s relevant grant of
jurisdiction is limited to claims “founded . . . upon any
express or implied contract,” it does not bar invocation of the
2
Subject to certain exceptions, the federal district courts also exercise
concurrent jurisdiction with the CFC over such contract-based actions
against the United States, but only if the amount claimed does not exceed
$10,000. See 28 U.S.C. § 1346(a)(2) (sometimes called the “Little
Tucker Act”). The district courts’ limited concurrent jurisdiction over
contract-based claims under $10,000 has been similarly construed as
generally precluding nonmonetary relief on such claims. See North
Star I, 9 F.3d at 1432; North Side Lumber Co. v. Block¸ 753 F.2d 1482,
1485 (9th Cir. 1985).
UNITED AERONAUTICAL CORP. V. USAF 31
APA’s waiver of sovereign immunity if the claim is not
“founded upon” a contract.
In determining whether a claim is “founded upon” a
contract within the meaning of the Tucker Act—and thus
impliedly forbidden to be asserted under the APA—we have
long applied the test set forth by the D.C. Circuit in
Megapulse, Inc. v. Lewis, 672 F.2d 959 (D.C. Cir. 1982). As
we have explained, that test requires us to determine whether
the suit is “‘at its essence’ a contract action” by considering
both “the source of the rights upon which the plaintiff bases
its claims” and “the type of relief sought (or appropriate).”
North Star Alaska v. United States, 14 F.3d 36, 37 (9th Cir.
1994) (North Star II) (quoting Megapulse, 672 F.2d at 968).
Here, consideration of these factors confirms that Plaintiffs’
claim is not “founded upon” a contract with the Government.
In considering how the Megapulse test applies here, I
begin by reviewing the D.C. Circuit’s decision in that case,
which involved somewhat similar facts. In Megapulse, the
plaintiff contractor filed suit in the district court to enjoin the
Government from disclosing data that the plaintiff had
independently developed prior to executing its first contract
with the Government and prior to its delivery of the data to
the Government under that contract. Megapulse, 672 F.2d
at 961–62. The plaintiff alleged that disclosure of the data
by the Government to other entities would violate the Trade
Secrets Act, see 18 U.S.C. § 1905, but the Government
argued that its contemplated disclosures were authorized by
its contract with the plaintiff. Megapulse, 672 F.2d at 962,
966. The D.C. Circuit held that the plaintiff’s claims for
relief were not impliedly forbidden by the Tucker Act and
that suit was therefore properly brought under the APA in
federal district court. In reaching this conclusion, the D.C.
Circuit considered both the source of the plaintiff’s rights
32 UNITED AERONAUTICAL CORP. V. USAF
and the relief sought, and it ultimately held that the
plaintiffs’ suit did not involve “‘disguised’ contract claims.”
Id. at 969.
In determining the source of the plaintiff’s rights,
Megapulse emphasized that the plaintiff there had carefully
limited its claim to a discrete set of documents reflecting
“proprietary technology developed prior” to its contracts
with the Government and that the plaintiff relied solely on
the theory that the Government was violating its property
rights and the Trade Secrets Act. Megapulse, 672 F.2d at
969 (simplified). As the court explained, it was “actually the
Government, and not Megapulse, which is relying on the
contract” by claiming in defense that its actions were
authorized under the contract. Id. The court specifically
rejected the Government’s argument that “the mere
existence of such contract-related issues must convert this
action to one based on the contract.” Id. As to the relief
sought, the court noted that Megapulse did not seek
“monetary damages,” nor could its claim be “properly
characterized as one for specific performance” of any
contract. Id. On the latter score, the court expressly rejected
the Government’s argument that the existence of parallel
contractual duties that matched the Government’s statutory
obligations should be sufficient to convert Megapulse’s
claim into one for specific performance of a contract. Id. at
971.
Under Megapulse, this is an easy case. Here, as in
Megapulse, Plaintiffs have carefully limited the factual
predicate of their claims to proprietary data that preceded
Aero Union’s first contract with the Government in 2000.
