TEXAS NATIONAL BANK et al v. USA

Filing 41

PUBLISHED OPINION: granting in part and denying in part 23 Government's Motion for Summary Judgment; responding to 33 Government's Motion to Strike. Status Report due by 3/20/2009. Signed by Judge Nancy B. Firestone. (ks3)

T E X A S NATIONAL BANK et al v. USA

D o c . 41

In the United States Court of Federal Claims
No. 07-355C (Filed: March 6, 2009)

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TEXAS NATIONAL BANK f/k/a M E R C E D E S NATIONAL BANK,

Plaintiff, v. THE UNITED STATES, Defendant. *******************

* * * * * * * * * * * * * * *

A n ti-A s s ig n m e n t Acts, 41 U.S.C. § 15 & 3 1 U.S.C. § 3727; Recognition of A s s ig n m e n t; Statute of Limitations, 28 U .S .C . § 2501; Accrual Suspension Rule.

Edward C. Snyder, San Antonio, TX, for plaintiff. Joan M. Stentiford, U.S. Department of Justice, Washington, DC, with whom were Gregory G. Katsas, Assistant Attorney General, and Jean E. Davidson, Director, for defendant. Andrew Jones, U.S. Customs and Border Protection, Indianapolis, IN, of counsel.
OPINION F I R E S T O N E , Judge. Pending before the court is the motion of the United States ("government" or " d e fe n d a n t" ) for summary judgment pursuant to Rule 56 of the Rules of the United States C o u rt of Federal Claims ("RCFC"). In this action, the plaintiff, Texas National Bank

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(" T e x a s National," "the bank," or "plaintiff"),1 claims that All Star Iron Works ("All S ta r" ) assigned its rights to payment for work on a contract with the U.S. Customs Service, n o w Customs and Border Protection ("Customs" or "CBP"), to Texas National but that the g o v e rn m e n t failed to make the payments to Texas National as required by the alleged assig n m en t. There are two issues to be decided on summary judgment. First, the court m u s t decide whether the government is bound by the alleged assignment to the plaintiff. Second, the court must decide whether portions of Texas National's claim are barred by th e six-year statute of limitations set forth in 28 U.S.C. § 2501 (2000). For the reasons set forth below, the court finds that genuine issues of material fact p re c lu d e summary judgment on the question of whether the government is bound by the a lle g e d assignment. Specifically, there are disputed issues of fact as to whether the g o v e rn m e n t waived the requirements of the Anti-Assignment Acts, 41 U.S.C. § 15 (2000) (" A s s ig n m e n t of Contracts Act") and 31 U.S.C. § 3727 (2000) ("Assignment of Claims A c t" ),2 by assenting to the assignment. The court also finds that the statute of limitations Texas National was formerly known as Mercedes National Bank. To avoid confusion, the court will refer to the bank as Texas National throughout this Opinion. Specifically, the Assignment of Contracts Act provides that no interest in a federal contract may be transferred to a party outside the original contract, unless the assignee is a "bank, trust company, or other financing institution," the contract "provid[es] for payments aggregating $1,000 or more," 41 U.S.C. §§ 15(a)-(b), and the assignee files written notice of the assignment together with a true copy of the instrument of the assignment with ­ (A) the contracting officer or the head of his department or agency; -22 1

in 28 U.S.C. § 2501 bars Texas National's claim to monies paid to All Star before June 6, 2 0 0 1 , six years before this case was filed on June 6, 2007. Accordingly, the defendant's m o t io n for summary judgment is GRANTED-IN-PART and DENIED-IN-PART. BACKGROUND I. F a cts T h e following facts are not disputed unless otherwise noted. On June 26, 1996, All S ta r was awarded an indefinite delivery/indefinite quantity ("ID/IQ") contract ("the co n trac t") with Customs to perform construction and repair jobs at various ports of entry in Texas. The Offer/Award Form stated that the contract would be "administered by" U .S . Customs Service F ie ld Procurement Services Group 6 0 2 6 Lakeside Boulevard In d ia n a p o lis , Indiana 46278 a n d that "payment w[ould] be made by" U .S . Customs Service N a tio n a l Finance Center

(B)

the surety or sureties upon the bond or bonds, if any, in connection with such contract; and the disbursing officer, if any, designated in such contract to make payment.

(C)

41 U.S.C. § 15(b)(3). Similarly, the Assignment of Claims Act, which, as the name implies, restricts the assignment of claims, indicates that its restrictions "do[] not apply to an assignment to a financing institution of money due or to become due under a contract providing for payments totaling at least $1,000 when," among other requirements, "the assignee files a written notice of the assignment and a copy of the assignment with the contracting official or the head of the agency, the surety on a bond on the contract, and any disbursing official for the contract." 31 U.S.C. § 3727(c)(3). -3-

