United States Court of Appeals 

for the Federal Circuit ______________________ 

PETER TURPING, DICK CARTMELL, PHILIP 

ISAACS, GREG BROWN, JOHN BONGERS, AND

OTHER SIMILARLY SITUATED PERSONS,

Plaintiffs-Appellants

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2018-1005

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:16-cv-00872-SGB, Senior Judge Susan G. 

Braden.

______________________ 

Decided: January 9, 2019 

______________________ 

DOUGLAS E. MCKINLEY, JR., Law Office of Douglas E. 

McKinley, Jr., Richland, WA, argued for plaintiffsappellants. 

 ALBERT S. IAROSSI, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, argued for defendant-appellee. Also 

represented by STEVEN J. GILLINGHAM, ROBERT EDWARD 

KIRSCHMAN, JR., JOSEPH H. HUNT. 

 ______________________ 
2 TURPING v. UNITED STATES

Before LOURIE, CHEN, and STOLL, Circuit Judges.

CHEN, Circuit Judge.

Appellants are a group of former employees of Lockheed Martin Services, Inc. (Lockheed) who appeal a U.S. 

Court of Federal Claims (Claims Court) decision dismissing their contract claim against the U.S. government 

(Government). Because the Claims Court correctly determined that Appellants did not prove that an impliedin-fact contract between themselves and the Government 

exists, we affirm the Claims Court’s decision.

BACKGROUND

During World War II, the Hanford Nuclear Reservation (Hanford) was established by the U.S. Army Corps of 

Engineers (Army Corps) in the state of Washington to 

produce nuclear material for use in atomic weapons. 

J.A. 24–25. After the war, Hanford continued to be used

by the Government for nuclear work, but eventually the 

Department of Energy (DOE) assumed responsibility for 

managing Hanford. J.A. 25. 

Since 1947, DOE and its predecessors engaged contractors, whose employees performed work at Hanford. 

J.A. 24–25. Each time the work performed by one contractor was transferred to another contractor, the employees that performed the work would stay the same, and 

they would typically keep their same pay and benefits, 

including retirement benefits. J.A. 28. 

In 1987, DOE awarded a contract moving the management and operation of Hanford to a contractor, Westinghouse Hanford Company (WHC), and directed WHC to 

create the Hanford Multi-Employer Pension Plan (MEPP). 

J.A. 27, 29. The MEPP was a contract between “Employers,” defined with specific contractor and subcontractor

names including WHC, and “Employees,” who were 

employed by the Employers. J.A. 201–202. Each time a 
TURPING v. UNITED STATES 3

new contractor performs work at Hanford, the definition 

of “Employer” in the MEPP adds that new contractor. See

J.A. 102. According to the preamble of the MEPP, the 

MEPP was created by the Employers for the benefit of the 

Employees. J.A. 196. The Government is not listed as a 

party to the MEPP. 

The MEPP is run by a Plan Administrator, which Article 11 of the MEPP defines as a committee established 

by the Employers. J.A. 248. The Plan Administrator may 

not amend the MEPP without prior DOE approval and 

may not take any action that has a financial impact on 

the MEPP without prior written approval of DOE. 

J.A. 33. Article 10 requires “[e]ach Employer [to] make 

contributions to the Plan from time to time as the Plan 

Administrator shall determine but in at least such 

amount as is required by the minimum funding standards 

of federal law applicable to the Plan.” J.A. 248.

Article 29 of the MEPP, entitled “Terminations for 

Transfer,” requires that employees be able to “receive[] a 

benefit at Normal Retirement Date which is reflective of 

his Years of Service on the Hanford Reservation.” 

J.A. 293. Reference to the Government only appears once 

in the MEPP, and that is in Article 29, where the MEPP 

states: “A Termination for Transfer means a termination 

from one contractor on the Hanford Reservation to another which is determined to be in the best interests of the 

government.” Id. 

On August 6, 1996, DOE announced that the Hanford 

Management Contract would be transferred from the 

current contractor (WHC) to a new contractor (Fluor 

Daniel Hanford or FDH). J.A. 30. The majority of workers received the same post-retirement benefits when the 

1996 contract changeover occurred. J.A. 38. 

On August 30, 1996, however, some WHC employees 

were provided with an “Offer Letter” from Lockheed, 

which was to be a subcontractor to FDH. J.A. 37. The 
4 TURPING v. UNITED STATES

Offer Letter stated: “[i]f your employee benefits for this 

position are different than the current site benefit program, a summary is enclosed,” but no summary was 

enclosed. Id. The Offer Letter required the WHC employees to sign it by September 9, 1996, if they wanted to 

accept employment with Lockheed. J.A. 38. 

