Lee v. United States , 895 F.3d 1363 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
SEH AHN LEE, IRINA RYAN, AHMAD NARIMAN,
MARK PEACH,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-1643
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-01555-CFL, Judge Charles F.
Lettow.
______________________
Decided: July 13, 2018
______________________
DAVID LEO ENGELHARDT, Themis, PLLC, Washington,
DC, argued for plaintiffs-appellants. Also represented by
JOHN PIERCE, MICHAEL CONE.
HILLARY STERN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee. Also represented
by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR.,
REGINALD T. BLADES, JR.
______________________
2 LEE v. UNITED STATES
Before REYNA, BRYSON, and STOLL, Circuit Judges.
BRYSON, Circuit Judge.
Plaintiffs Seh Ahn Lee, Irina Ryan, Ahmad Nariman,
and Mark Peach each entered into agreements to provide
services to Voice of America (“VOA”), a U.S. government-
funded broadcast service. The agreements were in the
form of a series of individual purchase order vendor
(“POV”) contracts that each plaintiff entered into over
several years with the Broadcasting Board of Governors
(“BBG”), which oversees VOA.
Unhappy with the terms of their contracts, the plain-
tiffs filed a class action complaint alleging that, along
with other individuals who have served as independent
contractors for VOA, they should have been retained
through personal services contracts or appointed to posi-
tions in the civil service. If their contracts had been
classified as personal services contracts or they had been
appointed to civil service positions, the plaintiffs alleged,
they would have enjoyed enhanced compensation and
benefits. The Court of Federal Claims (“the Claims
Court”) dismissed the plaintiffs’ first amended complaint,
and subsequently denied their request for leave to file a
proposed second amended complaint.
On appeal, the plaintiffs raise several contract-based
claims, seeking damages for the loss of the additional
compensation and benefits to which they contend they
were entitled. We agree with the trial court that the
plaintiffs have set forth no viable theory of recovery. We
therefore affirm.
I
In 2014, the Office of Inspector General for the U.S.
Department of State and the BBG (“OIG”) issued a report
that was critical of the BBG’s use of POV contracts,
concluding that the BBG was using such contracts in
some cases to obtain personal services. The following
LEE v. UNITED STATES 3
year, the plaintiffs brought this action in the Claims
Court, contending that it was improper for the BBG to
obtain their services through POV contracts, and that
they were entitled to be treated as federal employees,
with all of the pay and benefits applicable to such em-
ployees. As relevant to this appeal, the plaintiffs sought
damages based on three theories: breach of express con-
tract, breach of implied-in-fact contract, and quantum
meruit. 1
The Claims Court granted the government’s motion to
dismiss the plaintiffs’ first amended complaint. First, the
court noted that the plaintiffs’ breach of contract claim
was “not based on an entitlement to money damages
under these express contracts,” but instead was based on
an implied contract theory under which they alleged they
were entitled to additional pay and benefits. Lee v. Unit-
ed States (“Lee I”), 127 Fed. Cl. 734, 744–45 (2016). The
court next held that the plaintiffs “failed to make a non-
frivolous claim of an implied-in-fact contract with the
government above and beyond the provisions of their
express contracts.” Id. at 745. Finally, the court noted
that it “generally does not have jurisdiction over quantum
meruit or implied-in-law contract claims.” Id. The court
recognized that an exception to that general rule applies,
and that recovery under a quantum meruit measure of
damages is available, when a contractor provides goods or
services in good faith under an express contract that is
later rescinded for invalidity. Id. at 745–46 (citing Int’l
Data Prods. Corp. v. United States, 492 F.3d 1317, 1325
1 Initially, the plaintiffs also sought relief under the
Back Pay Act, 5 U.S.C. § 5596. The trial court dismissed
that claim for lack of jurisdiction because the plaintiffs
failed to non-frivolously allege that they were “employees”
within the meaning of the Back Pay Act. The plaintiffs
have not pressed that claim on appeal.
4 LEE v. UNITED STATES
(Fed. Cir. 2007), and United States v. Amdahl Corp., 786
F.2d 387, 393 (Fed. Cir. 1986)). Finding that the express
contracts at issue in this case were not invalid, the court
held that the exception did not apply to this case and that
the court lacked jurisdiction over the plaintiffs’ quantum
meruit claim. Id. at 746.