6 0 2 6 Lakeside Boulevard In d ia n a p o lis , Indiana 46278[.] D e f .'s App. 1. On September 2, 1998 and July 8, 1999, All Star was awarded the four d e liv e ry orders that are the subject of this lawsuit.3 In January 2000, Texas National extended a loan to All Star via a revolving line of cre d it to provide capital to All Star to finance its work on the four Customs delivery o rd e rs. On or about January 14, 2000, Alejandro Soto, Jr. ("Mr. Soto"), a principal of All S ta r, executed a document entitled "Assignment" purporting to assign its rights to payment f o r work performed under the subject delivery orders to Texas National. In a letter dated J a n u a ry 14, 2000, entitled "Notice of Assignment" and addressed to "U.S. Customs S e r v ic e ­ R P C " 4 at 6026 Lakeside Boulevard, Indianapolis, Indiana, Cheryl Bellamy ("Ms. B e lla m y" ), then-President/CEO of Texas National, stated: P L E A S E TAKE NOTICE that monies due or to become due under the [four d e liv e ry orders under the contract] have been assigned to [Texas National] to th e provisions of the Assignment of Claims Act . . . . A true copy of the instrument of assignment is attached hereto. Specifically, the four delivery orders involved construction and design/build work on the "customs canopies" at (1) the Brownsville Port of Entry, (2) Customs' Los Indios Bridge, (3) Customs' Los Tomates Bridge, and (4) the B&M Bridge. Def.'s App. 3-10. According to the defendant, the Indianapolis field procurement office of CBP has been known by various designations, including "RPC" for "Regional Procurement Center," "FPSB" for "Field Procurement Services Branch," and "FPSG" for "Field Procurement Services Group." Def.'s Report Following Oral Arg. (Docket No. 40). At the time of the contract and purported assignment at issue in this case, the field procurement office reported to a Chief Procurement Officer at CBP's Washington, DC headquarters ­ a separate chain of command from that of the National Finance Center (which included the Office of Finance), which reported to the Executive Director, Financial Operations, at CBP's Washington, DC headquarters. Id. -44 3

P a ym e n ts due or to become due under such contract should be made to the A s s ig n e e . P lea se return this letter signed by the person acknowledging receipt on behalf o f the addressee to my attention. A copy is enclosed for your records. D e f .'s App. 13 (emphasis added) ("Notice of Assignment"). Though the Notice of A s s ig n m e n t indicated that a copy of the assignment instrument and a copy of the Notice of A s s ig n m e n t itself were enclosed, there is no written evidence of any copy of the a ss ig n m e n t instrument or the Notice of Assignment being sent to Customs' National F in a n c e Center in Indianapolis.5

Ms. Bellamy filed a declaration in which she stated: "I specifically recall sending two (2) copies of the Notice of Assignment to Customs in Indianapolis specifically because of the requirement that one go to the contracting officer and another copy go to the disbursing officer." Bellamy Decl. ¶ 3. Ms. Bellamy stated, "I also specifically remember attaching a copy of the actual Assignment to each of the two copies of the Notice of Assignment because that was also required by the applicable regulations." Id. at ¶ 4. Ms. Bellamy further stated that if I wrote in the Notice that the Assignment was attached then the Assignment was attached. Therefore, I am confident that I did indeed attach a copy of the assignment between All Star and the Bank to the Notice of Assignment, and am confident that the Bank did indeed mail the Notice of Assignment to the disbursing officer at 6026 Lakeside Boulevard, Indianapolis, Indiana because the regulations required the Bank to do so. Unfortunately, there was no disbursing officer specifically named in the contract . . . , so I believe that we simply mailed the copy for the disbursing officer to the same address in Indianapolis because that is what the contract said, and that is all the information we had. Id. The government has moved to strike Ms. Bellamy's declaration, arguing that it is inconsistent with her deposition testimony, in which she stated, "I really don't know if another copy was sent. . . . I really don't know what was done there." See Pl.'s App. 10-11 (Bellamy Depo. at 19:22-23, 20:11-12). The government submitted two declarations of Ronald H. Newman, the CBP Commercial Accounts Section Chief in the National Finance Center, Office of Finance, in Indianapolis, the first of which stated, "I have reviewed the documents under my custody and control and have not located any documents evidencing that All Star Iron Works assigned its claim in this matter to -5-

5

A t the bottom of the Notice of Assignment was a section entitled " A u th o riz e d /A c k n o w le d g m e n t, U.S. Customs Service, RPC" (" A u th o riz e d /A c k n o w le d g m e n t" ), which was signed by Mr. Soto of All Star and by W illia m Mynatt ("Mr. Mynatt"), the administrative contracting officer ("ACO"), for "U.S. C u s to m s ." Id. In a letter to Ms. Bellamy dated January 24, 2000, Mr. Mynatt stated: " R e f e re n c e your request for acknowledgement of receipt for payments of Customs c o n tra c ts awarded to Alejandro Soto[,] Jr. Please be advised the letter was forwarded to th e Customs Chief Counsel for review. When legal approval is received the a c k n o w le d g e m e n t will be signed and forwarded." Def.'s App. 15 (emphasis added). Between March 1, 2000 and June 20, 2001, Customs made twelve payments by U .S . Treasury check to All Star for task orders related to the ID/IQ contract.6 The g o v e rn m e n t does not dispute that some of the checks from the government to All Star in c lu d e d payments for multiple jobs. However, all of the subject checks from Customs to A ll Star were deposited into All Star's account at Texas National.7 These twelve payments

