# I n t h e U n i t e d S t a t e s C o u r t o f F e d e r a l C l a i m s

Nos. 12-374C and 12-377C (F iled: J une 7, 2013)

************************************* AEROPL ATE CORP., a California * corpor ation, * * Plaintiff, * Motion to I nterve ne by J udg ment Creditor * for L imited Purpose of Filinga Notice of v. * L ien; RCFC 24; Antiassignment Ac t, 31 * U.S.C. § 3727 THE UNI TED STATES, * * Def endant. * ************************************* Wil liam L . Br

uckner , San Dieg o, CA, for plaintiff.
J essica R. Toplin, United States De partment of Justice, Washington, DC, for de fenda nt. Russell W . Rey

nolds, Fre sno, CA, for putative de fenda nt-intervenor

. OP INION AND ORDER SWEE NEY , J udg e Plaintiff Aeroplate Corp. has filed two suits ag ainst the United States in this court, alleg ing in e ach that the United States Depa rtment of Ve tera

ns Affa irs (“V A”) brea ched a contra ct re lated to the re novation of the VA medical c enter

in Phil adelphia, Pennsy

lvania. Premier Va lley

Ba nk, a judgment cre ditor of plaintiff, moves to interve ne in both suits for the sole purpose of

filing a Notice of L ien on plaintiff’s c auses of action. F or the re asons set for th below, the c ourt denies the ba nk’s motion to int erve ne. I. BACKG ROUND To financ e its renovation projects in Philadelphia, plaintiff obtained se vera l loans from Premier Va lley

Ba nk. The loans we re se cure d, in part, by plaintiff’s ac counts rec eivable. D ue larg ely to its di sputes with the VA re g ardingthe two re novation contra cts at issue in these c ases, plaintiff def

aulted on its loan pay

ments to the bank. Plaintiff soug ht to assign its brea ch of contra ct claims ag ainst the VA to the ba nk, but the VA did not execute the a ssignment a s reque sted. Acc ording ly , plaintiff filed suit in this court, seekingdamag es of $688,513.14 f or the alleg ed bre ach of

one of the contra cts and $744,690.95 for the alleg ed bre ach of

the other. The bank subseque ntly

obtained a judgment ag ainst plaintiff in the Fr esno County , CaliforniaSuperior Court in the amount of $743,136.24. It now seeks to enf orce that judgme nt by

placinga lien on the proc eeds, if a

ny , of plaintiff’s suits in this court.

II. DISCUSS ION Premier Va lley

Ba nk relies on Rule 24 of the Rules of the United States Court of F eder al Claims (“RCFC”) a s authority for its intervention in these c ases, a sserting , without any leg al support, that both intervention as a matter of r ight pur suant to RCFC 24(a) a nd permissive intervention pursua

nt to RC FC 24(b) are appropr iate. Ne ither provision is applicable. Under RCFC 24(a), the court is re quired to allow the inter vention of anyone who: (1) is g iven an unc onditional right to interve ne by a fe dera l statute; or (2) c laims an interest re lating to the pr operty or transa ction that is the subject of the ac tion, and is so situated that disposingof the a ction may as a pr actica l matter impair or

impede the movant’ s ability to protect its interest, unless exis ting pa

rties ade quately

repr esent that intere st. The ba nk has not identified any

fede ral statute that pr ovides it “an unc onditional right to intervene ” as se t forth in RCFC 24(a)( 1), instead r elying on Ca lifornia state la w as the ba sis of its purported r ight to interve ne in these two c ases. How ever , the plain languag e of the rule doe s not allow state lawto provide the right to intervene in a n action ag ainst the United States in this court. See also Knig ht v. United States, 982 F.2d 1573, 1578 (F ed. Cir. 1993) (“ Absent conse nt, state proc ess to rea ch g overnme nt property , even where there is a monetary obligation owed by the g overnme nt to another, is not cog nizable.”). Thus, interve ntion under RCFC 24(a) (1) is not appropr iate. Wit h respe ct to RCFC 24(a)( 2), the ba nk asser ts bald alleg ations that it has an intere st in plaintiff’s cla ims ag ainst the VA, that the c ourt’s disposition of those claims without providing for its lien would impair its interest, and that ne ither of the c urre nt parties would ade quately protec t its i ntere st. These a ssertions are conclusory in nature. I

