# In the United States Court of Fed eral Claims

No. 12

- 774 C (Filed: June 5 , 2015)

*************************************

XP VEHICLES , INC., and * LIMNIA, INC., * RCFC 12(b)(1); RCFC 12(b)(6); Motion to

* Dismiss; Subject Matter Jurisdiction; Fai lure Plaintiffs, * to State a Claim; Loan Program; Loan

* Guarantee Program; Implied

- in

- Fact

* Contract; Duty of Good Faith and Fair

v. * Dealing; Implied Duty to Fairly Consider;

* Oral Assurances; Promissory Estoppel;

THE UNITED ST ATES, * Equitable Estoppel

*

Defendant. *

*************************************

Daniel Z. Epstein

, Washington

, DC , for plaintiff s

.

Lisa L

. Donahue , United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWE ENEY , Judge

Plaintiffs, XP Vehicles , Inc. (“ XPV ”), an advanced technology vehicle company, and

Limnia

, Inc. (“Limnia”)

, an advanced technology energy system company

, are Silicon Valley

based innovative “green technology” sister companies that develop and produce advanced technology vehicles. Plaintiffs allege that they each applied for a loan to the Advanced Technology Vehicle Manufacturing Loan Program (“ATVM loan program”) , which i s administered by the United States Department of Energy (“DOE”)

. In ad dition, Limnia alleges

that it applied for a loan guarantee to the Section 1703 Loan Guarantee Program (“ Section 1703 LGP”) , which i s also administered by the DOE

. According to plaintiffs, their respective

meritorious applications ultimately were denied b ecause of corrupt political influence . Thus, plaintiffs contend

, the DOE did not review their applications in good faith and in accordance with DOE regulations, policies, and promises, thereby breaching the parties’ implied

- in

- fact contracts, and violatin g the DOE’s duty of good faith and fair dealing. Plaintiffs also argue that promissory estoppel provides another basis for their entitlement to money damages against the

United States. Defendant moves to dismiss plaintiffs’ second amended complaint pursu ant to Rules 12(b )( 1) and 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”). For the reasons set forth below, the court grants defendant’s motion.2 I. BACKGROUND

A. ATVM Loan Program

This case concerns plaintiffs’ respective applic ations to the ATVM loan program and Limnia’s application for a loan guarantee to the Section 1703 LGP. 1 The ATVM loan program was created by the Energy Independence and Secur i ty Act of 2007 (“EISA”) , codified at 42

U.S.C. § 17013, to move the United State s towards greater energy independence and security,

a mong other goals

. Pub. L. No. 110

- 140, 121 Stat. 1492 . At the time that plaintiffs applied for

ATVM loans , t he DOE administer ed the program through Steven Chu, United States Secretary of Energy (“Secre tary”); Lachlan Seward, Director of the Advanced Technologies Manufacturing Loan Program ; and the ir respective staff, advisors, and consultants

. T he pertinent portion of the EISA sets forth that

[t]he Secretary shall provide facility funding awards . . . to automobile manufacturers, ultra efficient vehicle manufacturers, and component suppliers to pay not more than 30 percent of the cost of

--

(1) reequipping, expanding, or establishing a manufacturing facility in the United States to produce

--

(A) qua lifying advanced technology vehicles;

(B) qualifying components; or

(C) ultra efficient vehicles; and

(2) engineering integration performed in the United States of qualifying vehicles, ultra efficient vehicles, and qualifying components.

42 U.S.C. § 17013(b). The EISA further states that the “Secretary shall carry out a program to provide a tot al of not more than $25[ billion ] in loans to eligible individuals and entities (as determined by the Secretary) for the costs of [such] activities described ” above. Id. § 17013(d)(1)

. T he Secretary must select

eligible projects to receive loans . . . in cases in which, as determined by the Secretary, the award recipient (A) is financially viable without the receipt of additional Federal funding associated with the proposed project; (B) will provide sufficient information . . . for the Secretary to ensure that the qualified investment is expended efficiently and effectively; and (C) has met such other criteria as may be established and published by the Secre tary.

Id. § 17013(d)(3)

.

1 The court derives the facts in the “Background” section from the second amended

c omplaint and exhibits attached thereto.3 B. XPV ’s ATVM Loan Program Application

On November 10, 2008, XPV applied for $40 million in ATVM loan program funds in order to mass produce an advanced technology, family

- friendly SUV

- style vehicle. XPV ’s operations included pot ential manufacturing facilities located in Michigan

, California , Nevada,

and Utah. XPV ’s team consisted of highly experienced industry sales executives, managers, designers, and aerospace industry professional s . They designed XPV ’s vehicle to be affordab le; to have a virtually unlimited range without requiring gasoline, a gara ge, or electrical cords for battery recharge; to have the ability to recharge rapidly; to be produced quickly and cheaply; and to be easily repaired. One of XPV ’s key innovation s wa s the use of polymer plastics and

skinned

, expanded foam pressure membranes to replace metal doors, body panels, hoods, and roofs on a lightweight alloy frame. This design provided for a curb weight of less than 1,400 pounds

, which , in addition to contrib uting to the vehicle’s virtually unlimited range, was a “key

innovation” in improving vehicle safety because the polymer membranes functioned as a wraparound, pre deployed airbag. 2d Am. Compl. ¶ 16. The vehicle ’s parts that were critical for performance had either been tested or used in industry

- proven “off

- the

- shelf” applications, such

as military applications, aerospace systems, and naval an d homeland security deployments

. Id. ¶ 17. At the time that it submitted its loan application

, XPV was in discus sion s with private sources of capital

, pend ing customers

, and financial par t n ers, and was preparing to commence production and sales.

The DOE stated that it would evaluate ATVM loan program applications on a “first in, first out” basis, trea t all applica nts fairly, and use objective published criteria when reviewing applications. Id. ¶ 19. In addition, the DOE promised to make funds available to qualified applicants as early as the end of December 2008, but by no later than January 2009. On

D ecember 2, 2008, the DOE acknowledged receipt of XPV ’s application and requested

additional information regarding the projected market use of XPV ’s vehicle

. 2d Am. Compl.,

Ex. 1 at 2

. XPV provided this information, and on December 31, 2008, its applicati on was deemed substantially complete. XPV ’s application was among the first to be considered substantially complete by the DOE

. A r epresentative from the DOE said that it would request

additional information from XPV as needed.

The DOE’s Microsoft Excel comparison matrices dated December 29, 2 008, and March 2, 2009, placed XPV in the top five percent of all applicants. Based on the DOE’s representations, XPV believed that the review process would take only weeks to be completed. When the process exceed ed that time frame

, XPV repeated ly offered the DOE additional engineering material, financial material , and other information to aid and expedite the DOE’s

review and approval of XPV ’s application.

O n April 23, 2009, Jason Gerbsman, the DOE’s Chief of Sta ff and Senior Investment Officer at the Loan Programs Office Automotive Division, sent XPV a letter advising :

[ XPV ] has submitted a substantially complete application and has been assigned to both a technical eligibility and merit review team, as well as a financial viability analysis team. The technical team is very close to finishing their evaluations on both eligibility and project merit, and the financial team will be launching a more detailed4

and interactive due diligence phase of the [ XPV ] applicati on review very soon. Following the technical and financial evaluation under the second stage of the process, we will move into the underwriting phase where our goal is to negotiate a conditional commitment, including a detailed term sheet. This will be f ollowed by the fourth phase of the loan process where the final details will be negotiated and the

loan will be closed.

Id. ¶ 27. On May 26, 2009, Mr. Gerbsman offered XPV an in

- person meeting to discuss “next steps.” Id. ¶ 28. On May 28, 2009, an XPV representative met with Mr. Gerbsman, who indicated that “everything was in order” with XPV ’s application, that “everything looked good,”

and that XPV “appeared to be fully compliant and passed [the] technical review.” Id. ¶ 29.

Shortly thereafter, XPV discovered that Tesla Motors, Inc. (“Tesla”) and Fisker Motors, Inc. (“Fisker”), both competitors of XPV , were receiving assistance from the DOE ’s staff in

connection with the ir respective ATVM loan program application s . Fisker also received access

to the DOE staff ’s time, offices, and conference rooms in the DOE’s headquarters at no charge. Although XPV made a similar request for assistance from the DOE ’s staff, its request was denied

because the DOE represented to XPV that its application was so good th at special assistance was

not needed.

To further support its application, o n June 15, 2009, XPV informed the DO E that it was a

semifinalist in Forbes ’s “America’s Most Promising Companies List” for that year. Later that month, an XPV corporate executive was contacted by a counterpart f rom another company that had also applied for DOE funds through the ATVM loan program

. The executive from the other company advised that he had been “screwed over” by the DOE, and wanted to know if others had similar exper iences. Id. ¶ 33. He explained that his company experienced “bad dealings”

with two specific individuals : Matt Rogers, from McKinsey & Company, who was serving as a “stimulus advisor” to Secretary Chu ; and Steven Spinner, a DOE loan program official. I d. According to the executive, Mr. S pinner had a conflict of interest because he was a Tesla advisor

and investor. The executive claimed that Mr. Rogers and Mr. Spinner were playing favorites with government money.

On June 24, 2009, the DOE announced an award of $8 billion in ATVM loans

, to be divided among Ford Motor Company (“Ford”), Nissan North America , Inc. (“Nissan”), and

Tesla. Of that amount, t he DOE awarded Tesla a $465 million loan at a rate of 1.6%. On June 29, 2009, XPV wrote to Mr. Gerbsma n again, requesting action on its application, and stating that other lenders were “hanging back” until after the DOE issued its term sheets. Id. ¶ 36

. Over the next seven weeks, Mr. Gerbsman and other DOE representatives reassured XPV that “everything w as fine,” that “everything [ wa ] s on track,” that XPV “appear[ed] to meet every criter[ion]” with respect to its ATVM loan program applica tion, and that defendant “should be able to announce [a loan] any day now.” Id. ¶ 37.