the plaintiff." Def.'s App. 128-29 (Newman 1st Decl.). The plaintiff objects to the admission of Mr. Newman's first declaration on the grounds that it contains statements that are conclusory, speculative, not based on personal knowledge, and premised on hearsay. Pl.'s Resp. to Def.'s Proposed Findings of Uncontroverted Fact ("DPFUF") ¶ 7. Eleven of these were made prior to June 6, 2001, six years before the plaintiff brought suit in this court. The twelfth, on June 20, 2001, was for $1,634.34. Texas National contends that the court should strike the copies of the U.S. Treasury checks, which bear the name "US Customs" and show that contract payments were made out to All Star and that All Star deposited the checks in its account at Texas National Bank. The bank argues that the checks have not been properly authenticated and constitute hearsay. Pl.'s Resp. to DPFUF ¶ 25. -67 6

f ro m Customs to All Star totaled $487,847.24. On March 22, 2001, Aaron Gonzalez ("Mr. Gonzalez"), Executive Vice-President o f Texas National, visited the four construction sites related to the delivery orders that w e re the subject of the alleged assignment. The purpose of the visit was to investigate the p ro g re ss of All Star's work. It is not disputed that, at that time, Texas National did not h a v e actual knowledge that All Star was receiving payments for its work at the four sites. However, it is also not disputed that Mr. Gonzalez confirmed during his site visit that All S ta r had performed some of the work and was entitled to be paid for it. Texas National apparently learned that All Star was receiving the payments subject to the alleged assignment as a result of an audit of the bank by the Office of the C o m p tro ller of the Currency ("OCC") shortly before June 2001.8 On June 6, 2001, Mr.

The government correctly responds that copies of U.S. Treasury checks are selfauthenticating as domestic public documents bearing the signature of the Secretary of the Treasury acting in his official duties, pursuant to Federal Rule of Evidence ("FRE") 902(2) (2000). Moreover, the government correctly argues that Mr. Newman, who stated in his second declaration that the images of the checks contained in the appendix correspond to the checks in the Treasury Department's online records, Newman 2nd Decl. ¶¶ 3-5, is competent as the custodian of these records to authenticate these checks as business records of the government, which constitute an exception to the hearsay rule under FRE 803(6). Therefore, Texas National's objections to the admissibility of the subject checks are overruled. Texas National has not presented any evidence to place in doubt the fact that the subject checks were issued by the U.S. Treasury on behalf of Customs to All Star and that All Star deposited the checks into its account at Texas National Bank.
8

Specifically, the plaintiff states:

The only evidence presented in this case as to when the Bank discovered facts that would have put it on notice of Defendant's non[-]compliance is the testimony of the Bank's representatives. [Ms.] Bellamy testified that around June 2001, the Bank's examiners from the [OCC] discovered during their audit of the Bank that the -7-

G o n za lez sent a letter and an email message to Mr. Mynatt, referencing the four delivery o rd e rs and the Notice of Assignment dated January 14, 2000. Mr. Gonzalez stated: In [the Notice of Assignment] the government had agreed that all payments due o r to become due on above contracts would be made to [Texas National]. We h a v e seen copies of several checks that have been made directly to All Star Iron W o rk s . At a minimum, checks should be made jointly to our Bank. P le a se call us and inform us why this agreement has not been complied with. ... We would like to know if your agency is paying some of the subcontractors d irec tly. This will definitely have an impact on how we structure any future advances. Def.'s App. 69. Mr. Mynatt sent an email message back to Mr. Gonzalez on June 11, 2001. The m e ss a g e did not mention the alleged assignment by name. Instead, Mr. Mynatt stated that " C u s to m s does not have a contract or any obligation with any subcontractor that All Star u tilize d or any bank that provides the contractor with services." Def.'s App. 70 (emphasis a d d e d ) . However, Mr. Mynatt also stated that "[t]he undersigned agreed to mail progress p a ym e n ts for some of the task orders to your bank as a courtesy to All Star." Id. (emphasis a d d e d ). Mr. Mynatt went on to state: T h e problem seems to be I changed the mailing address in my computers at In d ian a p o lis, IN[. H]owever[,] the finance office that mails the checks in

Government had been making payments directly to All Star. PPFUF ¶ 9. At that point, in June 2001, Bank Vice President Aaron Gonzalez . . . was assigned by the Bank to investigate the file. Id. Pl.'s Resp. at 23. -8-

P e n n s ylv a n ia did not change the address they have in their computer. I will contact the finance office to assure that the mailing address is changed to m a tc h your bank address. Id . That same day, June 11, 2001, Mr. Gonzalez sent a letter asking Lee Sullivan, Mr. M yn att's superior at Customs, to look into the issue of the alleged assignment. In a d d itio n , on June 12, 2001, Mr. Gonzalez responded to Mr. Mynatt, stating: O u r files are presently being reviewed by OCC . . . , and All Star Iron Works is one of the files they have selected for review. In our loan to All Star Iron Works, we tried to perfect our lien on [four] specific g o v e rn m e n t contracts that All Star had with the government. . . . It was both the b a n k 's and All Star's intent that checks be made jointly to the bank and All S ta r. In the letter that we sent to your agency, you agreed to make the checks s o le ly in the name of the bank. This can be modified to include both the bank an d All Star. O C C wants us to assure them that the collateral for this loan is intact and that th e bank does have a good handle on the application of proceeds that are paid to All Star. We have a good relationship with All Star Iron Works and the o w n e r does provide us with copies of checks issued by your department. We would appreciate anything you can do to assist us in making sure that the c h e ck s are made jointly to our bank and All Star in the future. This will give u s better control of the funds and get us in compliance with our original intent. It will also satisfy OCC with their findings. I realize how a change of address can complicate issues. Please contact me if fu rth er complications should occur. D e f .'s App. 72. In a letter dated July 4, 2001, Mr. Mynatt responded to Mr. Gonzalez's June 12,