ndeed, the bank does not attempt to expl ain how the c ourt’s re solution of plaintiff’s suits would im pair or pr eclude the enfor ceme nt of its judgment ag ainst plaintiff. In the abse nce of nonconclusory

alleg ations reg ardingits int ere st in plainti ff’ s claims, the bank c annot interve ne under RCFC 24(a)( 2). See also Am. Renovation & Constr. Co. v. United St ates, 65 F ed. Cl. 254, 257-58 (2005) ( noting that the re quirements of RCFC 24(a )(2) are to be construe d liberally in support of intervention, but that nonconclusory

alleg ations are never

theless re quired). Under RCFC 24(b), the c ourt may allow the interve ntion of anyone who “ (A) is g iven a conditional rig ht to intervene by a fe dera l statute; or (B ) has a claim or de fense that share s with the main ac tion a common question of law or fac t.” RCFC 24(b)(1) . Permissive intervention “usually involves adjudication of a n additional claim on the merits.” United Kee toowah B and of Cherokee Indians of Okla. v. United States, 78 Fe d. Cl. 303, 306 (2007). Thus, permissive
-2-intervention re quires putative inter venors to esta

blish an independe nt basis for jurisdiction. I d. at 306-07; Chippewa Cre e Tribe of Rocky Boy ’s Reser

vation v. United States, 85 Fe d. Cl. 646, 661 (2009). The bank has not a lleg ed that a f eder al statute provides it a c onditional right to interve ne or that it has a c laim or defe nse in either of plaintiff’s suits; in fact, it acknow ledg es that it has no claim ag ainst the United States. B eca use the ba nk has not identified an inde pendent c laim over which the c ourt possesses jurisdiction, its mot ion to intervene unde r RCFC 24(b) must also fa il.
In addition to not meeting the c riteria f or interve ntion set forth in RCFC 24, the bank is 1 prec luded from inter

veningin these two ca ses pursuant to the statute g ener ally prohibiting the assig nment of cla ims ag ainst the United States, commonly ref err ed to as the Antiassignment Ac t. See 31 U.S.C. § 3727 (2006). Unde r the Antiassig nment Act, an a ssignment of a cla im, or an interest in a c laim, ag ainst the United States “may be made only

afte r a c laim is allowed, the amount of the c laim is decided, a nd a wa rra nt for pay ment of the c laim has bee n issued.” I d. § 3727(b); see also Pitt man v. United States, 116 F . Supp. 576, 580 (Ct. C l. 1953) (“T he Anti-Assig nment statute was e nacte d for the pur pose of pr eventingthird parties, with whom the Gover nment was not in privity , from ac quiringan enf orce able inter est in a cla im ag ainst it.”). The re quirements of the Antiassignme nt Act have not been satisfied in these two ca ses; plaintiff’s cla ims have not bee n allowed, the a mounts of plaintiff’s claims have not been de cided, and wa rra nts for the pa

y ment of plaintiff’s c laims have not bee n issued. Moreove r, the ba nk has not established, much less alleg ed, that it has a va lid assignment unde r 31 U.S.C. § 3727(c), which sets for

th differ ent re quirements for assignments to financinginstitutions.
III. CONCLUSION
For the fore g oing r easons, the c ourt DENIES Premier Va lley Ba nk’s motion to int erve ne in the above- captioned c ases. The cler k shall forwa

rd a c opy of this ruling to the ba

nk at the addre ss set forth in the motion to int erve ne. IT IS SO ORDERED. s/ Marg are t M. Sweeney MARGARET M. SW EENEY J udg e

Premier Va lley

Ba nk also did not comply

with RCFC 24(c), whic h require s a motion to 1 intervene to be ac companied by “a ple adingthat sets out the claim or de fense for whic h intervention is soug ht.” Pleading s in this court include complaints, answe rs, counter claims, replies to off

sets or plea s of fra

ud in an answe r, and r eplies to answe rs. See RCFC 7; RCFC 14. The Notice of L ien submitted by the bank with its motion t o intervene does not constitute a pleading

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