Allen v. United States

229 Ct. Cl. 515, 1981 U.S. Ct. Cl. LEXIS 534, 1981 WL 22043
CourtUnited States Court of Claims
DecidedOctober 27, 1981
DocketNo. 180-80C
StatusPublished
Cited by19 cases

This text of 229 Ct. Cl. 515 (Allen v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. United States, 229 Ct. Cl. 515, 1981 U.S. Ct. Cl. LEXIS 534, 1981 WL 22043 (cc 1981).

Opinion

This case is before the court without oral argument on defendant’s motion for summary judgment. For the reasons discussed below, we allow that motion in part. On the court’s own motion, we dismiss as beyond our jurisdiction plaintiffs claims in part. We remand the remainder of plaintiffs claims to our trial division for further proceedings.

Plaintiff Allen was "recruited” by the Drug Enforcement Agency (DEA) to provide confidential information. During 1978 and 1979, plaintiff was paid sums of money aggregating $15,000. The parties seem to agree that plaintiffs information contributed, at least in part, to the 1978 seizure of a ship named the "Heidi.” At that time the Heidi’s crew was arrested and the Heidi’s cargo of marijuana was confiscated. In this suit, Allen seeks additional money allegedly due him for his information. The Government has moved for summary judgment. We discuss Allen’s theories of entitlement separately.

[516]*516A. Express or Implied Contract

Allen’s first theory is that DEA Agents Ted Weed and Charles Story promised him $50,000 plus expenses for his assistance. Thus, Allen invokes our 28 U.S.C. § 1491 (1976) jurisdiction over "any claim * * * founded * * * upon any express or implied contract with the United States * * *.” It is well settled, however, that the United States is not estopped to deny the unauthorized acts of its agents. E.g., Federal.Crop Insurance Corp. v. Merrill, 332 U. S. 380, 384 (1947). One who deals with the Government assumes the risk that the officials with whom he deals have no authority. Thanet Corp. v. United States, 219 Ct. Cl. 75, 85, 591 F. 2d 629, 635 (1979); Jackson v. United States, 216 Ct. Cl. 25, 41-42, 573 F. 2d 1189, 1197 (1978). Assuming arguendo that Agents Weed and Story made the promise plaintiff alleges, that promise cannot bind the United States unless the agents had actual authority to bind the Government. See Housing Corp. of America v. United States, 199 Ct. Cl. 705, 711-712, 468 F. 2d 922, 925 (1972); Operational Manuals, Inc. v. United States, 205 Ct. Cl. 854, 856 (1974).

Here, the affidavits of Agent Weed, Agent Story, and two senior DEA officials, Frederick A. Rody, Jr., and John Evans, uniformly assert that neither Agent Weed or Agent Story had authority to promise Allen compensation. At most, Agents Weed and Story could apparently only recommend to their DEA superiors that informants such as Allen receive compensation. Plaintiff offers no affidavits of his own to controvert the facts set forth in these affidavits. Summary judgment for defendant would appear appropriate on this issue. See Court of Claims Rule 101(f); Ridgewell’s Inc. v. United States, 228 Ct.Cl. 393, 397, 655 F.2d 1098, 1100-01 (1981), and cases cited thereat; Pacific Far East Line, Inc. v. United States, 206 Ct. Cl. 378, 385, 513 F. 2d 1355, 1359 (1975).

Plaintiff seeks to avoid summary judgment on his contract claim under a variety of theories. Plaintiff cites Gay Street Corp. v. United States, 130 Ct. Cl. 341, 127 F. Supp. 585 (1955), and Byrne Organization, Inc. v. United States, 152 Ct. Cl. 578, 287 F. 2d 582 (1961), to argue that an agent [517]*517with apparent authority can bind the United States. Neither case supports that proposition and the rule in this court is clearly to the contrary. E.g., Jackson, 216 Ct. Cl. at 41 n.2, 573 F. 2d at 1197 n.2, and cases cited thereat.

Plaintiff also argues the agents contracted for the purchase of Allen’s testimony under the admitted authority of the Special Agent in Charge of the Miami office to pay up to $30,000 for evidence. Leaving aside whether information such as Allen supplied is within the relevant definition of "evidence,” plaintiff has simply not alleged or set forth in affidavit that Agent Weed or Agent Story during the relevant period was the Special Agent in Charge or was delegated the Special Agent’s authority. Merely noting that the Special Agent in Charge had such authority falls far short of showing there is a genuine issue for trial whether Agent Weed or Agent Story had such authority and exercised it with regard to Allen.

Plaintiff further argues that the affidavits which indicate Agents Weed and Story had no authority to promise Allen compensation should be disregarded. As to the Evans affidavit submitted with defendant’s moving brief, plaintiff suggests the affidavit is "incompetent” because it lacks a notarial seal. Plaintiff clearly ignores 28 U.S.C. § 1746 (1976). Under that section, a statement subscribed under the penalty of perjury may function as an affidavit. Thus, the Evans statements are within the purview of a Rule 101(f) affidavit. Plaintiff challenges the Weed, Story, and Rody affidavits as untimely and has moved to strike. Plaintiff complains of prejudice in that inclusion of those affidavits with defendant’s reply brief allegedly afforded plaintiff no opportunity to reply. On the issue of actual authority, however, these later affidavits merely buttressed defendant’s position taken in the moving brief and supported by the accompanying Evans affidavit. The Evans affidavit alone required plaintiff to raise a genuine issue of fact as to the agents’ authority or face summary judgment under Rule 101(f). In any event, plaintiff devoted a portion of his "Motion to Strike Defense Exhibits” to comment on and reply to these later affidavits. Plaintiffs motion to strike will be denied as there has been no prejudice here. The Weed, Story, Rody, and Evans affidavits may properly be [518]*518considered to determine whether summary judgment is warranted.

Based on the foregoing, it is apparent plaintiff has failed to raise a genuine issue of material fact which would preclude summary judgment on the contract portion of plaintiffs claim. Summary judgment is appropriate for defendant in that Agents Weed and Story lacked authority to bind the United States. Although not discussed, we reject each of plaintiffs other arguments against summary judgment on the contract claim.

B. 21 U.S.C. § 886(a)

Plaintiff also invokes our jurisdiction over "any claim * * * founded * * * upon * * * any Act of Congress, * * Not every claim that involves a statute, however, is within our jurisdiction. See, e.g., Wilson v. United States, ante at 512, 513: Eastport Steampship Corp. v. United States, 178 Ct. Cl. 599, 605, 372 F. 2d 1002, 1007 (1967). As relevant here, only statutes which command the payment of money to the plaintiff will found suit in this court. The Supreme Court requires no less. United States v. Testan, 424 U. S. 392, 400 (1976).

A second theory of recovery suggested by plaintiffs submissions is that 21 U.S.C. § 886(a) allows recovery. That section provides:

§ 886. Payments and advances

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Bluebook (online)
229 Ct. Cl. 515, 1981 U.S. Ct. Cl. LEXIS 534, 1981 WL 22043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-united-states-cc-1981.