Northrop Grumman Computing Systems, Inc. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
NORTHROP GRUMMAN COMPUTING SYSTEMS,
INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2015-5074
______________________
Appeal from the United States Court of Federal
Claims in No. 1:07-cv-00613-FMA, Senior Judge Francis
M. Allegra.
______________________
Decided: May 24, 2016
______________________
D AVID C. AISENBERG, Looney Cohen Reagan & Aisen-
berg LLP, Boston, MA, argued for plaintiff-appellant.
MARTIN M. T OMLINSON, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee.
Also represented by BENJAMIN C. MIZER, ROBERT E.
K IRSCHMAN, J R., MARTIN F. HOCKEY , J R.
______________________

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NORTHROP GRUMMAN COMPUTING v. US 2
Before P ROST , Chief Judge, REYNA and WALLACH , Cir-
cuit Judges.
REYNA, Circuit Judge.
Northrop Grumman Computing Systems, Inc.,
(“Northrop”) appeals from summary judgment by the
United States Court of Federal Claims. Northrop Grum-
man Computing Sys., Inc. v. United States, 120 Fed. Cl.
460, 466 (2015) (“Northrop Cl.”). The Court of Federal
Claims determined that Northrop failed to show any
harm resulting from its claim that the Government had
breached the contract. We affirm the judgment of the
Court of Federal Claims.
BACKGROUND
This is Northrop’s second appeal to this court in this
case. The background of the prior actions has been thor-
oughly recounted by the Court of Federal Claims,
Northrop Cl., 120 Fed. Cl. at 461–64, and by this court,
Northrop Grumman Computing Sys., Inc. v. United
States, 709 F.3d 1107, 1109–11 (Fed. Cir. 2013)
(“Northrop Cir.”). The facts relevant to the limited issue
on this appeal are as follows.
Factual History
In July 2001, U.S. Immigration and Customs En-
forcement (“ICE”) awarded Northrop a Delivery Order to
supply and support network monitoring software pro-
duced by Oakley Networks (“Oakley”). The Delivery
Order provided that Northrop would furnish the software
and services via a lease for one base year and three option
years. The agreed base-year price was $900,000, and the
agreed price for each option year was $899,186. The
Delivery Order represented a total value of $3,597,558, if
the Government exercised all three option years. Approx-
imately one month after the award, Northrop and ICE
executed a modification of the Delivery Order requiring

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NORTHROP GRUMMAN COMPUTING v. US 3
the Government to use its best efforts to secure funding
for the option years.
Without notice to the Government, Northrop entered
into a private agreement with ESCgov, Inc. (“ESCgov”),
an IT services company. Under the terms of the agree-
ment, Northrop assigned all payments due under the
Delivery Order to ESCgov. In exchange, ESCgov agreed
to pay to Oakley and Northrop a total amount of
$3,296,093. ESCgov paid $2,899,710 directly to Oakley
for the software and paid the remainder to Northrop,
$191,571 of which covered Northrop’s anticipated profit
under the Delivery Order. Northrop Cl., 120 Fed. Cl. at
463. The agreement also absolved Northrop from any
liability to ESCgov for “failure of the Government to
exercise a renewal option” so long as Northrop “use[d] its
best efforts to obtain the maximum recovery from the
Government.” Id. at 462.
ESCgov subsequently assigned its rights under the
Northrop–ESCgov agreement to Citizens Leasing Corp.
(“Citizens”), a financial institution. None of the parties to
the assignments notified the Government of the assign-
ments as required by the Anti-Assignment Act, 31 U.S.C.
§ 3727(a)(2), (c)(3).1
1 The Anti-Assignment Act, 31 U.S.C. § 3727,
serves, in part, “to prevent possible multiple payment of
claims, to make unnecessary the investigation of alleged
assignments, and to enable the Government to deal only
with the original claimant.” United States v. Aetna Cas.
& Sur. Co., 338 U.S. 366, 371 (1949) (citing Spofford v.
Kirk, 97 U.S. 484, 490 (1878)). It requires, among other
things, that “the assignee files a written notice of the
assignment and a copy of the assignment with the con-
tracting official or the head of the agency, the surety on a