On August 21, 2009, the DOE den ied XPV ’s ATVM loan program application. The

DOE indicated that XPV ’s application was “ determined to be eligible” based on the “evaluation
criteria” in 10 C.F.R. § 611.103, but that the DOE was “not in a position to award every eligible application [ for A TVM loan program funds].” Id. ¶ 39. The DOE further stated that necessity5

required that it “choose applications that [we]re most likely to use proceeds in a way that w[ould] best achieve the goals of the program,” and that XPV ’s application had been reje cted on that
basis after a “merit [s] review.” Id. In an e lectronic

- mail m essage to DOE employee Chris

Foster , a subordinate of Mr. Seward, XPV requested the DOE’s merit review documents

. XPV

also inquired how it was possible for a ten

- month review of XP V ’s application to be considered

“reasonable” without the DOE working with XPV ’s engineer s or senior project staff member s for “ even one percent ” of the time that the DOE’s staff spent working on the proposals submitted by Tesla, Nissan, Ford

, Fisker , or t he other companies who were awarded ATVM loans

. Id. ¶ 41. In XPV ’s view, XPV did not receive the same favorable treatment as did those applicants

who were awarded loans. Mr. Foster did not respond to XPV ’s inquiry

. Then, o n or about August 26, 2009, an XPV representative called Mr. Foster , making the same inquiries as those

set forth in XPV ’s electronic

- mail message to which Mr. Foster did not respond

. During that telephone conversation, Mr. Foster reviewed XPV ’s file, and advised that XPV ’s applicatio n was denied because : XPV ’s SUV did not use E85 gasoline; XPV was not planning on building “enough” vehicles ; XPV was not planning on making government sales ; XPV ’s electric motors and batteries were too futuristic and not developed for commercial use ; XP V ’s SUV was a “hydrogen car ” ; and XPV had underestimated the cost of metal body fabrication. Id. ¶ 45.

After Mr. Foster related the DOE’s analysis of XPV ’s vehicle’s flaws, the XPV representative responded that the DOE’s factual predicate for the deni a l of loans was inaccurate

and lacked merit. During this lat t er portion of the telephone conversation, Mr. S eward entered

Mr. Foster’s office

, directed him to terminate the call , and instructed Mr. Foster to advise XPV

that it would receive a letter from t he DOE responding to its concerns. 2 XPV did not receive a letter during the next few weeks. O n September 21, 2009, XPV wrote to Secretary Chu

, requesting reconsideration of the denial of its application. In its letter, XPV articulated its belie f

that th e reasons offered by the DOE for the denial of its application were not legitimate

. On October 23, 2009, Mr. Seward sent a letter to XPV

, providing the DOE’s explanation for the

denial of XPV ’s loan application.

C. Limnia’s ATVM Loan Program Application

O n or about February 1, 2009, Limnia applied for $15 million in ATVM loan program funds to produce a “best of breed and state of the art” advanced technology vehicle component energy storage system using Limnia’s patented technology. Id. ¶ 69. The DOE’s S andia

National Laboratories (“Sandia”) w as designated as one of its subcontractor s

. T he DOE denied
Limnia’ s application on April 10, 2009, stat ing that the components in question “[did] not appear to be designed for installation in an advanced technology vehicle . . . .” Id. ¶ 70. On April 11, 2009, Limnia requested reconsideration, contending that : the relevant patents stated that the components in question were meant for use in advanced technology vehicles ; Sandia’s vehicle technologies group was the prime subcontractor for the project ; and that the DOE had funded the technology’s develop ment specifically for such use. On May 13, 2009, the DOE denied Limnia’s application again, indicating that the components were “not installed in the advanced

2 No information has been provided to the court regar ding how Mr. Seward was alerted

to the fact that Mr. Foster had been contacted by the XPV representative to complain about not being selected to receiv e ATVM loan program funds and to protest the bases for the DOE’s rejection of XPV’s loan application.6

technol ogy vehicle.” Id. ¶ 72. A ddition ally , t he DOE requested more information , including anticipated production volumes, the specific advanced technology vehicle into which Limnia’s product would be installed, and details regarding the vehicle installation pr ocess of the product. 2d Am. Compl., Ex. 8 at 1

- 2. O n June 3, 2009, Limnia complied

. Limnia also asked for

r econsideration of its application, stating that the questioned components “ must be installed prior to use in an advanced technology vehicle [, are ] designed for such installation, and therefore [are ] qualifying components. ” 2d Am. Compl. ¶ 72. The DOE did not respond to th at letter.

D. Section 1703 L oan G uarantee P rogram

In addition to the ATVM loan program, the DOE administer s the Section 1703 LG P, which was created by the Energy Policy Act of 2005 (“Energy Policy Act”) . 42 U.S.C. §§ 16511

- 165 16. The Section 1703 LGP’s purpose i s to support innovative clean energy projects that are typically unable to obtain conventional private financing due to high technology

risks. The Energy Policy Act authorize s the DOE to guarantee up to 80% of a loan for projects that “(1) avoid, reduce, or sequester air pollutants or anthropogenic emissions of greenhouse

gases ; and (2) employ new or significantly improve d technologies as compared to commercial technologies in service in the United States at the time the guarantee is issued.” Id. § 16513 (a)

. At the time of the filing of the second amended complaint, t he “ DOE ha [ d ] approximately $34

billion of unused lend ing authority ” for the program

. 2d Am. Compl. ¶ 12. Congress provided criteria by which to evaluate eligible projects and set loan and repayment terms. The DOE then promulgated rules an d regulations fleshing out the Energy Policy Act’s requirements.

E. Li mnia’s Section 1703 LGP Application

On or about February 1, 2009, Limnia participated in a conference call with Secretary Chu, United States Secretary of the Interior Kenneth Salazar , and John Podesta , a consultant retained by the DOE . During that confer ence call, Secretary Chu said that he felt that the “[ Section 1703 ] LGP fees and process were unduly onerous and burdensome [ , and ] promised to

waive the application fee. ” Id. ¶ 76. On February 10, 2009, Limnia filed an application with the

Section 1703 LGP , which included a cover letter stating that it was Limnia’s understanding that

the DOE had waived the application fee. On February 26, 2009, the application deadline

, Myrtle

Gross , a DOE employee, called Limnia and s tated that the initial application fee had not been waived, and that $18,000 had to be wired to the DOE by midnight in order for Limnia’s Section

1703 LGP application to be considered. This was Limnia’s first and only notice that its application fee had not been waived. Limnia possessed the funds to make the payment, but it could not complete the transaction by the midnight deadline. Because it was unable to effectuate the wire transfer, Limnia assumed that it was foreclosed from submitting its application

. On February 27, 2009, Daniel Tobi n, the DOE’s Loan Programs Office Senior Investment Officer,

called Limnia and said that there were “a few days of flexibility” to send in its application fee

, and indicat ed that he would provide wire transmission instructions. Id

. ¶ 80. Mr. Tobin also

p romised to “prereview” Limnia’s application and to provide feedback for its investors. Id.

O ver the next six weeks, Limnia contacted the DOE by sending electronic

- mail messages and letters, seeking instructions regarding wiring the application fee. Limn ia received no response from anyone at the DOE regarding such instructions or the pre review. O n April 9, 2009, the

DOE dismissed Limnia from the Section 1703 LGP because of “non

- remittance of the required7

application fee

. . . . ” Id. Although Limnia r eq uested reconsideration of the DOE’s decision

, Limnia’s request was denied.

F. Procedural History

Plaintiffs filed suit in the United States Court of Federal Claims (“Court of Federal Claims”) , and then subsequently amended their complaint. Thereafter, defe ndant filed a motion to dismiss, and plaintiffs amended the ir complaint for a second time . After the filing of the second amended complaint, defendant filed the present motion to dismiss. Plaintiffs set forth

four claims for relief in their second amende d complaint: 1) “ Equitable Estoppel (ATVM Loan Program Applications)”; 2) “Promissory Estoppel (LGP Application) ” ; 3) “Implied

- in

- Fact Contract (Fair Review of ATVM Loan Program Applications) ” ; and 4) “Breach of the Duty of Good Faith and Fair Dealing (Im plied

- in

- Fact Contract).” Id. at 27

- 30.

Plaintiffs allege that the DOE extended favorable treatment and preferences to Tesla and others based on political influence . In essence, plaintiffs claim that the criterion for awarding

funds and loans under the programs was the pay

- to

- play rule of corrupt politics. According to plaintiffs, awards were made only to those companies making monetary contributions to certain political campaigns

. Plaintiffs aver that “politics and pressure infected” the ATVM loan

pro gram and the Section 1703 LGP, id

. ¶ 84, where the DOE “fixed [these programs] to protect and advance the business and political interests of government cronies,” id. ¶ 117. P laintiffs contend that the DOE did not review their applications in good faith a nd in accordance with DOE regulations and policies , and that plaintiffs were improperly denied ATVM loan program

and Section 1703 LGP funds

. Plaintiffs assert that the DOE ’s demonstrated political favoritism

constituted a breach of implied

- in

- fact contrac ts with them, and that the DOE is estopped from denying that such contracts exist. Further, plaintiffs contend that the DOE breached the implied duty of good faith and fair dealing harbored with in the parties’ implied

- in

- fact contract s

. Plaintiffs collec tively request no less than $450 million in consequential and punitive damages, reimbursement of their respective application fees, damages for defendant’s alleged breach of its duty to fairly consider their applications, final agency review of Limnia’s Se ction 1703 LGP application on the merits, and actual costs and attorney’s fees. Defendant filed a motion to dismiss plaintiffs’ c laims pursuant to RCFC 12(b)(1) and RCFC 12(b)(6) . The motion has been fully briefed , and the court deems oral argument unnec essary

.

II. LEGAL STANDARD S

Defendant moves to dismiss plaintiffs’ complaint pursuant to RCFC 12(b)(1) for lack of subject matter jurisdiction, and under RCFC 12(b)(6) for failure to state a claim upon which relief can be granted

. When considering a motion to dismiss for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1), as with a motion to dismiss pursuant to RCFC 12(b )( 6 ), the court accepts as true all undisputed fact ual allegations made by the non moving party, and

draws all reasonable inferenc es from those facts in the nonmoving party’ s favor. Westlands

Water Dist. v. United States , 109 Fed. Cl. 177, 190 ( 2013).8 A. RCFC 12(b)(1)

Whether the court has jurisdiction to decide the merits of a case is a threshold matter.

See Steel C o. v. Citizens f or a Better Env’ t

, 523 U.S. 83, 94

- 95 (1998). “Without jurisdiction [,] the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte McCardle

, 74 U.S. (7 Wall.) 506, 514 (18 68). The parties, or

the court sua sponte

, may challenge the existence of subject matter jurisdiction at any time. Arbaugh v. Y & H Corp.