The plaintiffs filed a motion for reconsideration and
sought leave to file a proposed second amended complaint.
The court denied the motion, holding that the proposed
amendments were futile. Lee v. United States (“Lee II”),
130 Fed. Cl. 243, 248, 252–53 (2017). The court first held
that the proposed second amended complaint failed to
state a claim for breach of express contract because the
allegations in the complaint did not plausibly allege a
breach of the POV contracts with the plaintiffs. 2 Id. at
256. With regard to the implied-in-fact contract theory,
the court held that the plaintiffs had not sufficiently
alleged a basis for finding that their express contracts
were void or that an implied-in-fact contract existed apart
from their express contracts. The court therefore dis-
missed the plaintiffs’ implied-in-fact contract theory. Id.
at 256–59. Finally, the court dismissed the amended
quantum meruit claim because the complaint again failed
2 In making that determination, the court referred
to representative contracts between the BBG and three of
the plaintiffs that were attached to the proposed second
amended complaint. See Lee II, 130 Fed. Cl. at 254–55.
All of those contracts contain similar language defining
the role of the plaintiffs as contractors providing non-
personal services. Id. at 255. The attachments did not
include a contract between the BBG and plaintiff Ahmad
Nariman, but the plaintiffs have not suggested that the
contractual language applicable to Mr. Nariman differed
materially from the standard language contained in all of
the other representative contracts.
LEE v. UNITED STATES 5
to plausibly allege that the plaintiffs’ express contracts
were void or that the plaintiffs had not been paid the
contract rate in full. Id. at 259–60.
The plaintiffs appeal both decisions.
II
With regard to their claim for breach of express con-
tract, the plaintiffs argue that the trial court erred (1) in
dismissing the claim for breach of express contract set
forth in their first amended complaint, and (2) in denying
leave to amend with respect to the claim of breach of
express contract set forth in their proposed second
amended complaint.
A
In support of the breach of express contract theory
presented in their first amended complaint, the plaintiffs
argue on appeal that the scope of their work was “materi-
ally limited” by the use of terms such as “independent
contracting” and “non-personal services” in their con-
tracts. According to the plaintiffs, the BBG “breached
these limits” in its administration of the contracts.
The first amended complaint, however, did not allege
that the breaches of the plaintiffs’ contracts consisted of
requiring them to provide personal services outside the
terms of the contracts. Instead, the complaint focused on
the failure to compensate them as if they were either
federal employees or had been retained under personal
services contracts. 3 It alleged that the BBG breached its
3 The BBG has been authorized by Congress to
award up to 60 “personal services contracts” to obtain
services from personal services contractors. See 22
U.S.C.A. § 6206 note. None of the plaintiffs worked under
contracts that were designated as personal services
6 LEE v. UNITED STATES
contractual obligation to compensate them “as providers
of personal services working in the manner of federal
employees.” For relief, the complaint demanded “back
pay for the wrongfully withheld benefits, tax payments,
and wages and salaries . . . as damages for breach of their
express or implied contracts for the provision of personal
services.”
In asserting that the breach of their contract rights
consisted of the failure to compensate them for providing
personal services, the plaintiffs ignored the fact that their
contracts specifically designated them as independent
contractors who were not providing personal services and
set forth their compensation accordingly. For that reason,
the trial court properly concluded that the BBG did not
breach any contractual obligations with respect to the
plaintiffs’ compensation, and that the alleged contract
breaches were necessarily based on an implied contract to
provide (and be compensated for) personal services, rather
than on their express contracts. 4 The Claims Court
contracts; rather, the plaintiffs’ contracts specifically
stated that they were not providing personal services.
4 In a hearing on the government’s motion to dis-
miss, the plaintiffs twice conceded that the first amended
complaint did not assert a viable claim for breach of
express contract. First, the court asked: “But they don’t
really allege that the contracts or the express contracts
that they have with the BBG or now, a couple of them
indirectly with another contracting agency, are breached.