Here, as in Megapulse, Plaintiffs are relying upon their rights
under trade secret law, including the Trade Secrets Act, and
it is the Government that is raising contractual issues as a
UNITED AERONAUTICAL CORP. V. USAF 33
defense. Thus, as a factual and legal matter, “the source of
the rights upon which the plaintiff bases its claims” are
independent of any contract with the Government. North
Star II, 14 F.3d at 37. Moreover, as in Megapulse, Plaintiffs
are not seeking money damages, nor are they seeking any
contract-based remedies. Cf. id. at 37–38 (holding that
plaintiff seeking reformation was asserting a contract-based
claim under the Megapulse test). Instead, they seek an
“injunction[] against activities violative of a statutory duty.”
Megapulse, 672 F.2d at 971; see also Crowley Govt. Servs.
v. Gen. Servs. Admin., 38 F.4th 1099, 1108–10 (D.C. Cir.
2022) (holding that district court had jurisdiction under
Megapulse where the plaintiff “‘does not claim a breach of
contract, it has limited its request for relief’ in district court
to the enforcement of the [agency’s] statutory obligations, ‘it
seeks no monetary damages against the United States, and
its claim is not properly characterized as one for specific
performance.’” (quoting Megapulse, 672 F.2d at 969)).
Because, under the Megapulse test, Plaintiffs’ claims are
not “founded . . . upon any express or implied contract,” 28
U.S.C. § 1491(a)(1), the Tucker Act does not impliedly
forbid invocation of the APA.
B
The second potentially relevant grant of jurisdiction to
the CFC is the CDA. In my view, the CDA does not
impliedly forbid Plaintiff’s claims here.
1
The CDA, enacted in 1978, has since been codified as
Chapter 71 of title 41 of the United States Code. See 41
U.S.C. §§ 7101–7109. By its terms, the CDA applies only
to “any express or implied contract . . . made by an executive
34 UNITED AERONAUTICAL CORP. V. USAF
agency for” (1) the “procurement of property, other than real
property in being”; (2) the “procurement of services”; (3) the
“procurement of construction, alteration, repair, or
maintenance of real property”; or (4) the “disposal of
personal property.” Id. § 7102(a)(1)–(4). The CDA
establishes an administrative process under which any
“claim by a contractor against the Federal Government
relating to a contract shall be submitted to the contracting
officer for a decision.” Id. § 7103(a)(1). The contracting
officer must then issue a written decision, see id.
§ 7103(a)(3), (d), and if it is adverse to the contractor, then
the contractor can either appeal to the appropriate agency
board of contract appeals, see id. § 7104(a), or “bring an
action directly on the claim” in the CFC, id. § 7104(b)(1).
An adverse decision in either forum may be reviewed by the
Federal Circuit. See id. § 7107(a)(1); 28 U.S.C.
§ 1295(a)(3).
The corresponding provision of the judicial code that
confers jurisdiction on the CFC to adjudicate an action filed
by a contractor under § 7104(b)(1) states:
The Court of Federal Claims shall have
jurisdiction to render judgment upon any
claim by or against, or dispute with, a
contractor arising under section 7104(b)(1) of
title 41, including a dispute concerning
termination of a contract, rights in tangible or
intangible property, compliance with cost
accounting standards, and other nonmonetary
disputes on which a decision of the
UNITED AERONAUTICAL CORP. V. USAF 35
contracting officer has been issued under
section 6 of that Act [41 U.S.C. § 7103].
28 U.S.C. § 1491(a)(2). The majority describes this
provision as conferring “exclusive” jurisdiction in the CFC,
see Opin. at 17, but that is not exactly correct. As noted
earlier, there are two possible routes for review of a
contracting officer’s determination of a claim under the
CDA, and the other option (review by an agency board of
contract appeals, followed by review in the Federal Circuit)
bypasses the CFC altogether. To the extent that the CDA
impliedly forbids invocation of the APA here, that is
attributable, not so much to any “exclusive” jurisdiction of
the CFC, but rather to the CDA’s “mandatory administrative
process for resolving contract disputes.” Menominee Indian
Tribe v. United States, 577 U.S. 250, 252 (2016). If the CDA
applies here, then Plaintiffs were required to present their
claim to the relevant contracting officer before invoking one
of the CDA’s two paths to judicial review. That would, in
my view, impliedly forbid them from invoking the APA as
an end-run around the CDA’s administrative process and the
specific methods of judicial review applicable to that
process.
