Fidelity and Guaranty v. United States , 805 F.3d 1082 ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
FIDELITY AND GUARANTY INSURANCE
UNDERWRITERS, INC., UNITED STATES
FIDELITY AND GUARANTY COMPANY,
Appellants
v.
UNITED STATES,
Appellee
______________________
2015-5036
______________________
Appeal from the United States Court of Federal
Claims in No. 14-00084, Judge Elaine Kaplan.
______________________
Decided: November 6, 2015
______________________
RICHARD L. MCCONNELL, JR., Wiley Rein, LLP, Wash-
ington, DC, argued for appellants. Also represented by
BRENDAN J. MORRISSEY, Bentonville, AR.
LAUREN MOORE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., DEBORAH
A. BYNUM.
______________________
2 FIDELITY AND GUARANTY v. US
Before LOURIE, SCHALL, and LINN, Circuit Judges.
SCHALL, Circuit Judge.
Fidelity and Guaranty Insurance Underwriters, Inc.
and United States Fidelity and Guaranty Co. (collectively
“USF&G”) appeal the decision of the United States Court
of Federal Claims granting the government’s motion to
dismiss their amended complaint for lack of subject
matter jurisdiction. Fid. & Guar. Ins. Underwriters v.
United States, 119 Fed. Cl. 195 (2014). USF&G filed suit
in the Court of Federal Claims under the Tucker Act, 28
U.S.C. § 1491(a)(1), seeking reimbursement from the
government for legal expenses and settlement costs it
allegedly incurred in its capacity as general liability
insurer for Gibbs Construction, L.L.C. f/k/a Gibbs Con-
struction Co. (“Gibbs”), a government contractor. USF&G
alleged that, in a contract for renovation work at the main
post office in New Orleans, Louisiana, the United States
Postal Service (“Postal Service”) agreed to indemnify
Gibbs and its agents against any liability incurred as a
result of asbestos removal work under the contract.
USF&G alleged that the Postal Service breached that
agreement when it failed to indemnify Gibbs in connec-
tion with a lawsuit filed against Gibbs by a former Postal
Service police officer, in which the officer claimed that he
contracted mesothelioma as a result of asbestos removal
during performance of the contract. USF&G further
alleged that, as Gibbs’s general liability insurer, it had
been required to litigate and settle the officer’s claim after
the government failed to indemnify Gibbs. USF&G
asserted that the Court of Federal Claims had jurisdiction
because USF&G was Gibbs’s equitable subrogee. In
granting the government’s motion to dismiss, the court
disagreed, holding that it lacked jurisdiction under a
theory of equitable subrogation. We affirm.
FIDELITY AND GUARANTY v. US 3
BACKGROUND
In deciding the government’s motion to dismiss, the
Court of Federal Claims was required to “accept as true
all undisputed facts asserted in [USF&G’s amended]
complaint and draw all reasonable inferences in favor of
[USF&G].” Trusted Integration, Inc. v. United States, 659
F.3d 1159, 1163 (Fed. Cir. 2011). For purposes of its
motion to dismiss, the government did not dispute the
facts asserted by USF&G in the amended complaint.
Thus, the amended complaint sets forth the uncontested
factual backdrop for this appeal. We recite here the facts
pertinent to the issue before us.
I.
In 1984, the Postal Service and Gibbs entered into a
contract for the abatement of asbestos and for fireproofing
at the main post office in New Orleans, Louisiana. Am.
Compl. ¶ 5. As general contractor, Gibbs subcontracted
the asbestos removal portion of the project to Laughlin-
Thyssen, Inc. f/k/a Laughlin Development Co. (“LTI”). Id.
¶ 6. LTI purchased general liability insurance for the
asbestos removal work under its subcontract with Gibbs.
Id. ¶ 10.
