Wallace Forman v. United States

329 F.3d 837, 2003 U.S. App. LEXIS 9490, 2003 WL 21134261
CourtCourt of Appeals for the Federal Circuit
DecidedMay 16, 2003
Docket02-5117
StatusPublished
Cited by33 cases

This text of 329 F.3d 837 (Wallace Forman v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wallace Forman v. United States, 329 F.3d 837, 2003 U.S. App. LEXIS 9490, 2003 WL 21134261 (Fed. Cir. 2003).

Opinions

Opinion for the Court filed by Circuit Judge GAJARSA. Opinion concurring in part and dissenting in part filed by Circuit Judge BRYSON.

GAJARSA, Circuit Judge.

Wallace Forman (“Forman”) brought suit in the United States Court of Federal Claims for reimbursement of expenses allegedly incurred pursuant to an agreement with the Federal Bureau of Investigation (“FBI”). These expenses include: (1) travel expenses and related costs; (2) product manufacturing and marketing costs; (3) advertising and seminar expenses; (4) business loans; (5) a product license payment; and (6) an employee’s salary. The Court of Federal Claims granted the government’s motion for sum[839]*839mary judgment, holding that Forman failed to follow the procedures required by the contract for reimbursement of expenses. Forman v. United States, No. 99-489C (Fed.Cl. Mar. 13, 2002). We conclude that there exist genuine issues of material fact with respect to Forman’s hiring and employment of a company salesman, and whether or not this hiring was at the direction of the FBI. We therefore hold that the Court of Federal Claims improperly granted the government’s motion for summary judgment with regard to whether Forman is entitled to reimbursement of the employee’s salary and other expenses, and accordingly affirm-in-part, reverse-in-part, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

In September 1988, Forman signed a pre-indictment plea agreement with the FBI resulting from charges against him arising from an FBI investigation, entitled “Operation Thimble.” This investigation targeted clothing industry corruption involving defense contracts awarded by the Defense Personnel Support Center. Operation Thimble investigated allegations of corruption of many parties involved in government contracting, including those that offered bribes (e.g., private business consultants), and those that accepted them (e.g., federal procurement officials). One of the private consultants targeted was Jules Wertheimer (“Wertheimer”), a longtime consultant in the industry. Evidence obtained by the FBI against Wertheimer, however, was insufficient for any criminal charges. In order to develop a stronger case against Wertheimer, the FBI enlisted Forman’s aid. Forman, in an effort to reduce his own sentence resulting from Operation Thimble, signed a formal agreement (the “Agreement”) to cooperate actively with the FBI in the investigation targeting Wertheimer, entitled “Operation Extra Gold.”

The Agreement, the interpretation of which is ultimately the subject of this appeal, was relatively short (less than five pages) and signed by Forman and an authorized agent of the FBI. The most critical paragraphs are reproduced below:

5) The FBI shall reimburse FoRMAn for expenses incurred by him which are deemed by the FBI to be reasonable and in furtherance of this investigation. Forman agrees that prior to incurring such expenses, he will consult with the FBFs designated representative as to the nature and justification for incurring expenses. The FBI has the right to direct Forman not to incur expenses which the FBI deems not to be in furtherance of its investigative goals.
7) FORMAN shall not obligate or attempt to obligate the FBI, or any employee thereof, in any financial or contractual agreement, written or oral, without the prior express authorization of the FBI.
10) FORMAN agrees, when directed by the FBI, to testify and furnish all information in his possession, custody or control, which he has received during the course of, or related to, this investigation.
* * *
13) The FBI is responsible for the financing of all aspects of this investigation, which in its discretion will further its investigative goals.
18) FORMAN will not economically benefit personally when entering into contractual agreements with the Government when the following occurs: The [840]*840FBI has requested FORMAN to formally solicit the Government business and the subsequent contract has been tainted by deceit, bribery or fraud caused by the undercover investigation. ... FOR-MAN will also, on a quarterly basis, place his profits of each tainted contract in a separate trust account for return to the Government at the conclusion of the investigation.
20) It is further expressly understood that the FBI assumes no responsibility or liability for any business or income losses which may result to FORMAN and INDUSTRION as a result of his entry into this agreement.
25) This Agreement shall commence on the date of acceptance by FORMAN as signified by his signature, and shall continue as long as the FBI deemed that FORMAN’s services are required. It may be terminated at any time by either party by deliverance of a written notice of termination.

