CENTRAL FREIGHT LINES, INC. v. USA

Filing 26

PUBLISHED OPINION granting 10 Motion to Dismiss - Rule 12(b)(1). The Clerk is directed to enter judgment. Signed by Judge Nancy B. Firestone. (sf)

C E N T R A L FREIGHT LINES, INC. v. USA

D o c . 26

In the United States Court of Federal Claims
No. 08-331C (Filed: May 5, 2009) ******************* CENTRAL FREIGHT LINES, INC., Plaintiff, v. THE UNITED STATES, Defendant. ******************* * * * * * * * * * * * * *

RCFC 12(b)(1); Contract Carrier; Government Bills of Lading; Straight Bills of Lading; Rights and Remedies of Subcontractors; 49 U.S.C. § 13706; 41 C.F.R. § 102-118.35

J. W. Taylor, Orlando, FL, for plaintiff. Courtney E. Sheehan, U.S. Department of Justice, Washington, DC, with whom were Gregory G. Katsas, Assistant Attorney General, and Jeanne E. Davidson, Director, for defendant.
OPINION F I R E S T O N E , Judge. T h is case comes before the court on the defendant's motion to dismiss the p la in tif f 's complaint pursuant to Rule 12(b)(1) of the Rules of the United States Court of F e d e ra l Claims ("RCFC") for lack of subject matter jurisdiction. The plaintiff, Central F reigh t Lines, Inc. ("Central Freight" or "the plaintiff"), an interstate motor carrier, c la im s in this action that the United States Department of Defense ("DOD," "the

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g o v e rn m e n t," or "the defendant") breached contracts for transportation services by failing to pay Central Freight $172,089.93 in charges. For the reasons discussed below, the g o v e r n m e n t 's motion to dismiss is GRANTED. I. B A C K G R O U N D FACTS T h e following background facts are taken from the pleadings and are undisputed u n le s s otherwise noted. This case involves shipments of crated household goods, known in the industry as "Freight All Kinds" ("FAK"), belonging to DOD personnel transported p u rs u a n t to government bills of lading. A government bill of lading ("GBL") is a contract b e tw e e n the government and a DOD-approved carrier by which the government accepts th e carrier's offer to perform transportation services at a set cost. In order to contract w ith the government, the carrier must be a pre-qualified transportation service provider (" T S P " ). In this case, the DOD, through the Military Surface Deployment and Distribution C o m m a n d ("SDDC"),1 issued a series of GBLs to Dispatch Services, Inc. ("Dispatch") f o r trucking services, including the transportation of FAK belonging to DOD employees. Dispatch was registered as a TSP for FAK but was not registered with the SDDC as a b ro k e r during the period at issue. The GBLs identify Dispatch as a provider of motor c a rrie r services, not broker services. Dispatch then entered into subcontracts with the

The SDDC is a component of the DOD and is responsible through either the Personal Property Directorate or the Domestic Business Requirements Section for coordinating the transport of household goods or FAK, respectively. 2

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p la in tif f under straight bills of lading ("SBLs"). None of the SBLs incorporated any p ro v is io n s of the GBLs between the government and Dispatch. Approximately 1,300 S B L s were issued between June 2005 and May 2006. All of the SBLs list "Dispatch S e rv ic e s, Inc." as the party to be billed. See Ex. A to Ptf.'s Supp. Br. The defendant a v e rs , and the plaintiff does not dispute, that the DOD paid Dispatch the full amount due u n d e r the GBLs for the period at issue. However, it appears that Dispatch did not pay C e n tra l Freight for the transportation services it provided. Dispatch has since gone out of b u s in e s s . B rie f in g was completed on March 3, 2009.2 Oral argument was deemed u n n e c e s s a r y. II. S T A N D A R D OF REVIEW R C F C 12(b)(1) governs the dismissal of claims for lack of subject matter ju risd ictio n . In reviewing a motion to dismiss, "[f]actual allegations must be enough to ra is e a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U .S . 554, 555 (2007) (internal citations omitted); see also Holley v. United States, 124 F .3 d 1462, 1465 (Fed. Cir. 1997); Henke v. United States, 60 F.3d 795, 797 (Fed. Cir.