-9-

2 0 0 1 letter. Mr. Mynatt stated: P le a se be advised the reason progress payments for All Star . . . have not been f o rw a rd e d to your bank is the Electronic Funds Transfer (EFT) information has n o t been provided to the United States Customs Service Accounts Services D ivis io n (ASD). A ttac h e d is a standard form 3881 9 with a pink cover sheet. Please coordinate w ith All Star . . . and complete the Payee/Company Information and the F in a n c ia l Institution Information blocks and sign the form and send to the ASD. D e f .'s App. 73. Customs received a completed EFT Form 3881 from Texas National on J u ly 20, 2001. The form was signed by Ms. Bellamy as President of Texas National, listed A ll Star as the "Payee/Company," and directed Customs to transfer payments to All Star's a c c o u n t at Texas National. Def.'s App. 74. In completing Form 3881, Texas National did n o t identify itself as a payee or co-payee. Rather, All Star was identified as the sole payee. B e c au s e it routinely took up to ten days for a change in EFT information to take e f fe c t, Customs issued three payments totaling $43,010.81 to All Star by check on July 23, 2 0 0 1 , three days after receipt of the EFT form.1 0 After July 23, 2001, Customs began m a k in g payments for task orders related to the ID/IQ contract to All Star by EFT, in a c co rd a n c e with Texas National's Form 3881. The EFT payments to All Star's account to ta le d $125,024.38.

The Treasury Department uses the information from Form 3881 to transfer funds electronically to a specific bank account.
10

9

Thus, the total amount of the payments by check to All Star was $530,858.05. -10-

II.

P ro c e ed in g s to Date T e x a s National filed the present action on June 6, 2007. Following discovery on

th e question of liability, the defendant moved for summary judgment. In its motion, the g o v e rn m e n t contends that Texas National failed to comply with the terms of the AntiA s s ig n m e n t Acts ­ specifically, the Assignment of Contracts Act, 41 U.S.C. § 15, and the A s s ig n m e n t of Claims Act, 31 U.S.C. § 3727 ­ by failing to provide notice and a copy of th e assignment to the disbursing officer in addition to the contracting officer. The g o v e rn m e n t further argues that it did not waive compliance with the Anti-Assignment A c ts. Finally, the government argues that even if Customs was bound by the assignment, T e x a s National's claims for payments made by the government to All Star before June 6, 2 0 0 1 are barred by the six-year statute of limitations under 28 U.S.C. § 2501. According to the government, Texas National's claims accrued each time Customs paid All Star in c o n tra v e n tio n of the alleged assignment, and therefore any of the bank's claims relating to p a ym e n ts made to All Star before June 6, 2001 are time-barred. In response to the government's motion, Texas National contends that there are g e n u in e issues of material fact that preclude summary judgment in this case. First, the p la in tif f argues, there are disputed issues of fact as to whether the bank complied with the A n ti-A s s ig n m e n t Acts, based on the declaration of Ms. Bellamy, in which she stated that s h e "specifically recall[ed]" sending two copies of the Notice of Assignment and the a ss ig n m e n t instrument to Customs in Indianapolis ­ one for the disbursing officer and one

-11-

f o r the contracting officer. See Bellamy Decl. ¶¶ 3-4. Second, the bank argues that, re g a rd le ss of whether Ms. Bellamy sent copies of the Notice of Assignment and the a ss ig n m e n t to the disbursing officer, there are disputed issues of fact as to whether the g o v e rn m e n t recognized the assignment and waived the requirements of the AntiA s s ig n m e n t Acts when it affirmatively acknowledged and signed off on the Notice of A s s ig n m e n t. Finally, Texas National asserts that there are disputed issues of fact re g a rd in g whether the statute of limitations bars any portion of the bank's claim. The bank a rg u e s that it has shown that it did not ­ and could not ­ discover the facts necessary to a ss e rt its claim until June 2001, as a result of the OCC audit, because it had no way of k n o w ing that All Star was receiving payments from Customs under the subject delivery o rd e rs in contravention of the alleged assignment. The bank contends that therefore, under th e "accrual suspension" rule, accrual of its claims was suspended until June 2001. O ra l argument on the government's motion was heard on February 12, 2009. D IS C U S S IO N I. S t a n d a r d of Review S u m m a ry judgment is appropriate when "the pleadings, the discovery and d is c lo s u re materials on file, and any affidavits show that there is no genuine issue as to any m a te ria l fact and that the movant is entitled to judgment as a matter of law." RCFC 5 6 (c )(1 ); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Casitas M u n . Water Dist. v. United States, 543 F.3d 1276, 1283 (Fed. Cir. 2008). In considering a

