Note: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-5022 

TESORO HAWAII CORPORATION, 

and TESORO ALASKA COMPANY, 

 

 Plaintiffs-Appellants, 

v. 

UNITED STATES, 

Defendant-Appellee. 

 J. Keith Burt, Mayer Brown LLP, of Washington, DC, for plaintiffs-appellants. 

With him on the brief were Cameron S. Hamrick, Michael E. Lackey, and Adrian L. 

Steel, Jr. 

 Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, 

Classification Unit, United States Department of Justice, of Washington, DC, for the 

defendant-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney 

General, Jeanne E. Davidson, Director. Of counsel on the brief were Howard M. 

Kaufer, Assistant Counsel, Office of Counsel, Defense Energy Support Center, Fort 

Belvoir, Virginia, and Donald S. Tracy, Trial Attorney, Defense Supply Center 

Richmond, Richmond, Virginia. 

Appeal from: United States Court of Federal Claims 

Senior Judge Eric G. Bruggink. 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-5022 

TESORO HAWAII CORPORATION, 

and TESORO ALASKA COMPANY, 

 Plaintiffs-Appellants, 

v. 

UNITED STATES, 

 Defendant-Appellee. 

__________________________ 

DECIDED: September 28, 2007 

 __________________________ 

Before MAYER and PROST, Circuit Judges, and LINARES, District Judge.

∗

PROST, Circuit Judge. 

Tesoro Hawaii Corporation and Tesoro Alaska Company (collectively “Tesoro”) 

appeal a decision of the United States Court of Federal Claims dismissing Tesoro’s 

claims against the United States. Tesoro Haw. Corp. v. United States, No. 02-704C 

(Fed. Cl. Oct. 3, 2006). Based on our disposition of nearly identical claims by other 

parties, we affirm the dismissal of claims relating to the price adjustment clause, but 

 ∗

 Honorable Jose L. Linares, District Judge, United States District Court for 

the District of New Jersey, sitting by designation. 
2007-5022 2

reverse dismissal and remand claims relating to the government’s small business and 

minority set-aside programs. 

As this court held in ConocoPhillips v. United States, No. 2007-5004, 2007 WL 

2741200 (Fed. Cir. Sept. 21, 2007), the parties’ use of the Petroleum Marketing Monthly 

(“PMM”) did not violate regulations or contract provisions. Specifically, PMM accurately 

reflected market price as conceived by the contract, the use of PMM was not a mistake 

by either party, and the government did not breach the contract by failing to pay fair 

market value for the fuel Tesoro supplied. Further, use of PMM was consistent with the 

governing regulations. 

Contrary to the disposition by the Court of Federal Claims, however, that court 

does have jurisdiction over Tesoro’s claims that the government’s program preferring 

minority suppliers violates the Equal Protection Clause of the Fifth Amendment. 

Because the minority preference program allegedly affected the contract price, the 

Court of Federal Claims must consider the merits of Tesoro’s claims. 

Accordingly, we affirm the dismissal of Tesoro’s claims based on use of the 

PMM, but reverse the dismissal of claims based on the government’s minority 

preference policy and remand for further proceedings.