In response to the court's order for supplemental briefing, the plaintiff filed copies of over 1,300 SBLs between Dispatch and Central Freight. Ptf.'s Supp. Br. at Ex A. The defendant also filed the declaration of Evert L. Bono III, Chief of the Domestic Business Requirements Section of the SDDC, stating that while several GBLs were issued to Dispatch during the time period in question, it could not be determined which of these related to the goods described in the SBLs. Def.'s Resp. to Ptf.'s Supp. Br. ("Def.'s Resp.") at Ex. B ("Bono Decl.") ¶¶ 15-17. 3

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1 9 9 5 ) ("[T]he court [is] obligated to assume all factual allegations to be true and to draw a ll reasonable inferences in plaintiff's favor."). See generally Scheuer v. Rhodes, 416 U .S . 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 8 1 4 -15 (1982); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1 9 8 8 ). The plaintiff, however, bears the burden of establishing subject matter ju ris d ic tio n , Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (c itin g McNutt v. Gen. Motors, 298 U.S. 178, 189 (1936)), and must do so by a p r e p o n d e r a n c e of the evidence. Reynolds, 846 F.2d at 748. Because jurisdiction is a th re sh o ld matter, a case can proceed no further if a court lacks jurisdiction to hear it. See A rb a u g h v. Y&H Corp., 546 U.S. 500, 514 (2006) ("[W]hen a federal court concludes th a t it lacks subject-matter jurisdiction, the court must dismiss the complaint in its e n tire ty." (citation omitted)); Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (19 9 8 ). See generally John R. Sand & Gravel v. United States, 128 S. Ct. 750 (2008). It is well-settled that when the court considers a motion to dismiss for lack of subject matter ju risd ictio n , it may look beyond the pleadings and "inquire into jurisdictional facts" to d e te rm in e whether jurisdiction exists. Rocovich v. United States, 933 F.2d 991, 993 (F e d . Cir. 1991). III. D IS C U S S IO N A. I n t r o d u c tio n

T h e Tucker Act, 28 U.S.C. § 1491(a)(1) (2000), grants the Court of Federal Claims

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ju risd ictio n to hear any claim founded upon an express or implied-in-fact contract with th e United States. The Federal Circuit has held that in order "to maintain a cause of a c tio n pursuant to the Tucker Act that is based on a contract, the contract must be b e tw e e n the plaintiff and the government." Cienega Gardens v. United States, 194 F.3d 1 2 3 1 , 1239 (Fed. Cir. 1998) (internal citation omitted) (emphasis added); see Cent. T ra n sp . Int'l, Inc. v. United States ) ("Central Transport"), 63 Fed. Cl. 336, 338 (2004) (s a m e ) (citing Chancellor Manor v. United States, 194 F.3d 891, 899 (Fed. Cir. 2003) (n o tin g longstanding rule that privity is required in contract cases under the Tucker Act)). Privity between the plaintiff and the government "is a jurisdictional prerequisite for a c o n tra c t claim because `the government consents to be sued only by those with whom it h a s privity of contract.'" Globex Corp. v. United States, 54 Fed. Cl. 343, 347 (2002) (q u o tin g Erickson Air Crane Co. v. United States, 731 F.2d 810, 813 (Fed. Cir. 1984)). "Absent privity between the plaintiff and the United States, there has been no waiver of s o v e re ig n immunity for a suit in contract." Central Transport, 63 Fed. Cl. at 338. B. N o Contract Existed Between the Government and Central Freight.

T h e plaintiff asserts that this court has subject matter jurisdiction because its c la im s are predicated on contracts between the government and Central Freight. The p la in tif f argues that it should prevail on one of two alternative contract theories. Firstly, th e plaintiff argues that the SBLs establish direct privity of contract between the plaintiff a n d the government. Alternatively, the plaintiff argues that the parties should be deemed