They allege that there should have been accompaniments
or implied terms, correct?” The plaintiffs’ counsel replied
“That’s correct, Your Honor.” Lee v. United States, No. 15-
cv-1555 (Fed. Cl. Aug. 24, 2016), Dkt. No. 26, at 9–10.
Later, the court inquired: “Well, let’s talk about express
contracts, because the Court didn’t read the allegation
saying – in the complaint as saying, we were not paid X
LEE v. UNITED STATES 7
therefore properly dismissed the allegations of breach of
express contract contained in Count II of the first amend-
ed complaint.
B
The plaintiffs next argue that the trial court erred in
concluding that the proposed second amended complaint
failed to state a claim for breach of express contract, and
that the proposed amendments were therefore futile.
The proposed second amended complaint took a dif-
ferent approach to the claim of express contract breach.
Instead of asserting that the contracts required the plain-
tiffs to perform personal services for which they were not
properly compensated, the proposed second amended
complaint alleged that their contracts were “for providing
non-personal services as independent contractors” and
therefore gave them certain rights to a “particular man-
ner of performance and a specifically limited scope of
work.” The complaint alleged that the plaintiffs’ “express
contracts promised to allow them to serve as independent
contractors, with a scope of work that was limited to ‘non-
personal’ services.”
The complaint alleged that independent contractors
normally have a “high degree of independence in choosing
the time, place, and manner of service,” and have the
right “to work independently of the client’s direct supervi-
sion, and to keep charge of their own schedules.” The
BBG breached the express contracts, according to the
complaint, by denying the plaintiffs
amount to which we were entitled as a result of our
contract.” The plaintiffs’ counsel agreed: “That’s correct.
But the contracts, since they are, in fact, for personal
services, should have at least implied terms of greater
compensation.” Id. at 27.
8 LEE v. UNITED STATES
virtually every material right and benefit of being
an independent contractor. They were not al-
lowed to work from their own, preferred locations,
as independent contractors do, but were forced to
report to a federal office chosen by the BBG. They
did not use, and were not allowed to use, their
own equipment; to set their own hours; to work
without direct federal supervision; or to work on
projects for other clients to break up their day or
expand their business.
To determine the scope of the plaintiffs’ rights under
their express contracts, the trial court reviewed the
representative contracts that were attached to the pro-
posed second amended complaint. The court concluded
that “the plain language of the contracts that have been
provided contradicts plaintiffs’ allegations that they were
entitled to certain ‘rights and benefits’ as independent
contractors with the Broadcasting Board.” Lee II, 130
Fed. Cl. at 254–55. The court observed that the contracts
required the plaintiffs to perform their services on-site
using government equipment; that the plaintiffs would be
subject to regular review of their work and would be
required to “comply with [the] general direction of the
Contracting Officer”; and that the government had the
“right and obligation to inspect, accept, or reject the
work.” Id. at 255.
The trial court noted that the proposed second
amended complaint recited “only general allegations of
direct supervision,” and that those allegations were
insufficient to “plausibly allege[] that the Board’s supervi-
sion of plaintiffs was so pervasive and extensive as to
constitute direction, supervision, or control” in breach of
the express contract terms. Id. at 256. Rather, the court
concluded, the allegations fell “within the scope of review
and compliance commensurate with the government’s
right and obligation to inspect and accept or reject con-
LEE v. UNITED STATES 9
tractors’ work in accord with the contractors’ provision of
nonpersonal services.” Id.
We discern no error in the trial court’s assessment of
the proposed second amended complaint and the language
of the plaintiffs’ express contracts. On appeal, the plain-
tiffs fail to identify any specific provision of the repre-
sentative contracts that was breached; instead, they rely
on general allegations regarding the rights normally
enjoyed by independent contractors. Those allegations,
however, are not tied to the rights and obligations of the
parties defined by the contracts and therefore fail to state
a claim of express contract breach.
For example, the plaintiffs assert that the complaint
alleged that the government “‘supervised,’ and not merely
‘inspected’” their work. However, the corresponding
allegations in the complaint are conclusory in nature and
are not tied to any specific provision of the contracts that
limits the manner in which the government was entitled
to review the contractors’ work.