, 546 U.S. 500, 506 (2006). The p laintiff bear s the burden of proving, by a preponderance of the evidence, that the court possesses subject matter jurisdiction. Lujan v.

Defenders of Wildlife , 504 U.S. 555, 561 (1992); McNutt v. Gen. Motors Acceptance Corp.

, 298 U.S. 178, 189 (1936); Bra ndt v. United States , 710 F.3d 1369, 1373 (Fed. Cir. 2013); Reynolds v. Army & Air Force Exch. Serv.

, 846 F.2d 746, 748 (Fed. Cir. 1988). T he plaintiff cannot rely solely on allegations in the complaint, but must bring forth relevant, adequate proof to es tablish jurisdiction. See McNutt

, 298 U.S. at 189. Ultimately, if the court finds that it lacks subject matter jurisdiction, then it must dismiss the claim. Matthews v. United States

, 72 Fed. Cl. 274, 278 (2006); see also RCFC 12(h)(3) (“If the court de termines at any time that it lacks subject

matter jurisdiction, the court must dismiss the action.”).

B. RCFC 12(b)(6)

A claim that survives a jurisdictional challenge remains subject to dismissal under RCFC 12(b )( 6 ) if it does not provide a basis for the c ourt to grant relief. Lindsay v. United States

, 295 F.3d 1252, 1257 (Fed. Cir. 2002) (“A motion to dismiss .

. . for failure to state a claim upon which relief can be granted is appropriate when the facts asserted by the claimant do not entitle

him to a l egal remedy.”). A motion to dismiss for failure to state a claim upon which relief can be granted pursuant to RCFC 12(b)(6) tests the sufficiency of the complaint. Bell Atl. Corp. v. Twombly

, 550 U.S. 544, 555

- 56 (2007) ; see also RhinoCorps Ltd. Co. v. U nited States

, 87 Fed. Cl. 481, 492 (2009) (“A motion made under Rule 12(b )( 6 ) challenges the legal theory of the complaint, not the sufficiency of any evidence that might be adduced.”). The United States Supreme Court (“Supreme Court”) explained in Twombl y the degree of specificity with which a plaintiff must plead facts sufficient to survive such a motion

, stating that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,

and a formu laic recitation of the elements of a cause of action will not do.” 550 U.S. at 555 (citation omitted). Although a complaint need not contain “detailed factual allegations,” id. at 555, it should contain “enough facts to state a claim to relief that is pl ausible on its face,” id. at 570; see also id. at 555 (noting that “factual allegations must be enough to raise a right to relief above the speculative level”). “A claim has facial plausibility when the plaintiff pleads factual

content t hat allows the cou rt to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal

, 556 U.S. 662 , 678 (2009) (citing Bell Atl. Corp.

, 550 U.S. at 556). “[O]nce a claim has been stated adequately , it may be supported by showin g any set of facts consistent with the allegations in the complaint.” Bell Atl. Corp. , 550 U.S. at 546. Indeed, “[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is

entitled to offer evidence to support the claims.” Scheuer v. Rhodes

, 416 U.S. 232, 236 (1974)

, overruled on other grounds by Harlow v. Fitzgerald

, 457 U.S. 800, 814

- 19 (1982)

.9 C. Tucker Act

The ability of the Court of Federal Claims to entertain suits against the United States is

limited. “The United St ates, as sovereign, is immune from suit save as it consents to be sued.”

United States v. Sherwood

, 312 U.S. 584, 586 (1941). A waiver of immunity “cannot be implied but must be unequivocally expressed.” United States v. King

, 395 U.S. 1, 4 (1969). The Tucker Act, the principal statute governing the jurisdiction of this court, waives sovereign immunity for claims against the United States not sounding in tort that are founded upon the Constitution, a federal statute or regulation, or an express or implie d contract with the United States. 28 U.S.C. § 1491 (2012). However, the Tucker Act is merely a jurisdictional statute and “does not create any substantive right enforceable against the United States for money damages.” United States

v. Testan

, 424 U.S. 392, 398 (1976). Instead, the substantive right must appear in another source of law, such as a “money

- mandating constitutional provision, statute or regulation that has been violated, or an express or implied contract with the United States.” Loveladie s Harbor, Inc. v.

United States

, 27 F.3d 1545, 1554 (Fed. Cir. 1994) (en banc).

D. Contract Claims Against the United States Arising Under the Tucker Act

As explained above, the Tucker Act waives the government’s sovereign immunity from

suit to all ow, among other claims , claims against the United States founded on an express or implied contract with the United States. For a plaintiff to maintain a claim for breach of contract under the Tucker Act, “there must be privity of contract between the plaintiff and the United

States.” Cienega Gardens v. United States

, 194 F.3d 1231, 1239 (Fed. Cir. 1998); accord First Annapolis Bancorp, Inc. v. United States

, 644 F.3d 1367, 1373 (Fed. Cir. 2011) (“A plaintiff

must be in privity with the United States to have standi ng to sue the sovereign on a contract claim.”); Flexf

ab v. United States , 424 F.3d 1254, 1265 (Fed. Cir. 2005) (noting that a s a general rule, the “government consents to be sued only by those with whom it has privity of contract ”)

. The parties to that co ntract must be the plaintiff and the defendant. See Silverman v. United

States

, 679 F.2d 865, 870 (Ct. Cl. 1982). “A lack of privity deprives this court of jurisdiction.”

Carter v. United States

, 98 Fed. Cl. 632, 636 (2011). There are some exceptions t o this general

rule. See Hartford Corp. Pension Plan & Trust v. United States

, 194 F.3d 1279, 1289 (Fed. Cir. 1999) ; First Nelson Const r . Co. v. United States , 79 Fed. Cl. 8 1, 94

- 95 (2007)

. These exceptions include suits by intended third

- party beneficia ries , suits by subcontractors “by means of a pass

through suit when the prime contractor is liable to the subc ontractor for the subcontractor’ s damages,” and suits by government contract sureties “for funds improperly disbursed to a prime

contractor.” Har tford

, 194 F.3d at 1289 ; accord Alpine Cnty., Cal. v. United States , 417 F.3d 1366, 1368 (Fed. Cir. 2005)

. “[T]he common thread that unites these exceptions is that the party standing outside of privity by contractual obligation stands in the shoes of a p arty within privity.”

Hartford

, 194 F.3d at 1289.

In addition, an implied

- in

- fact contract is a “substitute[] for direct privity.” Carter

, 98

Fed. Cl. at 636. “ A n implied

- in

- fact contract requires a showing of the same contractual elements as an expres s contract.” Last Chance Mining Co. v. United States , 12 Cl. Ct. 551, 555 (1987), aff’d , 846 F.2d 77 (Fed. Cir. 1988). When alleging that the federal government entered into a contract, a plaintiff must establish “(1) mutuality of intent to contract; (2) consideration; (3) an unambiguous o ffer and acceptance[;] and (4) ‘actual authority’ on the part of the10

government’ s representative to bind the government.” Schism v. United States

, 316 F.3d 1259, 1278 (Fed. Cir. 2002) (en banc) ; accord Anderson v. United States , 85 Fe d. Cl. 532, 542 (200 9) ; Trauma Serv . Grp. v. United States , 104 F.3d 1321, 1326 (Fed. Cir. 1997)

. With respect to a representative’s ability to bind the government, however, such created “ approval must be within

the approving official’ s authority in order to be operative.” New Am. Shipbuilders, Inc. v.

United States , 871 F.2d 1077, 1080 (Fed. Cir. 1989) ; accord Trauma Serv. Grp. , 104 F.3d at

1327 (stating that a plaintiff “must allege fac ts sufficient to show that the G overnment representative who entered into its alleged implied

- in

- fact contrac t was a contracting officer or had implie d actual authority to bind the G overnment ”). “An implied

- in

- fact contract is founded upon a meeting of the minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the par ties showing, in the light of the surrounding circumstances, their tacit understanding.” Maher v. United States , 314 F.3d 600, 603 (Fed. Cir. 2002) (citing

Hercules v. United States , 516 U.S. 417, 424 (1996) (citing Balt. & Ohio R.R. Co. v. United

States

, 261 U.S. 592, 597 (1923) ) )

. Ult imately, “[a] court will not . . . imply an agreement between parties when there was none, nor can a court imply privity when there was no meeting of the minds between the particular parties.” Carter , 98 Fed. Cl. at 636.

III. DISCUSSION

A. RCFC 12(b)(1)

1. N either the E ISA n or the Energy Policy Act Are Money

- Mandating Statute s Within

the Meaning of the Tucker Act and Therefore Cannot Confer Jurisdiction on T his Court

P laintiffs contend that this court possesses jurisdiction to entertain their claims regarding

the denial of their respective applications to the ATVM loan program and Section 1703 LGP

. Pls.’ Opp’n 3, 14

- 15

. However, plaintiffs fail to cite to a money

- mandating statute or regulation

that confer s jurisdiction on thi s court. The EISA and the Energy Policy Act created the ATVM loan program and the Section 1703 LGP, respectively. See 42 U.S.C. §§ 17013, 16511

- 165 16. Plaintiffs have failed to identify any provision of either statute that give s them a right of action t o seek recovery of monetary damages in this court. Indeed, none exist. See i d. Moreover

, a statute or regulation that creates a loan program or loan guarantee program is not assumed to be inherently money

- mandating. See Anderson , 85 Fe d. Cl. at 542 (rejecting the plaintiff’s argument that the general scheme of the agency’s loan guarantee program was money

mandating). Rather, such statutes or regulations must contain “ a substantive right to monetary compensation . . . before ju risdictio n may be established in this C ourt by virtue of the Tucker

Act.” Campbell v. United States , 16 Cl. Ct. 690, 696 (1989). For this reason, t h e court lacks jurisdiction to entertain plaintiffs’ claims pursuant to any statute or regulation that they have

cited

. Anderson , 85 Fed. Cl. at 543 (determining that the court possessed no jurisdiction with
respect to a denied loan guarantee program application because the statute that created the
program was not money

- mandating); Campbell

, 16 Cl. Ct. at 696 (holding that the court lacked jurisdiction to hear the plaintiff’s claim s regarding a loan program application because nothing in the regulation that created the program was mo ney

- mandating

, and that therefore, there was no waiver of sovereign immunity un der the Tucker Act ); El Dorado Springs v. United States , 28 Fed. Cl. 132, 136 (1993) ( finding that the court lacked jurisdiction over the plaintiff’s claims11

regarding a mortgage insurance application to a federal agency because it did not invoke a

money

- ma ndating statute ).