In 1985, during the course of performance of the con-
tract, and after delays caused by the Postal Service, LTI
attempted to renew its general liability insurance, but the
insurer would not renew the policy. Id. Because the cost
of liability insurance had significantly increased, Gibbs
contacted the Postal Service and requested additional
compensation to cover the increased cost of completing the
project. Id. ¶ 10–11. Eventually, instead of providing
additional monetary compensation, the Postal Service
proposed that the contract be amended to indemnify
Gibbs for liability incurred as a result of any asbestos-
related injury. Id. ¶ 12–14. The indemnification provi-
sion, which was set forth in a letter from the Postal Ser-
vice to Gibbs, stated:
4 FIDELITY AND GUARANTY v. US
ASBESTOS REMOVAL/REPAIR LIABILITY
The Postal Service shall save harmless and in-
demnify the contractors and its officers, agents,
representatives, and employees from all claims,
loss damage, actions, causes of action expense
and/or liability resulting from brought for or no
account of any personal injury received or sus-
tained by any person persons attributable to the
asbestos’ removal work performed under or relat-
ed to this contract.
Id. ¶ 14 (typographical and grammatical errors in origi-
nal). 1 Gibbs accepted the Postal Service’s proposal by
continuing work pursuant to the contract and finishing
the project in June 1988. Id. ¶ 19. In the meantime,
USF&G issued three general liability policies to Gibbs.
The policies covered three consecutive, annual time
periods, ranging from January 1, 1985, to January 1,
1988. Id. ¶ 17.
II.
In March 2010, Louis Wilson, a former Postal Service
police officer, sued Gibbs and LTI, alleging that, between
September 1984 and January 1988, he contracted meso-
thelioma as a result of asbestos removal work performed
under the contract. Id. ¶ 20. On May 27, 2010, Gibbs
demanded that the Postal Service defend against the suit
1 During oral argument, the parties agreed that the
text of the indemnification provision recited in the letter
should be corrected to read as follows: “The Postal Service
shall save harmless and indemnify the contrac-
tors . . . from all claims . . . resulting from[,] brought for[,]
or [on] account of any personal injury received . . . by any
person [or] persons attributable to the asbestos[] removal
work performed under or related to this contract.” Oral
Arg. at 0:50–1:50, 15:20–16:10.
FIDELITY AND GUARANTY v. US 5
and indemnify it, pursuant to the amendment to the
contract. Id. ¶ 21. The Postal Service refused to do so,
however. Id. ¶ 22. In due course, Gibbs and its insurers,
including USF&G, settled with Mr. Wilson without the
Postal Service’s involvement. Id. ¶ 23. USF&G paid
$1,031,250.00 to settle Mr. Wilson’s claims and incurred
an additional $529,333.34 in legal expenses. Id.
Gibbs thereafter sought reimbursement from the
Postal Service for the settlement costs and legal expenses
incurred by its insurers. Id. ¶ 24. On January 29, 2013,
the contracting officer denied the claim. Id. ¶ 25. A year
later, on January 29, 2014, USF&G filed a complaint
against the government in the Court of Federal Claims,
seeking to recover the settlement costs and legal expenses
it had incurred in the lawsuit brought by Mr. Wilson. See
Joint Appendix (“J.A.”) 11. Claiming jurisdiction under
the Tucker Act, USF&G alleged a breach of contract. Am.
Compl. ¶ 4.
III.
In due course, the government filed a motion to dis-
miss USF&G’s amended complaint pursuant to Rule
12(b)(1) of the Court of Federal Claims. Mot. to Dismiss
Am. Compl., Fid. & Guar. Ins. Underwriters, Inc. v.
United States, No. 1:14-cv-00084-EDK (Fed. Cl. May 28,
2014), ECF No. 19. In its motion, the government con-
tended that the Court of Federal Claims lacked jurisdic-
tion to entertain USF&G’s claim under the Tucker Act
because of the absence of a contract between USF&G and
the United States. Id. at 7. The government also argued
that USF&G was not equitably subrogated to Gibbs, the
prime contractor, and that the court therefore lacked
subject matter jurisdiction under a theory of equitable
subrogation. Id. at 7–8.