Similarly, the plaintiffs’ argument that the govern-
ment breached the contracts by requiring the plaintiffs to
“provide services that were integral to its governmental
mission” and to perform “services of the type performed by
federal employees” is general in nature and is not based
on any particular provision in the contracts. The plain-
tiffs’ only allegation on that score is that “[i]ndependent
contracts do not allow for such work, according to provi-
sions of the [Federal Acquisition Regulation (“FAR”)], 48
C.F.R. § 37.104.” That allegation, however, is directed to
the requirements of the regulation, not the provisions of
the plaintiffs’ contracts. The proposed second amended
complaint contains no allegation that any provision in the
plaintiffs’ express contracts specifically prohibited such
arrangements or that the government breached any such
provision in the course of administering the contracts.
Accordingly, the Claims Court correctly held that the
10 LEE v. UNITED STATES
proposed second amended complaint failed to set forth a
cognizable theory of breach of express contract.
III
In their first amended complaint, the plaintiffs al-
leged as part of their overall breach of contract claim that
they “served under implied-in-fact contracts” and that the
BBG was liable to them “under the implied-in-fact con-
tract theory of quantum meruit for the value of the per-
sonal services” they provided, together with their “costs of
performance and a reasonable profit.”
In the proposed second amended complaint, the plain-
tiffs set out their breach of implied contract and quantum
meruit theories as separate claims. They alleged that the
contracts “violated a legal prohibition on acquiring per-
sonal services by contract,” and that the contracts were
therefore void or voidable. Under their implied-in-fact
theory of relief, the plaintiffs alleged that in place of the
void contracts the court should provide implied terms,
including a term that would compensate them “for the fair
market value of their services.” Under their quantum
meruit theory, the plaintiffs again alleged that their
contracts were void or voidable and that they were “enti-
tled to recover on a quantum meruit basis for the value of
their services.” The plaintiffs also alleged that at various
points one of the plaintiffs’ contracts would lapse before a
subsequent contract was executed, and that the plaintiffs
should be compensated under an implied-in-fact contract
theory or in quantum meruit for services they provided
during those gap periods between contracts.
The trial court determined that the plaintiffs’ implied
contract and quantum meruit claims could not survive a
motion to dismiss. In reaching that conclusion, the court
ruled that the express contracts between the parties were
not void, and that the terms of the express contracts
covered the same subject matter as the alleged implied-in-
fact contracts. The court therefore concluded that the
LEE v. UNITED STATES 11
respective rights of the parties were defined not by any
implied-in-fact contracts or the principles of quantum
meruit, but by the terms of their express contracts. Lee I,
127 Fed. Cl. at 744–46; Lee II, 130 Fed. Cl. at 256–60. As
for the gap periods between the express contracts, the
court held, based on the course of dealing between the
parties, that the terms of the express contracts continued
to control during those periods. Lee II, 130 Fed. Cl. at
259.
A
It is well settled that “the existence of an express con-
tract precludes the existence of an implied-in-fact contract
dealing with the same subject matter, unless the implied
contract is entirely unrelated to the express contract.”
Bank of Guam v. United States, 578 F.3d 1318, 1329 (Fed.
Cir. 2009) (quoting Schism v. United States, 316 F.3d
1259, 1278 (Fed. Cir. 2002) (en banc)); Algonac Mfg. Co. v.
United States, 428 F.2d 1241, 1255 (Ct. Cl. 1970) (“[A]s a
general rule, there can be no implied contract where there
is an express contract between the parties covering the
same subject.”).
We find no error in the trial court’s determination
that the alleged implied-in-fact contracts do not deal with
subject matter that is separate from and unrelated to the
valid express contracts. See Lee I, 127 Fed. Cl. at 745; Lee
II, 130 Fed. Cl. at 258. Because the plaintiffs had express
contracts with the government to provide the services
they rendered, and because the plaintiffs have not alleged
that they performed additional work “entirely unrelated”
to their express contracts, there is no force to their theory
that they had implied-in-fact contracts to perform the
same work that was the subject of their express POV
12 LEE v. UNITED STATES
contracts. 5 Accordingly, in order to prevail on their
implied-in-fact contract claim, the plaintiffs must show
that their express contracts were void.