(Emphases added).

Forman’s role in Operation Extra Gold was to establish and operate a textile company known as “Pyro-Shield.” To the outside observer, Pyro-Shield was a legitimate, for-profit enterprise that manufactured and marketed a patented fireproof fabric referred to as “Sandel.” Forman licensed rights from the patent owner, Daniel Ferziger (“Ferziger”), to make and sell Sandel. Forman promoted Pyro-Shield through advertising, seminars, video sales presentations, literature, and sales trips. He hired and employed a salesman, one Martin Reiser (“Reiser”), to help develop the company business. He also contacted former procurement officials at various government agencies in attempts to market Sandel. Pyro-Shield also attracted the attention of an outside investor, Northeast Investors Corporation (“Northeast”). Northeast, however, was an entirely fictitious front company, composed solely of undercover agents (“UCAs”) of the FBI. Forman, through Pyro-Shield, provided an entry point for the UCAs into the clothing industry and the potential identification of corrupt practices and its perpetrators.

Forman made the first introductions of the UCAs to the ultimate target of Operation Extra Gold, Wertheimer. His cooperation, however, extended beyond simple introductions. Forman often wore concealed wires and made recordings of conversations. He also testified at grand jury and trial proceedings for the FBI. In fact, during Forman’s sentencing after the conclusion of Operation Extra Gold, the district court judge characterized Forman’s cooperation as “exceptional.” Ultimately, Operation Extra Gold led to the arrest and conviction of Wertheimer and others. Forman testified, in accordance with Paragraph 10 of the Agreement, at Wertheimer’s trial in September, 1993.

After testifying at Wertheimer’s trial, Forman requested reimbursement from the FBI for certain expenses incurred during the course of the undercover operation, including: (1) general travel expenses and related costs, $20,972.68; (2) Sandel production and marketing costs, $40,518.10; (3) advertising and seminar expenses, $23,530.98; (4) loans to the Sandel paten-tee, Ferziger, $126,798.40; (5) an exclusive license for Sandel, $50,000; and (6) salary and expenses related to Forman’s hiring of Reiser, $40,341.50.

Forman’s request for reimbursement of all these expenses was denied by the FBI on June 19, 1995. The FBI’s Chief Contracting Officer later denied Forman’s appeal (with the exception of $5,000 in travel [841]

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

Related

Flightsafety International Inc. v. Air Force
130 F.4th 926 (Federal Circuit, 2025)
Triple Canopy, Inc. v. Secretary of the Air Force
14 F.4th 1332 (Federal Circuit, 2021)
The Boeing Company v. Secretary of the Air Force
983 F.3d 1321 (Federal Circuit, 2020)
Electric Boat Corporation v. Secretary of the Navy
958 F.3d 1372 (Federal Circuit, 2020)
Aclr, LLC v. United States
Federal Claims, 2020
Agility Public Warehousing Co. KSCP v. Mattis
852 F.3d 1370 (Federal Circuit, 2017)
International Industrial Park, Inc. v. United States
100 Fed. Cl. 638 (Federal Claims, 2011)
Universal Shelters of America, Inc. v. United States
87 Fed. Cl. 127 (Federal Claims, 2009)
Baka v. United States
74 Fed. Cl. 692 (Federal Claims, 2006)
Travelers Casualty & Surety of America v. United States
74 Fed. Cl. 75 (Federal Claims, 2006)
Osi, Inc. v. United States
73 Fed. Cl. 39 (Federal Claims, 2006)
La Gloria Oil & Gas Co. v. United States
72 Fed. Cl. 544 (Federal Claims, 2006)
Lear Siegler Services v. Rumsfeld, Secretary of Defense
457 F.3d 1262 (Federal Circuit, 2006)
Centers v. United States
71 Fed. Cl. 529 (Federal Claims, 2006)
Walker v. United States
69 Fed. Cl. 222 (Federal Claims, 2005)
MacLean v. United States
67 Fed. Cl. 14 (Federal Claims, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
329 F.3d 837, 2003 U.S. App. LEXIS 9490, 2003 WL 21134261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallace-forman-v-united-states-cafc-2003.