DIRECTV Group, Inc. v. United States

89 Fed. Cl. 302, 2009 U.S. Claims LEXIS 326, 2009 WL 3347113
CourtUnited States Court of Federal Claims
DecidedOctober 14, 2009
DocketNo. 04-1414C
StatusPublished
Cited by4 cases

This text of 89 Fed. Cl. 302 (DIRECTV Group, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DIRECTV Group, Inc. v. United States, 89 Fed. Cl. 302, 2009 U.S. Claims LEXIS 326, 2009 WL 3347113 (uscfc 2009).

Opinion

OPINION

FIRESTONE, Judge.

Pending before the court is DIRECTV Group, Inc.’s (“DIRECTV’s”) motion for summary judgment pursuant to Rule 56 of the Rules of the United States Court of Federal Claims (“RCFC”). For the reasons that follow, the court GRANTS DIRECTV’s motion.

[304]*304FACTS

I. Background Precedent

This case is another in the series of cases involving the implementation of the original Cost Accounting Standard (“CAS”) 413.50(c), 48 C.F.R. § 9904.413-50(c)(12) (1994) (“CAS 413” or “original CAS 413”),1 which was promulgated in 1977 and then substantially revised in 1995. See 48 C.F.R. § 9904.413-50(c)(12) (2006) (“revised CAS”). The subject CAS 413 provision deals with the treatment of the pension asset surplus or deficit that is attributable to the government’s pension cost payments under government cost-reimbursement contracts, after the closing, including the sale, of a segment.2 See generally Teledyne, Inc. v. United States, 50 Fed.Cl. 155 (2001) (“Teledyne”) aff'd sub nom, Allegheny Teledyne Inc. v. United States, 316 F.3d 1366 (Fed.Cir.2003), cert. denied sub nom., Gen. Motors Corp. v. United States, 540 U.S. 1068, 124 S.Ct. 804, 157 L.Ed.2d 732(2003).3 It is now established that after the CAS 413 segment closing calculation is performed, the pension asset surplus attributable to government contributions made in connection with certain cost-reimbursement contracts is recoverable under the Allowable Cost and Payment clause, FAR 52.216-7(h), 48 C.F.R. § 52.216-7(h) (2002), and the Credits clause, FAR 31.201-5, 48 C.F.R. § 31.201-5 (2007).4

In General Electric Co. v. United States, 84 Fed.Cl. 129 (2008) (“GE II”), another [305]*305CAS 413 case, the court examined in greater detail a segment seller’s CAS payment obligations when the seller, in connection with the sale of the segment, retains a portion of the pension asset surplus while also transferring to the segment buyer a pension asset surplus that far exceeds the amount necessary to meet the pension liabilities that were transferred to the buyer as part of that same transaction. In such situations, the government may achieve significant pension cost savings from the seller’s transferred pension asset surplus that exceed the government share of the pension asset surplus retained by the seller. More specifically, the transfer of surplus pension assets from Company A (which has an over-funded pension plan) to Company B (which has an under-funded pension plan) will result in a cost savings to the government where the transferred amount reduces the pension costs the government would otherwise have had to pay on its contracts with Company B.

After substantial briefing, including briefing from DIRECTV as an amicus curiae, the court determined in GE II that the government must consider the surplus pension assets that GE transferred to the buyer when settling up GE’s CAS 413 payment obligation to the government.5 GE II, 84 Fed.Cl. at 131. While the court did not resolve the methodology for determining the precise value to the government of the transferred surplus pension assets (attributable to the seller’s pension contributions), it held that where the government was aware of the transfer of the pension asset surplus and approved the transaction through an advance agreement or novation agreement, the seller may count the value of the surplus pension assets it transferred to the buyer toward meeting its CAS 413 segment closing payment obligation to the government. Id. at 150. The court stated in GE II:

[1]n appropriate circumstances, such as those before the court, where segment sales have been reviewed and approved by the government and the transfer of pension assets and liabilities, including a surplus, has been approved by the government, satisfaction of the CAS 413 segment closing adjustment obligation may be achieved through the cost reductions the government will receive from its contracts with the buyer.

Id.

The court held that the Credits clause, FAR 31.201-5, 48 C.F.R. § 31.201-5,6 which governs the payment of the CAS 413 segment closing obligation, authorizes the seller to make its CAS 413 payment to the government either in cash or through a cost reduction. The court held that the Credits clause does not preclude the contractor from fulfilling its CAS 413 payment obligation by securing a cost reduction for the government from the successor contractor. Indeed, the court noted that the Department of Defense and the Defense Logistics Agency have endorsed this approach in other cases. See GE II, 84 Fed.Cl. at 149-50.

The court also reasoned that if the government did not give appropriate credit to the seller for the cost savings attributable to the transferred surplus pension assets, the government would receive a windfall in contravention of Congress’s intent as set forth in the CAS authorizing legislation. The court explained that under this legislation, 41 U.S.C. § 422(h) (2006), Congress provided that the government should be protected from paying “increased costs” to a contractor in the event the contractor fails to comply with the CAS. GE II, 84 Fed.Cl. at 148. [306]*306However, the legislation goes on to state that the government is not entitled to recover more than the “increased costs” incurred by the government as a result of the contractor’s failure to comply with the CAS. 41 U.S.C. § 422(h). The clear implication of this provision, the court reasoned, is that under the CAS, neither contractors nor the government are entitled to a windfall in connection with the application of the CAS. GE II, 84 Fed.Cl. at 148. Therefore, the government is not entitled to require that its share of the surplus pension assets following a segment closing be paid by the seller in cash when the government receives an equal or greater cost reduction from government contracts with the buyer attributable to the seller’s pension contributions to the transferred segment’s pension plan. In such cases, the benefit the government receives from pension cost reductions attributable to the seller’s transferred pension asset contribution makes the government whole.

In this case the court is called upon to apply its GE II holding to DIRECTV’s segment closing.

II. Stipulated Facts

The following facts are not in dispute and have been agreed to by the parties.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Directv Group, Inc. v. United States
670 F.3d 1370 (Federal Circuit, 2012)
CBS Corp. v. United States
90 Fed. Cl. 456 (Federal Claims, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
89 Fed. Cl. 302, 2009 U.S. Claims LEXIS 326, 2009 WL 3347113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/directv-group-inc-v-united-states-uscfc-2009.