United States Court of Appeals 

for the Federal Circuit ______________________ 

ROCKY MOUNTAIN HELIUM, LLC,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2016-1278

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:15-cv-00336-SGB, Judge Susan G. 

Braden.

______________________ 

Decided: November 16, 2016 

______________________ 

DAVID BERNARD BUSH, David B. Bush, LLC, Wheat 

Ridge, CO, argued for plaintiff-appellant.

RENEE BURBANK, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented 

by ALLISON KIDD-MILLER, BENJAMIN C. MIZER, ROBERT E.

KIRSCHMAN, JR. 

______________________ 

Before PROST, Chief Judge, TARANTO, and HUGHES,

Circuit Judges.
2 ROCKY MOUNTAIN HELIUM, LLC v. US

TARANTO, Circuit Judge.

Rocky Mountain Helium, LLC sued the United States 

in the United States Court of Federal Claims, asserting 

breach of two contracts concerning Rocky Mountain’s 

potential extraction of helium from beneath federal 

lands—the 1994 Helium Contract and the 2008 Settlement Agreement (the latter resolving a dispute centered 

on the former). The Court of Federal Claims found lack of 

jurisdiction over both claims and, in the alternative, 

dismissed the Helium Contract claim on the merits. We 

partly reverse the jurisdictional dismissal of the Helium 

Contract claim but affirm the merits dismissal of that 

claim. We reverse the jurisdictional dismissal of the 

Settlement Agreement claim and remand for further 

proceedings on that claim. 

I 

In 1994, Rocky Mountain and the United States Bureau of Land Management entered into the Helium Contract, under which the Bureau gave Rocky Mountain the 

right, for up to 25 years, to extract helium gas from 

roughly 21,000 acres of federal lands in Colorado and 

Utah. The Helium Contract (Federal Helium Contract 

FLL 94-001) stipulated that Rocky Mountain annually 

pay to the United States either rent of one dollar per acre 

(i.e., roughly $21,000) or royalties based on the helium 

that Rocky Mountain extracted, whichever was greater. 

The Helium Contract also gave Rocky Mountain certain 

preferential rights to enter into a new agreement with the 

Bureau if the Bureau terminated the Helium Contract. 

If, within a year of such termination, the United States 

“elects to enter into an agreement [with another company] 

for the sale, extraction or other disposition of helium” that 

would be covered by the Helium Contract but for the 

termination, Rocky Mountain would have the right to step 

in and take that deal instead of the other company. J.A. 

62. 
ROCKY MOUNTAIN HELIUM, LLC v. US 3

Rocky Mountain never extracted helium from the 

property—which Rocky Mountain alleges was the result 

of inadequate cooperation from other firms whose oil and 

gas mining releases helium for collection. For one year, 

Rocky Mountain paid the rent due to the Bureau, then it 

stopped paying. J.A. 82 (“In nearly 15 years, [Rocky 

Mountain] has made no payment on its contract . . . .”). In 

December 2004, the Bureau informed Rocky Mountain

that it had cancelled the Helium Contract due to nonpayment. Rocky Mountain filed an administrative appeal 

with the Civilian Board of Contracts Appeals (CBCA). On 

August 29, 2008, before a CBCA decision, the parties 

entered into a Settlement Agreement. 

Under the Settlement Agreement, within specified periods the Bureau had to direct certain oil and gas lessees 

of federal land to furnish the Bureau with specified information (“the Data”) about gas composition on the 

federal lands covered by the Helium Contract, and the 

Bureau then had to provide “the Data” to Rocky Mountain. J.A. 70–71. Within 90 days of receiving “the Data,”

Rocky Mountain had to pay $116,579.90 (representing 

back rent) to the Bureau. J.A. 70. After those events 

occurred, the 1994 Helium Contract would be reinstated. 

Additional provisions specified certain interactions between the Bureau, Rocky Mountain, and the oil and gas 

lessees to produce cooperation leading to actual helium 

collection. 

The Settlement Agreement addresses what would 

happen if Rocky Mountain failed to make the $116,579.90

payment in the specified time after receiving the contractspecified Data. That failure, the Agreement says, “shall 

trigger” a “Sunset Provision.” J.A. 70. The Sunset Provision, item III.1 of the Agreement, specifies the consequences of such triggering:

[Rocky Mountain] agrees to completely and forever release any and all claims, rights, and/or inter-
4 ROCKY MOUNTAIN HELIUM, LLC v. US

est in or arising from Federal Helium Contract 

FLL 94-001, in their entirety and expressly including any preferential rights detailed therein, 

and any and all claims against [the Bureau], the 

Department of the Interior and the United States, 

relating to Federal Helium Contract FLL 94-001. 