In September 1996, many former employees of WHC, 

including Appellants, accepted employment at Lockheed 

and were informed by Lockheed that, upon their retirement, they would not receive retirement benefits—

including medical benefits, death benefits, and pension 

compensation—that were previously afforded under the 

MEPP. J.A. 39. 

Despite being told earlier in October 1996 that Appellants were no longer parties to the MEPP, on October 10, 

1996, Appellants were informed1 that they would in fact 

remain in the MEPP. J.A. 40. Instead of calculating their 

pension benefits based on their total years in service, 

however, their benefits would be calculated using the 

highest five year salary during their employment at 

 

1 Appellants allege throughout their amended complaint that “the Government” performed certain actions, 

including making certain statements to Appellants. See, 

e.g., J.A. 39–41. At times, Appellants also state that the 

Government made these statements “acting through the 

MEPP” or “acting through its agent the MEPP.” Id. 

These allegations as to what the Government told Appellants, however, fail to reach the “plausible” level required 

by Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive 

a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to ‘state a claim to relief 

that is plausible on its face.’”) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). Moreover, the Government is not a party to the MEPP and therefore cannot 

act “through” the MEPP. 
TURPING v. UNITED STATES 5

Hanford (the high-five rule). J.A. 41. This was solidified 

in an amendment to the MEPP, made retroactive to the 

end of September 1996. Id. The Lockheed employees 

were told that they could not challenge the new changes 

to their benefits until they retired. Id. 

In October 2014, Peter Turping retired from Lockheed 

and notified the Plan Administrator that he intended to 

begin withdrawing pension benefits from the MEPP. 

J.A. 42. The Plan Administrator used the high-five rule 

to calculate Mr. Turping’s pension benefits, rather than 

calculating the benefits using his entire term of service at 

Hanford. Id. 

In July 2016, Appellants, including Mr. Turping, filed 

a class action lawsuit against the Government under the 

Tucker Act, alleging, inter alia, that they had an impliedin-fact contract with the Government and that the Government breached that contract when it refused to provide Appellants pension benefits based on their total 

years in service. J.A. 22–52. The Government subsequently filed a motion to dismiss Appellants’ amended 

complaint under Rules of the U.S. Court of Federal 

Claims (RCFC) 12(b)(1) and 12(b)(6). J.A. 6. The Claims 

Court granted the Government’s motion, and Appellants 

timely appealed. 

We have jurisdiction under 28 U.S.C. § 1295(a)(3).

STANDARD OF REVIEW 

“This court reviews de novo whether the Court of Federal Claims possessed jurisdiction and whether the Court 

of Federal Claims properly dismissed for failure to state a 

claim upon which relief can be granted, as both are questions of law.” Wheeler v. United States, 11 F.3d 156, 158 

(Fed. Cir. 1993).

“Whether a contract exists is a mixed question of law 

and fact.” Cienega Gardens v. United States, 194 F.3d 

1231, 1239 (Fed. Cir. 1998). “We review the trial court’s 
6 TURPING v. UNITED STATES

legal conclusions independently and its findings of fact for 

clear error.” Cal. Fed. Bank, FSB v. United States, 

245 F.3d 1342, 1346 (Fed. Cir. 2001). Since we accept all 

facts pleaded in the complaint as true at the 12(b)(6) 

stage, the issue of whether a party is in privity of contract 

with the Government reduces to a question of law, which 

we review de novo. Cienega Gardens, 194 F.3d at 1239. 

“Contract interpretation itself also is a question of law, 

which we review de novo.” Id. 

DISCUSSION

A. Statute of Limitations

“Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the 

petition thereon is filed within six years after such claim 

first accrues.” 28 U.S.C. § 2501. “Generally, a claim 

against the United States first accrues on the date when 

all the events have occurred which fix the liability of the 

Government and entitle the claimant to institute an 

action.” Bowen v. United States, 292 F.3d 1383, 1385 

(Fed. Cir. 2002) (internal quotation marks omitted). 

Repudiation “ripens into a breach prior to the time for 

performance only if the promisee elects to treat it as 

such.” Franconia Assocs. v. United States, 536 U.S. 129, 

143 (2002) (internal quotation marks omitted). “[I]f the 

injured party instead opts to await performance, the 

cause of action accrues, and the statute of limitations 

commences to run, from the time fixed for performance

rather than from the earlier date of repudiation.” Id. at 

144 (internal quotation marks omitted). 