USF&G filed an opposition to the motion to dismiss,
in which it argued that the Court of Federal Claims had
jurisdiction because sovereign immunity is waived for
6 FIDELITY AND GUARANTY v. US
suits by insurers as equitable subrogees and that USF&G
qualified as Gibbs’s equitable subrogee. Opp’n to Mot. to
Dismiss Am. Compl. at 6–9, Fid. & Guar. Ins. Underwrit-
ers, Inc. v. United States, No. 1:14-cv-00084-EDK (Fed. Cl.
July 3, 2014), ECF No. 22. In its opposition, USF&G
relied on the Supreme Court’s decision in United States v.
Aetna Casualty & Surety Co., 338 U.S. 366 (1949), and
our decision in Insurance Co. of the West v. United States,
243 F.3d 1367 (Fed. Cir. 2001) (“ICW”). Id. In Aetna, the
Court held that the Federal Tort Claims Act, 28 U.S.C.
§ 1346(b), authorizes insurers who pay the claims of those
injured by the negligence of government employees to sue
the United States as equitable subrogees. 338 U.S. at
380. USF&G argued that our decision in ICW, which
involved a Miller Act surety 2 suing for breach of contract,
“extended” the rationale for waiver of sovereign immunity
articulated in Aetna to claims brought under the Tucker
Act. Opp’n to Mot. to Dismiss at 7.
2 The Miller Act, in pertinent part, provides: “Be-
fore any contract of more than $100,000 is awarded for
the construction, alteration, or repair of any public build-
ing . . . of the Federal Government, a person must furnish
to the Government [a Performance bond and a Payment
bond].” 40 U.S.C. § 3131(b). Typically, these bonds are
posted by a surety company. See, e.g., Transamerica Ins.
Co. v. United States, 989 F.2d 1188, 1189 (Fed. Cir. 1993)
(“Transamerica, a surety bond company, issued payment
and performance bonds for both of the contracts on behalf
of Bodenhamer for the benefit of the government.”);
Fireman’s Fund Ins. Co. v. United States, 909 F.2d 495,
496 (Fed. Cir. 1990) (“Fireman’s Fund Insurance Compa-
ny . . . agreed to be Westech’s surety by issuing both
payment and performance bonds.”).
FIDELITY AND GUARANTY v. US 7
IV.
On November 19, 2014, the Court of Federal Claims
granted the government’s motion to dismiss. Fid. &
Guar., 119 Fed. Cl. at 201. The court started from the
premise that, “as a general matter, ‘[a] plaintiff must be
in privity with the United States to have standing to sue
the sovereign on a contract claim.’” Id. at 198 (alteration
in original) (quoting S. Cal. Fed. Sav. & Loan Ass’n v.
United States, 422 F.3d 1319, 1328 (Fed. Cir. 2005)).
Because USF&G was not a party to a contract with the
government, the court determined that USF&G had to
demonstrate that its suit fell within one of several “lim-
ited exceptions” to the privity requirement. Id.
The Court of Federal Claims rejected USF&G’s argu-
ment that it was entitled to sue under the Tucker Act
because, while not in privity with the government, it was
equitably subrogated to the claims of Gibbs against the
Postal Service. The court stated:
While it is well established that a surety may
bring suit against the United States under a theo-
ry of equitable subrogation, neither the Court of
Federal Claims nor the Federal Circuit has ever
recognized a waiver of sovereign immunity under
the Tucker Act in a case like the present one, in
which a general liability insurer invokes the doc-
trine of equitable subrogation to step into its in-
sured’s shoes for purposes of suing the
government for breach of contract.
Id. at 198–99. The court explained that, while USF&G
“analogize[d] its status to that of a Miller Act surety,” the
analogy was incomplete because a Miller Act surety
“step[s] into the shoes” of a contractor and assumes the
contractor’s performance obligations, whereas a general
liability insurer does not. Id. at 198.
8 FIDELITY AND GUARANTY v. US
Finally, the Court of Federal Claims rejected
USF&G’s argument that, in its discussion of Aetna, ICW
pronounced a broad rule recognizing a waiver of sovereign
immunity for equitable subrogees, even if they do not
fully step into the shoes of the contractor. Id. at 198–201.
