Secretary of State v. Trimble Navigation , 484 F.3d 700 ( 2007 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SECRETARY OF STATE FOR DEFENCE, as 
represented by the United Kingdom
Ministry of Defence, Defence
Procurement Agency,
Plaintiff-Appellant,
v.
 No. 06-1062
TRIMBLE NAVIGATION LIMITED,
Defendant-Appellee.
UNITED STATES OF AMERICA,
Amicus Supporting Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(1:03-cv-966-GBL)
Argued: January 31, 2007
Decided: May 10, 2007
Before WIDENER, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Gregory wrote the majority
opinion, in which Judge Widener joined. Judge Traxler wrote a dis-
senting opinion.
COUNSEL
ARGUED: Mark Douglas Colley, HOLLAND & KNIGHT, Wash-
ington, D.C., for Appellant. Alan Arnold Pemberton, COVINGTON
2 SECRETARY OF STATE v. TRIMBLE NAVIGATION LTD
& BURLING, Washington, D.C., for Appellee. Thomas Mark Bondy,
UNITED STATES DEPARTMENT OF JUSTICE, Civil Division,
Appellate Section, Washington, D.C., for Amicus Supporting Appel-
lee. ON BRIEF: Richard O. Duvall, Jennifer A. Short, David B.
Dempsey, Eric L. Yeo, HOLLAND & KNIGHT, McLean, Virginia,
for Appellant. Eugene D. Gulland, Derron J. Blakely, COVINGTON
& BURLING, Washington, D.C., for Appellee. Peter D. Keisler,
Assistant Attorney General, Chuck Rosenberg, United States Attor-
ney, Douglas N. Letter, Sushma Soni, UNITED STATES DEPART-
MENT OF JUSTICE, Civil Division, Appellate Section, Washington,
D.C., for Amicus Supporting Appellee.
OPINION
GREGORY, Circuit Judge:
The question before the Court is whether a foreign government is
a third-party beneficiary of a contract for military goods between the
United States and a domestic military contractor, where the foreign
government agreed to purchase those goods from the United States
under the Foreign Military Sales program. Because affording the for-
eign purchaser such extraordinary third-party beneficiary rights is
contrary to the structure and intent of the Foreign Military Sales pro-
gram, we affirm the district court’s dismissal of the foreign govern-
ment’s complaint.
I.
We recounted the facts of this case in an earlier decision involving
this dispute. See U.K. Ministry of Defence v. Trimble Navigation Ltd.
(Trimble I), 422 F.3d 165 (4th Cir. 2005) (holding that Contract Dis-
putes Act of 1978 did not apply to suit by foreign purchaser against
domestic contractor).
A.
The Arms Export Control Act ("AECA") controls the sale of mili-
tary goods and services to foreign governments. See 22 U.S.C.
SECRETARY OF STATE v. TRIMBLE NAVIGATION LTD 3
§§ 2751-2796d (2000). There are two primary methods through which
a foreign government may purchase military equipment manufactured
by U.S. contractors: Direct Commercial Sales ("DCS") and Foreign
Military Sales ("FMS"). DCS transactions are effectuated via a direct
contract between the foreign government and a domestic contractor.
In an FMS transaction, the United States and the foreign government
purchaser enter into a contract for the goods, which the United States
then provides from its own inventory or purchases from a domestic
contractor through a separate agreement. An FMS purchase involves
two contracts: one between the foreign government and the United
States, termed the Letter of Agreement ("LOA"), and one between the
United States and the domestic contractor. The United States allows
friendly foreign governments to purchase most items through either
FMS or DCS and is generally neutral regarding the choice between
the two methods. See Def. Sec. Cooperation Agency, U.S. Dep’t of
Def., Security Assistance Management Manual, DoD 5195.38-M,
("SAMM") §§ C4.5.8, C4.5.9.1, at 111.1 Some items, however,
because of their sensitive nature can only be purchased through the
FMS program. See, e.g., id. § C.4.5.9. The items at issue in this case
are FMS-only items. See Trimble I, 422 F.3d at 167.