Furthermore [Rocky Mountain] agrees that upon 

triggering of the Sunset Provision, [the Bureau]

may contract with third parties for Helium recovery on the lands covered by Federal Helium Contract FLL 94-001. 

J.A. 73. 

Relatedly, the Settlement Agreement contains a disputes clause, which states: “The parties agree that, except 

in the event of a triggering of the Sunset Provision described at item III(1) herein, disputes or disagreements 

arising from operation of this Agreement will be submitted to the Honorable Judge Allan Goodman at the CBCA 

for ADR [Alternative Dispute Resolution] pursuant to

CBCA rule 54.” J.A.73. It is undisputed that the cited 

rule 54 generally provides for CBCA participation in 

dispute-resolution efforts, which are to be voluntary 

unless the parties jointly agree to be bound, and that the 

Settlement Agreement’s disputes clause required only 

voluntary efforts before Judge Goodman, not submission 

of a dispute for a binding decision.

Under the Settlement Agreement, the Bureau sought 

information from oil and gas lessees and provided Rocky 

Mountain with information on December 5, 2008.1 Rocky 

 

1 We rely here on the record submitted to us in the 

usual course of this appeal and, in addition, on the letter 

jointly submitted to us by the parties to clarify matters 

that arose at oral argument in the appeal. Appellant & 

Appellee’s Supp. Letter, Oct. 12, 2016. We appreciate the 
ROCKY MOUNTAIN HELIUM, LLC v. US 5

Mountain objected that the information was incomplete, 

i.e., was not “the Data” required by the Agreement. Thus, 

Rocky Mountain refused to pay the $116,579.90 due 

within 90 days of delivery of “the Data.”

On March 4, 2009, before the end of that 90-day period for payment, Rocky Mountain informed the Bureau 

and Judge Goodman that it wanted to pursue mediation, 

thus invoking the Agreement’s disputes clause. The 

Bureau “responded that it had supplied all the information necessary and therefore there was no dispute to 

mediate, but agreed to suspend the settlement payment 

deadline for ten days for [Rocky Mountain] to either make 

the payment or to explain exactly what information 

required by the settlement agreement [the Bureau] had 

failed to provide.” Appellant & Appellee’s Supp. Letter at 

1, Oct. 12, 2016. Rocky Mountain repeated its request for 

mediation on April 16, 2009.

On April 21, 2009, the Bureau sent a letter to Rocky 

Mountain stating that it was invoking the Sunset Provision of the Settlement Agreement and “consider[ed] 

federal helium contract FLL-94-001 fully, finally, and 

permanently terminated.” J.A. 82. It added: “Any recovery that [Rocky Mountain] may ultimately seek through 

litigation will be limited to money damages—and will be 

vigorously contested by [the Bureau].” Id. Rocky Mountain alleges that, within a year, the Bureau entered into a 

new lease with another company; the Bureau neither 

confirms nor denies that allegation. 

The parties “continued to discuss possible ADR proceedings” with Judge Goodman. Appellant & Appellee’s 

 

parties’ initiative and cooperation in providing the joint 

clarification. Because we do not go beyond the joint letter, 

we deny Rocky Mountain’s motion to file additional materials responsive to the questions raised at oral argument. 
6 ROCKY MOUNTAIN HELIUM, LLC v. US

Supp. Letter at 1. In those conversations, “Judge Goodman never made a written or oral determination about 

whether the sunset provision had been triggered.” Id. “It 

appears that neither party pursued ADR further after 

September 2009, and that the CBCA closed its ADR file in 

March 2010.” Id. at 2.

On April 21, 2015, Rocky Mountain filed a complaint 

in the Court of Federal Claims. Rocky Mountain alleged 

that the Bureau breached two contracts: (1) the Helium 

Contract and (2) the Settlement Agreement. The United 

States filed a motion to dismiss. The trial court granted 

the motion based on different jurisdictional and merits 

grounds.