USF&G timely appealed the dismissal of its amended
complaint. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).
DISCUSSION
I.
We review de novo the Court of Federal Claims’ grant
of a motion to dismiss for lack of subject matter jurisdic-
tion. ICW, 243 F.3d at 1370; see also Banks v. United
States, 741 F.3d 1268, 1275 (Fed. Cir. 2014). A party
invoking the jurisdiction of the Court of Federal Claims
has the burden of establishing jurisdiction by a prepon-
derance of the evidence. Brandt v. United States, 710
F.3d 1369, 1373 (Fed. Cir. 2013); Reynolds v. Army & Air
Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).
The Tucker Act provides, in relevant part, that the
Court of Federal Claims has jurisdiction to “render judg-
ment upon any claim against the United States found-
ed . . . upon any express or implied contract with the
United States.” 28 U.S.C. § 1491(a)(1). As a general rule,
for purposes of Tucker Act jurisdiction, the government
“consents to be sued only by those with whom it has
privity of contract.” Erickson Air Crane Co. of Wash. v.
United States, 731 F.2d 810, 813 (Fed. Cir. 1984). In
other words, if a party is not a signatory to a contract
with the government, it may not bring a direct suit for
breach of contract against the government. See Anderson
v. United States, 344 F.3d 1343, 1351 (Fed. Cir. 2003)
(“Thus, although the trust might be, if at all, the direct
signatory to the alleged contract, the Paul sons were
clearly not signatories of the Application and could not
therefore be in direct privity with the sovereign.”).
FIDELITY AND GUARANTY v. US 9
There are, however, certain limited exceptions to the
rule of privity of contract as a prerequisite to invoking
jurisdiction under the Tucker Act. S. Cal. Fed. Sav. &
Loan Ass’n, 422 F.3d at 1328 (“Limited exceptions to that
general rule have been recognized . . . .”); First Hartford
Corp. Pension Plan & Tr. v. United States, 194 F.3d 1279,
1289 (Fed. Cir. 1999) (noting that “[t]here are exceptions
to this general rule” and enumerating examples). “[T]he
common thread that unites these exceptions is that the
party standing outside of privity by contractual obligation
stands in the shoes of a party within privity.” First
Hartford, 194 F.3d at 1289. Applicable here, in Balboa
Insurance Co. v. United States, 775 F.2d 1158, 1160–61
(Fed. Cir. 1985), we held that a Miller Act surety was
equitably subrogated to the claims of a prime contractor
and could recover from the United States payments made
to the prime contractor after the surety had noticed the
government of the prime contractor’s default. See, e.g.,
Nat’l Sur. Corp. v. United States, 118 F.3d 1542, 1545
(Fed. Cir. 1997) (following Balboa); Transamerica Ins. Co.,
989 F.2d at 1194–95 (same).
II.
On appeal, USF&G does not contend that it was in
privity of contract with the Postal Service. Rather, as it
did in the Court of Federal Claims, it argues that, under
the Tucker Act, sovereign immunity is waived as to “any
claim” founded upon any contract with the United States
and that the Court of Federal Claims therefore has juris-
diction to hear its suit. USF&G analogizes to Aetna, 338
U.S. 366, and asserts that ICW, 243 F.3d 1367, adopted
and applied the reasoning of Aetna to the Tucker Act.
Specifically, USF&G relies upon the statement in ICW
that “the language of both [the Federal Tort Claims Act
and the Tucker Act] contains an unequivocal expression
waiving sovereign immunity as to claims, not particular
claimants.” 243 F.3d at 1373–74 (emphasis added).
According to USF&G, the combination of Aetna and ICW
10 FIDELITY AND GUARANTY v. US
establishes that it should be considered an equitable
subrogee of Gibbs for purposes of jurisdiction in the Court
of Federal Claims. USF&G thus urges that the Court of
Federal Claims erred in dismissing its amended com-
plaint.