This case involves auxiliary output chips ("AOCs") manufactured
by Trimble Navigation Limited ("Trimble") for use in certain global
positioning satellite ("GPS") devices. These GPS devices work by
accessing a satellite network deployed by the United States. The
United Kingdom, as represented by the United Kingdom Ministry of
Defence ("UK MOD"), along with other members of the North Atlan-
tic Treaty Organization, entered into a Memorandum of Understand-
ing ("MOU") with the United States allowing them to use the GPS
1
Any security assistance activities, including FMS transactions, must
be in compliance with the Security Assistance Management Manual. See
SAMM, supra, § C1.2.4.1. While implementing agencies may supple-
ment the SAMM, "[s]upplements must be consistent with th[e] Manual."
Id. The SAMM is issued under the authority of Department of Defense
("DoD") directive 5105.65. Id. at 2. DoD 5105.65 § 5.8 established the
Defense Security Cooperation Agency ("DSCA") and authorized the
DSCA to develop and promulgate the SAMM. The President delegated
authority under the AECA to the DoD via executive order. See Exec.
Order No. 11,958, 42 Fed. Reg. 4311 (Jan. 18, 1977).
4 SECRETARY OF STATE v. TRIMBLE NAVIGATION LTD
satellite network. The MOU required those governments "to buy cer-
tain GPS-related equipment, including the auxiliary output chips at
issue here, through the [FMS] Program and a[n] [LOA.]" Trimble I,
422 F.3d at 167. Accordingly, UK MOD and the United States
entered into an LOA in July 1998, whereby the United States agreed
to furnish AOCs manufactured by Trimble. Id. at 167. The United
States then entered into four contracts with Trimble for production
and delivery of the AOCs (the "U.S.-Trimble agreements" or "U.S.-
Trimble contracts"); by the terms of the FMS program, UK MOD was
not a party to these contracts. Id.
B.
The U.S.-Trimble contracts incorporate standard federal acquisition
regulation clauses on terms related to shipping, disputes, termination
for convenience, pricing, and the like. See, e.g., J.A. 35, 39-40.
Although UK MOD was not a party to the contract, the contract spec-
ifies the UK MOD FMS case number and provides for direct delivery
to a freight forwarding service for shipment to a United Kingdom
address. See, e.g., J.A. 33-34. The U.S.-Trimble contracts do not spec-
ify that Trimble would be producing AOCs for any party in addition
to UK MOD—such as for the United States’ inventory stock—and the
contracts do not contain an express disclaimer of any third-party ben-
eficiary rights of UK MOD.
The LOA between UK MOD and the United States was based on
the standard LOA model used in the FMS program. See SAMM,
supra, at 138-42 fig.C5.F3 (setting forth LOA standard terms and
conditions). Section 1.2 of the LOA provides that the United States
could sell UK MOD AOCs out of its inventory stock or "procure
them under terms and conditions consistent with D[o]D regulations
and procedures." J.A. 132. If an LOA is fulfilled through procure-
ment, the acquisition procedures will be in accordance with normal
DoD regulations, thus "afford[ing] the foreign purchaser the same
benefits and protection that apply to DoD procurement." SAMM,
supra, § C.6.3.1. Section 1.2 of the LOA also provides that the United
States is "solely responsible for negotiating the terms and conditions
of contracts necessary to fulfill the requirements [of the] LOA." J.A.
132. Section 1.4 allows the United States to terminate or take other
SECRETARY OF STATE v. TRIMBLE NAVIGATION LTD 5
action with respect to the contracts between the United States and its
suppliers without these actions affecting the LOA. J.A. 132.