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m o tio n for summary judgment, the court's role is not to "weigh the evidence and d e te rm in e the truth of the matter but to determine whether there is a genuine issue for tria l." Liberty Lobby, 477 U.S. at 249. "The evidence of the non-movant is to be b e l ie v e d , and all justifiable inferences are to be drawn in his favor." Id. at 255; see also M a ts u s h ita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Casitas M u n . Water Dist., 543 F.3d 1276, 1283 (Fed. Cir. 2008). "As to materiality, . . . [o]nly d isp u tes over facts that might affect the outcome of the suit under the governing law will p rop erly preclude the entry of summary judgment." Liberty Lobby, 477 U.S. at 248. In a d d itio n , an issue of material fact is only genuine "if the evidence is such that a reasonable [ f in d e r of fact] could return a verdict for the nonmoving party." Id. II. G e n u in e Issues of Material Fact Preclude Summary Judgment as to Whether th e Government Waived Strict Compliance with the Anti-Assignment Acts by R ec o g n izin g the Alleged Assignment. A. T h e Plaintiff Did Not Comply with the Requirements of the AntiA s s ig n m e n t Acts.

T h e Assignment of Contracts Act, 41 U.S.C. § 15, provides that no interest in a f e d era l contract may be transferred to a party outside the original contract, unless the a s s ig n e e is a "bank, trust company, or other financing institution," the contract "provid[es] f o r payments aggregating $1,000 or more," 41 U.S.C. §§ 15(a)-(b), and the assignee files w ritte n notice of the assignment together with a true copy of the instrument of th e assignment with ­ (A) th e contracting officer or the head of his department or agency;

-13-

(B )

the surety or sureties upon the bond or bonds, if any, in connection with s u c h contract; and the disbursing officer, if any, designated in such contract to make p a ym e n t .

(C )

41 U.S.C. § 15(b)(3). The Assignment of Claims Act contains similar notice re q u ire m e n ts . 31 U.S.C. § 3727(c)(3). The provisions of the Federal Acquisition R e g u la tio n s ("FAR") further detail the manner in which a valid assignment may be s e c u re d . See FAR Subpart 32.8 ("Assignment of Claims"), 48 C.F.R. §§ 32.800-32.806 (2 0 0 0 ). For example, under the FAR, the assignee must forward an original and three c o p ie s of the notice of assignment, together with one true copy of the instrument of a ss ig n m e n t, to each of the following: (1) the contracting officer or agency head, (2) the su re ty on any bond applicable to the contract, and (3) "the disbursing officer designated in th e contract to make payment." FAR 32.805(b) (citing 32.802(e)). The FAR also provides a "suggested format" for use by an assignee in providing the required notice, which in c lu d e s the following language: "Please return to the undersigned the three enclosed c o p ie s of this notice . . . signed by the person acknowledging receipt on behalf of the a d d re ss e e ." FAR 32.805(c). The "suggested format" also includes a section entitled " A c k n o w le d g e m e n t," which provides: "Receipt is acknowledged of the above notice and o f a copy of the instrument of assignment," and provides blanks for the date and time re c eiv e d and for the signature and title of the person signing "[o]n behalf of" the addressee o f the notice. Id.

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In its motion for summary judgment, the government contends that there is no e v id e n c e to show that Texas National provided the disbursing office designated in the c o n tra c t ­ the "National Finance Center," listed as the office by which "payment will be m a d e ," Def.'s App. 1 ­ with a copy of the Notice of Assignment or the assignment in stru m e n t. The government notes that, although the Notice of Assignment states that a c o p y of the assignment document was attached, no copy could be located in CBP's files d e sp ite a diligent search. In addition, as noted above, the government has moved to strike M s . Bellamy's declaration on the grounds that it is inconsistent with her deposition te stim o n y.1 1 The government argues that, without any evidence to show that such copies w e re sent as required by the Anti-Assignment Acts, the government was not bound by the p u rp o rte d assignment. T e x a s National argues in response that Ms. Bellamy stated in her declaration that s h e "specifically recall[ed]" sending two copies of the Notice of Assignment, each with a c o p y of the assignment instrument attached, to Customs in Indianapolis in order to comply w ith "the requirement that one [copy] go to the contracting officer and another copy go to th e disbursing officer." Bellamy Decl. ¶¶ 3-4. Ms. Bellamy further stated that she was " c o n fid e n t" that she did indeed mail the Notice of Assignment to the disbursing officer at 6026 L a k e sid e Boulevard, Indianapolis, Indiana because the regulations required the B a n k to do so. Unfortunately, there was no disbursing officer specifically