We agree with the Claims Court that performance occurred when each participant received his or her benefits, 

i.e., on the participant’s “Normal Retirement Date.” See 

J.A. 182. Because Mr. Turping did not retire until 2014, 

which is fewer than 6 years before he filed this lawsuit, 

Appellants’ contract claims are not barred by the statute 

of limitations. See J.A. 5.
TURPING v. UNITED STATES 7

The Government argues that any repudiation here 

was not wholly anticipatory because Appellants allege 

that the Government breached multiple provisions of the 

contract, and therefore the statute of limitations should 

have started running immediately upon the Government’s 

first breach of the MEPP, which took place in 1996 or 

1997. Appellee Br. at 36–40 (citing Kinsey v. United 

States, 852 F.2d 556, 558 (Fed. Cir. 1988)). The Government then cites to specific facts in the amended complaint 

(e.g., that the Government refused to allow Appellants to 

withdraw their pensions, in violation of MEPP Article 26 

and federal statute) that Appellants could have cited in

support of an allegation that the Government breached 

the MEPP. Id. at 37–38. 

But Appellants did not bring an action against the 

Government’s alleged breach of Article 26 or its alleged 

federal law violations. Accordingly, these instances of 

potential contractual nonperformance are not relevant to 

the analysis. We must focus on the claim that is in front 

of us in this appeal, and that is Appellants’ allegation that 

the Government breached its implied-in-fact contract, the 

performance of which took place at retirement. 

B. Implied-in-Fact Contract

The Tucker Act provides the Claims Court with jurisdiction to hear claims against the United States that are 

founded upon, among other things, an express or implied 

contract with the United States. 28 U.S.C. § 1491(a)(1). 

“An implied-in-fact contract is one founded upon a meeting of minds and is inferred, as a fact, from the conduct of 

the parties showing, in the light of the surrounding circumstances, their tacit understanding.” Hanlin v. United 

States, 316 F.3d 1325, 1328 (Fed. Cir. 2003). “[T]he 

requirements for an implied-in-fact contract are the same 

as for an express contract; only the nature of the evidence 

differs.” Id. An implied-in-fact contract with the Government requires proof of (1) mutuality of intent, (2)
8 TURPING v. UNITED STATES

consideration, (3) an unambiguous offer and acceptance, 

and (4) “actual authority” on the part of the Government’s 

representative to bind the Government in contract. Id. 

Plaintiffs have the burden to prove the existence of an 

implied-in-fact contract. Id. 

“As a threshold condition for contract formation, there 

must be an objective manifestation of voluntary, mutual 

assent.” Anderson v. United States, 344 F.3d 1343, 1353 

(Fed. Cir. 2003) (citing Restatement (Second) of Contracts 

§ 18 (1981)). “To satisfy its burden to prove such a mutuality of intent, a plaintiff must show, by objective evidence, the existence of an offer and a reciprocal 

acceptance.” Id. 

Appellants have not met their burden of proving that 

mutuality of intent between the Government and Lockheed’s employees exists. Appellants argue that “[t]he 

government made two promises to the Hanford workers” 

when the MEPP was formed: (1) an implicit promise that 

the government would provide the funds to meet the 

pension obligations set forth in the MEPP; and (2) an 

explicit promise in Article 29 of the MEPP to workers that 

when they retire from Hanford, they will receive credit in 

the calculation of their pensions for all their years working at Hanford, even if the Government changed contractors. Appellants Op. Br. at 7–8. 

But nothing in the MEPP indicates intent by the Government to be in privity of contract with Lockheed’s 

employees. Rather, the MEPP only evidences a contractual relationship between Lockheed and its employees. 

Notably, the MEPP does not list the Government as a 

party to the contract. Rather, the MEPP states that it 

was created by “Employers” for the benefit of their Employees. J.A. 197. Appellants do not dispute that the 

“Employers” referenced in the MEPP do not include the 

Government, but rather refer to contractors and subcontractors such as Lockheed. See J.A. 201–202. The MEPP 
TURPING v. UNITED STATES 9

also specifies that the Plan Administrator, established by

the Employers, is the entity that funds the plan, not the 

Government. J.A. 248. And the MEPP places responsibility for benefits determinations into the hands of the Plan 

Administrator, not the Government. J.A. 293. 