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to be in privity of contract because Dispatch acted as an agent of the government when it e n te re d into the SBL contracts with Central Freight, thus obliging the government to pay C e n tra l Freight regardless of whether or not it made payment to Dispatch. Ptf.'s Supp. B r. at 8 (citing United States v. Johnson Controls, Inc., 713 F.2d 1541, 1549-50 (Fed. Cir. 1 9 8 3 )). B y way of background, a brief explanation of the contractual relationship between th e government and a carrier is in order. A contractual relationship between the g o v e rn m e n t and a carrier is governed by a tender and a GBL. Baggett Transp. Co. v. U n ite d States, 23 Cl. Ct. 263, 265 (1991), aff'd, 969 F.2d 1028 (Fed. Cir. 1992) ("The te rm s of the contractual relationship between carrier and shipper consist of the tender and in c o rp o ra te d tariff, representing the offer, and the GBL and its annotations, representing th e acceptance."). As the Federal Circuit explained in Dalton v. Sherwood Van Lines, In c ., 50 F.3d 1014, 1016 (Fed. Cir. 1995), "[A GBL is] a document used by the g o v e rn m e n t when acquiring freight transportation services from common carriers. Each G B L [is a] contract between the parties, establishing their respective rights with regard to th e transportation services procured and provided." (quoted in Central Transport, 63 Fed. C l. at 338). "Thus, a GBL establishes privity between the carrier and the Government." Central Transport, 63 Fed. Cl. 338. However, it is well-established that "subcontractors n o r m a lly are not in privity with the Government" except where "the prime contractor is a m e re government agent." Johnson Controls, 713 F.2d at 1550, 1551. In the absence of

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s u c h agency, courts have routinely held that a subcontractor has no standing or c o n tra c tu a l cause of action to sue the government. See, e.g., Johnson Controls, 713 F.2d a t 1550 (denying claim brought by a subcontractor); Central Transport, 63 Fed. Cl. at 3 3 8 - 3 9 (denying claim brought by subcontractor to a subcontractor). Tested by these s ta n d a rd s , the plaintiff's contract claim must be dismissed. 1. N e ith e r the GBLs Nor the SBLs Establish Privity of Contract B etw ee n Central Freight and the Government.

T h e plaintiff argues that express contracts existed between Central Freight and the g o v e r n m e n t for the transportation services the plaintiff provided. Central Freight asserts, " A contract between the government and the carrier forms each time the government a c ce p ts the carrier's transportation services with the carrier's bill of lading," Ptf.'s Supp. B r. at 5 (citing Central Transport, 63 Fed. Cl. at 338), and that "[t]he Bills of Lading in th is case establish express contracts between the DOD and Central Freight Lines." 3 Id. T h e plaintiff states that C en tral Freight Lines is named as carrier in the Bills of Lading. Compare C e n tra l Transp[ort], 63 Fed. Cl. at 338 (no privity where carrier is not named o n the bill of lading). The DOD is listed as consignee on the Bills of Lading. . . . As consignee and owner of goods transported by Central Freight Lines, D O D is liable for payment of the rates of transportation. S[]. Pac[.] Transp. C o .[ v. Commercial Metals Co.], 456 U.S. [336,] 343 [(1982)]; 49 U.S.C. § 1 3 7 0 6 [(1995)]. Id. at 5-6.

Although the plaintiff does not specify whether the bills of lading to which it refers are the GBLs or the SBLs, it is clear from the context that the plaintiff is referring to the SBLs. 7

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In response, the government asserts that "[i]n merely contending that a bill of la d in g establishes privity of contract between the government and motor carrier, Central [ F re ig h t] is attempting to deliberately obscure an important distinction between a g o v e rn m e n t bill of lading and a straight bill of lading. . . ." Def.'s Resp. at 4 (emphasis in o rig in a l) (citation and internal quotation marks omitted). The government argues that w h ile it had contracts in the form of GBLs with Dispatch for delivery of the goods that C e n tra l Freight ultimately delivered, the government was not a party to the SBLs between D is p a tc h and Central Freight and therefore had no contractual relationship with the p la in tif f . The government states, "To establish the existence of either an express or im p lied -in -f a c t contract, Central [Freight] must demonstrate: (1) mutual intent to contract; (2 ) consideration; (3) lack of ambiguity in an offer and acceptance; and (4) actual a u th o rity on the part of the Government representative to bind the United States in c o n tr a c t." Def.'s Resp. at 6 (citing Harbert/Lummus Agrifuels Projects v. United States, 1 4 2 F.3d 1429, 1434 (Fed. Cir. 1998); City of El Centro v. United States, 922 F.2d 816, 8 2 0 (Fed. Cir. 1990)). The government contends that the plaintiff has failed to d e m o n s tr a te the existence of any of these required elements. T h is court agrees with the government that Central Freight has not established that it had an express or implied-in-fact contract with the United States. While the plaintiff h a s supplied this court with over 1,300 SBLs between itself and Dispatch, the SBLs fail to establish a contractual relationship between the government and Central Freight. See