The plaintiffs insist that their express contracts were
illegal because they were contracts to provide personal
services, in violation of FAR § 37.104. The trial court
rejected that argument, and we concur in the court’s
ruling.
Section 37.104 of the FAR defines a personal services
contract as a contract that is “characterized by the em-
ployer-employee relationship it creates between the
Government and the contractor’s personnel.” 48 C.F.R.
§ 37.104(a). It directs that the agency “shall not award
personal services contracts unless specifically authorized
by statute.” Id. § 37.104(b). The regulation provides that
an employer-employee relationship under a service con-
tract occurs when, as a result of the contract’s terms or
“the manner of its administration during performance,
contractor personnel are subject to the relatively continu-
ous supervision and control of a Government officer or
employee.” Id. § 37.104(c)(1). The regulation also sup-
plies a set of “descriptive elements” that “should be used
as a guide in assessing whether or not a proposed contract
is personal in nature.” Id. § 37.104(d). Those elements
5 The plaintiffs argue in passing that they per-
formed additional work that went beyond what was
contemplated in their express contracts, and that the
extra-contractual work “open[s] the door to implied
terms.” Their contention—that they performed additional
work because they provided personal services rather than
contract services—does not constitute a claim that the
work they performed under their claimed implied con-
tracts was “entirely unrelated to the express contract[s]”;
to the contrary, the subject matter of the express con-
tracts and the alleged implied contracts was the same.
LEE v. UNITED STATES 13
include whether the contract is to be performed on site,
whether the principal tools and equipment are furnished
by the government, whether the services are “applied
directly to the integral effort of agencies,” whether compa-
rable services in the same or similar agencies are per-
formed by civil service personnel, whether the need for
the services can be expected to last for more than one
year, and whether the inherent nature of the service or
the manner in which it is provided reasonably require
government direction or supervision. Id.
As indicated by the regulation, the principal ground
on which a contract will be found to be a personal services
contract—and the principal ground that the plaintiffs
invoke in challenging the validity of the contracts—is the
degree of supervision to which the contracting employees
were subject under the contract. Id. § 37.104(c)(2).
According to the plaintiffs, they were subject to close
supervision by government employees under their POV
contracts, and their contracts were therefore invalid
under the regulation.
The contracts, however, did not by their terms provide
for close government supervision of the plaintiffs. To the
contrary, the representative contracts that were attached
to the complaint provided that the contractors
[s]hall be responsible for their own management
and administration of the work required and bear
sole responsibility for complying with any and all
technical, schedule, or financial requirements or
constraints attendant to the performance of this
contract; . . . [s]hall be free from supervision or
control by any Government employee with respect
to the manner or method of performance of the
services specified; but . . . [s]hall, pursuant to the
Government’s right and obligation to inspect, ac-
cept, or reject the work, comply with such general
direction of the Contracting Officer or the duly
14 LEE v. UNITED STATES
Authorized Representative of the Contracting Of-
ficer (AR/CO) as is necessary to ensure accom-
plishment of the contract objectives.
While the plaintiffs complain that the nature and
degree of supervision to which they were actually subject-
ed exceeded what was provided for in the contracts, that
contention goes to whether the express contracts were
breached, not to whether those contracts were valid. The
plaintiffs have failed to show that the POV contracts, by
their terms, provided for direct government supervision to
a degree that rendered them personal services contracts
that were invalid under FAR § 37.104.
In further support of their contention that their POV
contracts were invalid, the plaintiffs also focus on the
requirements that they work at government-designated
sites and that they use government-supplied equipment.
While in some instances those factors can be relevant to
the question whether a person who is retained to perform
particular tasks is doing so in the capacity of an employee
or an independent contractor, they are far from definitive.
A contractor who is retained, for example, to repair a
building will obviously be working at the site designated
by the retaining party. And a contractor who is retained,
for example, to drive a new vehicle from the manufactur-
ing plant to the dealer’s location will obviously be using
the retaining party’s equipment to perform the contract.