The question, then, is whether Plaintiffs were required to
submit their claim in this case to a contracting officer in
accordance with the CDA. As noted earlier, the CDA
requires that any “claim by a contractor against the Federal
Government relating to a contract” governed by the CDA
“shall be submitted to the contracting officer for a decision.”
41 U.S.C. § 7103(a)(1) (emphasis added). And, generally
speaking, the only contracts that are governed by the CDA
are “procurement” contracts. Id. § 7102(a)(1)–(3). On that
basis, I agree that, if Plaintiffs’ “claim” here is one “relating”
36 UNITED AERONAUTICAL CORP. V. USAF
to a procurement contract, then they were required to invoke
the CDA’s processes, and any resort to the APA as a
substitute is impliedly forbidden. 5 U.S.C. § 702.
2
Whether this case may proceed in the district court thus
turns on whether Plaintiffs’ claim is one “relating to” a
procurement contract within the meaning of § 7103(a)(1) of
the CDA. The majority concludes that the Megapulse test
that is used for distinguishing between claims “founded
upon” a contract in the Tucker Act context does not apply to
the similar inquiry, in the CDA context, as to whether a
claim “relat[es] to a contract.” See Opin., § II. According
to the majority, any cause of action that, broadly speaking,
has “some relationship to the terms or performance” of a
procurement contract is a claim “relating to a contract” for
purposes of the CDA and therefore may not be the subject of
a suit under § 702 of the APA. See Opin. at 9 (quoting Todd
Constr., L.P. v. United States, 656 F.3d 1306, 1312 (Fed. Cir.
2011)). And that remains true, according to the majority,
even if the only “relationship” between the plaintiff’s claims
and the procurement contract is that the Government has
invoked contract-based defenses to the plaintiff’s non-
contract-based claims. See Opin. at 11–12, 16–20. For
multiple reasons, the majority is wrong in holding that the
Megapulse test is limited to the Tucker Act context and does
not apply to the CDA.
First, the majority overlooks the meaning, in context, of
the entire relevant phrase in the CDA, and in doing so the
majority misreads the Todd case on which it primarily relies.
In describing what must be submitted to a contracting
officer, § 7103(a)(1) refers to a “claim by a contractor
against the Federal Government relating to a contract.” 41
UNITED AERONAUTICAL CORP. V. USAF 37
U.S.C. § 7103(a)(1) (emphasis added). As the Federal
Circuit noted in Todd, the CDA does not define the crucial
word “claim.” 656 F.3d at 1311. Todd held, however, that
under the Federal Circuit’s prior decision in H.L. Smith, Inc.
v. Dalton, 49 F.3d 1563 (Fed. Cir. 1995), “the definition of
the term ‘claim’ in the FAR [Federal Acquisition
Regulations] governs.” 656 F.3d at 1311. As Todd
explained, “[t]he FAR defines ‘claim’ as ‘a written demand
or written assertion by one of the contracting parties seeking,
as a matter of right, the payment of money in a sum certain,
the adjustment or interpretation of contract terms, or other
relief arising under or relating to the contract.’” Id.
(emphasis omitted) (quoting 48 C.F.R. § 2.101). The types
of “claims” governed by the CDA are thus limited to those
seeking “relief arising under or relating to the contract.” Id.
(emphasis added). This focus on contract-based rights and
contract-related relief is not materially different from the
Megapulse test, which requires consideration of the same
factors. See Megapulse, 672 F.2d at 968. Moreover, the
“claim” at issue in Todd—which challenged the “quality of
the contractor’s performance under the terms of the
contract,” Todd, 656 F.3d at 1313 (emphasis added)—
readily qualifies as “at its essence a contract claim” under
Megapulse, 672 F.2d at 967.
Second, even setting aside Todd’s particular definition of
a “claim,” the majority’s analysis still fails. According to
the majority, a contractor’s “claim” “relat[es] to” a contract
if the Government’s defenses to that claim relate to the
contract. See Opin. at 11–12. The majority cites no
authority that supports this rewriting of the statute, which
focuses on the “claim” asserted and not the defenses raised
against it. The majority notes that Plaintiffs cannot prevail
on their claim without defeating those defenses and that
38 UNITED AERONAUTICAL CORP. V. USAF
Plaintiffs’ complaint itself anticipates those defenses. See
Opin. at 11–12. But that does not erase the distinction
between a claim and a defense, cf. Caterpillar Inc. v.