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P tf .'s Supp. Br. at Ex. A. Although, as discussed below, the plaintiff claims that Dispatch w a s acting as a broker and agent of the government when Dispatch contracted with C e n tra l Freight, the plaintiff has not presented evidence sufficient to establish that D is p a tc h had actual authority to bind the United States in contract. See City of El Centro, 9 2 2 F.2d at 820 ("When the United States is a party, a fourth requirement is added: the G o v e rn m e n t representative `whose conduct is relied upon must have actual authority to b in d the government in contract.'" (quoting Juda v. United States, 6 Cl. Ct. 441, 452 (1 9 8 4 ) (further citations omitted))). No signature of an SDDC employee, other DOD e m p lo ye e , or any other government representative appears on the SBLs. Furthermore, the p lain tiff does not claim to be a party to the GBLs, nor to even be mentioned on them. In s h o rt, drawing all reasonable inferences in favor of the plaintiff, Central Freight has failed to raise a right of relief above the speculative level. See Twombly, 550 U.S. at 555. 2. D is p a t c h Was Not Acting as an Agent of the United States When It Contracted with Central Freight.

T h e plaintiff also argues that this court should find "deemed privity" of contract b e tw e e n Central Freight and the government. In support, the plaintiff cites Johnson C o n tro ls , 713 F.2d at 1549-50. In Johnson Controls, the Federal Circuit held that, as an e x c ep tio n to the general rule that subcontractors are not in privity of contract with the g o v e rn m e n t, the government may be deemed to be in privity of contract with a s u b c o n tra c to r where the prime contractor was "(1) acting as a purchasing agent for the g o v e rn m e n t, (2) the agency relationship between the government and the prime contractor 9

w a s established by clear contractual consent, and (3) the contract stated that the g o v e rn m e n t would be directly liable to the vendors for the purchase price." Johnson C o n tro ls , 713 F.2d at 1551 (citations omitted) (emphasis in original); see also Central T ra n sp o rt, 63 Fed. Cl. at 339 n.8 (enumerating the Johnson Controls factors but finding n o basis for deemed privity); Globex Corp., 54 Fed. Cl. at 347-48 (same). The plaintiff a rg u e s that all three factors identified in Johnson Controls are present. Firstly, claims the p la in tif f , Dispatch was acting as a purchasing agent for the government "as evidenced by its role in soliciting transportation arrangements from Central Freight Lines, and by the v e ry definition of `brokers' under 49 U.S.C. § 13102(2) [(2002) ("Section 13102(2))"]." 4 P tf .'s Supp. Br. at 8. Secondly, argues Central Freight, "the DOD consented to the c o n tra c tu a l relationship with Dispatch Services as evidenced by the Bills of Lading." Id. Finally, the plaintiff claims that "the DOD, as a named party in the Bills of Lading, a g re e d to be liable for the freight charges by accepting the transportation services of C e n tra l Freight Lines." Id. at 8-9 (citing S. Pac. Transp. Co., 456 U.S. at 343; 49 U.S.C. § 13706). In response, the government argues that the plaintiff misapplies the Johnson C o n tro ls test. The government argues that the fact that Dispatch subcontracted with C en tral Freight is insufficient to demonstrate that Dispatch acted as the government's Section 13102(2) defines "broker" for purposes of Title 49 as "a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation." 10
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p u rc h a sin g agent. The government notes that in his declaration, Mr. Bono "unequivocally s ta te d that Dispatch was not authorized to act as a broker or agent of the Government." Def.'s Resp. at 8; Bono Decl. ¶¶ 8 ("from 1999 to 2009 Dispatch . . . had legal authority to operate only as a carrier, not a broker"), 9 ("Dispatch was not registered with SDDC as a broker during this period"), 12 ("None of the contract documents authorized Dispatch to a c t as an agent of DOD."). Likewise, the government argues that the SBLs between D is p a tc h and Central Freight "fail[] to demonstrate that any agency relationship between D ispa tch and the Government was established by `clear contractual consent.'" Def.'s R e sp . at 8 (quoting Johnson Controls, 713 F.2d at 1551). The government argues that "C en tral [Freight] has failed to establish that the United States was a party to the [SBLs]" a n d that "[i]n any event, nowhere in those bills of lading is any agency relationship even re f e re n c e d ." Id. Finally, the government argues that "Central [Freight] has failed to e sta b lish that any purported contract stated that the Government would be directly liable to . . . Central [Freight]" and adds that "as each bill of lading demonstrates, any bill for s e rv ic e was to be submitted to Dispatch, and nothing on the contract states or even im p l ie s that the United States agreed to pay Central [Freight] for any services." Id. Thus, a r g u e s the defendant, the plaintiff cannot establish that Dispatch was acting as a g o v e rn m e n t agent, and the parties cannot be deemed to be in privity of contract. The court agrees with the government that, for the reasons the government a d v a n ce s, the plaintiff has failed to satisfy any of the three Johnson Controls factors. The