11

See footnote 5, supra. -15-

n a m e d in the contract . . . , so I believe that we simply mailed the copy for the d is b u rs in g officer to the same address in Indianapolis because that is what the c o n tra c t said, and that is all the information we had. Id . at ¶ 4. Texas National also argues that, regardless of whether copies of the Notice of A s s ig n m e n t and the assignment instrument were sent to the disbursing officer, the g o v e rn m e n t waived compliance with the notice provisions of the Anti-Assignment Acts w h e n the ACO, Mr. Mynatt, signed and returned the "Authorized/Acknowledgment" to M s . Bellamy after obtaining "legal approval" from "the Customs Chief Counsel." See D e f .'s App. 15. There is no dispute that the plaintiff has not put forth any evidence to corroborate th e statements in Ms. Bellamy's declaration that Texas National sent copies of the Notice o f Assignment and the assignment instrument to the disbursing office designated in the co n trac t, as required by the Anti-Assignment Acts and the associated FAR provisions. In a d d itio n , while Ms. Bellamy stated in her declaration that she is "confident that the Bank d id indeed mail the Notice of Assignment to the disbursing officer," Bellamy Decl. ¶ 4, the g o v e rn m e n t is correct that that statement is inconsistent with her prior deposition te stim o n y, in which she stated, "I really don't know if another copy was sent." Pl.'s App. 1 0 (Bellamy Depo. at 19:22-23). In fact, in response to a direct question as to "whether th e bank's policy in dealing with assignments of government contracts was to send notices to both the contracting officer and the disbursing officer," Ms. Bellamy stated in her

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d e p o sitio n , "I assume we followed the regulations. But we did have copies of those, so I d o n 't know ­ I really don't know what was done there." Pl.'s App. 11 (Bellamy Depo. at 2 0 :11 -12 ). " It is well settled that `a conclusory statement on the ultimate issue does not create a genuine issue of fact.'" Applied Companies v. United States, 144 F.3d 1470, 1475 (Fed. C ir. 1998) (quoting Imperial Tobacco Ltd. v. Philip Morris, Inc., 899 F.2d 1575, 1581 (F e d . Cir. 1990)) (finding that affidavit of plaintiff's Chief Financial Officer alone was " in s u f f ic ie n t to create a genuine issue of material fact," "[i]n light of the strong d o c u m e n ta ry evidence supporting the government's contention . . . and the absence of e v id e n tiary support for [the plaintiff's] argument"). As the Eleventh Circuit put it, " [ w ]h e n a party has given clear answers [in a deposition] to unambiguous questions which n e g a te the existence of any genuine issue of material fact, that party cannot thereafter c re a te such an issue with an affidavit that merely contradicts, without explanation, p re v io u s ly given clear testimony." Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 7 3 6 F.2d 656, 657 (11th Cir. 1984) (calling the affidavit in question "a sham"). Thus, the c o u rt finds that where, as here, there is no evidentiary support for Ms. Bellamy's assertion in her declaration that she sent copies of the Notice of Assignment and the assignment in stru m e n t to the disbursing office designated in the contract, and her declaration is in c o n sis ten t with her earlier deposition testimony, Ms. Bellamy's declaration cannot create a triable issue of fact as to compliance with the disbursing officer notice requirements.

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A c c o rd in g ly, the government is entitled to summary judgment on its contention that Texas N a tio n a l did not comply with the notice requirements of the Anti-Assignment Acts. B. T h e r e Are Disputed Issues of Fact as to Whether the Government W a iv e d Compliance with the Anti-Assignment Acts by Assenting to the A lle g e d Assignment.

Although the court finds, as discussed above, that Texas National failed to raise any g e n u in e issue of material fact with regard to its compliance with the Anti-Assignment A c ts , the court finds a genuine issue of material fact as to whether the government waived th e statutory requirements of the Anti-Assignment Acts by assenting to the assignment w h e n Mr. Mynatt, the ACO, signed an "acknowledgement" of the assignment after re c e iv in g "legal approval" of the Notice of Assignment from Customs' Chief Counsel. See Def.'s App. 13, 15. As noted above, in Mr. Mynatt's January 24, 2000 letter to Ms. Bellamy, sent in re sp o n s e to the Notice of Assignment dated January 14, 2000, Mr. Mynatt stated, " R e f e re n c e your request for acknowledgement of receipt for payments of Customs c o n tra c ts awarded to Alejandro Soto[,] Jr. Please be advised the letter was forwarded to th e Customs Chief Counsel for review. When legal approval is received the a c k n o w le d g e m e n t will be signed and forwarded." Def.'s App. 15 (emphasis added). Based on this letter, Texas National contends that the "Authorized/Acknowledgment" of th e Notice of Assignment, signed by Mr. Mynatt, Def.'s App. 13, amounted to a clear a s s e n t to the assignment by the government.