Section 5 of the LOA addresses transportation and delivery logis-
tics. Section 5.4 provides that deficiencies in the items covered by the
LOA must be reported through the Supply Discrepancy Report
("SDR") process. J.A. 134; SAMM, supra, § C.6.4.10. These discrep-
ancies include discrepancies caused by the manufacturer, such as "de-
fects or nonconforming conditions, which limit or prohibit the item
from fulfilling its intended purposes," whether from faulty materials,
manufacturing, or workmanship, and include situations in which the
United States has not acted erroneously. Defense Institute of Security
Assistance Management, Online Green Book: The Management of
Security Assistance ("Green Book") 10-34, http://disam.osd.mil/pubs/
DR/greenbook.htm; see SAMM, supra, § C6.4.10.3.2
Section 6 of the LOA addresses warranties and notes that, except
for warranty of title, the items received by UK MOD under the LOA
would carry no additional warranties unless specifically requested by
UK MOD. The Green Book explains that the customer is not without
recourse, however, "if an item . . . does not operate properly." Green
Book, supra, at 8-11. "Customers with defective items from procure-
ment should submit a supply discrepancy report to the [United
States]. The [United States] may be able to resolve the problem by
seeking resolution through the contractor under the provisions of the
[U.S.] procurement contract." Id. In Section 6 of the LOA, the United
States agreed to exercise, "upon the Purchaser’s request, rights
(including those arising under any warranties) the [United States] may
have under contracts connected with procurement." J.A. 134. Finally,
Section 7 of the LOA addresses dispute resolution. It provides that the
LOA is subject to federal procurement law and that any disagreement
regarding the LOA between UK MOD and the United States be
2
The Green Book is a textbook published by the Defense Institute of
Security Assistance Management, the agency responsible for providing
research support to advance U.S. foreign policy through security assis-
tance. While the Green Book does not represent official agency guidance,
it is an attempt to summarize security assistance programs and is based
upon the AECA and the SAMM, among other sources.
6 SECRETARY OF STATE v. TRIMBLE NAVIGATION LTD
resolved through bilateral consultations and not through referral "to
any international tribunal or third party for settlement." J.A. 134.
C.
The first delivery of the AOCs to UK MOD did not conform to
specifications. Trimble I, 422 F.3d at 167. Trimble repaired or
replaced these AOCs, but not to UK MOD’s satisfaction. Id. Prob-
lems with the chips persisted even after replacement. Id. "UK MOD
looked to the United States for assistance in recovering its costs from
Trimble," but the United States investigated and concluded that it
would not take any action against Trimble. Id. at 168. UK MOD
brought the instant action, claiming that Trimble breached its contract
with the United States and that this breach harmed UK MOD as a
third-party beneficiary, who could sue to enforce rights under the
U.S.-Trimble contracts.
Trimble filed a motion to dismiss, arguing that the district court
lacked subject-matter jurisdiction because the Contract Disputes Act
applied. This Court held in Trimble I that subject-matter jurisdiction
was proper in the district court and remanded the case for consider-
ation of whether UK MOD was, in fact, a third-party beneficiary of
the U.S.-Trimble contracts. 422 F.3d at 173.
On remand, the district court granted Trimble’s motion to dismiss
on the basis that UK MOD was not a third-party beneficiary to the
U.S.-Trimble agreements and thus had no right to sue upon those
agreements. Reasoning that there were no material facts in dispute,
finding that UK MOD was a mere known downstream customer of
the U.S.-Trimble contracts and finding that the LOA showed that the
parties intended the United States to resolve any problems with the
AOCs directly with Trimble, the district court concluded that UK
MOD was not a third-party beneficiary of the U.S.-Trimble contracts.
This appeal followed.
II.
We review de novo a district court’s dismissal for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6). Greenhouse
SECRETARY OF STATE v. TRIMBLE NAVIGATION LTD 7
v. MCG Capital Corp., 392 F.3d 650, 655 (4th Cir. 2004). "In gen-
eral, the motion should not be granted ‘unless it appears certain that
the plaintiff can prove no set of facts which would support its claim
and would entitle it to relief.’" Id. (quoting Mylan Labs., Inc. v. Mat-
kari, 7 F.3d 1130, 1134 (4th Cir. 1993)). In considering such a
motion, we accept as true all well-pleaded allegations and view the
complaint in the light most favorable to the plaintiff. Mylan Labs., 7
F.3d at 1134. In reviewing the dismissal of a complaint under Rule
12(b)(6), we may properly take judicial notice of matters of public
record. Hall v. Virginia, 385 F.3d 421, 424 (4th Cir. 2004) (citing
Papasan v. Allain, 478 U.S. 265, 268 n.1 (1986)). We may consider
documents attached to the complaint, see Fed. R. Civ. P. 10(c), as
well as those attached to the motion to dismiss, so long as they are
integral to the complaint and authentic, see Blankenship v. Manchin,
471 F.3d 523, 526 n.1 (4th Cir. 2006). Finally, for purposes of Rule
12(b)(6), "we are not required to accept as true the legal conclusions
set forth in a plaintiff’s complaint." Edwards v. City of Goldsboro,
178 F.3d 231, 244 (4th Cir. 1999).
A.