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p la in tif f has not pled jurisdictional facts sufficient to demonstrate that Dispatch was a c tin g as a government agent when it subcontracted with Central Freight. Indeed, D isp a tch was not a registered broker with the DOD and did not possess actual authority to b in d the government in contract. Nowhere was an agency relationship between the g o v e rn m e n t and Dispatch established by clear contractual consent. See Bono Decl. ¶ 12 (" N o n e of the contract documents authorized Dispatch to act as an agent of DOD."). Furthermore, as in Central Transport, the GBLs did not state that the government would b e directly liable to the plaintiff for the charges of shipping the goods. See Central T ra n sp o rt, 63 Fed. Cl. at 339 n.8. As was the plaintiff's situation in that case, Central F r e ig h t was never mentioned in any GBL. See id. Additionally, each SBL listed D isp a tch as the sole party to be billed. Ptf.'s Supp. Br. at Ex. A; see Central Transport, 6 3 Fed. Cl. at 339 n.8. Therefore, this court finds no basis to deem the parties to be in p riv ity of contract. C. N e ith e r 49 U.S.C. § 13706 Nor 41 C.F.R. § 102-118.35 Provides J u r is d ic tio n .

A s an alternative to a contractual basis for Tucker Act jurisdiction, the plaintiff a ss e rts that 49 U.S.C. § 13706 ("Section 13706") provides a statutory basis for ju ris d ic tio n . Section 13706 governs the liability of consignees for shipping charges in c u rre d by a common carrier. In its response to the defendant's motion to dismiss, the p la in tif f cites Fikse & Co. v. United States, 23 Cl. Ct. 200, (1991), for the proposition that

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S e c tio n 13706 5 imposes liability where transportation services are provided by a common c a rrie r. Ptf.'s Resp. at 4 (citing Fikse, 23 Cl. Ct. at 203, 204). The plaintiff argues that " [ a ]t all times material, Plaintiff . . . was a common carrier. Therefore, under the analysis o f Fi[ks]e and the general rule of the Fi[ks]e court, that is, that liability may lie where tra n sp o rta tio n is provided by a common carrier, Plaintiff has sufficiently ple[d] a cause of a c tio n against the DOD." Ptf.'s Resp. at 4. In response, the government argues that Section 13706 is inapplicable because " [ i]n this case, Central [Freight] was clearly not acting in the capacity of a common c a rrie r. Rather, as the [SBLs] demonstrate, Central [Freight] was providing services to D isp a tch pursuant to a contract with Dispatch, not the United States." Def.'s Resp. at 4 (in te rn a l quotation marks removed). The defendant notes that the Fikse court held that S e c tio n 13706 "was not intended to `create liability in the consignee in the face of an e x p re ss contractual allocation elsewhere of freight charges.'" Id. (quoting Fikse, 23 Cl. C t. at 204 (citing-in-turn In re Roll Form Prods., 662 F.2d 150, 153-54 (2d Cir. 1981) ("T h e Interstate Commerce Act . . . was not intended to `fashion a sword' to insure c o lle c tio n by carriers of freight charges[ n]or . . . to impose an absolute liability upon c o n sig n e e s for freight charges." (internal brackets removed)); Consol. Freightways Corp. v . Admiral Corp., 442 F.2d 56, 62 (7th Cir. 1971); In re Penn-Dixie Steel Corp., 6 B.R. 8 1 7 , 820 (S.D.N.Y. 1980), aff'd, 10 B.R. 878 (S.D.N.Y. 1981); S. Pac. Transp. Co. v.
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At the time of the Fikse decision, Section 13706 was codified at 49 U.S.C. § 10744