As to the Helium Contract claim: The court first found 

that Rocky Mountain lacked constitutional standing 

because the Helium Contract had been terminated in 

2004 and never reinstated. It also dismissed that claim 

on the merits for the same reason. As to the Settlement 

Agreement claim: The court found lack of subject matter 

jurisdiction on the ground that the disputes clause required submission of the dispute to Judge Goodman.2

Rocky Mountain appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

II

We review de novo the dismissal for lack of jurisdiction, which in this case involves no factual findings on 

 

2 Rocky Mountain argues that the Court of Federal 

Claims also dismissed its Settlement Agreement breach 

claim for failure to state a claim. We do not agree. The 

court’s discussion of Rocky Mountain’s obligation to pay 

the $116,579.90 payment related to its merits dismissal of 

the Helium Contract breach claim (as never reinstated), 

not to the Settlement Agreement breach claim.
ROCKY MOUNTAIN HELIUM, LLC v. US 7

material disputed facts, and the dismissal for failure to 

state a claim. See RadioShack Corp. v. United States, 566 

F.3d 1358, 1360 (Fed. Cir. 2009); Trauma Serv. Grp. v. 

United States, 104 F.3d 1321, 1324 (Fed. Cir. 1997).

Count I of Rocky Mountain’s complaint alleges breach 

of the Settlement Agreement, while Count II alleges 

breach of the Helium Contract. Like the Court of Federal 

Claims, we discuss the 1994 Helium Contract first, then 

the 2008 Settlement Agreement. Count III of the complaint, seemingly covering both contracts, alleges breach 

of an implied duty of a good faith and fair dealing. We see 

no need for separate discussion of Count III. Our rulings 

on the two simple breach counts shall be taken to extend 

to Count III’s implied-duty claim insofar as that count 

applies, respectively, to the Helium Contract and Settlement Agreement. 

A 

As to the Helium Contract, although Rocky Mountain’s complaint might be taken to allege breach in 2004, 

when the United States declared the contract terminated, 

the complaint principally alleges breach years later. 

Specifically, it alleges breach on April 21, 2009, when the 

government stated that it deemed the contract fully, 

finally, and permanently terminated, and then during the 

year after April 21, 2009, when (the complaint alleges) the 

government contracted with another firm for helium 

extraction on the lands covered by the contract. According to Rocky Mountain, the termination was a breach

because it rested on Rocky Mountain’s failure to pay rent

and that failure was in fact the result of the Bureau’s own 

failure to cooperate with Rocky Mountain “to ensure 

access to gas streams to conserve and recover helium.” 

Appellant’s Br. at 1. And the government’s alleged contracting with a new firm in the year after April 2009, 

Rocky Mountain alleges, was a breach because it violated 
8 ROCKY MOUNTAIN HELIUM, LLC v. US

Rocky Mountain’s preferential rights under the Helium 

Contract, which existed for one year after a termination.

1 

The Court of Federal Claims first held that Rocky 

Mountain lacked constitutional standing to assert its 

claim for breach of the Helium Contract. If correct, that 

conclusion would support the jurisdictional dismissal. 

Anderson v. United States, 344 F.3d 1343, 1349 (Fed. Cir. 

2003). But the standing conclusion is not correct.

Rocky Mountain met the constitutional standing requirement because it alleged a legally cognizable injury in 

fact that is “concrete and particularized” and “actual or 

imminent,” causation of that injury by the conduct complained of, and redressability of the injury by a favorable 

decision on the merits of the claim. Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560–61 (1992). Here, no issue is or 

could be raised about any component of that familiar 

standard except the requirement of cognizable injury in 

fact. On that component of the standing test, Rocky 

Mountain alleges economic harm from a breach of contract. That allegation asserts a cognizable injury in fact: 

“palpable economic injuries have long been recognized as 

sufficient to lay the basis for standing.” Sierra Club v. 

Morton, 405 U.S. 727, 733 (1972). Rocky Mountain’s 

allegations thus suffice to establish standing.

In concluding otherwise, the Court of Federal Claims 

relied on its determination that Rocky Mountain “was in 

default of the Helium Contract on August 1, 1996, when 

the annual rental payment was due,” which led the Bureau to declare the contract terminated. J.A. 9. But that 

determination is a merits determination: it rejects Rocky 

Mountain’s claim that the Helium Contract termination 

was a breach, a claim resting on the assertion that the 

non-payment of rent resulted from the Bureau’s own 

deficient conduct. Such a merits determination is not a 

permissible one for the standing analysis, which assumes 
ROCKY MOUNTAIN HELIUM, LLC v. US 9

the merits of a litigant’s claim and determines whether 

“even though the claim may be correct the litigant advancing it is not properly situated to be entitled to its 

judicial determination.” 13A Charles Alan Wright & 

Arthur R. Miller, Federal Practice and Procedure § 3531 

(3d ed. 2008 & Supp. 2016); see, e.g., Warth v. Seldin, 422 

U.S. 490, 500 (1975) (“[S]tanding in no way depends on 

the merits of the plaintiff’s contention that particular 

conduct is illegal.”). The jurisdictional dismissal for lack 

of standing is therefore incorrect.

