Henke v. United States

43 Fed. Cl. 15, 1999 U.S. Claims LEXIS 19, 1999 WL 39036
CourtUnited States Court of Federal Claims
DecidedJanuary 28, 1999
DocketNo. 93-702C
StatusPublished
Cited by13 cases

This text of 43 Fed. Cl. 15 (Henke 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
Henke v. United States, 43 Fed. Cl. 15, 1999 U.S. Claims LEXIS 19, 1999 WL 39036 (uscfc 1999).

Opinion

OPINION

BRUGGINK, Judge.

This case involves a claim by plaintiff Donald A. Henke that the United States, acting through the Drug Enforcement Administration (“DEA”), breached an oral contract to pay Henke for the transportation of 18,000 pounds of marijuana in connection with an undercover sting operation. The matter is currently pending on defendant’s renewed motion for summary judgment. Oral argu[17]*17ment, including the taking of evidence pursuant to RCFC Appendix H(l)(c), was held in Washington D.C. on October 27, 1998. For the reasons stated below, the court grants defendant’s motion.

PROCEDURAL BACKGROUND

Plaintiff filed his complaint on November 16, 1993.1 We dismissed it as untimely on May 10, 1994, on the basis that the cause of action accrued the day plaintiff landed in Mexico to deliver the marijuana. The Federal Circuit reversed and remanded, stating that the cause of action did not accrue until after the post-mission briefing was completed. See Henke v. United States, 60 F.3d 795, 800 (Fed.Cir.1995). Plaintiff has filed an amended complaint alleging the following counts: (I) defendant breached an express contract for plaintiffs services; (II) defendant breached an implied-in-fact contract for plaintiffs services; (III) plaintiff relied on the government’s conduct to his detriment and conferred a benefit to the government entitling him to compensation; and (IV) plaintiff has a substantive right to compensation under 28 U.S.C. § 524(c) (1994) (hereafter “Section 524”), a statutory provision for rewarding persons assisting in the enforcement of drug laws.

On October 15,1997, oral argument was on held defendant’s motion to dismiss Counts III and IV and for summary judgment on Counts I and II. Defendant sought dismissal of Counts III and IV for lack of subject matter jurisdiction and summary judgment on Counts I and II on the ground that plaintiff can not put forward prima facie evidence that either an express or implied in fact contract came into existence. In support of its motion, defendant included the affidavit of DEA Agent Michael Powers, who asserts that he made no contractual promises to Henke.

In lieu of the having Mr. Henke submit an affidavit of his own contesting Agent Powers’ statement, the court allowed plaintiff, who appears pro se, to testify during oral argument. On October 23, 1997, the court dismissed Counts III and IV for lack of subject matter jurisdiction and denied summary judgment on Counts I and II without prejudice in order to further develop the record as to potential ratification of the alleged oral contract by authorized officials. See Henke v. United States, No. 93-702C, slip op. (Fed. Cl. Oct. 23, 1997).

On January 30, 1998, defendant filed a renewed motion for summary judgment as to the remaining counts. It relies on the affidavits of John C. Lawn, former DEA Administrator, James M. Whetstone, former Deputy Assistant Administrator for the Office of Acquisition Management of the DEA, David L. Westrate, former Assistant Administrator of Operations of the DEA, and Chistinia K. Sisk, acting Deputy Assistant Administrator for the Office of Acquisition Management of the DEA. The thrust of these affidavits is that authority to enter into a contract such as Henke alleges rested exclusively at a level higher than Michael Powers, the Resident Agent in Charge at the Tampa office, and the person with whom plaintiff dealt directly. Lawn, the only official with requisite authority, specifically denied approving any contract with Henke.

In response to the renewed motion, plaintiff submitted his own affidavit, along with those of Stephen R. Beck, former DEA Special Agent, John P. Mouyos, former contract pilot, and Norman R. Henke, brother of plaintiff. In order to better understand whether there was a genuine dispute as to a material fact, the court conducted an eviden-tiary hearing on October 27, 1998. Defendant presented live testimony from three witnesses familiar with how the DEA conducted operations during the relevant period. These witnesses were Lawn, Westrate, and Powers. Plaintiff was permitted to cross examine the witnesses and to testify in response to their statements. After considering the parties’ submissions, as well as the live testimony, the court is persuaded that the facts necessary to determine whether a contract came into existence are not materially disputed.

[18]*18FACTUAL BACKGROUND

The DEA

The DEA is the lead agency responsible for enforcing the controlled substances laws and regulations of the United States. As part of its enforcement strategy during the 1980s, the DEA, with the support of other foreign governments, conducted elaborate sting operations directed at reducing the flow of controlled substances into this country.

According to Agent Powers, he and other agents within the DEA developed a way to infiltrate the system used by drug traffickers to transport illegal narcotics into the United States. As part of this plan, undercover DEA agents sought out drug traffickers and offered to transport illegal narcotics into the United States for a fee. Because most of the drugs came from overseas, agents represented to suspects that they had access to vessels and aircraft needed to transport the drugs. Such a service was attractive to the suspects because efforts to transport drugs on then-own were expensive and often failed. After striking a deal with the targeted individuals, the agents made the necessary arrangements to carry out the mission. As part of the arrangements, the agents sometimes received large amounts of money from the suspects up front to cover expenses. After successfully transporting the drugs into the United States, the agents would meet with the suspects at a designated location to exchange the drugs for the balance of the payment. At some point after the exchange, the agents would arrest the suspects and recover the narcotics. The DEA might also seize and forfeit assets associated with the illicit drug trafficking pursuant to the Controlled Substance Act, 21 U.S.C. § 801 et seq. (1986).

These types of operations were primarily conducted out of the DEA field offices with oversight and assistance provided by DEA headquarters in Washington, D.C.2 Once a case agent located a prospective buyer, that agent would then meet with the group supervisor to go over the specifics of the operation. The group supervisor would then prepare a memorandum outlining the case for the Special-Agenh-in-Charge (“SAC”) of the field office. According to Westrate and Lawn, the SAC was required to seek approval from headquarters before conducting any mission involving cooperation with foreign countries, which most of these operations did. Under such circumstances, the SAC would send a memorandum outlining the specifics of the operation to headquarters where it would be reviewed by the Undercover Review Committee. The SAC would also request any assistance needed in conducting the operation, such as coordination with foreign governments, as well as funding needed to cover the costs of the operation. Westrate testified that such requests would not necessarily be part of the same memorandum, however.

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Bluebook (online)
43 Fed. Cl. 15, 1999 U.S. Claims LEXIS 19, 1999 WL 39036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henke-v-united-states-uscfc-1999.