The government responds that the Court of Federal
Claims correctly held that USF&G does not meet the
requirements for being able to sue the United States in its
own name as an equitable subrogee of Gibbs. It argues
that USF&G had no relationship at all with the Postal
Service and that USF&G’s payment of settlement monies
and legal fees satisfied only an obligation to Gibbs, not to
the government. The government thus distinguishes
USF&G’s case from those involving sureties. It explains
that, unlike the situation in which USF&G found itself,
when a Miller Act surety is required to perform under a
performance bond, it steps into the shoes of the contractor
and only then may rely on the Tucker Act’s waiver of
sovereign immunity. The government contends that in
ICW we held that the doctrine of equitable subrogation is
triggered only “when the surety takes over contract
performance or when it finances completion of the de-
faulted contract.” Id. at 1370.
III.
The question before us is whether the Tucker Act’s
waiver of sovereign immunity extends to a general liabil-
ity insurer seeking to sue as the equitable subrogee of a
prime contractor. We hold that it does not. The Court of
Federal Claims did not err in dismissing USF&G’s
amended complaint for lack of subject matter jurisdiction.
A.
As noted, USF&G rests its claim of equitable subroga-
tion on our decision in ICW. ICW involved a Miller Act
surety who brought suit against the government under
the Tucker Act for breach of contract. The surety, Insur-
FIDELITY AND GUARANTY v. US 11
ance Company of the West (“ICW”), alleged that, as a
Miller Act surety that had posted a performance bond for
a prime contractor with the government, it was entitled to
receive payments from the government once the prime
contractor failed to fulfill its obligations and ICW as-
sumed responsibility for completion of the contract work.
ICW, 243 F.3d at 1369. ICW claimed that it was equita-
bly subrogated to the prime contractor and thus had
standing to sue the government in its own name. Alt-
hough the Federal Circuit had previously established in
Balboa and other cases that a surety could recover from
the United States payments made to a contractor after
the surety had notified the government of the contractor’s
default, the government contended in ICW that the Court
of Federal Claims lacked jurisdiction in light of the Su-
preme Court’s decision in Department of the Army v. Blue
Fox, Inc., 525 U.S. 255 (1999). The government argued
that Blue Fox had effectively overruled Balboa and its
progeny. According to the government, Blue Fox demon-
strated that the “government has not waived sovereign
immunity for a surety’s claims based on equitable subro-
gation.” ICW, 243 F.3d at 1370. The ICW court thus was
called upon to examine Blue Fox.
B.
In Blue Fox, an insolvent prime contractor failed to
pay Blue Fox, a subcontractor, for work Blue Fox per-
formed on a construction project for the Department of
the Army. After the government received notice that Blue
Fox had not been fully paid, the government nevertheless
disbursed additional funds to the prime contractor. In
due course, Blue Fox obtained a default judgment against
the prime contractor for the amount the prime contractor
owed it. Seeing, however, that it could not collect from
the prime contractor, Blue Fox sued the Army in federal
district court, seeking to recover the balance due on its
contract with the prime contractor. In its suit, Blue Fox
also sought an equitable lien on any funds still held by
12 FIDELITY AND GUARANTY v. US
the Army for the project. Blue Fox predicated jurisdiction
on the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 702, and 28 U.S.C. § 1331. 3 On cross-motions for sum-
mary judgment, the district court held that the APA’s
waiver of sovereign immunity did not extend to Blue Fox’s
claim against the Army. Concluding that it lacked juris-
diction, the district court granted the government’s mo-
tion for summary judgment. Blue Fox, 525 U.S. at 259.
The Ninth Circuit reversed the decision of the district
court, however, holding that the APA waived sovereign
immunity for equitable actions. Id. After granting the
government’s petition for certiorari, the Supreme Court
held that the APA did not waive sovereign immunity for a
suit, such as Blue Fox’s, to enforce an equitable lien. Id.
at 263. In doing so, the Court upheld the “long-settled
rule” that sovereign immunity bars subcontractors from
recovering from the government when general contractors
become insolvent. Id. at 257, 264.
