PETER TURPING, DICK CARTMELL, PHILIP ISAACS, GREG BROWN, JOHN BONGERS, AND OTHER SIMILARLY SITUATED PERSONS, Plaintiffs-Appellants
UNITED STATES, Defendant-Appellee
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.
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.
Lourie, Chen, and Stoll, Circuit Judges.
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.
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.
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.
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.
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.
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.
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.
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 ...