In neither of those cases, however, will those factors be
sufficient to convert the contractor into an employee. The
plaintiffs’ general allegations that their contracts provid-
ed for the use of government-supplied equipment at a
government-designated site are likewise insufficient to
LEE v. UNITED STATES 15
support their contention that the POV contracts were
invalid. 6
Moreover, section 37.104 of the FAR does not dictate
that an executed contract will be deemed void simply
because it is later determined that the degree of govern-
ment supervision or other factors make the role of the
contracting party more like that of an employee than an
independent contractor. The fact that a contract may be
inconsistent with a statutory or regulatory requirement
does not ipso facto render the contract void. To the con-
trary, “[i]nvalidation of the contract is not a necessary
consequence when a statute or regulation has been con-
travened, but must be considered in light of the statutory
or regulatory purpose, with recognition of the strong
policy of supporting the integrity of contracts made by
and with the United States.” Am. Tel. & Tel. Co. v. Unit-
ed States, 177 F.3d 1368, 1374 (Fed. Cir. 1999) (en banc).
If a statute “does not specifically provide for the invalida-
tion of contracts which are made in violation of [its provi-
sions],” the proper inquiry is “whether the sanction of
nonenforcement is consistent with and essential to effec-
tuating the public policy embodied in [the statute].” Id.
6 The plaintiffs contend that the BBG ultimately
admitted that it was improperly using POV contractors to
perform personal services. In fact, the BBG did not make
any such admission; to the contrary, it has consistently
contended that its POV contractors were not performing
personal services. The asserted admission was by the
OIG, which is a separate entity from the BBG. For its
part, the BBG responded to the OIG’s report by acknowl-
edging that it is not permitted to employ personal services
contractors in excess of those authorized by statute, but
insisting that “its use of independent contractors [was]
consistent with the FAR.”
16 LEE v. UNITED STATES
(alterations in original) (quoting United States v. Miss.
Valley Generating Co., 364 U.S. 520, 563 (1961)).
It does not appear that refusal to enforce the contracts
at issue in this case would be “consistent with and essen-
tial to effectuating” the public policies promoted by the
regulation on which the plaintiffs rely. As the trial court
observed, when Congress authorized the BBG to award up
to 60 personal services contracts to obtain personal ser-
vices for the agency, it recognized the need to “provide
greater flexibility to the Board in its employment practic-
es” and to “enhance the agency’s responsiveness to crises
and support existing broadcasts.” H.R. Rep. No. 107-57,
at 75 (2001); see Lee II, 130 Fed. Cl. at 257. Congress’s
recognition of the BBG’s need for flexibility in obtaining
the variety of services used in performing its mission
would be inconsistent with the invalidation of particular
contracts ab initio if the administration of the contract
were later determined to cross the often fuzzy line be-
tween independent contracting and employment.
Because of the disruptive effect of retroactively inval-
idating a government contract, this court has held that
“invalidation of a contract after it has been fully per-
formed is not favored.” Am. Tel. & Tel. Co., 177 F.3d at
1375. As the trial court noted, the plaintiffs have each
contracted with the government over several years,
through multiple contracts and contract renewals, most (if
not all) of which have been fully performed and fully paid
at the contract rate. Lee II, 130 Fed. Cl. at 257–58. This
factor, too, weighs against invalidation of the plaintiffs’
express contracts and precludes recovery under an im-
plied-in-fact contract theory. 7
7 According to the allegations in the complaints,
plaintiff Nariman is no longer providing services to the
BBG, and plaintiffs Lee and Ryan are no longer working
LEE v. UNITED STATES 17
In pressing their implied-in-fact contract theory, the
plaintiffs rely heavily on this court’s decision in Barrett
Refining Corp. v. United States, 242 F.3d 1055 (Fed. Cir.
2001). In Barrett, the plaintiff performed the contract and
sought payment based in part on the price adjustment
clause of the contract. However, the Claims Court, in an
unrelated action, had held that the price adjustment
clause was unenforceable. Because the contract no longer
contained a valid clause covering price escalation, the
court could not grant Barrett relief based on the original
contract language. Id. at 1058. Nonetheless, the court
held that Barrett was entitled to an award of damages,
finding an implied-in-fact agreement between the parties
as to the voided price adjustment clause. Based on that
implied-in-fact agreement, the court awarded Barrett the
“fair market valuation” of the goods it provided to the
government. This court affirmed. Id. at 1060–61.