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NORTHROP GRUMMAN COMPUTING v. US 4
The Government paid Northrop the $900,000 fee for
the base year, which it passed on to ESCgov. The Gov-
ernment, however, did not use the software in any of its
investigations. On September 30, 2005, ICE sent
Northrop formal notification of its decision not to exercise
the lease’s first option year because it did not secure
funding. Subsequently, the Government did not exercise
any of the option years.
Procedural History
On September 21, 2006, Northrop filed a claim with
the contracting officer (“CO”) challenging the Govern-
ment’s decision not to exercise the first option year on
grounds that the Government breached the contract by
failing to use its best effort to secure funding. The CO
declined the claim.
On August 20, 2007, Northrop filed with the Court of
Federal Claims a complaint appealing the CO’s adverse
decision. During the proceedings, Northrop disclosed for
the first time the ESCgov and Citizens agreements.
Northrop Cl., 120 Fed. Cl. at 464. The disclosure led the
Court of Federal Claims to conclude that Northrop was
seeking damages based on a “pass-through” theory.
Northrop Cir., 709 F.3d at 1110. The Court of Federal
Claims dismissed the lawsuit on grounds that it lacked
jurisdiction because Northrop failed to provide the CO
with “adequate notice” of its claim by failing to disclose
the agreements. Id.
On August 23, 2011, Northrop appealed from the
judgment of the Court of Federal Claims. Northrop
argued that its claim was not a pass-through claim
brought on behalf of the third parties, but rather a breach
of contract claim brought on its own behalf. Id. at 1113.
bond on the contract, and any disbursing official for the
contract.” 31 U.S.C. § 3727(c)(3).

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NORTHROP GRUMMAN COMPUTING v. US 5
We reversed the Court of Federal Claims’ judgment that
it lacked jurisdiction, holding that Northrop’s claim before
the CO satisfied the statutory requirements for a claim
under the Contract Disputes Act. Id. at 1113. We re-
manded to the Court of Federal Claims with instructions
that it review in the first instance the merits of
Northrop’s breach of contract claim. Id.
On remand, the Government moved for summary
judgment on grounds that Northrop failed to show dam-
ages. The late Judge Francis M. Allegra agreed and
found that Northrop “is unable to identify any way that it,
as opposed to ESCgov or Citizens, was harmed by defend-
ant’s actions.” Northrop Cl., 120 Fed. Cl. at 466. The
Court of Federal Claims entered summary judgment in
favor of the Government and dismissed the complaint on
the basis “that defendant has demonstrated that plaintiff
is not entitled to any damages under the Delivery Order
in question or otherwise.” Id. Northrop appeals. We
have jurisdiction under 28 U.S.C. § 1295(a)(3).
D ISCUSSION
Standard of Review
We review a grant of summary judgment by the Court
of Federal Claims de novo, drawing all factual inferences
in favor of the nonmovant. Anderson v. United States, 344
F.3d 1343, 1349 (Fed. Cir. 2003). Summary judgment is
appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” RCFC 56(a).
Analysis
Northrop argues that the Court of Federal Claims
erred because it was entitled to recover damages despite
having assigned its rights under the contract. In the
alternative, Northrop urges that the Government should
be compelled to make the payments specified under the
contract. Northrop believes that the Court of Federal

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NORTHROP GRUMMAN COMPUTING v. US 6
Claims improperly treats the payments Northrop received
under the assignment as a substitute for the payments
that the Government agreed to make to it under the
Delivery Order. Northrop asserts that the Government
should not be allowed to assert the ECSgov and Citizens
agreements because it was not in privity to those agree-
ments and the decision results in a windfall to the Gov-
ernment. Northrop argues that the Court of Federal
Claims’ decision is inconsistent with the statutory scheme
and this court’s prior decision remanding the case for
merits consideration because it deprives Northrop of an
opportunity to show breach and recover the payments due
under the contract.
It is fundamental in contract law that in order to re-
cover on a breach of contract claim, a plaintiff must prove
damages—that it has been harmed. Restatement (Sec-
ond) of Contracts § 346 (1981) (“The injured party has a
right to damages for any breach by a party against whom
the contract is enforceable unless the claim for damages
has been suspended or discharged.” (emphasis added)).2
Damages must be particular to the plaintiff. Id. A plain-
tiff fails to meet this burden upon proof of damages to
third parties, but not to its own person. Severin v. United
States, 99 Ct. Cl. 435, 443 (1943) (“Plaintiffs therefore had
the burden of proving, not that someone suffered actual
damages from the defendant’s breach of contract, but that
they, plaintiffs, suffered actual damages.”).
2 For the first time at oral argument, Northrop
raised the prospect of nominal damages. We decline to
remand to determine if nominal damages would be appro-
priate. Restatement (Second) of Contracts § 346 cmt. b
(“Unless a significant right is involved, a court will not
reverse and remand a case for a new trial if only nominal
damages could result.”).