Williams, 482 U.S. 386, 393 (1987) (holding that the rule
that a federal defense does not suffice to show that a claim
arises under federal law applies “even if the defense is
anticipated in the plaintiff’s complaint, and even if both
parties concede that the federal defense is the only question
truly at issue”), and the CDA requires that the claim—not an
anticipated defense—relate to the contract. 41 U.S.C. §
7103(a)(1). The Megapulse test honors that distinction
between claims and defenses, because Megapulse
specifically held that the Government’s decision to raise a
contract-based defense does not make a plaintiff’s claim a
contract claim. 672 F.2d at 969. 3
Third, the majority’s expansive reading of the CDA
ignores our prior caselaw holding that the CDA’s preclusive
effect on the availability of other jurisdictional statutes
should be “narrowly” construed. Concrete Tie, Inc. v.
Liberty Constr., Inc. (In re Liberty Constr.), 9 F.3d 800, 801
(9th Cir. 1993). In Liberty Construction, we invoked that
narrow-construction rule in rejecting the Government’s
argument that our construction of the statute “vest[ing]
jurisdiction in the district court over claims against the SBA
3
The majority insists that this distinction between claims and defenses
is an artifact of the jurisprudence governing 28 U.S.C. § 1331 and does
not apply outside that context. See Opin. at 19–20. But the provision of
the CDA that the majority says impliedly forbids invocation of the APA
applies, by its terms, only if the “claim” is one “arising under section
7104(b)(1) of title 41,” 28 U.S.C. § 1491(a)(2), and § 7104(b)(1) in turn
authorizes an “action directly on the claim” raised by the contractor. The
statute’s focus here is on the claim asserted by the contractor and not the
defenses asserted by the Government.
UNITED AERONAUTICAL CORP. V. USAF 39
[Small Business Administration]” had been “implicitly
overruled” by the CDA. Id.; see also Wright v. U.S. Postal
Serv., 29 F.3d 1426, 1429 (9th Cir. 1994) (expressly
rejecting the view that “the CDA ‘pre-empt[s] the entire field
of government contract remedies’”). 4
Fourth, the majority creates a circuit split with at least
four circuits that expressly apply Megapulse in assessing
whether the CDA impliedly forbids reliance on the APA.
See B & B Trucking, Inc. v. U.S. Postal Serv., 406 F.3d 766,
768 (6th Cir. 2005) (en banc) (“The CDA bars district court
jurisdiction if the court determines that a plaintiff’s claims
against a government agency are ‘essentially contractual’ in
nature. ‘The classification of a particular action as one
which is or is not [essentially contractual] depends both on
the source of the rights upon which the plaintiff bases its
claim, and upon the type of relief sought (or appropriate).’”
(quoting Megapulse, 672 F.2d at 968) (other internal
citations omitted)); A&S Council Oil Co. v. Lader, 56 F.3d
234, 239–40 (D.C. Cir. 1995) (applying Megapulse test in
determining whether a claim is one “relating to a contract”
within the meaning of the CDA); Up State Fed. Credit Union
v. Walker, 198 F.3d 372, 374–76 (2d Cir. 1999) (applying
Megapulse in determining whether claims were contract
4
Indeed, we have gone so far as to hold that the CDA does not bar
invoking other bases of jurisdiction even in the context of claims that
would qualify as contract-based under the Megapulse test. See, e.g.,
Wright, 29 F.3d at 1429; Liberty Construction, 9 F.3d at 801–02; North
Side Lumber, 753 F.2d at 1485–86. That further rule has provoked a
split with the Second Circuit. See Cohen v. Postal Holdings, LLC, 873
F.3d 394, 401–02 (2d Cir. 2017) (holding that the claim at issue was a
contract claim under Megapulse and that the CDA was the exclusive
vehicle for relief, expressly rejecting contrary Ninth Circuit authority).
Because this case does not involve a contract claim within the meaning
of Megapulse, this case does not implicate that distinct split of authority.
40 UNITED AERONAUTICAL CORP. V. USAF
claims subject to the CDA); United States v. J & E Salvage
Co., 55 F.3d 985, 987–88 (4th Cir. 1995) (same). Although
the majority tries to distinguish these cases on their specific
facts, see Opin. at 23–24, it cannot deny that these other
circuit decisions explicitly apply to the CDA the Megapulse
test that the majority rejects.