There is, however, a different jurisdictional bar to 

Rocky Mountain’s claim of breach of the Helium Contract, 

but only to a limited extent. The jurisdiction of the Court 

of Federal Claims is limited by the six-year statute of 

limitations of 28 U.S.C. § 2501. See John R. Sand & 

Gravel Co. v. United States, 552 U.S. 130, 134 (2008)

(holding that § 2501 states a jurisdictional limit). Rocky 

Mountain did not bring this action until April 2015—

which was more than six years after any 2004 termination and the expiration of preferential rights one year 

after any such 2004 termination. The six-year limitations 

rule thus bars jurisdiction insofar as Rocky Mountain 

alleges that the Bureau wrongfully terminated the contract in 2004. On the other hand, there is no time bar 

insofar as Rocky Mountain alleges that the termination

occurred on April 21, 2009, or later. 

To the extent, then, that Rocky Mountain alleges a 

2004 termination, we affirm the dismissal of the Helium 

Contract claim for lack of jurisdiction. Whether or not 

such a termination was wrongful, Rocky Mountain is out 

of time in challenging a 2004 termination. We otherwise 

reverse the jurisdictional dismissal.

2 

The Court of Federal Claims separately dismissed 

Rocky Mountain’s Helium Contract claim for failure to 

state a claim on which relief can be granted. It concluded 
10 ROCKY MOUNTAIN HELIUM, LLC v. US

that it is beyond reasonable dispute that the Helium 

Contract was in fact terminated in 2004 and never reinstated. That merits conclusion defeats Rocky Mountain’s 

breach claim, which is timely only to the extent it alleges 

that there was no termination until April 21, 2009. We 

agree with the termination conclusion and the merits 

dismissal based on it. 

There is no dispute that the Court of Federal Claims 

was permitted to rely on the documents from which it 

drew its conclusion about the 2004 termination. Court of 

Federal Claims Rule 10(c) states (in words identical to 

Federal Rule of Civil Procedure 10(c)) that “[a] copy of a 

written instrument that is an exhibit to a pleading is a 

part of the pleading for all purposes.” The Supreme Court 

has ruled that a court “must consider the complaint in its 

entirety, . . . in particular, documents incorporated into 

the complaint by reference, and matters of which a court 

may take judicial notice.” Tellabs, Inc. v. Makor Issues & 

Rights, Ltd., 551 U.S. 308, 322 (2007). And the leading 

commentary has explained: “the contents of any attached 

writing must be considered by the court in a wide variety 

of contexts—for example, in determining the sufficiency of 

the statement of a claim for relief or a defense on a motion 

to dismiss under Rule 12(b)(6)”; the court “obviously is not 

bound to accept the pleader’s allegations as to the effect of 

the exhibit, but can independently examine the document 

and form its own conclusions as to the proper construction 

and meaning to be given the attached material”; and “[i]t 

appears to be well settled that when a disparity exists 

between the written instrument annexed to the pleadings 

and the allegations in the pleadings, the terms of the 

written instrument will control, particularly when it is 

the instrument being relied upon by the party who made 

it an exhibit.” 5A Charles Alan Wright & Arthur R. 

Miller, Federal Practice and Procedure § 1327 (3d ed. 2004 

& Supp. 2016). 
ROCKY MOUNTAIN HELIUM, LLC v. US 11

Here, the complaint itself recounts that the Bureau on 

December 29, 2004, notified Rocky Mountain “that it had 

cancelled the Helium Contract for non-payment.” J.A. 25. 

Moreover, the Settlement Agreement recites that the 

Bureau “canceled the Contract on December 29, 2004.” 

J.A. 69. And it is beyond dispute that no reinstatement 

of the Helium Contract actually occurred. 

Rocky Mountain’s complaint may allege that the Settlement Agreement should have led to a reinstatement of 

the Helium Contract but that breach of the Settlement 

Agreement prevented such reinstatement. Such an 

allegation, however, would at most be relevant to the 

claim of Settlement Agreement breach, with whatever 

consequences may follow if that claim is proved. It does 

not support an allegation, contrary to the plain facts just 

stated, that the Helium Contract actually was in force 

until April 21, 2009, rather than having been terminated 

in 2004 (the only alternative on this record). 