Civil liabilities arising out of the performance by a private contrac-
tor of federal procurement contracts are governed by federal common
law. See Boyle v. United Techs. Corp., 487 U.S. 500, 504-05 (1988).
The appropriate test under federal common law for third-party benefi-
ciary status "is whether the contract reflects the express or implied
intention of the parties to benefit the third party." Schuerman v.
United States, 30 Fed. Cl. 420, 433 (1994); see Montana v. United
States, 124 F.3d 1269, 1273 (Fed. Cir. 1997) (adopting Schuerman
test); see also Trimble I, 422 F.3d at 173 ("[B]oth parties agree upon
the first prong of the third-party beneficiary test-that is, ‘the contract
must reflect the intent to benefit the third-party.’" (citing Montana,
124 F.3d at 1273)). Thus, the intent of the parties to the contract is
"the cornerstone of a claim for third-party beneficiary status." Flex-
fab, L.L.C. v. United States, 424 F.3d 1254, 1259 (Fed. Cir. 2005). As
third-party beneficiary status is exceptional in the law, "the privilege
should not be granted liberally." Flexfab, 424 F.3d at 1259. Neverthe-
less, "third-party beneficiary status is not reserved for those parties
who benefit expressly under a given contract." Id. at 1260. This intent
may be determined by the contract itself, as well as "the circum-
8 SECRETARY OF STATE v. TRIMBLE NAVIGATION LTD
stances surrounding its formation." Trimble I, 422 F.3d at 173 (quot-
ing Beverly v. Macy, 702 F.2d 931, 940 (11th Cir. 1983), and citing
13 Richard A. Lord, Williston on Contracts § 37.8 (4th ed. 2000)). In
evaluating the surrounding circumstances, if "the contract implements
a statutory enactment, it is appropriate to inquire into the governing
statute and its purpose." Roedler v. Dep’t of Energy, 255 F.3d 1347,
1352 (Fed. Cir. 2001).
B.
Because Trimble’s contract with the United States was part of an
FMS transaction authorized under the AECA, our analysis begins
with the statute. The AECA implements "the policy of the United
States to facilitate the common defense by entering into international
arrangements with friendly countries which further the objective of
. . . procurement . . . to achieve specific national defense requirements
and objectives of mutual concern." 22 U.S.C. § 2751. To this end, the
AECA authorizes defense sales to certain foreign governments. Id.
These sales are government-to-government sales. See id. § 2762.
As noted above, foreign governments generally may choose to
acquire military goods through either FMS or DCS. Each method has
its advantages and disadvantages. For example, through a DCS trans-
action a foreign purchaser may be able to negotiate more specific con-
tract terms or contract for follow-up support. On the other hand, a
foreign purchaser utilizing the FMS program may be able to take
advantage of the United States’ procurement contract experience or
ability to obtain discounted prices. See Green Book, supra, at 15-3
("FMS and DoD orders are often consolidated to obtain economy-of-
scale buys and therefore significantly lower unit prices."). In most
cases, then, the choice between proceeding via FMS or DCS is a stra-
tegic decision based upon the needs of the foreign purchaser or
defense contractor. See, e.g., United States ex rel. Campbell v. Lock-
heed Martin Corp., 282 F. Supp. 2d 1324, 1341 (M.D. Fla. 2003)
("Lockheed could have contracted directly with the foreign govern-
ments in a direct commercial sale, but instead Lockheed opted to use
the FMS program, one of the benefits of which is the assurance of
payment by the United States Government."); Green Book, supra, at
15-1 to 15-14 (comparing FMS to DCS, including advantages and
disadvantages of each method for the foreign government purchaser).
SECRETARY OF STATE v. TRIMBLE NAVIGATION LTD 9
In exchange for some of the advantages of proceeding via FMS, how-
ever, the foreign purchaser must relinquish some benefits. One con-
cession is that the United States "selects the source and manages the
contract, consistent with the provisions of the FAR and the LOA."
Green Book, supra, at 15-8 (emphasis added). Thus, a foreign pur-
chaser proceeding via FMS necessarily delegates the ability to negoti-
ate and service the contract to the United States. In this case, UK
MOD purchased goods that were only available via the FMS pro-
gram. Thus, the United States made the method-of-purchase decision
for UK MOD: if UK MOD wished to purchase AOCs, it had to pro-
ceed through the FMS program because of the United States’ security
interest in GPS-related technologies.