Fifth, the majority’s holding could seriously impede the
ability of plaintiffs to obtain injunctive relief against
Government misconduct, even for statutory violations such
as those at issue here, if the plaintiffs’ claims can be said, in
some broad sense, to “relate” to a contract the plaintiff
assertedly has with the Government. The majority dismisses
this concern, even while acknowledging that the Federal
Circuit itself expressly declined to decide in Todd whether
the CFC had authority to issue injunctive relief in that case.
See Opin. at 25 (citing 656 F.3d at 1311 n.3). The majority
hopes that declaratory relief—which the majority concedes
could not be enforced by contempt authority—would be
sufficient. Id. But if not, well, then too bad, according to
the majority, because “the government is free to waive its
immunity only for certain forms of relief.” Id. The
majority’s overbroad rule threatens to seriously thwart the
critical role served by APA § 702’s waiver of sovereign
immunity in cases seeking injunctive relief against the
Government. See Transohio Sav. Bank v. Director, Off. of
Thrift Supervision, 967 F.2d 598, 611–12 (D.C. Cir. 1992)
(“[W]e are mindful of the warning that federal courts not
subvert the congressional objectives underlying the
enactment of § 702 of the APA by allowing the government
to give an overly expansive scope to the notion of claims
‘founded upon’ a contract” (simplified)).
For all of these reasons, the majority seriously errs in
rejecting the Megapulse test in assessing whether the CDA
UNITED AERONAUTICAL CORP. V. USAF 41
impliedly forbids a claim for injunctive relief under § 702 of
the APA. Because I would apply Megapulse in assessing the
limits of the CDA, I necessarily conclude that Plaintiffs’
claims are not impliedly forbidden by the CDA.
III
Finally, I cannot let pass without comment an additional
troubling feature of this case that the majority brushes aside.
In finding that the CDA impliedly forbids invocation of the
APA here, the majority holds that the DRA qualifies as a
procurement contract within the meaning of the CDA. See
Opin. § II(b). But the majority nonetheless declines to
address the fact that the Government—while vigorously
arguing for CDA preclusion—also argues that the DRA is
invalid and unenforceable on the grounds that it was not
signed by a “contracting” officer. The extraordinary result
of the majority’s decision is that Plaintiffs’ loss of their
ability to file a district court action seeking injunctive relief
to enforce their statutory rights against the Government is
attributable to the Government’s assertion of a contract-
based defense under a contract that the Government
simultaneously contends is invalid. This cannot be right.
See Crewzers Fire Crew Trans., Inc. v. United States, 741
F.3d 1380, 1382 & n.3 (Fed. Cir. 2014) (holding that the
plaintiff’s contract with the Government was unenforceable
and therefore could not “be used to invoke” the jurisdiction
of the CFC under the Tucker Act or the CDA); Ridge Runner
Forestry v. Veneman, 287 F.3d 1058, 1060–61 (Fed. Cir.
2002) (holding that, because the “Tender Agreement” upon
which CDA jurisdiction was predicated was not a valid
42 UNITED AERONAUTICAL CORP. V. USAF
contract, the CFC properly concluded that it lacked
jurisdiction under the CDA). 5
IV
For the reasons I have explained, neither the Tucker Act
nor the CDA impliedly forbid invocation of the APA here.
Accordingly, the district court erred in dismissing this action
for lack of jurisdiction, and its judgment should be reversed.
I respectfully dissent.
5
The majority protests that, in addressing whether there is jurisdiction
under the CDA, we lack jurisdiction to decide whether the DRA is a valid
contract. See Opin. at 26. That contention is contrary to the Federal
Circuit’s decisions in Crewzers and Ridge Runner, and it also contradicts
the majority’s assertion that the DRA qualifies as the requisite
procurement contract needed to give rise to CDA jurisdiction. It is
apparently the majority’s view that the Government may invoke the
CDA—and deprive a plaintiff of its ability to assert an APA injunctive
claim—merely by showing that the plaintiff is asserting a claim as to
which the Government has a defense that is related to a putative
agreement that the Government contends is not actually a valid contract.
Once again, that cannot be right.