CBCA 5571

DENIED IN PART; DISMISSED IN PART FOR LACK OF JURISDICTION: December 11, 2017 CBCA 5571 BANK OF AMERICA, NATIONAL ASSOCIATION, Appellant, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent. Douglas L. Patin, Robert Maddox, and Aron C. Beezley of Bradley Arant Boult Cummings LLP, Washington, DC; and Karen L. Manos, Melissa L. Farrar, and Helgi C. Walker of Gibson, Dunn & Crutcher LLP, Washington, DC, counsel for Appellant. Jonathan English and Julie Cannatti, Office of General Counsel, Department of Housing and Urban Development, Washington, DC, counsel for Respondent. Before Board Judges KULLBERG, LESTER, and CHADWICK. Opinion for the Board by Board Judge CHADWICK. Board Judge LESTER concurs in part and dissents in part. Bank of America, National Association (BANA or the bank) timely appealed from a contracting officer’s decision denying its certified claim for almost $59 million under a contract with the respondent, Department of Housing and Urban Development (HUD), under which BANA performed “mortgage subservices” for the Government National Mortgage Association (GNMA or Ginnie Mae), a Government-owned corporation. For reasons that should become evident—and because neither party consistently takes this view—we emphasize that BANA’s contract was with HUD, not directly with Ginnie Mae, and that this appeal is before us under the Contract Disputes Act (CDA), 41 U.S.C. CBCA 5571 2 §§ 7101-7109 (2012), based upon a certified claim presented to, and denied by, a HUD contracting officer acting on behalf of the United States of America. The Board granted HUD leave to file a dispositive motion in lieu of an answer to BANA’s complaint. Two of HUD’s arguments in its motion are that (1) BANA released its breach of contract claim in a 2014 settlement agreement between the United States, six States, and BANA that released “the United States” and its “agents” from “any claims . . . related to” BANA’s performance of this contract during the relevant years, and (2) BANA’s alternative unjust enrichment claim was never presented to the contracting officer. The bank responds that (1) it “did not release any claims against GNMA” in the 2014 settlement agreement by releasing claims against “the United States”; (2) we should not read the bank’s release in that agreement as barring its breach claim because “GNMA did not release its reciprocal [breach] claim against BANA”; (3) BANA’s breach claim is not “related” either to its “performance” of the contract, or to “the investigation and civil prosecution thereof,” as the release language further requires; (4) Ginnie Mae made a payment to BANA, after the 2014 settlement, that it would not have made, had it interpreted BANA’s release as broadly as HUD now does; (5) HUD considered BANA’s CDA claim for a length of time that suggests that HUD did not believe the breach claim had been released; and (6) even assuming that BANA released its breach claim, its unjust enrichment theory is properly before us. HUD has the better arguments. We therefore grant HUD’s motion in relevant part, summarily deny BANA’s breach of contract claim, and dismiss BANA’s unjust enrichment claim for lack of jurisdiction. Background I. The Contract and the Reimbursement Gap We rely here on facts undisputed by the parties, contract-related documents submitted without objection for the appeal file under Board Rule 4 (48 CFR 6101.4 (2016)), and applicable law. HUD awarded the contract (C-OPC-23289) to Countrywide Home Loans Servicing, LLP, effective March 1, 2009. The contract and all modifications identified HUD as the contracting authority and Ginnie Mae’s Washington, D.C., headquarters as the delivery location and payment office. The contract was novated to a successor company in 2009, and to BANA in November 2011. We will call all three contractors “BANA” for simplicity. Ginnie Mae is a corporation owned solely by the United States and situated “in” HUD. 12 U.S.C. § 1717(a)(2)(A). Its primary mission is to promote home ownership by facilitating the bundling of individual mortgages into mortgage-backed securities for sale to institutional investors. See id. § 1717(b). In general, the HUD contract here required BANA to meet CBCA 5571 3 Ginnie Mae’s indefinite requirements for “the complete range of services expected of an issuer” of such securities.