There is no dispute that in a DCS transaction, a foreign government
directly contracts with the domestic manufacturer and can sue that
manufacturer on the direct agreement. See, e.g., McDonnell Douglas
Corp. v. Islamic Republic of Iran, 758 F.2d 341 (8th Cir. 1985). It is
also without dispute that the FMS program requires the intermedia-
tion of the United States and a back-to-back contract structure.
Because the choice of this structure reflects the national security inter-
ests of the United States, it would be contrary to the statutory scheme
to imply a direct relationship between the domestic contractor and the
foreign purchaser by affording third-party beneficiary status to the
foreign purchaser on the contractor’s agreement with the United
States. To recognize such a right of action would allow the foreign
purchaser to hold the contractor directly liable for the purchased
goods, a level of accountability that may be achieved through a DCS
sale. Thus, recognizing such a right would allow the foreign purchaser
to gain an advantage of the DCS program in a situation where United
States policy (and the statutory scheme chosen to effectuate that pol-
icy) explicitly precludes a DCS arrangement. Accordingly, the recog-
nition of UK MOD as a third-party beneficiary of the U.S.-Trimble
agreements would be contrary to the AECA because it would afford
UK MOD a right exclusive to DCS transactions, a method of pur-
chase not available for the AOCs at issue. Because recognition of
third-party beneficiary status in a contract made under a statutory
scheme must accord with that scheme, the recognition of such status
in this case is barred as a matter of law. See Massachusetts v. Mylan
Labs., 357 F. Supp. 2d 314, 328 (D. Mass. 2005) ("[C]ase law . . .
establish[es] the rule that a beneficiary to a federal contract has the
10 SECRETARY OF STATE v. TRIMBLE NAVIGATION LTD
right to enforce an agreement imposing duties on a person contracting
with the government so long as this is consistent with the statutory
scheme, and not an end-run on it."). Allowing UK MOD to exercise
direct contract rights against Trimble would afford UK MOD a bene-
fit of the DCS structure where United States policy has dictated that
the transaction proceed via FMS. Accordingly, any recognition of
third-party rights in UK MOD would be an end-run around the AECA
and is prohibited.
C.
Assuming, arguendo, that recognition of UK MOD’s claim is not
contrary to the AECA, we must consider whether the United States
or Trimble evidenced an intent to benefit UK MOD in their agree-
ments concerning the AOCs. The intent of the United States is evi-
denced both in its agreement with Trimble and in the LOA with UK
MOD. When United States policy dictated that AOC purchases be via
FMS-only, it necessarily mandated the use of the back-to-back con-
tract structure of the FMS program.
The U.S.-Trimble agreements do not explicitly mention that they
are for the benefit of UK MOD. The agreements do reference UK
MOD’s FMS case number and state that delivery would be to a
freight forwarding facility and then to the UK. There is, however, no
provision denoting that Trimble was the exclusive producer of the
AOCs for the fulfillment of UK MOD’s LOA. The contracts provide
that the United States will pay Trimble for the AOCs. There is no
mention of any involvement of UK MOD, such as approval of the
items, as a condition to Trimble’s receipt of payment. See, e.g.,
United States ex rel. Campbell, 282 F. Supp. 2d at 1341 ("Lockheed
was obligated to deliver LANTIRN pods to the United States and the
United States was obligated to pay Lockheed for the pods; the Gov-
ernment’s obligation to pay was not contingent on the receipt of funds
from a foreign government.")
The LOA makes clear that claims for discrepancies, including the
type of claims that UK MOD wishes to advance in this litigation,
must be brought to the United States in compliance with a specified
discrepancy procedure, the SDR. This compliance procedure, as
explained above, explains that the United States will attempt to
SECRETARY OF STATE v. TRIMBLE NAVIGATION LTD 11
resolve the issue with the contractor. See Triad Fin. Establishment v.
Tumpane Co., 611 F. Supp. 157, 159 n.1 (N.D.N.Y. 1985) ("[An
FMS] arrangement allows the foreign government to look to the
United States for compliance with the contract."). The SDR procedure
does not mention any action by the FMS purchaser with regard to the
contractor, even in the event that the United States fails to resolve the
discrepancy with the contractor. Even assuming, arguendo, that the
SDR procedure contemplated reserving to the foreign purchaser the
right to address discrepancies with the contractor in the event that the
United States fails to do so, Section 7 of the LOA explicitly states that
any disagreement regarding the LOA between UK MOD and the
United States must be resolved through bilateral consultations and not
through referral "to any international tribunal or third party for settle-
ment." J.A. 134. A suit against Trimble—a nonparty to the LOA—is
a referral to a third-party regarding a disagreement about the LOA.