(1989). 13

C a m p b e ll Soup Co., 455 F.2d 1219, 1220-22 (8th Cir. 1972) (the principal purpose of the In ter sta te Commerce Act was to eliminate all forms of rate discrimination on interstate s h ip m e n ts )). Additionally, the government argues that Section 13706 does not provide a b a sis for jurisdiction where the subcontractor and the government are not in privity of c o n tra c t. F a c e d with the government's argument that the plaintiff was not acting as a c o m m o n carrier, the plaintiff argues that Section 13706 does not "limit its application to c o m m o n carriers," and therefore, "whether Central Freight[] Lines is a common or c o n tr a c t carrier is inapposite." Ptf.'s Reply at 4, 5. The plaintiff asserts that "Congress n o longer recognizes a distinction between common and contract carriers," and cites 49 U .S .C . § 13902(f)(2)6 (2005) in support of this proposition. In the alternative, the

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49 U.S.C. § 13902(f)(2) states:

Pre-existing certificates and permits.--The Secretary shall redesignate any motor carrier certificate or permit issued before the transition termination date as a motor carrier certificate of registration. On and after the transition termination date, any person holding a motor carrier certificate of registration redesignated under this paragraph may provide both contract carriage (as defined in section 13102(4)(B)) and transportation under terms and conditions meeting the requirements of section 13710(a)(1). The Secretary may not, pursuant to any regulation or form issued before or after the transition termination date, make any distinction among holders of motor carrier certificates of registration on the basis of whether the holder would have been classified as a common carrier or as a contract carrier under-(A) subsection (d) of this section, as that section was in effect before the transition termination date; or (B) any other provision of this title that was in effect before the transition termination date. 14

p la in tif f argues that "[e]ven assuming the distinction was relevant, Central Freight Lines is a common carrier under the old common law test because though there were many bills o f lading, there was no single contract governing the shipments tendered by DOD." Ptf.'s R ep ly at 5 (citing Fikse, 23 Cl. Ct. at 203). T h is court adopts the reasoning expressed by Judge Williams in Central Transport a n d holds that Section 13706 does not "dispense with the necessity of establishing privity o f contract with the Government in order to establish jurisdiction under the Tucker Act." 63 Fed. Cl. at 340 n.10 (citing Fikse, 23 Cl. Ct. at 204; In re Roll Form Prods., 662 F.2d a t 154 ("The ICA, in our view, was not intended to `fashion a sword' to insure collection b y carriers of freight charges." (internal brackets omitted)); S & B Transp., Inc. v. Allou D is trib s ., Inc., 41 F. Supp. 2d 388, 391-92 (E.D.N.Y. 1999) (holding that Section 13706 d o e s not confer federal subject matter jurisdiction over disputes involving independent b ro k e ra g e contracts between broker and shipper)). While the plaintiff attempts to d is tin g u is h Central Transport by arguing that "in Central Transport[], the contract carrier w a s a sub-sub-contractor . . . . [while i]n the instant matter, the Plaintiff is at best[] a subc o n tra c to r," Ptf.'s Resp. at 4, this court finds this to be a distinction without a difference. Section 13706 provides no basis for jurisdiction between the government and a s u b c o n tra c to r of any level, be it a subcontractor, a "sub-sub-contractor," or a "sub-subs u b - c o n tr a c to r . " In the alternative, the court agrees with the defendant that under the court's

