Shippen v. United States

654 F.2d 45, 28 Cont. Cas. Fed. 81,495, 228 Ct. Cl. 137, 24 Wage & Hour Cas. (BNA) 1432, 1981 U.S. Ct. Cl. LEXIS 330
CourtUnited States Court of Claims
DecidedJune 17, 1981
DocketNo. 281-79C
StatusPublished
Cited by5 cases

This text of 654 F.2d 45 (Shippen 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
Shippen v. United States, 654 F.2d 45, 28 Cont. Cas. Fed. 81,495, 228 Ct. Cl. 137, 24 Wage & Hour Cas. (BNA) 1432, 1981 U.S. Ct. Cl. LEXIS 330 (cc 1981).

Opinions

FRIEDMAN, Chief Judge,

delivered the opinion of the court:

The question before us, raised by the plaintiffs motion to dismiss the second counterclaim, is whether we have jurisdiction to entertain a counterclaim that seeks only a declaratory judgment. We answer that question negatively, and therefore dismiss the counterclaim.

I.

This controversy arose out of a contract between the plaintiff and the United States Army, under which the plaintiff agreed to perform construction work. According to the plaintiff, the Department of Labor informed it that fabrication work the plaintiff proposed to perform would not be covered by the minimum wage requirements of the Davis-Bacon Act, 40 U.S.C. § 276a, and the plaintiff advised the Army’s project inspector of the Labor Department’s view before commencing the fabrication work. After the work was completed, however, the Army informed the plaintiff that in the Army’s view the Davis-Bacon Act covered the work.

The Army subsequently withheld, from amounts due the plaintiff under another contract, approximately $45,000. The Army asserted that this was the amount by which the plaintiff had underpaid its employees because of the failure to pay the Davis-Bacon wage rates on the fabrication work. Under the Davis-Bacon Act, the Army withheld this amount in order to enable the Comptroller General to pay it to the employees who had been underpaid. 40 U.S.C. §§ 276a, 276a-2.

The Army also withheld from the plaintiff $5,210, based upon the plaintiffs alleged failure to pay the overtime rates that the Contract Work Hours and Safety Standards Act required. 40 U.S.C. § 328. The latter violation resulted because, according to the Comptroller General, the over[139]*139time "was based on a lower basic rate of pay than required by the Davis-Bacon Act.” The $5,210 constituted liquidated damages that the contract and the Work Hours Act specified for violation of that Act, and will be referred to as the "liquidated damages claim.” (The $45,000 will be referred to as the "Davis-Bacon claim.”)

The contracting officer ruled against the plaintiff on the Davis-Bacon claim. The plaintiff appealed that ruling to the Armed Services Board of Contract Appeals. At the request of the plaintiff, however, the Board dismissed the appeal without prejudice, apparently because of a provision in the contract exempting disputes concerning the applicability of the Davis-Bacon Act from the contract’s disputes clause and the parties’ understanding that the plaintiff would seek instead a ruling from the Comptroller General on the Davis-Bacon claim. The plaintiff requested such a ruling.

The plaintiff also filed the present suit in this court seeking recovery only on the liquidated damages claim and not on the Davis-Bacon claim.

In a second counterclaim filed in this suit, the government sought "judgment for the full amount of wages under the Davis-Bacon Act for distribution to the employees concerned.” Shortly after that counterclaim was filed, the Comptroller General declined to consider the Davis-Bacon claim. He stated that in deciding the liquidated damages claim in the present suit, "it appears likely that the question of the applicability of the Davis-Bacon Act to the work performed under the contract will be a matter which the court must consider” and that "[i]t is the policy of our Office not to decide matters where, as in the present case, the material issues involved are likely to be disposed of in litigation by a court of competent jurisdiction . . . .”

II.

The government’s second counterclaim states that, in violation of the Davis-Bacon Act,

plaintiff failed to pay a portion of its employees the wages required by the Davis-Bacon Act, 40 U.S.C. [§ 276a] (1976). The amount of wages thus underpaid exceeds the sum of $45,000. Defendant, consequently, is entitled to [140]*140judgment for the full amount of wages under the Davis-Bacon Act for distribution to the employees concerned.

The government recognized, both in its brief and several times in oral argument, that its counterclaim seeks solely a declaratory judgment. Indeed, the government hardly could do otherwise. The government has withheld the $45,000 covering the Davis-Bacon claim from amounts due the plaintiff under another contract. Even if the government were to prevail on its counterclaim, it would not be entitled to receive anything additional from the plaintiff.

The only relief the government seeks in its counterclaim is a declaration that it "is entitled to” retain, as against the plaintiff, the $45,000 it now holds. In the words of the Declaratory Judgment Act, 28 U.S.C. § 2201, the government is asking us to "declare the rights and other legal relations of’ itself and the plaintiff.

In United States v. King, 395 U.S. 1 (1969), the Supreme Court held that this court has no jurisdiction to grant a declaratory judgment against the United States. The Supreme Court pointed out that since the creation of this court in 1855, "its jurisdiction has been limited to money claims against the United States Government.” Id. at 2-3. The concluding sentence of the opinion stated: "In the absence of an express grant of jurisdiction from Congress, we decline to assume that the Court of Claims has been given the authority to issue declaratory judgments.” Id. at 5. In rejecting the contention that authority to issue declaratory judgments could be found in the broad language of the Declaratory Judgment Act that "any court of the United States” may issue declaratory judgments, the Supreme Court pointed out that "cases seeking relief other than money damages from the Court of Claims have never been 'within its jurisdiction.”’ Id. at 4.

Section 1503 of title 28 gives this court jurisdiction "to render judgment upon any set-off or demand by the United States against any plaintiff in such court.” There is no reason to believe that Congress intended to give us jurisdiction to enter a declaratory judgment on a counterclaim when we have no authority to enter such judgment on the main claim. Section 1503, like the Tucker Act itself, gives [141]*141us jurisdiction to adjudicate only money claims. It authorizes us to adjudicate claims by the United States against the plaintiff for monies up to the amount of the claim that therefore reduce or eliminate any recovery by the plaintiff (a set-off), or exceed or exist independently of the claim and therefore warrant a money judgment in favor of the United States against the plaintiff (a demand). In either of those situations, the United States is seeking the affirmative relief of a judgment for money against the plaintiff. The government’s request for a declaratory judgment on its second counterclaim, on which it has already obtained the money involved in the claim, comes within neither of these categories, and we do not have jurisdiction to entertain it.

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Bluebook (online)
654 F.2d 45, 28 Cont. Cas. Fed. 81,495, 228 Ct. Cl. 137, 24 Wage & Hour Cas. (BNA) 1432, 1981 U.S. Ct. Cl. LEXIS 330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shippen-v-united-states-cc-1981.