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In response, the government argues that Mr. Mynatt's letter and the returned "Authorized/Acknowledgment" of the Notice of Assignment do not demonstrate that the " m e e tin g of the minds" necessary for a valid assignment took place between Texas N a tio n a l and Customs. The government contends that Customs never took any affirmative s te p s to ratify or act in accordance with the alleged assignment and that later c o rre sp o n d e n c e between Mr. Mynatt and officers of Texas National does not reflect the e x is te n c e of any understanding with regard to the purported assignment. The government d o e s not, however, dispute the inference from the January 24, 2000 letter together with the s ig n e d "Authorized/Acknowledgment" that Customs' Chief Counsel gave the "legal a p p ro v a l" sought by Mr. Mynatt, nor does the government dispute that Mr. Mynatt signed a n d returned to Texas National the "Authorized/Acknowledgment" at the bottom of the N o tic e of Assignment. See Def.'s App. 13, 15. There is a "long-recognized principle" that the government may, if it chooses to do s o , waive the provisions of the Anti-Assignment Acts and recognize an assignment. Tuftco Corp. v. United States, 614 F.2d 740, 745 (Ct. Cl. 1980); see also D & H Distrib. C o . v. United States, 102 F.3d 542, 546 (Fed. Cir. 1996) ("It is well established . . . that th e government can waive the statutory prohibitions against the assignment of contract rig h ts if the contracting officer gives clear assent to the assignment." (citing Tuftco, 614 F .2 d at 745-46)). "[I]n instances where the [g]overnment's course of conduct, its s ta te m e n ts to the parties and its dealings with the assignee indicate it acknowledges the

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a ss ig n e e as the contractor, recognition has been found." Tuftco, 614 F.2d at 745. The g o v e rn m e n t's recognition of assignments may be established by "the totality of the c irc u m s ta n c es presented to the court," including the government's "knowledge, assent, and a c tio n consistent with the terms of the assignments." Id. at 746. The Anti-Assignment A c ts have been found to be waived "where the government has either affirmatively a c k n o w le d g e d an assignment in writing or made payments consistent with the alleged a ss ig n m e n t." Banco Bilbao Vizcaya-Puerto Rico v. United States, 48 Fed. Cl. 29, 34 (2 0 0 0 ) (citing Tuftco, 614 F.2d at 745, for the proposition that "the government had w a iv e d the Act[s] where the contracting officer wrote `Assignment acknowledged' at the b o tto m of the notification letter from the assignor"). In this case, drawing all justifiable inferences in favor of the plaintiff, see Liberty L o b b y, 477 U.S. at 255, the court finds a genuine issue of material fact as to whether the g o v e rn m e n t recognized the alleged assignment. The undisputed inference to be drawn in th e plaintiff's favor from Mr. Mynatt's January 24, 2000 letter together with the signed " A u th o riz e d /A c k n o w led g m e n t" is that Customs' Chief Counsel gave the "legal approval" s o u g h t by Mr. Mynatt. In light of this apparent "legal approval" by Customs' Chief C o u n s e l, the "Authorized/Acknowledgment" signed and returned by Mr. Mynatt may be m o re than simply acknowledgment of the ACO's receipt of the Notice of Assignment, as th e government argues. Instead, based on the totality of the circumstances, the " A u th o riz e d /A c k n o w le d g e m e n t" may constitute an affirmative acknowledgment of the

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a ss ig n m e n t itself ­ a sufficiently "clear assent" to the assignment to establish recognition o f it by Customs. See D & H Distrib., 102 F.3d at 546; see also Tuftco, 614 F.2d at 745 (f in d in g waiver where, in the context of various other communications between the c o n tra c tin g officer and the assignee and assignor, the contracting officer wrote "A ssign m en t acknowledged" at the bottom of the notification letter from the assignor); B a n c o Bilbao, 48 Fed. Cl. at 34 (The Anti-Assignment Acts have been found to be waived " w h e re the government has . . . affirmatively acknowledged an assignment in writing."). Therefore, viewing the evidence most favorably to the plaintiff, the court finds that there a re disputed issues of material fact which preclude summary judgment on the issue of w h e th e r Customs assented to the assignment and waived strict compliance with the AntiA s s ig n m e n t Acts.1 2 III. T h e Plaintiff's Claims for Payments Made Before June 6, 2001 Are Barred by th e Six-Year Statute of Limitations in 28 U.S.C. § 2501. O r d in a r ily, claims in the United States Court of Federal Claims are barred unless they are filed within six years after the claims first accrue. 28 U.S.C. § 2501 ("Every c la im of which the United States Court of Federal Claims has jurisdiction shall be barred u n le s s the petition thereon is filed within six years after such claim first accrues."). A

At oral argument, the government noted ­ and the plaintiff did not disagree ­ that, to the extent the plaintiff is able to show that a valid assignment existed in this case, if there is no explanation for Texas National's EFT Form 3881 instructing Customs to pay only All Star and not Texas National, see Def.'s App. 74, in all likelihood the government cannot be held liable for failing to pay Texas National after Texas National expressly directed Customs to pay All Star instead. -21-

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c la im first accrues "as soon as all events have occurred that are necessary to enable the p la in tif f to bring suit, i.e., when all events have occurred to fix the Government's alleged lia b ility, entitling the claimant to demand payment and sue here for his money." Martinez v . United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc) (quotation omitted), cert. d e n ie d , 540 U.S. 117 (2004). However, "[a]ccording to the accrual suspension rule, the accrual of a claim against th e United States is suspended, for purposes of 28 U.S.C. § 2501, until the claimant knew o r should have known that the claim existed." Young v. United States, 529 F.3d 1380, 1 3 8 4 (Fed. Cir. 2008) (quotation omitted). "To achieve such suspension the plaintiff must e ith e r show that the defendant has concealed its acts with the result that plaintiff was u n a w a re of their existence or it must show that its injury was inherently unknowable at the a c cru a l date." Id. (quotation omitted). The phrase "inherently unknowable" has been c o n stru e d to mean that the factual basis for the claim is "incapable of detection by the w ro n g e d party through the exercise of reasonable diligence." Ramirez-Carlo v. United S tates, 496 F.3d 41, 47 (1st Cir. 2007). In this case, despite the fact that All Star deposited all of the subject checks into its a c co u n t at Texas National, the checks identified "US Customs" as the payor on their face, a n d an OCC audit of Texas National's records was able to determine that the payments on th e subject delivery orders were going to All Star in contravention of the purported a ss ig n m e n t, Texas National nonetheless argues that the bank had no way of discovering