2. The Court Dismisses Plaint iffs’ Second Claim for Relief, “ Promissory Estoppel Claims

( Limnia’ s Section 1703 LGP Application )”

I n plaintiffs’ second claim for relief, Limnia contends that the DOE promised that its

Section 1703 LGP applic ation fee would be waived

. According to plaintiffs, the “DOE recognized that the LGP application fees and process were unduly onerous and burdensome

, ” 2d Am. Compl. ¶ 75, and Secretary Chu therefore “promised to waive [Limnia’s] application fee,”

id. ¶ 76 . Consequently, on February 10, 2009, when Limnia filed its Section 1703 LGP application, its cover letter stated “[its] understanding [that the] DOE had waived the application

fee.” Id. ¶ 77. Limnia asserts that promissory estoppel lies against the gov ernment because

Limnia was unaware that a filing fee was , in fact, required until the day of the filing deadline, when it was contacted by a DOE representative who advised that the initial application fee had to be wired by midnight in order for Limnia’s a pplication to be considered. Id. ¶ 78 . Limnia also

avers that once it was informed that it was required to pay the fee, the DOE then reneged on a subsequent promise that it would allow Limnia to send its application fee after the deadline had expired. I d. ¶

¶ 80

- 81. N otwithstanding that the DOE advised that it would allow Limnia some flexibility in send ing the application fee

, the DOE failed to provide the wire instructions that it promised , and then dismissed Limnia from the Section 1703 LGP for failure to pay the application fee. Id. ¶

¶ 80 , 132 . Limnia claims that it relied on the DOE’s promises to waive the application fee and to provide additional time to send the application fee , and as a consequence,

the DOE is estopped from refusing to accept Lim nia’s application. Id. ¶ 134.

A claim for promissory est oppel arises when a promisor mak e s “a promise [that] the promisor should reasonably [have] expect[ed] to induce action or forbearance on the part of the promisee . . . and which d[id] induce such ac tion or forbearance . . . .” Restatement (Second) of

Contracts § 90(1) (2012) . It is “essentially an equitable cause of action whereby one who reasonably relies on another’s promis e can subsequently require [him ] to make good on his promise.” Carter , 98 Fed. Cl. at 638. Promissory estoppel “ is another name for an implied

- in

law contract claim.” Id. (quoting Hubbs v. United States , 20 Cl. Ct. 423, 427 (1990) )

. The court

in Steinberg v. United States held that:

In order to prevail on a claim of promiss ory estoppel, a party must prove[:] first, that there was a promise or representation made[;] second, that the promise or representation was relied upon by the party asserting the estoppel in such a manner as to change his position for the worse[;] and, th ird, that the promise e’ s reliance was reasonable and should have been reasonably expected by the promisor.

90 Fed. Cl. 435, 443 (2009) (citing Law Mathematics & Tech., Inc. v. United States

, 779 F.2d 675, 678 (Fed. Cir. 1985) ) . Once these elements are me t, “the promise will be binding if justice so requires.” Id. Further, “[d]etrimental reliance is [only] an element of a claim of promissory estoppel, a contract implied in law, [and] is not an element of a
contract in fact.” Steinberg , 90 Fed. Cl. at 44 4. “ The distinction between ‘implied in fact’ and ‘implied in law,’ and the consequent limitation, is well established . . . .” Hercules

,12

516 U.S. at 423. An agreement implied in fact is “founded upon a meeting of minds, which,” as described earlier, is inferred from the parties’ conduct in light of the surrounding circumstances. Id. ( citation and internal quotation marks omitted). “ By contrast, an agreement implied in law is a ‘fiction of law’ where ‘a promise is imputed to perform a legal duty, as to repay money obtained by fraud or duress.’” Id. (quoting Balt. &

Ohio R.R. Co.

, 26 1 U.S. at 597 )

. Simply put, the Tucker Act does not allow suits against the government based on contracts implied in law. United States v. Mitchell , 463 U.S. 206, 218 (198 3).

Here, Limnia assert s that it detrimentally relied on the DOE’s assurance that its Section

1703 LGP application would be processed and considered without Limnia remitting the requisite

fee. 2d Am. Compl. ¶¶ 130

- 31. Limnia therefore assert s a promisso ry estoppel claim, or a claim

for a contract implied in law. Limnia’s theory of liability has no legal validity in this court. It is

well settled that “[a]lthough the court’s jurisdiction extends to implied contracts as well as express contracts, it can adjudicate only contracts implied in fact and not contracts implied in
law.” Tree Farm Dev. Corp. v. United States

, 585 F.2d 493, 498 (Ct. Cl. 1978) (citing United

States v. Minn. Mutual I nv

. Co. , 271 U.S. 212, 217

- 18 (1926) )

. I mplied

- in

- law contracts ar e “claim[s] for which the United States has not waived its sovereign immunity.” Steinberg , 90 Fed. Cl. at 443 (citing Lion Raisins, Inc. v. United States

, 54 Fed. Cl. 427, 431 (2002) ) ; accord

Hercules

, 516 U.S. at 423 (“We have repeatedly held that [Tucke r Act] jurisdiction extends only to contracts either express or implied in fact, and not to claims on contracts implied in law.”); Russell Corp. v. United States

, 210 Ct. Cl. 596, 537 (1976) (“This court, of course [,] has no jurisdiction to render judgment against the United States based upon a contract implied in law.”)); Twp. o f Saddle Brook v. United States , 104 Fed. Cl. 101, 111 (2012) ( “ Promissory estoppel theory does not fall within the jurisdiction granted to the court by the Tucker Act, and

. . . th e government has not waived its sovereign immunity with regard to a promis sory estoppel
cause of action.” ( citation and internal quotation marks omitted) ) ; Calvin v. United States , 63 Fed. Cl. 468, 471 n.7 (2005); Perpetual Fin. Corp. v. United States , 61 Fed. Cl. 126, 138

- 39 (2004). Accordingly, this court lacks jurisdiction to hear Limnia’s promissory estoppel claim

. Carter , 98 Fed. Cl. at 639 (dismissing the plaintiff’s claim pursuant to RCFC 12(b)(1) for lack of subject matter jurisdiction, where the plaintiff “allege[d] that it relied to its detriment on the government’s conduct and [wa]s thus entitled to monetary damages,” because the court lacks jurisdiction over promissory estoppel claims); Steinberg , 90 Fed. Cl. at 444 (holding that the

court had no jurisdiction under RCFC 12(b)(1) to hear the plaintiff’s claim because detrimental reliance is an element of promissory estoppel). Consequently, the court dismisses without prejudice, for lack of jurisdiction, the second c laim for relief in p laintiffs’ second amended complaint

.

3. The Court Dismisses Plaintiffs’ Purported Equitable Estoppel Claims in T heir First

Claim for Relief

, “ Equitable Estoppel Claims ( A TVM Loan Program Application s )”

Plaintiffs aver in their first claim for relief that the DOE “wa s required to follow objective, published criteria in determining applicants’ eligibility for receiving ATVM loans

. ” 2d Am. Compl. ¶ 122

. Further, plaintiffs assert t hat the DOE “repeatedly acknowledged verbally and in writing ” tha t plaintiffs “were qual ified . . . applicants ,” and that plaintiffs “ were treated accordingly by DOE staff responsible for administering ” the program

. Id. ¶ 123. According to13

p laintiffs

, the DOE “therefore formed an implied

- in

- fact contract with [plaintiffs] to remit ATVM [l]o an [p]rogram funds.” Id. Plaintiffs contend that the DOE “reasonably expected and intended for [plaintiffs] to rely on these promises and to trust that [ the] DOE would follow the

law. ” Id. ¶ 124. P laintiffs assert that they did “ in fact d[o] so,” by “e xpend[ing] substantial sums of money and thousands of hours of time in preparing the applications and negotiating with [the] DOE,” followed by “submit[ing] applications in response to [the] DOE[’s] solicitations, pa[ying] the requisite application fees

, . . . hir[ing] workers,” and “pursuing the loan in reliance on [the] DOE’s verbal and written representations and on its obligation to fund all qualified applications up to the limit of its lending authority. ” Id. P laintiffs contend that but for the DOE’s “affirmative misconduct,” their applications would have been funded. Id. ¶ 125. Consequently, plaintiffs aver
, the DOE is “equitably estopped from denying the contract implied in fact that was created by its solicitations [and by plaintiffs’ respective] ATVM applications.” Id. ¶ 127.

Plaintiffs also contend that defendant is “equitably estopped from using opaque and arbitrary ‘merit review’ criteria to deny [their] applications.” Id. ¶ 128.

Plaintiffs’ arguments, although labeled as “equitable estoppe l” claims, are, in fact, “thinly

veiled c laim[s] for promissory estoppel

. ” Carter , 98 Fed. Cl. at 638. T he court “must [therefore] determine which type of estoppel is pled here, regardless of how it is labeled in the [second amended] complaint.” Id. at 639. Equitable estoppel “is a judicial remedy by which a party may be precluded, by its own acts or omissions, from asserting a right to which it otherwise would
have been entitled.” Am. Airlines, Inc. v. United States

, 77 Fed. Cl. 672, 679 (2007) (citat ions omitted). For example, “a party who acquiesced to certain conduct could not later claim that [that] conduct was wrongful.” Carter , 98 Fed. Cl. at 638. By contrast, as described earlier

, promissory estoppel is an “equitable cause of action” where on e who “reasonably relies on another’s promi se can subsequently require [him] to make good on [that] promise.” Id. In other words, “[p] romissory estoppel is used to create a cause of action, whereas equitable estoppel is used to bar a party from raising a defense or objection it otherwise would have, or from instituting an action whi ch it is [otherwise] entitled to institute.” Knaub v. United States

, 22 Cl. Ct. 268, 276 (1991) (citation omitted). Ultimately, “ p romissory estoppel is a sword, and equitable estoppel is a shield. ” Id. Indeed, “th[is] court repeatedly has held that equitable estoppel is a defensive doctrine, not th e basis of a cause of action.” Lawndale Restoration Ltd. P’ship v. United States , 95 Fed. Cl. 498, 507 (2010).