The motion-to-dismiss record thus requires the conclusion that the Helium Contract was terminated in 2004 

and never reinstated. To the extent that Rocky Mountain 

alleges that the termination did not occur until 2009, that 

allegation is one on which relief cannot be granted. 

Therefore, insofar as the Helium Contract breach claim 

rests on that allegation, we affirm the merits dismissal of 

the Helium Contract breach claim—that claim otherwise 

being properly dismissed as jurisdictionally untimely.

B 

Rocky Mountain’s claim of breach of the Settlement 

Agreement asserts that the Bureau did not provide Rocky 

Mountain all of “the Data” it was obliged to provide under 

that agreement. As a result, Rocky Mountain asserts, a 

contractual precondition to its obligation to make the 

$116,579.90 payment was not met. According to Rocky 

Mountain, the government therefore breached the agreement when it invoked the Sunset Provision on April 21, 
12 ROCKY MOUNTAIN HELIUM, LLC v. US

2009, based on Rocky Mountain’s failure to make that 

payment.

The Court of Federal Claims dismissed the Settlement Agreement breach claim for lack of jurisdiction, 

concluding that the disputes clause required Rocky Mountain to submit its challenge to the adequacy of the Bureau-furnished information to Judge Goodman of the 

CBCA. It is anything but clear that the premise would 

support the conclusion: we have seen no authority for 

treating a requirement like this one, which reaches no 

further than a requirement to invoke non-binding settlement assistance, as an override of an otherwise-clear 

jurisdictional grant to the court. But we need not decide 

that question. The parties, in their joint post-argument 

letter, have now made clear that Rocky Mountain did 

invoke Judge Goodman’s assistance under CBCA Rule 54

and, in fact, did so before its $116,579.90 payment was 

due. The disputes clause was satisfied. At least on these 

newly established facts, the Court of Federal Claims did 

not lack jurisdiction over the Settlement Agreement 

breach claim based on the disputes clause.

The United States makes an alternative argument for 

lack of jurisdiction. It invokes the established principle 

that the source of law underlying a Tucker Act claim must 

be money-mandating, i.e., be one that “can fairly be 

interpreted as mandating compensation by the Government for the damages sustained.” United States v. Mitchell, 463 U.S. 206, 217 (1983); see, e.g., Higbie v. United 

States, 778 F.3d 990, 993 (Fed. Cir. 2015). The United 

States asserts that the Settlement Agreement is not 

money-mandating.

We reject that contention. Where there is a breach of 

a government contract, “as with private agreements, 

there is a presumption in the civil context that a damages 

remedy will be available upon the breach of an agreement.” Sanders v. United States, 252 F.3d 1329, 1334 
ROCKY MOUNTAIN HELIUM, LLC v. US 13

(Fed. Cir. 2001). Typically, based on that presumption, 

“no further inquiry is required” into whether money 

damages are available. Holmes v. United States, 657 F.3d 

1303, 1314 (Fed. Cir. 2011). We have found that money 

damages are not available in a breach of contract case 

only in a limited number of situations—e.g., where a 

contract expressly disavows money damages, see id.

(distinguishing such cases), where the breach alleged was 

of a confidentiality provision in an agreement defining the 

terms of an alternative dispute resolution process, Higbie, 

778 F.3d at 995, where the agreement concerned a criminal defendant’s release on bail, Sanders, 252 F.3d at 1331, 

and where a special government cost-sharing agreement, 

rather than a procurement or sales contract, was at issue,

Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 

1338, 1344–46 (Fed. Cir. 2008). 

This case involves no exceptions we have recognized. 

The Settlement Agreement is a commercial contract

whereby the two parties set the terms for launching a 

continuing commercial arrangement, based on initial

provision of information, followed by payment if the 

information was complete, and then the taking of further 

steps designed to lead to mutually beneficial commercial 

exploitation of valuable resources. This kind of commercial contract comes within the core of the strong background rule making monetary remedies available for 

contract breaches even when there is no express contract 

provision so stating. 

CONCLUSION

For the foregoing reasons, we affirm in part and reverse in part, and we remand the case for further proceedings consistent with this opinion. 

No costs.

AFFIRMED IN PART, REVERSED IN PART, AND 

REMANDED