The Supreme Court concluded its decision by consid-
ering Blue Fox’s contention that “in several cases examin-
ing a surety’s right of equitable subrogation, [the] Court
suggested that subcontractors and suppliers can seek
compensation directly against the [g]overnment.” Id. at
264 (citing Prairie State Bank v. United States, 164 U.S.
227, 231 (1896); Henningsen v. U.S. Fid. & Guar. Co., 208
U.S. 404, 410 (1908); Pearlman v. Reliance Ins. Co., 371
U.S. 132, 141 (1962)). The Court rejected Blue Fox’s
3 Section 702 of Title 5 states: “A person suffering
legal wrong because of agency action, or adversely affect-
ed or aggrieved by agency action within the meaning of a
relevant statute, is entitled to judicial review thereof.”
Section 1331 of Title 28 provides that “[t]he district courts
shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United
States.”
FIDELITY AND GUARANTY v. US 13
reliance on Prairie State Bank, Henningsen, and Pearl-
man. Id. at 265. The Court pointed out that none of
those cases “involved a question of sovereign immunity,
and, in fact, none involved a subcontractor directly assert-
ing a claim against the [g]overnment.” Id. Accordingly,
the Supreme Court concluded that Prairie State Bank,
Henningsen, and Pearlman “do not in any way disturb the
established rule that, unless waived by Congress, sover-
eign immunity bars subcontractors and other creditors
from enforcing liens on [g]overnment property or funds to
recoup their losses.” Id.
C.
In ICW, the government argued that, because Balboa
and other cases allowing equitable subrogation were
based directly or indirectly on Prairie State Bank, Hen-
ningsen, or Pearlman, the Supreme Court’s discussion of
those three cases and its rejection of Blue Fox’s reliance
on them, meant that “Balboa and other similar cases are
no longer valid because they cannot find the requisite
waiver of sovereign immunity.” 243 F.3d at 1372. The
ICW court agreed with the government that “Balboa and
its progeny relied on Prairie State Bank, Henningsen, or
Pearlman to find a waiver of sovereign immunity for
equitable subrogation claims against the government.”
Id. The court also agreed with the government that,
“after Blue Fox, we can no longer rely on those three cases
to find a waiver of sovereign immunity.” Id. Having
determined that Prairie State Bank, Henningsen, and
Pearlman could no longer be viewed as supporting the
holding of Balboa, the ICW court turned to ICW’s reliance
on the Tucker Act as providing the jurisdictional basis for
its suit, stating: “The issue in this case . . . is whether the
government’s consent [in the Tucker Act] to suit based on
a contract includes consent to suit on a contract brought
by a subrogee.” Id.
14 FIDELITY AND GUARANTY v. US
In analyzing the jurisdictional issue in ICW, the court
looked to the Supreme Court’s sovereign immunity analy-
sis in Aetna. Id. at 1369. In Aetna, the Supreme Court
addressed whether an insurance company could bring suit
in its own name against the government on a tort claim to
which it had become subrogated by payment to an in-
sured. 338 U.S. at 370–71. The Court analyzed whether
the Anti-Assignment Act, now codified at 31 U.S.C.
§ 3727, precluded such suits. Id. at 374–76. It held that
it did not. The Court also held that the government had
waived its sovereign immunity from such suits under the
Federal Tort Claims Act. Id. at 380 (“The broad sweep of
[Federal Tort Claims Act] language assuming the liability
of a private person, the purpose of Congress to relieve
itself of consideration of private claims, and the fact that
subrogation claims made up a substantial part of that
burden are also persuasive that Congress did not intend
that such claims should be barred.”). 4
4 The Federal Tort Claims Act provides, in relevant
part, that district courts “shall have exclusive jurisdiction
of civil actions on claims against the United States” for
“injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any
employee of the [g]overnment while acting within the
scope of his office or employment, under circumstances
where the United States, if a private person, would be
liable to the claimant.” 28 U.S.C. § 1346(b)(1). The
Supreme Court recently stated that, “compared to other
waivers of immunity (prominently including the Tucker
Act), the [Federal Tort Claims Act] treats the United
States more like a commoner than like the Crown.”