The Barrett case differs from this one in an important
respect. The voiding of the contract clause at issue in
Barrett deprived the plaintiff of the benefits for which it
had bargained. Because the court concluded that the
parties had not intended for the plaintiff to be left without
a remedy, the court found that the plaintiff was entitled
to recover under an implied-in-fact contract theory. See
242 F.3d at 1060 (finding implied-in-fact contract where
“the government intended to pay at least fair market
value” and in light of “the undisputed performance of the
contract by both parties”). In this case, by contrast, the
plaintiffs have not been deprived of any rights granted to
under POV contracts, but are instead working under
subcontracts with staffing agencies that have contracts
with the BBG. The complaint alleges that plaintiff Peach
is the only one of the four named plaintiffs who was still
providing services under independent contracts as of the
date of the proposed second amended complaint.
18 LEE v. UNITED STATES
them under their contracts. Instead, their allegation is
that they were entitled to benefits beyond those specifical-
ly provided by their contracts.
In Barrett, it was necessary to recognize an implied-
in-fact contract in order to avoid depriving the plaintiffs of
their rights under a contract that was voided through no
fault of their own. In this case, the plaintiffs are seeking
to improve on the rights granted to them under their
contracts by voiding the contracts and recovering greater
benefits than were available under the contracts. Barrett
therefore provides no support for the plaintiffs’ claim of
liability under an implied-in-fact contract theory.
Finally, with regard to the plaintiffs’ implied-in-fact
contract claim as to the occasional gaps between contract
periods, we agree with the trial court that when parties
continue performance after a contract expires, the court
may infer that the parties intended to renew the contract
under the same terms for a similar period of time. Be-
cause, as the court noted, the terms of the plaintiffs’
contracts did not appear to change materially from period
to period, we agree with the court that it was proper to
look to the express contracts to supply the terms that
would govern during the gap periods. See Lee II, 130 Fed.
Cl. at 259.
B
The plaintiffs separately allege that they are entitled
to relief under a quantum meruit theory. It appears,
however, that the plaintiffs’ quantum meruit theory is in
essence the same as their implied-in-fact contract theory.
Recovery in quantum meruit is typically “based on an
implied-in-law contract.” Int’l Data Prods. Corp., 492
F.3d at 1325. Because the jurisdiction of the Claims
Court over contract claims “extends only to contracts
either express or implied in fact, and not to claims on
contracts implied in law,” Perri v. United States, 340 F.3d
LEE v. UNITED STATES 19
1337, 1343 (Fed. Cir. 2003) (quoting Hercules, Inc. v.
United States, 516 U.S. 417, 423 (1996)), that court ordi-
narily does not entertain quantum meruit claims. How-
ever, we have on occasion approved the use of quantum
meruit or quantum valebant as a measure of damages for
breach of an implied-in-fact contract. See Amdahl Corp.,
786 F.2d at 393; Barrett, 242 F.3d at 1059–61.
In the Amdahl case, the government received goods,
but the contract under which it received them was ruled
void due to statutory and regulatory violations in the
procurement process. We held that, where a contractor
has conferred a benefit on the government, the contractor
“may recover at least on a quantum valebant or quantum
meruit basis for the value of the conforming goods or
services received by the government prior to the rescission
of the contract for invalidity.” Amdahl Corp., 786 F.2d at
393 (footnote omitted). The court held that the contractor
was not “compensated under the [express] contract, but
rather under an implied-in-fact contract.” Id.
Because the plaintiffs seek to model their quantum
meruit theory of relief on the Amdahl case, we treat their
argument as being based on an implied-in-fact contract
theory over which the Claims Court has jurisdiction. As
indicated above, however, the plaintiffs’ implied-in-fact
contract theory cannot survive a motion to dismiss for
failure to state a claim on which relief can be granted.
The assertion of quantum meruit as a basis for calculating
damages cannot rescue an implied-in-fact theory of recov-
ery that is otherwise not cognizable. The trial court
therefore properly dismissed the plaintiffs’ quantum
meruit claim as well.
AFFIRMED