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th e alleged injury before June 2001, after it found out as a result of the OCC audit. Because the plaintiff's claims were "inherently unknowable," the plaintiff argues, under th e accrual suspension rule, its claims did not accrue until June 2001. The court finds that the plaintiff's claims were not "inherently unknowable." To th e contrary, the claims were completely capable of "detection by the [plaintiff] through th e exercise of reasonable diligence," see Ramirez-Carlo, 496 F.3d at 47, and the plaintiff sim p ly failed to exercise such diligence. The evidence in this case demonstrates that there w e re observable, objective facts available to put the bank on notice of its alleged injury, b u t the plaintiff failed to make reasonable inquiry into those facts. Specifically, the u n d isp u ted facts show that All Star deposited eleven U.S. Treasury checks amounting to $ 4 8 6 ,2 1 2 .9 0 into its Texas National account between March 1, 2000 and June 6, 2001. As n o te d above, the checks identified U.S. Customs as the payor on their face. These checks w e re plainly available for inspection. Indeed, it was based on these same records that the O C C audit was able to determine that All Star appeared to be receiving payments from C u s to m s on the subject delivery orders, in contravention of the purported assignment. The p la in tif f has put forth no explanation as to why the discoveries made in the audit could not h a v e been made earlier by the bank itself, by looking at its own records. Notwithstanding the fact that the information necessary to discover the alleged in ju ry was detectable to an outside auditor, the plaintiff failed to take reasonable steps to lo o k into the matter. There is no evidence to show that Texas National made any inquiries

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o f All Star ­ Texas National's own customer ­ as to whether All Star was receiving p a ym e n ts from the government under the subject delivery orders, nor is there any evidence th a t Texas National monitored the federal checks deposited into All Star's account at the b a n k . See Plaintiff's Proposed Finding of Uncontroverted Fact ¶ 9 ("Prior to June 6, 2 0 0 1 [ , Ms.] Bellamy had never seen any checks written by the Government directly to All S tar under the Contract . . . ."). This failure is particularly puzzling given the statement in M r. Gonzalez's June 12, 2001 letter to Mr. Mynatt, in which he stated, "We have a good re la tio n s h ip with All Star Iron Works and the owner does provide us with copies of checks iss u e d by your department." Def.'s App. 72. Similarly, Mr. Gonzalez conducted site v is its to the four construction sites in March of 2001, which revealed that All Star had c o m p le te d sufficient work to be entitled to payments, yet there is no evidence to show that T e x a s National took steps to determine whether All Star had in fact received any payment th a t the bank believed should have been paid to it. Based on these undisputed facts, the b a n k 's failure to make any inquires with regard to government payments that were being d e p o s ite d into All Star's account at the bank constituted a per se failure to exercise re a s o n a b le diligence. Thus, the court finds that Texas National has failed to identify a triable issue of fact a s to its assertion that its claims did not accrue until June 2001. The bank cannot rely upon the accrual suspension rule, as the undisputed evidence establishes that the alleged injury

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w a s not "inherently unknowable."1 3 Instead, the court finds that Texas National's claim f o r payment first accrued when the government sent its first check to All Star, and th e re a f ter , each check amounted to a new claim, accruing when the check was sent to All S ta r. See Martinez, 333 F.3d at 1303 (A claim first accrues "when all events have o c c u rre d to fix the Government's alleged liability."). Accordingly, the government is e n titled to summary judgment on its contention that the plaintiff's claims to payments m a d e by the government more than six years before June 6, 2007 are barred by the six-year s ta tu te of limitations in 28 U.S.C. § 2501. CONCLUSION F o r the reasons set forth above, the government's motion for summary judgment is G R A N T E D -I N -P A R T and DENIED-IN-PART. The parties shall file a joint status re p o rt by Friday, March 20, 2009, proposing next steps for resolving this litigation. IT IS SO ORDERED. s/Nancy B. Firestone NANCY B. FIRESTONE Judge

The plaintiff in this case has not put forth any credible evidence that the government concealed its acts in any way. See Young, 529 F.3d at 1384. Though the plaintiff alleges (relying solely on the deposition testimony of Ms. Bellamy) that it attempted several times to obtain an accounting from the government regarding the subject contract, the court agrees with the government that the plaintiff has failed to put forth any documentation of the alleged inquiries, nor has it put forth any evidence regarding when the alleged inquiries took place. Bald allegations of the government's failure to provide an accounting alone are not sufficient to establish a triable issue of fact regarding concealment, especially given that, as discussed above, the facts necessary to establish liability could have been discovered independently by the bank. -25-

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