Here, p laintiffs attempt to use promissory estoppel to create a cause of action where none

exists. The gravamen of p laintiffs ’ putative equitable estoppel claim runs as follows: the DOE’s conduct in advising them that their respective ATVM loan program app lications had been

review ed and found to be “qualified” by the agency created an irrevocable, binding promise guaranteeing plaintiffs ’ entitlement to ATVM loans. 3 P laintiffs assert that they relied to their

3 The court notes that t he only instance wherein plaintiffs allege that Limnia was a qualified ATVM loan program applicant is found in paragraph 123 of the second amended complaint . I n that paragraph

, plaintiffs contend th at “[a]t all times relevant, as [the] DOE repeatedly acknowledged verbally and in writing, both XPV and Limnia were qualified ATVM applicants[,] and were treated accordingly by DOE staff responsible for administering the loan programs for a period of months ,” and that the “ DOE therefore formed an implied in fact contract with XPV and Limnia to remit ATVM [l]oan [p]rogram funds.” These two sentences14

detriment on d efendant’ s “promises” that plainti ffs were qualified applicants, and argue that defendant should be required to fu l fill such promises and remit the ATVM loans. 2d Am. Compl. ¶ 124. As noted above, a lleging detrimental reliance on a promise and contending that

that promise should be enfor ced constitute s a promissory estoppel claim. Thus, “[ r]egardless of how [plaintiffs] label[] the claim in the [second amended] complaint, this is a claim of promissory estoppel.” Carter , 98 Fed. Cl. at 639. This court, as explained previously, lacks juri sdiction to entertain promissory estoppel claims. Accordingly, the court dismisses without prejudice, for lack of jurisdiction, the claims invoking “equitable estoppel” set forth in the first

claim for relief in plaintiffs’ second amended complaint. 4 See id

. at 639 (dismissing the plaintiff’s “equitable estoppel” claim because, despite its label, it was actually a promissory estoppel claim , as the plaintiff alleged that it relied to its detriment on the government’s conduct).

B. RCFC 12( b ) (6)

1. No Implied

- in

- Fact Contracts Arose Between Plaintiffs and Defendant

In their first and third claims for relief, p laintiffs contend that this court possesses jurisdiction over their claims that are based on implied

- in

- fact contract s with the DOE

. A n implied

- in

- fact contract is one of the government’s waivers of sovereign immunity under the Tucker Act, s ee Loveladies Harbor, Inc.

, 27 F.3d at 1554 , and a plaintiff’s alleg ation that one

exists between itself and the United States “ is enough to confer su bje ct matter jurisdiction in this [c] ourt ,” Penn. Dep’t of Pub. Welfare v. United States

, 48 Fed. Cl. 785, 786 ( 2001) ( noting that

the “ allegation in [the] complaint that [the] claim was based upon [the] contract was enough to confer subject matter juri sdi ction in the Court of Federal Claims ” (citing Trauma Serv. Grp.

, 104 F.3d at 1324) )

. Indeed, a claim does not fail for lack of jurisdiction merely because its success is

doubtful. Bell v. Hood

, 327 U.S. 678, 682 (1946). Rather, “[f] ailure to sta te a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction.” Trauma Serv. Grp.

, 104 F.3d at 1324. Therefore, this c ourt will address wh ether p laintiff s have stated a claim upon which relief can be gran ted.

a. The Court Denies the Remaining Claims in Plaintiffs’ First Claim for Relief

i. Plaintiffs’ ATVM Loan Program Applications Did Not Create a Contr act to Remit Funds

In addition to the promissory estoppel claims set forth in plaintiffs’ first claim for reli ef,

p laintiffs ’ first claim also sets forth that the DOE was “obligated by statute to fund qualified applications up to the limit of its Congressional auth orization, ” 2d Am. Compl. ¶ 120, and that

the DOE was “ required to follow objective . . . criteria in determ ining applicants’ eligibility for receiving ATVM loans

, ” i d. ¶ 122. Plaintiffs thus claim that an “implied in fact [contract ] was

stand in stark contrast to the detailed allegations set forth in the second amended complaint detailing XPV ’ s application to the ATVM loan program and its interaction with the DOE

.

4 To the extent that plaintiffs raise other promissory estoppel claims with respect to the ATVM loan progr am, although not explicitly ple d, those claims are denied for the same reasons

.15

created by [defendant’s] solicitations.” Id. ¶ 127. Further , p laintiffs aver that they submitted applications and paid the corresponding application fees. Id. ¶ 124. P laintiffs also assert that the

DOE “acknowledged verbally and in writing” that they “were qualifi ed

. . . applicants,” and that

the DOE had an “obligation to fund all qualified applications up to the limit of i ts lending authority.” Id. Based upon these allegations, p laintiffs claim that defendant “therefore formed an implied

- in

- fact contract with [ each plaintiff ] to remit ATVM [l]oan [p]rogram funds.” Id. ¶ 123.

As described earlier, w hen alleging that t he federal government entered into a n implied

in

- fact contract, a plaintiff must establish the same elements as an express contract, namely: mutuality of intent to contract

, an unambiguous offer and acceptance , consideration , and actual authority on the pa rt of the government's represe ntative to bind the government. Anderson v.

United States , 344 F.3d 1343, 1353 (Fed. Cir. 2003) ; Schism

, 316 F.3d at 1278

. Contrary to plaintiffs’ assertion here

, there is nothing inherent in an agency’s invitation to the pu blic to apply

for a loan that constitutes an offer to contract, or that forms the basi s for a contract once an application is submitted, even if the application criteria are ostensibly met. It is well recognized

that “ m ere solicitations, invitations [,] or instructions from the [g]overnment are not offers to

contract that bind the [g]overnment upon [a] plaintiff ’ s completion of a form, even when the solicitations, invitations or instructions are embodied in a statute or regulation.” Girling Health Sys., Inc. v. United States

, 22 Cl. Ct. 66, 71

- 72 (1990) ; accord Tree Farm

, 585 F.2d at 500 ( explaining that “ invitations by the [g] overnment to file applications do not necessarily equal an operative offer, the acceptance of which will result in a binding contract” )

.

More specifically, a sta tute and regulation that create a loan guarantee program “cannot fairly be c haracterized as an offer to make loan guarantees to qualified applicants,” but rather

, “merely create a process for receiving and considering applications . . . .” Baker v. United

States , 50 Fed. Cl. at 489, 493 (2001). In rejecting the argument that a mere application to a government loan program could result in a contract binding the government, the United States Court of Claims (“Court of C laims”) explained that, w ith respect to a loan guarantee program, “it requires a distor[t]ion of plain English to infer that [a] plaintiff’s making of an application in conformity with [the stated requirements] would constitute an acceptance of an offer wh ereby the [g]overnment intended to bind itself.” Tree Farm , 585 F.2d at 500. Indeed, “[i]t would do violence to traditional contract theory, not to mention the operation of government, to hold that any statute requiring some action by a citizen to obtain a benefit or protect a right constituted an open offer to contract.” Last Chance Mining Co. , 12 Cl. Ct. at 555

- 56. The case now before the

court is no exception

— the la ck of a formal government offer and acceptance, a long with “the

total absence of a meeting of th e minds

, ” demonstrates that no contract was formed. Tree Farm

, 585 F.2d at 501 ( noting that “[s]ince there is no implied

- in

- fact con tract on the facts of this case

. . . the court [cannot] consider plaintiff’s claim ” ) ; accord Hanlin v. United States , 316 F.3d

132 5, 1328 (Fed. Cir. 2003) (“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 circumstance s, their tacit understanding.’” (quoting Balt. & Ohio R.R. Co.

, 261 U.S. at 597) ). Further

, because the pertinent sta tutes and regulations that created the respective loan and loan guarantee program s include evaluation criteria and specifically grant the DOE

discretion in administering these programs

, it is evident that the mere submission of completed

pape rwork for review and processing does not guarantee the grant of a loan or a loan guarantee

.16

Simply stated, any averments setting forth the elements necessary to prove the existence of a

contract ar e absent from plaintiffs’ second amended complaint

.

ii. DOE Officials’ Representations t o Plaintiffs During the Application Stage Did Not

Create a Binding Contract

Plaintiffs assert in their first claim for relief that DOE officials’ representations regarding their respective ATVM lo an program application s created implied

- in

- fact contract s

. 2d Am. Compl. ¶ 123; see also Pls .’ Opp’n 34

- 35. Before completing their evaluati on of plaintiff s ’ application s
, DOE representatives stated that XPV was a “qualified applicant

, ” 2d A m. C ompl. ¶ 21 ; tha t “e verything was fine ” ; that “everything [wa]s on track ” ; that XPV “appea r[ed] to meet every criter[ion] with respect to it s ATVM loan program application ” ; and that defendant
“should be able t o announce [a loan] any day now,” id. ¶ 37 (internal quotation marks omitted)

. Plaintiffs also aver that “[a]t all times relevant, as [the] DOE repeatedly acknowledged verbally and in writing, both XPV and Limnia were qualified ATVM applicants[,] and were treated accordingly by DOE staff responsible for administering the loan programs for a period of

months

. ” 5 Id. ¶ 123

. Plaintiffs contend that by making these representations, the DOE formed implied

- in

- fact contract s to remit ATVM loan program funds to them

. Id.

Plaintiffs ’ legal arguments are contrary to the binding precedent of the United States Court of Appeals for the Federal Circuit (“Federal Circuit”)

. As explained above, c ase law is

clear that to establish the existence of a n implied

- in

- fact contract

, p laintiffs must demonstrate

that all contractual elements are satisfied, including that the DOE officials with whom it

communicated possessed actual authority to bind the government. Anderson , 344 F.3d at 1353;

Schism

, 316 F.3d at 1278 ; New Am. Shipbuilders, Inc. , 871 F.2d at 1080

. In plaintiffs’ second amended complaint

, they fail to allege the existence of an offer and acceptance demo nstrating the parties’ mutual intent to be boun d, and there are no allegations describing a government official with the requisite authority entering into a contract with p laintiffs on behalf of the government. Quite simply, the second amended complaint is devoid of the factual averments
necessary to state a claim fo r an implied

- in

- fact contract.