Thus, the intent of the United States, as evidenced in the LOA, was
that UK MOD be conferred the extent of its rights in the AOC pur-
chase through the LOA, rather than the U.S.-Trimble agreements.
Furthermore, the LOA expresses that the United States explicitly lim-
ited UK MOD’s remedies regarding disagreements about the AOC
purchase. These restrictions precluded UK MOD from taking any
action through third parties or tribunals, instead setting forth a
detailed procedure for reporting discrepancies regarding the AOCs to
the United States. These provisions clearly evidence the United
States’ intent that UK MOD not be directly benefitted by the Trimble
agreements, but rather receive the benefits of the FMS transaction
through the LOA. In addition, the LOA demonstrates that the United
States intended to limit UK MOD’s remedies to a discrepancy process
through FMS channels and foreclosed UK MOD’s ability to refer any
dispute regarding the LOA to third parties, including Trimble, or tri-
bunals.
In sum, recognizing a beneficiary right of UK MOD to enforce the
U.S.-Trimble agreements would be contrary to the intent and structure
of the AECA, as well as contrary to the intent of the United States,
as evidenced by the U.S.-Trimble agreements and the LOA. Because
underlying statutory law prohibits the recognition of third-party bene-
ficiary status and because the intent of the United States was not to
12 SECRETARY OF STATE v. TRIMBLE NAVIGATION LTD
create such status for UK MOD via the U.S.-Trimble agreements, the
district court was correct in dismissing UK MOD’s complaint.
III.
We recognize that, as we have stated, the inquiry into third-party
beneficiary status is fact sensitive and not ordinarily ripe for resolu-
tion at the motion-to-dismiss stage. See Trimble I, 422 F.3d at 173.
This case, however, presents an exception to the general rule. Because
the relevant documents are properly before this Court and the con-
tracts in question were executed under a federal statutory scheme, a
resolution of the third-party beneficiary issue is proper at this stage
in the proceedings. We find that the statutory scheme, as well as the
specific relevant agreements, preclude UK MOD’s claiming third-
party beneficiary status. Accordingly, additional discovery or pro-
ceedings would not affect our conclusion. UK MOD cannot produce
any facts, known or unknown, that would alter this outcome. Regard-
less of any specific interactions between Trimble and UK MOD
regarding this particular transaction, recognition of third-party status
would be contrary to the AECA. As such, we believe it appropriate
to resolve this issue on Trimble’s 12(b)(6) motion.
IV.
Because as a matter of law UK MOD cannot establish that it was
a third-party beneficiary to any of the Trimble-United States agree-
ments, we affirm the district court’s decision to grant Trimble’s
motion to dismiss.
AFFIRMED
TRAXLER, Circuit Judge, dissenting:
In the first appeal of this case, we declined to reach the issue of UK
MOD’s status as a third-party beneficiary to the contracts between
Trimble Navigation Limited and the United States Air Force. See
United Kingdom Ministry of Defence v. Trimble Navigation Ltd., 422
F.3d 165, 173 (4th Cir. 2005) ("Trimble I"). We remanded for further
proceedings on this issue, including a determination of "whether the
SECRETARY OF STATE v. TRIMBLE NAVIGATION LTD 13
parties to the contract intended to bestow a benefit on a third party."
Id. (internal quotation marks omitted). We noted that this "fact-
sensitive inquiry" should be "based upon both the relevant contract
and the circumstances surrounding the contract." Id.