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h o ld in g in Fikse, Section 13706 does not create liability in the consignee for shipping c h a rg e s where there is a contract allocating these charges elsewhere. See Fikse, 23 Cl. C t. at 204. Regardless of whether the carrier is deemed a "common" or "contract" carrier, th e salient fact is whether or not a contract exists allocating shipping charges. As such a c o n tra c t exists here and allocates shipping charges to Dispatch, Section 13706 does not a p p ly and, therefore, provides no basis for this court's exercise of jurisdiction. T h e plaintiff also cites 41 C.F.R. § 102-118.35 (2004), which defines a TSP as " a n y party, person, agent, or carrier that provides freight or passenger transportation and re la te d services to an agency," as a basis for jurisdiction on the theory that it dispenses w ith the requirement of privity of contract. Ptf.'s Resp. at 4-5. In Central Transport, J u d g e Williams noted that 41 C.F.R. § 102-118.35 "does not imbue a TSP, which is a s u b c o n tra c to r, with the right to recover payment from the Government for services p ro v id e d in the absence of a contract between the Government and that party." 63 Fed. C l. at 340. As Judge Williams explained, this interpretation of the regulation is supported b y a more specific provision in the regulation, found at 41 C.F.R. § 102-118.205 (2004), w h ich contains the following question and answer: M a y my agency pay a subcontractor or agent functioning as a warehouseman f o r the TSP providing service under the bill of lading? N o , your agency may only pay the TSP with whom it has a contract. The bill o f lading will list the TSP with whom the Government has a contract. (e m p h a s is added). Here, there is no dispute that Dispatch is the TSP with whom the

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g o v e rn m e n t has a contract. Therefore, the latter regulation makes it clear that the former d o e s not support recovery in the absence of a contract between the government and the s u b c o n t ra c t o r . A d d itio n a lly, as Judge Williams notes, "the Government is not made liable, by im p lic a tio n , for payment to Plaintiff when it is clear from the face of each SBL that [ a n o th e r party was] expressly obligated to pay." Central Transport, 63 Fed. Cl. at 340 (e m p h a s is in original) (citing Fikse, 23 Cl. Ct. at 204 ([N]o implication of an agreement to pay could arise by acceptance in view of the express provisions obligating [the nong o v e rn m e n t entity that contracted with the plaintiff] to pay shipping charges")). Here, it is not disputed that the express terms of the SBLs obligated only Dispatch to pay the p lain tiff . Thus, neither Section 13706 nor 41 C.F.R. § 102-118.35 provide a basis for this c o u rt's exercise of jurisdiction.7,8

Similarly, this court also rejects the plaintiff's argument that 49 U.S.C. § 13101 (1995), which sets forth broad transportation policy goals, provides a basis for Tucker Act jurisdiction. A statute "need not explicitly provide that the right or duty it creates is enforceable through a suit for damages, but it triggers liability only if it can fairly be interpreted as mandating compensation by the Federal Government." United States v. Navajo Nation, 129 S. Ct. 1547, 1552 (2009) (citations and internal quotation marks omitted); see also United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003) (A federal statute grants this court subject matter jurisdiction only if it "can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." (citations and internal quotation marks omitted)). As no part of 49 U.S.C. § 13101 can be fairly interpreted as mandating compensation, this court holds that this statute provides no basis for jurisdiction. As a final matter, the plaintiff argues in the alternative that it is entitled to recover for unjust enrichment. Ptf.'s Supp. Br. at 9 (citing Perri v. United States, 340 F.3d 1337, 1344 (Fed. Cir. 2003); Prestex, Inc. v. United States, 162 Ct. Cl. 620 (1963)). As the government asserts, a claim of unjust enrichment is equitable in nature and is not based on a contractual relationship. Def.'s Resp. at 9 (citing Enron Fed. Solutions, Inc. v. United States, 80 Fed. Cl. 382, 409 (2008) 17
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IV .

C o n c lu s io n F o r the foregoing reasons, the defendant's motion to dismiss is GRANTED. The

C le r k is directed to enter judgment accordingly. Each party is to bear its own costs. s /N a n c y B. Firestone NANCY B. FIRESTONE Judge

(further citation omitted)). Such a claim "is therefore based upon a contract implied in law, over which this court has not been given jurisdiction." Id. Therefore, the plaintiff's unjust enrichment claim does not provide this court with subject matter jurisdiction. 18