Moreover, t he Federal Circuit has instructed that “ [o]ral assurances do not produce a contract implied

- in

- fact until all the steps have been taken that the agency procedure requires; until then, there is no intent t o be bound.” New Am. Shipbuilders, Inc. , 871 F.2d at 1080. In addition, the ATVM loan program regulatio n specifically provides that the “DOE is not bound by oral representations made during the [a]pplication stage, or during any negotiation process.”

10 C.F.R. § 611.105(b) (2008)

. Thus, as the Federal Circuit has made clear

, “ [i ] t is irrelevant if the oral assurances emanate from the very official who will have authority at the proper time [] to sign the contract or grant,” because if the assurances are premature and “ an approving official exceeds his authority, the gove rnment can disavow the official’ s words and is not bound by an implied contract.” New Am. Shipbuilders, Inc. , 871 F.2d at 1080. Accordingly, the DOE
officials’ stateme nts regarding plaintiffs ’ respect ive application s did not execute a contract, as these representations were made during the application stage, well before the evaluation was

5 As the court noted above, there is only one instance where plaintiffs allege that Limn ia was a quali fied ATVM loan program applicant

. See supra note 3.17

even completed or an actual offer to contract was made. T he officials’ purported “approval” was “legally ineffective a nd d[id] not bind the United States to an implied

- in

- fact contract or by estoppel, ” despite plaintiffs ’ claims that they relied on such oral representations

. 6 Id. at 1081. Accordingly, the court denies with prejudice the remaining claims in the first claim for r elief of plaintiffs’ second amended complaint.

b. The Court Denies Plaintiffs’ Third Claim for Relief , “ Implied

- in

- Fact Contract (Fair Review of ATVM Loan Program Applications) ”

i. Plaintiffs Have Fail ed to Establish T hat the E ISA or 10 C.F.R. § 611.103 Crea te d a Binding Contract That Included a Specific Term Requiring Defendant to Review

Plaintiffs’ ATVM Loan Program Applications Fairly

In their third claim for relief, p laintiffs allege that the DOE was obligated by contract to
consider their loan applications fa irly

. 2d Am. Compl. ¶¶ 138, 141 ; Pls.’ Opp’n 27

- 28

. According to plaintiffs, the E ISA and 10 C.F.R. § 611.103 outlined objective criteria that the

DOE was required to follow when making loan decisions

. 2d Am. Compl. ¶ 8 ; Pls.’ Opp’n 27

- 28

. Plaintiffs c ontend that the statute and the DOE regulation created a contractual obligation for

defendant to follow such objective criteria , and that the DOE failed to do so

. 2d Am. Compl. ¶ ¶ 118, 138, 141; Pls.’ Opp’n 15 , 27

- 28

.

Plaintiffs ’ contentions are incorrect

. A s a p reliminary matter, a federal statute or regulation does not inherently c reate a contractual relationship between an individual and the

United States. See Martinez v. United States

, 48 Fed. Cl. 851, 862

- 63 (2001) (holding that a

federal regulation did not create privity of contract between the plaintiff and the government),
aff’ d

, 281 F.3d 1376 (Fed. Cir. 2002) ; Schuerman v. United States

, 30 Fed. Cl. 420, 427 (1994) (same)

. Indeed, t he Supreme Court “ has maintained that absent some clear indication that t he legislature intends to bind itself contract ually, the presumption is that a law is not intended to create private contractual or vested rights, but merely declares a policy to be pursued until the legis lature shall ordain otherwise. ” Nat’ l R.R. Passeng er Corp. v. Atchison

, 470 U.S. 451, 465

- 66 (1985) ( citation and internal quotation marks omitted). As the Supreme Court has further explained

, “ [t] his well

- established presumption is grounded in the elementary proposition that

6 XPV also relies on 10 C

. F

. R

. § 609 .10(b). See Pls.’ Opp’n 35. That regulation states
that the “ DOE is not bound by oral representations made d uring the Pre

– Appl ication stage

, [(]if

Pre

–Applications were solicited,[)] or Application stage, or during any negotiation process.” 10

C

. F

. R

. § 609.10(b). XPV contend s that because the DOE representatives’ oral assurances were made before this regulation was promulgated on December 4, 2009, the regulation is not controlling. Pls.’ Opp’n 35. However, XPV’s argument is unavailing because 10 C

. F

. R

. § 611.105(b)

— which, as quoted above, provides that the DOE is not bound by oral representations made during the application stage

— went into effect on November 12, 2008, before the DOE officials made their representations to plaintiffs in 2009. See g enerally 10 C

. F

. R

. § 611.105; 2d

A m. C ompl. ¶¶ 36

- 37. Nonetheless, even if 10 C

. F

. R

. § 611.105(a) was not in effect at the time

that such statements were made to XPV

, XPV’s argument would still not be persuasive because

, as noted earlier, t he Federal Circuit has held that oral assurances do not create an implied

- in

- fact contract before the agency’s procedure has been completed.18

the principal function of th e legislature is not to make contracts, but to make laws that establish the policy of the state.” Id. at 466. Thus, “the party asserting the creation of a contract must

overcome this well

- founded presumption and [courts are required to ] proceed cautiousl y both in identifying a contract within the language of a regulatory statute and in defining the contours of any contractual obligation.” Brooks v. Dunlop Mfg. Inc.

, 702 F.3d 624, 630

- 31 (Fed. Cir. 2012). In this case, the statute and regulation containi ng the criteria pursuant to which the DOE would evaluate applica tions d id not create a contract. Of significance is p laintiffs ’ fail ure to identify any language in the EISA or regulation that suggest contract form ation. Neither contains “words typically associated with contract formation, such as ‘offer’ or ‘acceptance.’” Id. at 631. Nor do

p laintiff s cite to any legislative history of the EISA or provide any other evidence that Congress

intended to contractually bind the DOE to any ATVM loan program ap plicant

.

Further, a s described earlier, the Supreme C ourt held in Testan that plaintiffs must either rely on a statute that specifically authorizes money damages, or sufficiently allege the existence

of a contract. 424 U.S. at 400. Here, p laintiffs mere ly alleg e that the E ISA created the ATVM loan program, and that because misconduct occurred during the administration of that program

, plaintiffs did not receive their loans

. A llegations of misconduct do not establish that a contract

between the DOE and p laintiffs existed, nor breach thereof

. 7 If the court were to accept plaintiffs’ argument that th e statute concerning a loan program , standing alone, created a

contract

, then a ny disappointed qualified applicant could allege that the government owed them a duty or an obligation. This rationale would render meaningless the Tucker Act’s money

mandating requirement. Indeed, i t “would blur the distinction between a claim founded on a

money

- mandating statute or regulation and one founded on a contract with the United States.”

Baker , 50 Fed. Cl. at 489. T he Testan c ourt specifically rejected the notion that “the violation of any statute or regulation relating to [a plaintiff’s claims] automatically creates a cause of action against the United States for money damages.” Id. at 489 n.4 ( “ Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim whether it be the Constitution, a statute, or a regulation does not create a cause of action for money damages u nless . . . that basis ‘ in itself . . . can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained. ’ ” ( q uoting 424

U.S. at 401

- 02) ( internal citation omitted ) ) )

. Accordingly

, “[t]he U nited States cannot be contractually bound merely by invoking [a] statute [or] regulation” that pertains to plaintiffs’

claims. Id. at 489 ( citing Merrick v. United States

, 846 F.2d 725, 726 (Fed. Cir. 1988)). “The

rule in Testan . . . cannot be avoided simply by characterizing the applicable statute or regulation as creating an implied contract, ” id.

, which is precisely what plainti ffs are attempting to do here.

ii. Defendant Did N ot Enter Into a “Garden

- Variety” Implied

- in

- Fact Contract to Fairly

Review Pl aintiffs’ ATVM Loan Program Applications

In addition, Limnia asserts that although the “DOE denied [ its ATVM loan program] application on the grounds that the components in question ‘[did] not appear to be designed for

installation in an advanc e technology vehicle . . . [,] ’ these grounds were false and a mere pretext

7 In addition, such allegations of misconduct raise tort claims and criminal matters, subject areas beyond the sc ope of this court’s jurisdiction and subject to dismissal pursuant to RCFC 12(b)(1).19

to preserve ATVM [l]oan [p]rogram funds for government

- favored companies and/or to protect those companies from competition.” 2d Am. Compl. ¶ 70. Limnia alleges that when it r equested reconsideration of its application, id . ¶ 71, the DOE denied its application again, but then asked

for “ more information, ” i d. ¶ 72. According to Limnia

, it “responded with the requested

information ” and “again requested reconsideration, pointing out that the questioned components . . . must be installed prior to use in an advance technology vehicle and are, accordingly, designed for such installation, and therefore [are] . . . ‘qualifying components.’” Id. ¶ 138.

Limnia state s that the “DOE nev er responded to this letter.” Id. ¶ 73.

Along similar lines , XPV avers that despite its ATVM loan program application being “qualified” to receive a loan, id. ¶ 21, its application was “‘set aside’ in favor of applications from politically

- connected gove rnment cronies[,] and [the] DOE had ‘fixed’ the ATVM loan process to benefit political donors, cronies[,] and insiders,” id. ¶ 24. According to XPV, the “DOE’s political leadership had no intention of approving [its] ATVM application under any

circum stances . . . because XPV competed with politically favored insider and crony companies.” Id. ¶ 25.

Plaintiffs thus explain in their third claim for relief that the “DOE agreed to provide a fair process and a level playing field among all applicants, whe ther they were politically connected and had made large campaign donations or not.” Id. ¶ 138. Plaintiffs assert that the DOE “breached its contractual obligations by denying [them a] fair opportunity and objective review.”

