Gambino v. United States

45 Fed. Cl. 276, 1999 U.S. Claims LEXIS 273, 1999 WL 1077091
CourtUnited States Court of Federal Claims
DecidedNovember 22, 1999
DocketNo. 98-787C
StatusPublished
Cited by1 cases

This text of 45 Fed. Cl. 276 (Gambino 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
Gambino v. United States, 45 Fed. Cl. 276, 1999 U.S. Claims LEXIS 273, 1999 WL 1077091 (uscfc 1999).

Opinion

ORDER

MILLER, Judge.

This case is before the court on defendant’s motion for summary judgment, which turns on whether a genuine dispute exists as to the existence of a contract between the Federal Bureau of Investigation and an informant who asserts nonpayment for services. Argument is deemed unnecessary.

FACTS

The following facts are undisputed, unless otherwise noted. In July 1992 the Federal Bureau of Investigation (the “FBI”) opened Antonio C. Gambino (“plaintiff’) as a confidential informant (“Cl”). The FBI gave plaintiff the code name “NOID.” From June 1992, until May 10, 1994, plaintiff, without the benefit of a contractual relationship with the FBI, provided intelligence information regarding domestic and foreign criminal operators.

On September 26, 1993, at the FBI’s request, plaintiff signed a lease which opened Truck One International, an undercover gambling and stolen goods buying operation in Trenton, New Jersey. Unhappy with the sporadic payment for his services as a Cl, plaintiff requested to be placed on the FBI payroll in March 1994. His request was granted, and the parties executed a contract dated May 10, 1994. The contract stipulated that, in the discretion of the FBI, plaintiff could be paid up to $1,500.00 per month for services performed in operating the undercover stolen goods buying operation. According to defendant, plaintiff also became a cooperative witness.1

The FBI deemed the stolen goods operation a “Group II” investigation, signifying that it must be completed within six months, which was not reflected in the contract. The contract was silent as to a specific termination date, but contemplated an extension contingent upon congressional approval.

The operation was extended for an additional six months through April 1995. Plaintiff was paid the full $1,500.00 per month from May 1994 through April 1995. At the end of April, the FBI informed plaintiff that Truck One International was to be shut down and relocated because the investigation had been compromised. Plaintiff contends that the FBI then instructed him to establish a new undercover gambling and stolen goods buying operation less than 13 miles away in Florence, New Jersey. Plaintiff was given $3,300.00 to lease space in Florence and to establish the new operation.

Plaintiff asserts that, after the lease for the Florence operation was signed on May 7, 1995, the FBI opened for business at the end of August 1995. Because the FBI did not ask for an extension at the time Truck One International was shut down, defendant contends that the May 10, 1994 contract was terminated and that the $3,300.00 paid to plaintiff covered personal relocation expenses. Plaintiff denies this contention. Defendant maintains that any useful information that the FBI received from plaintiff, subsequent to the termination, was not furnished in accordance with a contract. For more than a year after the contract was terminated, however, the FBI paid plaintiff a [278]*278total of $25,031.00 in various amounts for additional services and expenses.

Plaintiff claims that he never received any notice that the FBI terminated the contract as of April 30, 1995, and that the receipts he signed after this point were for expenses only. Plaintiffs position is that he fully performed his contractual duties until March 19, 1997, at which time he terminated the contract and brought suit to recover $32,436.99 for compensation based on $1,500.00 per month ($49.32 per diem) for 21 months and 19 days.2

DISCUSSION

Summary judgment is appropriate only when the moving party is entitled to judgment as a matter of law. RCFC 56(c) provides, in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Moreover, no disputes can be present concerning material facts that may significantly affect the outcome of the suit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute concerning a material fact exists when the evidence presented would permit a reasonable jury to find in favor of the non-movant. See id. at 248-49, 106 S.Ct. 2505. The moving party bears the burden of demonstrating the absence of genuine disputes over material facts. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In its analysis the court may neither make credibility determinations nor weigh evidence and seek to determine the truth of the matter. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id.; see H.F. Allen Orchards v. United States, 749 F.2d 1571, 1574 (Fed.Cir.1984) (noting that non-moving party shall “receive the benefit of all applicable presumptions, inferences, and intend-ments”). Indeed, because of the procedural posture of a case being considered on a motion for summary judgment,

[t]here is no requirement that the trial judge make findings of fact. The inquiry performed is the threshold inquiry of determining whether there is a need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.

Anderson, 477 U.S. at 250, 106 S.Ct. 2505 (footnote omitted). Although summary judgment is designed “ ‘to secure the just, speedy and inexpensive determination of every action,’” Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1), a trial court may deny summary judgment when “there is reason to believe that the better course would be to proceed to a full trial.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

Key to ruling on defendant’s motion is this contract language which provides, in pertinent part:

2. The FBI will reimburse GAMBINO for expenses incurred by him which are deemed reasonable and necessary for the maintenance of the undercover operation and which are in furtherance of the investigation. No expenses shall be incurred without first obtaining authorization from a designated FBI official. The FBI reserves the right to direct GAMBINO not to incur expenses which the FBI deems not to be in furtherance of its investigative goals.
3. In return for his cooperation the FBI will provide GAMBINO with compensation, on a cash on delivery basis, in an amount of up to $1,500.00 per month, with the amount of such payments at the discretion of the FBI.
14. This agreement shall commence on the date of acceptance by GAMBINO as [279]*279signified by his signature, and shall continue as long as the FBI deems that GAMBI-NO’s services are required.

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

Related

Gambino v. United States
47 Fed. Cl. 275 (Federal Claims, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
45 Fed. Cl. 276, 1999 U.S. Claims LEXIS 273, 1999 WL 1077091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gambino-v-united-states-uscfc-1999.