On remand, the district court dismissed UK MOD’s complaint
under Rule 12(b)(6), concluding, based on the contract documents,
that "there are no material facts in dispute" and "the record does not
support the conclusion that the United States and UK MOD intended
that UK MOD would be directly benefitted by the contract between
the United States and Trimble." J.A. 260.*
Thus, we address the issues raised in this appeal in the procedural
context of Trimble’s motion to dismiss under Rule 12(b)(6). A party
moving to dismiss a complaint under Rule 12(b)(6) is "test[ing] the
sufficiency of [the] complaint" and asserting, in effect, "that the plain-
tiff [is not] entitled to relief under any legal theory which might plau-
sibly be suggested by the facts alleged." Edwards v. City of
Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999) (internal quotation
marks omitted). The court should grant a Rule 12(b)(6) motion only
"if, after accepting all well-pleaded allegations in the plaintiff’s com-
plaint as true and drawing all reasonable factual inferences from those
facts in the plaintiff’s favor, it appears certain that the plaintiff cannot
prove any set of facts in support of his claim entitling him to relief."
Id. at 244. Rule 12(b)(6), therefore, limits the court’s inquiry; it is not
a vehicle for the court to assess the record or "resolve contests sur-
rounding the facts, the merits of a claim, or the applicability of
defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th
Cir. 1993).
With these principles in mind, I would hold that the allegations in
UK MOD’s complaint are sufficient at this point to state a claim and
survive the motion to dismiss. First, I do not believe Congress, in
*Because UK MOD’s intent is not relevant to its status as a third-party
beneficiary to a contract between the Air Force and Trimble, the district
court in all probability meant that "the record does not support the con-
clusion that the United States and Trimble intended that UK MOD would
be" a third-party beneficiary to "the contract between the United States
and Trimble."
14 SECRETARY OF STATE v. TRIMBLE NAVIGATION LTD
enacting the Arms Export Control Act ("AECA"), see 22 U.S.C.
§§ 2751-2799aa-2, precluded third-party beneficiary rights in this
context. Second, UK MOD’s complaint states a third-party benefi-
ciary claim under the favorable pleading standards applicable at this
procedural juncture. I would therefore reverse the decision of the dis-
trict court and remand for further proceedings.
I.
Trimble contends that the structure of the AECA, as well as the
general purpose of the AECA, preclude a disappointed foreign gov-
ernment purchaser in a Foreign Military Sales ("FMS") transaction
from seeking redress as a third-party beneficiary. An FMS transaction
under the AECA involves the sale of military defense items by the
United States to a foreign country in a government-to-government
transaction; the items to be sold are either procured by the United
States or sold directly from the stocks of the United States Depart-
ment of Defense. See 22 U.S.C. §§ 2761 ("Sales from stocks"), 2762
("Procurement for cash sales"). A "procurement for cash sales"
arrangement under § 2762 involves two separate contracts — a pro-
curement contract between the United States and the defense contrac-
tor and the sales agreement between the United States and the foreign
government. See 22 U.S.C. § 2762(a); Trimble I, 422 F.3d at 167. In
addition to these statutorily prescribed methods, a foreign government
may also purchase defense articles directly from the manufacturer in
a Direct Commercial Sale ("DCS"). The President, however, has dis-
cretion "to designate which military end-items must be sold through
FMS channels exclusively." Security Assistance Management Manual
(SAMM) § C4.5.9, available at http://www.dsca.osd.mil/samm/ (last
visited May 1, 2007); see 22 U.S.C. § 2778. In this case, because the
Department of Defense does not maintain a stock of Trimble’s Auxil-
iary Output Chips ("AOCs"), UK MOD and the United States entered
into a Letter of Acceptance under which the United States agreed spe-
cifically to procure Trimble AOCs on behalf of UK MOD "through
a contract between the United States Air Force and Trimble." J.A. 12.
Trimble contends that where procurement is required to fulfill the
terms of a Letter of Agreement, as is the case here, the "back-to-back"
contract structure necessarily precludes the third-party beneficiary
theory being asserted by UK MOD — the foreign government does
SECRETARY OF STATE v. TRIMBLE NAVIGATION LTD 15
not have a direct contractual relationship with the private manufac-
turer and therefore must pursue whatever remedies are available
under its agreement with the United States government. In other
words, Trimble suggests that UK MOD is attempting to invoke a rem-
edy that is available only in a DCS transaction.
In my view, the statutory provisions relied upon by Trimble do not
indicate one way or another whether UK MOD can claim third-party
beneficiary status. The mere fact that a procurement for cash transac-
tion does not involve a direct contractual relationship between the for-
eign purchaser and the defense contractor does not dictate that UK
MOD’s claim is statutorily barred. Indeed, any third-party beneficiary
claim assumes the plaintiff does not have a direct contractual relation-
ship with the defendant. Thus, allowing UK MOD to proceed on its
theory would not afford it a remedy available only in a DCS transac-
tion, i.e., a direct contractual claim. Trimble has not pointed to any
provision of the AECA or any regulation issued thereunder indicating
that UK MOD’s remedies are circumscribed in the manner suggested.