“It is a hornbook rule that, under ordinary government prime contracts, subcontractors do not have standing to sue the government under the Tucker Act, 

28 U.S.C. § 1491 . . . .” Erickson Air Crane Co. of Wash. v. 

United States, 731 F.2d 810, 813 (Fed. Cir. 1984). “The 

government consents to be sued only by those with whom 

it has privity of contract, which it does not have with 

subcontractors.” Id. In two-tiered contract schemes, the 

Government’s obligations are directed to the contractor, 

with whom it shares a contract, and not the subcontractor, with whom it shares no direct contractual relationship. Cienega Gardens, 194 F.3d at 1245. “Aggrieved 

subcontractors have the option of enforcing their subcontract rights against the prime contractor in appropriate 

proceedings, or of prosecuting a claim against the government through and in right of the prime contractor's 

contract, and with the prime contractor’s consent and 

cooperation.” Erickson, 731 F.2d at 813. Employees are 

treated as subcontractors for the purposes of this rule. 

United States v. Munsey Trust Co. of D.C., 332 U.S. 234, 

241 (1947); see also Bolin v. United States, 221 Ct. Cl. 947, 

948 (1979). Absent any indicia in the MEPP or other 

evidence proffered by Appellants of the Government’s

specific intent to be contractually obligated to Lockheed’s 

employees, we find that privity of contract between Appellants and the Government does not exist. 

Appellants’ argument that the Government “unilaterally forced the Hanford contractors and their employees to 

participate in the MEPP,” and therefore the Government 

intended to be bound, is unavailing. Appellants Op. Br. 

at 32–33. The same is true for Appellants’ focus on the 

Government’s alleged “control” in the creation and admin-
10 TURPING v. UNITED STATES

istration of the MEPP. Id. at 6. Our case law has made 

clear that the “degree of [government] involvement with a 

project does not create privity [between the government 

and a subcontractor] so as to allow suit against the government.” Cienega Gardens, 194 F.3d at 1245; see also id.

at 1244–45 (“That the Federal Government has intimate 

control over a project, including prior approval of plans 

and costs, does not establish liability here for claims by a 

contractor [whose contract is only with a third party].”) 

(quoting Marshall N. Dana Const., Inc. v. United States, 

229 Ct. Cl. 862, 863 (1982)). “Nor does this degree of 

involvement indicate an implied-in-fact contract enforceable against the United States.” Dana Const., 229 Ct. Cl. 

at 863. 

In Dana Construction, a construction contractor contracted with an Indian Housing Authority (IHA) that

received federal funds from the U.S. Department of Housing and Urban Development (HUD) to build a low-income 

housing project. Id. at 862. The Court of Claims determined that the construction contractor could not assert a 

claim for breach of contract against HUD because the 

construction contractor’s privity of contract was with the 

IHA, not HUD. Id. at 863. The Court of Claims emphasized that, “[b]y funding and regulating programs designed for the public good the U.S. is acting in its role as a 

sovereign and the moneys promised . . . do not establish 

any contractual obligation, express or implied, on the part 

of the United States.” Id. at 864.

The same principle applies in this case. The Government funds Lockheed and other Employers to manage 

Hanford, but there is no evidence that the Government 

intended to be contractually obligated to Lockheed’s or 

other Employers’ employees, either through the MEPP or 

by other means. Without this mutuality of intent, Appellants fail to meet their burden of proving that an implied-
TURPING v. UNITED STATES 11

in-fact contract exists between the Government and 

Lockheed’s employees.2 

Because we determine no mutuality of intent exists, 

we do not reach the question of whether the other required elements of an implied-in-fact contract exist in this 

case. We have reviewed Appellants’ other arguments, but 

find them unpersuasive. Accordingly, we affirm the 

Claims Court’s decision finding that no implied-in-fact 

contract exists.

AFFIRMED

 

2 Appellants argue that WHC acted as the Government’s “agent” in drafting Article 29 of the MEPP, which 

provided for Hanford workers to receive benefits reflective 

of their total years of service. Appellants Op. Br. at 54; 

J.A. 293. Appellants do not plead sufficient plausible 

facts to support this agency argument. Iqbal, 556 U.S. 

at 678. Likewise, Appellants cannot support their broad 

allegation that only the Government—a non-party to the 

MEPP—had the authority to “enforce” Article 29 and 

compel subcontractors to remain in the MEPP. Appellants Op. Br. at 9–10; see Iqbal, 556 U.S. at 678.