Id. ¶ 141. The DOE did so , plaintiffs allege, by “skewing, manipulating[,] and fixing the ATVM [l]oan [p]rogram to benefit government favorites[,] . . . favoring political cronies over companies that did not make political contributions or have influential patrons with [political] connections,” and thus “wrongly denying [plaint iffs’] applications.” Id. P laintiffs contend that even if the statute did not create an implied

- in

- fact contract to consider their applications fairly , defendant “breached a garden

- variety implied

- in

- fact c ontract to fairly and objectively review” plaintiffs’ ATVM loan prog ram applications. Pls.’ Opp’n 25. Contrary to plaintiffs’ assertions, however, “merely because [ a defendant] was willing to consider [the] plaintiff[s’] application[s, it] d[oes]

not mea n that [ it ] was offering to contractually bind itself to make a disposition of the application[s] on the merits rather than in some other manner.” Tree Farm , 585 F.2d at 501. The DOE’s administration of the ATVM loan program, which included accepting and evaluating applications, did not create a default binding contract of any kind

. 8

8 T o the extent that plaintiffs’ allegations that the DOE’s decision to award loans was not

merits

- based, but rather based upon corrupt political consideration, i.e., which companies competing for the loans contributed the most amount of money to specific politicians, such allegations are beyond this court’s jurisdiction because they constitute tort or criminal claims. Tort liability theories asserted against the gover nment are ill

- advised in this court because it “specifically lacks jurisdiction in cases sounding in tort.” Tree Farm , 585 F.2d at 498; accord 28

U.S.C. § 1491(a)(1); Keene Corp. v. United States

, 508 U.S. 200, 214 (1993) ; Jefferson v.

United States

, 10 4 Fed. Cl. 81, 89 (2012)

. The mere labeling of a claim is not dispositive of the

nature of a claim

. For example, the mere labeling of a tort claim as one sounding in contract

cann ot confer jurisdiction on the Court of Federal Cl aims. It is well settled that this “‘court lacks jurisdiction if the essence of the claim lies in tort.’” Flowers v. United States , 80 Fed. Cl. 201, 213 (2 008) (quoting Cottrell v. United States

, 42 Fed. Cl. 144, 149 (1998)). I t is equally well

settled law that this court lacks jurisdicti on over claims arising under the criminal code. Joshua20

iii. The Court’s Bid Protest Jurisdiction Cannot B e Expanded to Encompass Plaintiffs’ Loan Program Application Claims

Plaintiffs also rely on Heyer Products v. United States

, a bid prot est case in which the plaintiff , a bidder who had submitted a proposal and lost, protested the award of the contract to another bidder, claiming that the government had engaged in “discrimination and favoritism, ” or “bad faith.” 140 F. Supp. 409, 410 (Ct. Cl . 1956) . The Heyer court denied the defendant’s

motion to dismiss the plaintiff’s complaint for failure to state a claim. Id. at 414. The court

reasoned that if the plaintiff’s “allegations [we]re true, [ the defendant] practiced a fraud on [the] plaintif f and on all other innocent bidders [,] induc[ing] them to spend their money to prepare their bids on the false representation that their bids would be honestly considered. ” Id. at 413. The court stated that it was an “implied condition of the request for offers” that “each of [the bids] would be fairly considered,” and that a bidder has the “right to have his bid honestly

considered.” Id. at 412

- 13. The court thus held that the parties’ “ implied contract ha [d] been broken, and [that the ] plaintiff [coul d] maintain an action for damages for its breach. ” Id. Here,

p laintiffs allege that the “DOE breached its contractual obligations by denying [plaintiffs] the fair opportunity and objective review that they had bargained for and [ that the] DOE had agreed to provide . . . .” 2d Am. Compl. ¶ 141. Plaintiffs further a ver that defendant manipulated and fixed the ATVM loan program to benefit government favorites and also favored political cronies over companies

— s uch as plaintiffs

— who lacked political connecti ons or failed to make political

contributions. Id. Based upon the reasoning in Heyer , plaintiffs argue that because the “ATVM and LG programs wer e operated like procurements,” Pls.’ O pp’n 21, the government’s “implied

v. United States , 17 F.3d 378, 379

- 80 (Fed. Cir. 1994) (affirming that the Court of Federal Claims had “‘no jurisdiction to adjudicate any claims whatsoever under the federal criminal code’”); Kania v. United States , 650 F.2d 264, 268 (Ct. Cl. 1981) (noting that “the role of the judiciary in the high function of enforci ng and policing the criminal law is assigned to the courts of general jurisdiction and not to this court”). Moreover, reviewing an agency’s decision to determine if misconduct or abuses occur red

constitutes review pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701

- 706 (1994)

, an inquiry that is reserved exclu sively for the district courts. See Webster v. United States, 90 Fed. Cl. 107, 121 (2009) (determining that the court could not hear plaintiff’s claims regarding the agency’s alleged “wrongful acts” to the extent that they sounded in tort and APA

liabilit y because such jurisdiction was reserved for the district courts); Ashgar v. United States

, 23 Cl. Ct. 226, 230 (1991) (holding that the court had no “general review authority under the APA” to “review [an] agency’s decision and procedures” when the plaint iff alleged that an agency had “violated its own internal regulations and procedures” because “such general review authority has been assigned to the district courts of the United States”). As the Federal Circuit has held, this court “lacks the general fe deral question jurisdiction of the district courts, which would allow it to review the agency’s actions and to grant relief pursuant to the Administrative

Procedure Act.” Crocker v. United States , 125 F.3d 1475, 1476 (Fed. Cir. 1997); accord Lion Raisins, Inc. v. United States , 416 F.3d 1356, 1370 n.11 (Fed. Cir. 2005) (“Of course, no APA review is available in the Court of Federal Claims.”). The court is not bound by plaintiffs’ labeling of a claim. Their challenge to the DOE ’s administration of its l oan and loan guarantee programs raises tort, cr iminal, and APA claims. The court lacks jurisdiction over tort, criminal,

and APA claims , and such claims are therefore dismissed pursuant to RCFC 12(b)(1)

.21

contractual duty to fairly consider” bid s applies here, as well, id. at 17. Plaintiffs’ factual predicate is incorrect

— this case does not arise under this court’s bid protest jurisdiction ; consequently, plaintiffs’ arguments are not persuasive.

T he Tucker Act establishes the court’s bid protest jurisdiction

, providing it with authority

to hear “an action by an i nterested party objecting to a solicitation by a [f] ederal agency for bids or proposals for a proposed contra ct or to a proposed aw ard or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1)

. The Federal Circuit has stated that a procurement “includes all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and

closeout .” Res. Conservation Grp., LLC v. United States , 597 F.3d 1238, 1244 (Fed. Cir. 2010) ; 41 U. S.C. § 111 (2012)

. In this case, the ATVM loan program and the Section 1703 LGP did not involve a procurement, nor operate like one, as plaintiffs assert. Plaintiffs did not respond to a government solicitation for bids or proposals to acquire goods or serv ices . Instead, plaintiffs applied for loans and a loan guarantee, respectively, pursuant to statutes and regulations

. No solicitations, bids, or contracts for goods or services were involved. Thus, the Heyer court’s ruling that bids should be considered on the merits does not apply to plaintiffs’ claims because

their ATVM loan program and Section 1703 LGP applications seeking loans and a loan
guarantee from the government, respectively, were entirely distinct from procurement s for goods

or services. Indeed, the Court of Claims held in binding precedent in Tree Farm that the plaintiff’s application for a loan guarantee in that case “f[ell] outside of the ambit of Heyer and its progeny.” 585 F.2d at 498. The court explained that b ecause the “plaintiff [wa]s not a disappointed bidder, but merely an applicant seeking governmental guarantees of the financing for its proposed development, it [wa]s manifest that plaintiff d[id] not fall within the established parameters of the Heyer pri nciples.” Id. at 499.

Plaintiffs attempt to distinguish the facts presented in their case from those in Tree Farm to argue that the Tree Farm holding does not apply. Pls.’ Opp’n at 19. Specifically, plaintiffs

assert that Tree Farm did not involve favo ritism, whereas Heyer did

. Id. P laintiffs contend that for that reason, the Heyer decision is apt

, while the holding in Tree Farm declining to extend Heyer has no application. Id. Plaintiffs’ argument is unconvincing . T he Tree Farm court’s basis

for declining to extend Heyer ’s implied duty of fair consideration was that Tree Farm involved a loan guarantee application, not a disappointed bidder in a procurement

. 585 F.2d at 499. Consequently, t he court in Tree Farm refused to extend the Heyer implie d duty to the loan
guarantee context

. Id. The Tree Farm court also note d that in Heyer , the plaintiff allege d that the agency had engaged in preferential treatment when awarding the contract , wh ereas in Tree

Farm , there were no allegations of bad faith. Id. The Tree Farm court explained, however, that

this distinction was merely an additional consideration when it declined to extend the Heyer rule to a loan guarantee setting

, rather than being the central reason

. Id. Thus, because the Tree Farm

court concluded that there was no implied duty of fair consideration in the loan guarantee

contex t, as no procurement was involved, its holding is salient here. Accordingly , because th is

case does not concern a procurement, plaintiffs cannot invoke Heyer ’s imp lied duty of fair

consideration to create an implied

- in

- fact contract in connection with their respective loan and loan guarantee applications

. See Baker , 50 Fed. Cl. at 498 (declining to extend Heyer to the plaintiff’s loan guarantee application

, and th us finding no implied

- in

- fact contract ); N. Indian22

Hous. & Dev. Council v. United States , 12 Cl. Ct. 417, 423 (1987) ( holding that, as in Tree

Farm , the plaintiffs did not fall “within the parameter of the Heyer principles because they were not disappoin ted bidders

, ” thereby barring the court from hear ing the plaintiffs’ claims ).

P laintiffs also argue that the Heyer doctrine has been extended to cases outside of the
procurement or competitive bidding context , and should thus be extended to their claims, as well

. Pls.’ Opp’n at 19

- 20. However, the decisions upon which plaintiffs rely are inapposite because

th ose cases arise from government procurement s

. See, e.g.