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Northrop has not met its burden of establishing dam-
ages. The undisputed facts show that Northrop has
suffered no harm. This harm can be expectancy damages,
measured relative to expected profits; restitution damag-
es, measured relative to a plaintiff’s position when the
contract was signed; or reliance damages, as a sum of
damages sustained as a result of a breach. Glendale Fed.
Bank, FSB v. United States, 239 F.3d 1374, 1380–82 (Fed.
Cir. 2001). Here, for example, Northrop offers no proof
that the Government’s decision not to exercise the option
years caused it harm by placing it in a financially worse
position.
To the contrary, the undisputed facts are that
Northrop’s financial position is equal to what it expected
to profit had the Government exercised all the option
years. The evidence shows that Northrop received
$191,571 in payment, an amount that represented the full
extent of its anticipated profit upon assigning the Deliv-
ery Order. Northrop offered no proof that it expended
resources or incurred any liabilities that cut into its
anticipated profit. Northrop is in at least as good, if not
better, a position as it expected when it assigned the
Delivery Order payments, and it has not shown any
particular harm to itself flowing from the alleged breach.
See Glendale Fed. Bank, 239 F.3d at 1380–82.3 Northrop
had its full self-measure of profit and it stood neither to
gain nor to lose whether or not the Government exercised
the option years. As the Court of Federal Claims correctly
noted, “Northrop reaped the benefit of the bargain it
3 At most, Northrop’s potential basis for damages is
a pass-through claim on behalf of ESCgov and Citizens.
But Northrop denies that it is bringing a pass-through
claim. Northrop’s Opening Br. 27; Northrop’s Reply Br. 5;
see also Northrop Cir., 709 F.3d at 1113.

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NORTHROP GRUMMAN COMPUTING v. US 8
negotiated—it is entitled to nothing more from defend-
ant.” Northrop Cl., 120 Fed. Cl. at 466.
We disagree with Northrop that it was improper for
the Court of Federal Claims to consider the payment
made to Northrop under the ESCgov agreement in deter-
mining whether Northrop was harmed. Contract damag-
es take into account both a party’s losses and the losses
that a party avoided. Restatement (Second) of Contracts
§ 347 (1981); see also Severin, 99 Ct. Cl. at 443. The
Court of Federal Claims was correct to take into account
Northrop’s profits from the assignment of the Delivery
Order in determining that it had not been harmed by an
alleged breach of that contract.
We also disagree with Northrop that this result is in-
consistent with the precedents cited in our Northrop Cir.
decision. In Beaconwear Clothing Co. v. United States, we
addressed a pass-through claim brought by a nominal
plaintiff on behalf of its subcontractor. 355 F.2d 583 (Ct.
Cl. 1966). But unlike this case, the plaintiff requested
and received “permission to subcontract the entire con-
tract” to the subcontractor. Id. at 585. Northrop, in
contrast, both disclaimed pass-through theories of recov-
ery and failed to obtain permission from the Government
before assigning the Delivery Order. In Colonial Naviga-
tion Co. v. United States, a contractor sold a boat to a
third party. 149 Ct. Cl. 242, 245 (1960). The boat was
subject to a loan from the Government when it was sold,
which the Government had agreed to forgive. Id. The
Colonial court held that the contractor could sue to recov-
er based on the Government’s breach of a promise to
forgive that debt because the contractor showed that it
received less in the third-party sale than it otherwise
would have, i.e., the contractor proved it was harmed. Id.
at 247. Northrop, in contrast, has not shown it has suf-
fered any harm.

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The judgment of the Court of Federal Claims is af-
firmed in all respects.
AFFIRMED

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