United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1637
(2015). The Court further stated that “when defining
substantive liability for torts, the [Federal Tort Claims
Act] reiterates that the United States is accountable ‘in
FIDELITY AND GUARANTY v. US 15
We explained in ICW that Aetna “directly held that
Congress’s waiver of sovereign immunity under the Tort
Claims Act included suits by subrogees.” 243 F.3d at
1373. We reasoned, though, that “nothing in Aetna sug-
gested that its holding regarding sovereign immunity was
based on the Federal Tort Claims Act’s broad language.”
Id. Rather, we determined that
Aetna reflects a broader and more generally appli-
cable legal principle: waivers of sovereign immun-
ity applicable to the original claimant are to be
construed as extending to those who receive as-
signments, whether voluntary assignments or as-
signments by operation of law, where the
statutory waiver of sovereign immunity is not ex-
pressly limited to waivers for claims asserted by
the original claimant.
Id. Finding that “[n]either Federal Tort Claims Act nor
the Tucker Act is limited to claims asserted by the origi-
nal claimant,” we stated that “the language of both acts
contains an unequivocal expression waiving sovereign
immunity as to claims, not particular claimants.” Id. at
1373–74 (emphasis added). “Finally,” we stated, “the
Supreme Court itself has consistently assumed that the
waiver of sovereign immunity contained in the Tucker Act
extends to assignees.” Id. at 1374. After noting that the
Supreme Court’s decision in United States v. Atlantic
Mutual Insurance Co., 298 U.S. 483 (1936), “demonstrates
directly that the Tucker Act’s waiver of sovereign immun-
ity extends to a subrogee,” we concluded that “a subrogee,
after stepping into the shoes of a government contractor,
may rely on the waiver of sovereign immunity in the
Tucker Act and bring suit against the United States.” Id.
the same manner and to the same extent as a private
individual.’” Id. at 1637–38 (quoting 28 U.S.C. § 2674).
16 FIDELITY AND GUARANTY v. US
at 1374–75. We therefore held that ICW’s suit in the
Court of Federal Claims could proceed.
IV.
As noted, USF&G rests its argument that a general
liability insurer can be subrogated to a prime contractor’s
contract with the government for purposes of establishing
Tucker Act jurisdiction on our statement in ICW that the
Tucker Act’s waiver of sovereign immunity applies “to
claims, not particular claimants.” In USF&G’s view, that
statement opened the door to claims from all equitable
subrogees, regardless of the status or nature of the claim-
ant bringing the suit for breach of contract. We do not
agree.
ICW does not stand for the broad proposition that
USF&G assigns it. Rather, in responding to the govern-
ment’s argument based on Blue Fox, ICW simply reaf-
firmed the previously “well established” principle that “a
surety could sue the United States and recover not only
any retainage but also any amounts paid by the United
States to the contractor after the surety had notified the
government of default.” Id. at 1370–71. Indeed, in a
footnote to our concluding holding in ICW, we expressly
stated, “[w]e believe that Balboa correctly states the law
of equitable subrogation.” Id. at 1375 n.3. Thus, in
National American Insurance Co. v. United States, we
stated that ICW “did not change the established precedent
that a payment bond surety that discharges a contractor’s
obligation to pay a subcontractor may be equitably subro-
gated to the rights of the contractor.” 498 F.3d 1301, 1307
(Fed. Cir. 2007). In fact, in reaching our conclusion in
ICW, and in rejecting the government’s position in the
case, we distinguished Blue Fox principally because Blue
Fox was “a subcontractor . . . not a surety.” ICW, 243 F.3d
at 1371 (emphasis added) (“It is well-established that a
surety who discharges a contractor’s obligation to pay
subcontractors is subrogated only to the rights of the
FIDELITY AND GUARANTY v. US 17
subcontractor. Such a surety does not step into the shoes
of the contractor and has no enforceable rights against the
government.”). 5
We held in ICW that, “after stepping into the shoes of
a government contractor” and assuming its obligations, a
subrogee may “rely on the waiver of sovereign immunity
in the Tucker Act.” Id. at 1375. Thus, when viewed in its
proper context, the statement in ICW that the Tucker
Act’s waiver of sovereign immunity, like that of the Fed-
eral Tort Claims Act, applies “to claims, not particular
claimants,” cannot bear the weight that USF&G places
upon it. The statement simply reflects the fact that, in
their respective waivers of sovereign immunity, both the
Federal Tort Claims Act and the Tucker Act speak in
terms of claims against the United States. This is hardly
surprising given that both statutes are couched in terms
of the subject matter of the claims. See Kwai Fun Wong,
135 S. Ct. at 1634, 1637–38 (distinguishing the similar
5 In ICW, we explicitly recognized the unique na-
ture of Miller Act sureties in contrast to other entities,
such as general liability insurers. We explained that a
“surety guarantees that a contract will be completed in
the event of the principal’s default and that the govern-
ment will not have to pay more than the contract price.”