, Refine Constr. Co. v. United States

, 12 Cl. Ct. 56, 62 (1987) ( describing a case in which the government agency reviewed the plaintiff’s bid during a sole source procurement in order to award a contract for construction services); Acrow Corp. of Am. v. United States , 97 Fed. Cl. 161, 167 (2011) ( describing a case

in which the Army issued a solicitation to award a contract for construction services, bids were

submitte d, and the plaintiff brought a bid protest action). More over , in Tree Farm

, the Court of

Claims expressly addressed and rejected the argument that plaintiffs raise in this litigation, namely , that Heyer extends beyond procurements

. In Tree Farm , the court explained that in

Keco Industries v. United States , 428 F.2d 1233 (1970), it held that “the Heyer rule extended to all procurement situations.” Tree Farm

, 585 F.2d at 499. The T ree Farm court stated , “[w]e emphasize the words ‘all procurement situations’ because Heyer , even as clarified by Keco

Industries , has not been extended beyond the disappointed bidder fact pattern,” and “[t]he limited scope of Heyer is manifest in our [oth er] h[o] ldings[, ] ” as well. Id. Thus, i n Tree Farm , t he Court of Claims explicitly refused to extend its holding in Heyer beyond the procurement setting,

and this remains binding precedent

. Accordingly, t his court , like all other courts that have been

invited by par ties to depart from this binding precedent and extend the Heyer rule, decline s to
extend Heyer

. See New Am. Shipbuilders , 871 F.2d at 1080 (citing Tree Farm in refusing to “extend[]” the Heyer rule “requiring fair consideration of a bid [ ] for a contract o f competitive bid procurement” to the plaintiff’s objection to not receiving a federal grant, where the plaintiff was negotiating with the government to provide construction services); Baker , 50 Fed. Cl. at 497

- 98 (holding tha t it would “follow[] Tree Farm ” in “declin[ing] to extend Heyer ” beyond the procurement context to a loan guarantee application) ; El Dorado , 28 Fed. Cl. at 136

- 37 (discussing Tree Farm when “declin[ing ]” to extend the Heyer rule “outside of the procurement setting,” and thus rejecting the plaintiff’s argument that it “could have an implied contract with the government to consider its application in good faith”)

.

In addition , p laintiffs rely on Resource Conservation Gr oup
, a case in which the Navy issued a solicitation for proposals to leas e its property . 597 F.3d at 1240. I n that case, t he

Federal Circuit explained that this court’s “ implied

- in

- fact jurisdiction over nonprocurement solicitations survived the enactment of [ 28 U.S.C. § ]1491(b)(1)

. ” Id. at 1245 n.11

. In the case at bar, p laintiffs claim that that statement should be interpreted as expanding this court’s jurisdiction to non procurement solicitations . Pls.’ Opp’n 20

- 21. Plaintiffs are mistaken. T he

Federal Circuit m ade that statement in Resource Conservation Group wh ile discussing the

enactment of 28 U.S.C. § 1491(b)(1) and the change that it brought about. 597 F.3d at 124 3

- 46

. Specifically, the court described how previously, bid protest jurisdiction was shared by this court

and the federal district c ourts, and how the introduction of section 1491(b)(1) placed that jurisdiction exclusively with this court. Id. at 1243

. The court also indicated that “ [b]efore [the]

enactment of section 1491(b)(1), the Court of Federal Claims exercised jurisdiction ove r solicitations for the sale of government property, just as it did in the procurement area.” Id. at23

1245

- 46. Referring to this court’s jurisdiction over solicitations for the sale of government

property , t he court stated that “[t]he new statute on its f ace does not repeal the earlier jurisdiction.” Id. at 1246. T he court e xplained that “ Congress intended the 1491(b)(1) jurisdiction to be exclusive [of the district courts] where 1491(b)(1) provided a remedy (in procurement cases) . . . [but ] it seems qu ite unlikely that Congress would intend that statute to deny a pre

- existing remedy without providing a remedy under the new statute. ” Id.

Subsequently, the Federal Circuit held

, “ Congress did not intend to alter or restr ict the
Court of Federal Claims’ e xisting jurisdiction in cases not covered by the new statute.

. . . We
conclude that the court’ s implied

- in

- fact jurisdiction over non

- procurement solicitations survived the enactment of 1491(b)(1). ” Id. Thus, instead of extending this court’s jurisdic tion to

non procurement solicitations, as plaintiffs erroneously claim, the Federal Circuit merely
confirmed the contours of the court’s existing jurisdiction over solicitations for the sale of government property that was present prior t o the enactment of section 1491 (b)(1). Moreover, it appears that the Federal Circuit’s ruling was a narrow ruling regarding jurisdiction over the sale of government property; nothing indicates that it applies to an application for a loan or loan
guarantee . Consequently, th e implied duty of fair consideration that Heyer laid out does not apply to plaintiff

s’ non procurement loan and loan guarantee application claims

. The court thus

denies with prejudice the remaining implied

- in

- fact contract claims in the third claim for re lief of plaintiffs’ second amended complaint. 9

9 Moreover, t he mere fact that a company can manufact ure or produce a quality product does not automatically entitle that company to an award under a government loan program.

P laintiffs have not pointed to any statu te or regulation that compels the DOE to provide plaintiffs with a detailed explanation for its decision to select other applications for the award of loans or loan guarantees under the ATVM loan program and the Section 1703 LGP, respectively. In essence, plaintiffs seek a detailed debriefing with an explication and justification by the DOE for its decision to select other companies to participate in the ATVM loan program and the Section 1703 LGP. The DOE is under no such obligation. Indeed, plaintiffs’ failure to receive a loan award is not, in itself, evidence that the loan and loan guarantee programs were not properly

administered ; requesting review of th e agency ’s decision

- making process constitutes an APA inquiry , which, as described earlier, is beyond this court’s jurisdiction. See Califano v. Sanders

, 430 U.S. 99, 105 (1977) (“[T]he APA is not to be in terpreted as an implied grant of subject

matter jurisdiction to review agency actions . . . ”) Union Bank & Trust Co. v. United States

, 27 Fed. Cl. 403, 404 (1992) (stating that the APA “provides for judicial review of an agency decision that is arbitrary and capricious, an abuse of discretion, unsupported by substantial evidence, or unwarranted by the facts,” and that it “does not establish jurisdiction in this court over claims for money” damages, thus barring this court from reviewing agency decisions “u sing APA standards”), aff’d

, 6 F.3d 788 (Fed. Cir. 1993)

. However, as plaintiffs have likened their claims to bid protest c laims, the court notes the well

- settled law that government contract officials are presumed to “exercise their duties in good faith. ” Am

- Pro Protective Agency, Inc.

v. United States , 281 F.3d 1234, 1239 (Fed. Cir. 2002). A protestor seeking to overcome this “strong presumption” bears a heavy burden of proof. Id. at 1238

- 39. Consequently, where, as here, there is no regulation requi ring the DOE to provide an explanation for its decision, the presumption of regularity renders an explanation unnecessary “unless that presumption has been rebutted by record evidence suggesting that the agency decision is arbitrary and capricious.”24

B. The Court Denies Plaintiffs’ Fourth Claim for Relief , “ Breach of the Duty of Good Faith and Fair Dealing (Implied

- in

- Fact Contract)”

P laintiffs further contend that their purported implied

- in

- fact contract w ith defendant to conduct a “fair and level review of their ATVM [ l ] oan [ p ] rogram applications

. . . contained an implied duty of good faith and fair dealing obligating the parties not to do anything which would have the effect of destroying or injuring the right of the other to receive the fr uits of its contractual bargain. ” 2d Am. C ompl. ¶ 144. However, as defendant has righ tly noted, Def.’s

M ot. 25, “t he existence of th[e] covenant [of good faith and fair deal ing] depends on the

exist ence of an underl ying c ontractual relationship . . . . ” Scott Timber Co. v. United States , 692 F.3d 1365, 1372 (Fed. Cir. 2012); accord Precision Pine & Timber, Inc. v. United States , 596 F.3d 817, 830 (Fed. Cir. 2010). As explained herein, no contract was ever formed between

p laintiffs and the DOE ; consequently, the duty of good faith and fair dealing did not attach.

Scott Timber Co. , 692 F.3d at 1372 ( noting that “ there is no claim for a breach of th[e] covenant [of good faith and fair dealing] where a valid contract has not yet been formed”); W estla nds

Water Dist. , 109 Fed. Cl. at 205 (“

. . . [P] laintiff has failed to show a contractual duty . . . or any implied contract . . . . Theref ore, there is no contractual . . . duty to which the implied duty of good faith and fair dea ling can attach.”)

. Accordingly, t he court denies with prejudice the fourth

claim for relief of plaintiffs’ second amended complaint

.

IV. CONCLUSION

Plaintiffs do not invoke a money

- mandating constitutional provision, federal s tatute, or regulation that co nfer s jurisdiction on this court. The court also lacks jurisdiction over plaintiffs’ promissory estoppel claims. 10 In addition , plaintiffs fail to state a claim upon which relief could be granted for any implied

- in

- fact contract with defendant. The cour t is not bound to accept plaintiffs’ legal arguments concerning the effect of their respective applications to the ATVM loan program and the Section 1703 LGP. Consequently, because no contract has been properly alleged, there is no duty of good faith and fair dealing that attaches to defendant. 11

Impre sa Construzioni Geom. Domenico Garufi v. United States , 238 F .3d 1324, 1338 (Fed. Cir. 2001)

10 In their prayer for relief, plaintiffs request, inter alia , an award of punitiv e damages. However, it is well settled that the court lacks jurisdiction to aw ard punitive damages against the

United States. Garner v. United States , 230 Ct. Cl. 941, 941 (1982); Schortmann v. United

States , 82 Fed. Cl. 1, 3 (2008) ( noting the court’s earlier dismissal of that portion of the plaintiffs’ complaint requesting puniti ve damages because such relief is not available in the Court of Federal Claims); Greene v. United States , 65 Fed. Cl. 375, 379 (2005); Fields v. United

States , 53 Fed. Cl. 412, 420 (2002); Christos v. United States , 48 Fed. Cl. 469, 478 n.22 (2000); Cooper v. United States , 47 Fed. Cl. 115, 117 (2000).

11 To the extent that plaintiffs raise other arguments in defense of their assertion of jurisdiction or in an attempt to state a claim upon which the court could grant relief, such arguments are summarily deni ed as lacking merit. Additionally, the court need not reach other grounds that defendant has proffered for dismissing plaintiffs’ claims. Finally, the court does not need to address the issue of whether transfer to the district court is appropriate. On January 10,25

Accordingly, the court GRANTS defendant’ s RCFC 12(b )( 1 ) motion to dismiss for lack of subject matter jurisdiction with respect to plaintiffs’ promissory estoppel claims, and

GRANTS d efendant’ s RCFC 12(b )( 6 ) moti on to dismiss for failure to state a claim upon which relief can be granted a s to plaintiffs’ remaining claims

. Plaintiffs’ second amended complaint is

DISMISSED

. No costs. The clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ Margaret M. Sweeney

MARGARET M. SWEENEY Judge

2013, plaintiffs filed a complaint raising similar allegations in the United States District Court for the District of Columbia, No. 13

- cv

- 37 (D.D.C. Jan. 10, 2013).