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Turping v. United States

United States Court of Appeals, Federal Circuit

January 9, 2019

PETER TURPING, DICK CARTMELL, PHILIP ISAACS, GREG BROWN, JOHN BONGERS, AND OTHER SIMILARLY SITUATED PERSONS, Plaintiffs-Appellants
v.
UNITED STATES, Defendant-Appellee

          Appeal from the United States Court of Federal Claims in No. 1:16-cv-00872-SGB, Senior Judge Susan G. Braden.

          Douglas E. McKinley, Jr., Law Office of Douglas E. McKinley, Jr., Richland, WA, argued for plaintiffs-appellants.

          Albert S. Iarossi, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Steven J. Gillingham, Robert Edward Kirschman, Jr., Joseph H. Hunt.

          Before Lourie, Chen, and Stoll, Circuit Judges.

          CHEN, CIRCUIT JUDGE.

         Appellants are a group of former employees of Lockheed Martin Services, Inc. (Lockheed) who appeal a U.S. Court of Federal Claims (Claims Court) decision dismissing their contract claim against the U.S. government (Government). Because the Claims Court correctly determined that Appellants did not prove that an implied-in-fact contract between themselves and the Government exists, we affirm the Claims Court's decision.

         Background

         During World War II, the Hanford Nuclear Reservation (Hanford) was established by the U.S. Army Corps of Engineers (Army Corps) in the state of Washington to produce nuclear material for use in atomic weapons. J.A. 24-25. After the war, Hanford continued to be used by the Government for nuclear work, but eventually the Department of Energy (DOE) assumed responsibility for managing Hanford. J.A. 25.

         Since 1947, DOE and its predecessors engaged contractors, whose employees performed work at Hanford. J.A. 24-25. Each time the work performed by one contractor was transferred to another contractor, the employees that performed the work would stay the same, and they would typically keep their same pay and benefits, including retirement benefits. J.A. 28.

         In 1987, DOE awarded a contract moving the management and operation of Hanford to a contractor, West-inghouse Hanford Company (WHC), and directed WHC to create the Hanford Multi-Employer Pension Plan (MEPP). J.A. 27, 29. The MEPP was a contract between "Employers," defined with specific contractor and subcontractor names including WHC, and "Employees," who were employed by the Employers. J.A. 201-202. Each time a new contractor performs work at Hanford, the definition of "Employer" in the MEPP adds that new contractor. See J.A. 102. According to the preamble of the MEPP, the MEPP was created by the Employers for the benefit of the Employees. J.A. 196. The Government is not listed as a party to the MEPP.

         The MEPP is run by a Plan Administrator, which Article 11 of the MEPP defines as a committee established by the Employers. J.A. 248. The Plan Administrator may not amend the MEPP without prior DOE approval and may not take any action that has a financial impact on the MEPP without prior written approval of DOE. J.A. 33. Article 10 requires "[e]ach Employer [to] make contributions to the Plan from time to time as the Plan Administrator shall determine but in at least such amount as is required by the minimum funding standards of federal law applicable to the Plan." J.A. 248.

         Article 29 of the MEPP, entitled "Terminations for Transfer," requires that employees be able to "receive[] a benefit at Normal Retirement Date which is reflective of his Years of Service on the Hanford Reservation." J.A. 293. Reference to the Government only appears once in the MEPP, and that is in Article 29, where the MEPP states: "A Termination for Transfer means a termination from one contractor on the Hanford Reservation to another which is determined to be in the best interests of the government." Id.

         On August 6, 1996, DOE announced that the Hanford Management Contract would be transferred from the current contractor (WHC) to a new contractor (Fluor Daniel Hanford or FDH). J.A. 30. The majority of workers received the same post-retirement benefits when the 1996 contract changeover occurred. J.A. 38.

         On August 30, 1996, however, some WHC employees were provided with an "Offer Letter" from Lockheed, which was to be a subcontractor to FDH. J.A. 37. The Offer Letter stated: "[i]f your employee benefits for this position are different than the current site benefit program, a summary is enclosed," but no summary was enclosed. Id. The Offer Letter required the WHC employees to sign ...


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