243 F.3d at 1370. That guarantee is in the form of a
“performance bond,” which “gives the surety the option of
taking over and completing performance or of assuming
liability for the government’s costs in completing the
contract which are in excess of the contract price.” Id. In
that way, we reasoned, the surety bond “creates a three-
party relationship, in which the surety becomes liable for
the principal’s debt or duty to the third party obligee.” Id.
(citing Balboa, 775 F.2d at 1160). “If [a] surety fails to
perform, the [g]overnment can sue it on the bonds.” Id.
(emphasis in original) (quoting Balboa, 775 F.2d at 1160).
18 FIDELITY AND GUARANTY v. US
language of the Federal Tort Claims Act and the Tucker
Act based, in part, on the subject matter covered by the
respective Acts). In short, nothing in ICW undermines
the well-settled principle that the exceptions to the gen-
eral jurisdictional rule requiring “privity of contract” are
based on “the party standing outside of privity by contrac-
tual obligation stand[ing] in the shoes of a party within
privity.” First Hartford, 194 F.3d at 1289. Indeed, in its
decision dismissing USF&G’s amended complaint, the
Court of Federal Claims pointed out that none of our
cases decided after ICW “has suggested that ICW stands
for the broader proposition urged here, creating an excep-
tion to the privity requirement for all equitable subrogees,
even those like [USF&G] that have not assumed any
obligations under a contract with the United States.” Fid.
& Guar., 119 Fed. Cl. at 201 (citing Lumbermens Mut.
Cas. Co. v. United States, 654 F.3d 1305, 1312–13 (Fed.
Cir. 2011); Nat’l Am. Ins. Co., 498 F.3d at 1307; Fireman’s
Fund Ins., 313 F.3d at 1351–52). In this case, by settling
the tort claim of Mr. Wilson, USF&G, if anything, became
the equitable subrogee of Gibbs solely with respect to that
tort claim, the settlement of which Gibbs would have had
to pay if USF&G had not stepped in. USF&G never
became an equitable subrogee of Gibbs with respect to
any contract claims of Gibbs against the Postal Service,
however. That is because USF&G never stepped into the
shoes of Gibbs in Gibbs's capacity as general contractor.
As Gibbs's general liability insurer, USF&G in this case
had no responsibility for contract performance and had no
obligations owed to the government. It therefore failed to
establish jurisdiction under the Tucker Act.
CONCLUSION
For the foregoing reasons, we conclude that the Tuck-
er Act cannot be read to waive sovereign immunity for a
general liability insurer, such as USF&G, who brings suit
as an equitable subrogee of a prime contractor. We there-
fore affirm the decision of the Court of Federal Claims
FIDELITY AND GUARANTY v. US 19
dismissing USF&G’s amended complaint for lack of
subject matter jurisdiction.
AFFIRMED
COSTS
Each party shall bear its own costs.