Trimble also asserts that the authority of the United States govern-
ment to exert control over many aspects of the sale of an FMS item
under the AECA — including, most significantly, the power to termi-
nate the sale completely — precludes third-party rights. Again, the
provisions cited by Trimble simply do not bear upon what recourse
UK MOD may seek in an FMS transaction. Moreover, because the
government’s power to terminate applies to DCS transactions as well
as FMS transactions, I fail to discern how the authority to terminate
affects third-party beneficiary rights either way. See Defense Institute
of Security Assistance Management, Online Green Book: The Man-
agement of Security Assistance 15-13, http://www.disam.dsca.mil/
pubs/DR/greenbook.htm.
To the extent that Trimble cites and relies upon the general statu-
tory purpose of the AECA, I do not find such broad language particu-
larly instructive. The AECA contains a very broad policy statement
that, in view of "[t]he need for international defense cooperation
among the United States and those friendly countries to which it is
allied" and the fact that the effectiveness of such cooperation "is
directly related to the . . . compatibility of their defense equipment,"
the United States Government is authorized to sell defense articles to
16 SECRETARY OF STATE v. TRIMBLE NAVIGATION LTD
allies to "further the objective of applying agreed resources of each
country . . . to achieve specific national defense requirements and
objectives of mutual concern." 22 U.S.C. § 2751. If anything, the lan-
guage suggests that the AECA is aimed at facilitating rather than
restricting the sale of defense items to foreign governments. Theoreti-
cally, the availability of third-party beneficiary claims would be con-
sistent with such a policy.
II.
Having concluded that the AECA does not preclude a third-party
beneficiary claim by UK MOD, I would hold that UK MOD’s com-
plaint sets forth sufficient facts to survive a motion to dismiss under
Rule 12(b)(6). "In order to prove third-party beneficiary status, a
party must demonstrate that the contract not only reflects the express
or implied intention to benefit the party, but that it reflects an inten-
tion to benefit the party directly." See Flexfab, L.L.C. v. United States,
424 F.3d 1254, 1259 (Fed. Cir. 2005) (internal quotation marks omit-
ted). Although the beneficiary "must fall within a class clearly
intended to be benefitted" by the contract, "the intended beneficiary
need not be specifically or individually identified in the contract." Id.
at 1260 (internal quotation marks and alteration omitted). The court,
"[w]hen determining whether the parties to the contract intended to
bestow a benefit on a third party, . . . may look beyond the contract
to the circumstances surrounding its formation." Trimble I, 422 F.3d
at 173 (internal quotation marks omitted). The complaint asserted that
the "AOCs purchased by UK MOD . . . were manufactured by Trim-
ble pursuant to four contracts that had been awarded to Trimble by
the U.S. Air Force on behalf of UK MOD." J.A. 12. As alleged by
UK MOD, each of the contracts between the Air Force and Trimble
specifically referenced the FMS case number assigned to the agree-
ment between the United States and UK MOD for the purchase of
Trimble AOCs. Additionally, the Trimble procurement contracts
"stated that the Trimble AOCs were to be delivered to UK MOD."
J.A. 13. Moreover, in response to the district court’s inquiry at oral
argument regarding any additional facts relevant to the intent of the
parties, UK MOD explained that "the evidence when developed dur-
ing the course of discovery will show not only [that] Trimble was
fully aware that . . . the United Kingdom was the intended beneficiary
of these contracts but that Trimble actually went after this business
SECRETARY OF STATE v. TRIMBLE NAVIGATION LTD 17
with the UK. They met with the UK. They were competing with
another contractor. [Trimble] shared specifications with the UK, and
. . . the UK specifically identified Trimble as opposed to the other
contractor in the LOA" and indicated to the United States its prefer-
ence for Trimble AOCs. J.A. 224.
Dismissal at this point, prior to discovery, is premature in my opin-
ion. UK MOD has alleged sufficient facts to state a claim and con-
tinue pursuing its action through the discovery process. Therefore, I
respectfully dissent.