B&btrucking, Inc. v. X - - - - , - - - - - - - - - - - - - - - - - - - - - - - - No. 02-1562 2 B&B…

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0096P (6th Cir.)
File Name: 04a0096p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
B&B TRUCKING, INC.;
CAUSLEY TRUCKING, INC.;
CLIFF BLACKBURN; FEDRIZZI,
INC.; FOREMAN BROS., INC.;
GEORGE E. CAMPBELL AND
SONS, INC.; L.R. VINCENT
TRUCK AND SERVICE, INC.;
M.C. EIPPERLE, INC.;
MASSMAN TRUCKING, INC.;
P-D TRUCKING, INC.; ROBERT
M. NEFF, INC.; ROTH
TRUCKING, INC.; ROYSTER
ENTERPRISES, INC.; SODREL
TRUCK LINES, INC.; TAYLOR
POSTAL CONTRACTING, INC.;
NATIONAL STAR ROUTE MAIL
CONTRACTO RS ASSOCIATION;
B&B INDUSTRIES, INC.; B&T
MAIL SERVICES, INC.; SHEEHY
MAIL CONTRACT ORS, INC.,
Plaintiffs-Appellants,
v.
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No. 02-1562
2 B&B Trucking, Inc., et al. v.
United States Postal Service
No. 02-1562
*The Honorable William Stafford, Senior United States District Judge
for the Northern District of Florida, sitting by designation.
UNITED STATES POSTAL
SERVICE,
Defendant-Appellee.
-
-
-
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 01-72978—Avern Cohn, District Judge.
Argued: October 29, 2003
Decided and Filed: April 2, 2004
Before: CLAY and COOK, Circuit Judges; STAFFORD,
District Judge.*
_________________
COUNSEL
ARGUED: Sharon Ambrosia-Walt, HOUGER & WALT,
Seattle, Washington, for Appellants Sheila H. Gaskell,
ASSISTANT UNITED STATES ATTORNEY, Detroit,
Michigan, for Appellee. ON BRIEF: Sharon Ambrosia-
Walt, HOUGER & WALT, Seattle, Washington, Larry J.
Saylor, Frederick A. Acomb, MILLER, CANFIELD,
PADDOCK & STONE, P.L.C., Detroit, Michigan, for
Appellants. Sheila H. Gaskell, ASSISTANT UNITED
STATES ATTORNEY, Detroit, Michigan, for Appellee.
CLAY, J., delivered the opinion of the court, in which
STAFFORD, D. J., joined. COOK, J. (pp. 31-37), delivered
a separate dissenting opinion.

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United States Postal Service
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_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiffs, B&B Trucking, Inc., et
al., appeal from the order of the United States District Court
for the Eastern District of Michigan, entered on January 30,
2002, granting the motion of Defendant, United States Postal
Service (“USPS”), to dismiss for lack of subject matter
jurisdiction, in this action asserting constitutional rights and
rights allegedly established by postal regulations. For the
reasons set forth below, we REVERSE the district court on
all claims, except for the claim for performance of the HCR
contracts.
BACKGROUND
Procedural History
On August 6, 2001, Plaintiffs filed suit to enjoin the USPS
from demanding that Plaintiffs, as motor carriers, begin
complying with the USPS’ national fuel program. Defendant
filed a motion to dismiss on grounds that the Contract
Disputes Act of 1978, 41 U.S.C. §§ 601-613 divested the
district court of jurisdiction. After hearing oral argument on
December 12, 2001, the district court held its ruling in
abeyance, to allow Plaintiffs to amend their filings.
On January 9, 2002, Plaintiffs filed a second amended
complaint, seeking declaratory and injunctive relief for
(1) violation of Plaintiffs’ Fifth Amendment rights,
(2) violation of postal regulations, and (3) violation of the due
process clause by arbitrary agency action without statutory
authority.
The district court issued an order, entered on January 30,
2002, granting the motion of Defendant to dismiss for lack of
4 B&B Trucking, Inc., et al. v.
United States Postal Service
No. 02-1562
subject matter jurisdiction. On April 1, 2002, the district
court issued an order denying Plaintiffs’ motion for
reconsideration, and Plaintiffs filed a timely appeal.
Substantive Facts
Plaintiffs are independent contractors who transport the
mail on highways for Defendant. Plaintiffs have fixed-rate
contracts: the rate that Defendant pays Plaintiffs is determined
with reference to Plaintiffs’ annual estimates of the cost and
amount of fuel that will be needed in transporting the mail.
If fuel costs increase during the life of a contract, rendering
inaccurate the estimates upon which the contract payments
were determined, then Plaintiffs have the contractual right to
request an adjustment in the contract price. Per Clause B-65
of the contract, Defendant’s contracting officer must accede
to a request for an increase in price for it to take effect.
Because the fuel prices that Plaintiffs pay are passed on to
Defendant in pre-contract estimates and potentially in
requests that are granted for adjustments during the life of the
contracts, Defendant has an incentive to find methods of
limiting Plaintiffs’ fuel costs.
To reduce Plaintiffs’ fuel costs, Defendant entered into fuel
supply contracts with fuel manufacturers Exxon-Mobil and
BP Amoco. These contracts are referred to by Plaintiffs as
“Exxon contracts.” Plaintiffs characterize the Exxon
contracts as granting Exxon-Mobil and BP Amoco
exclusivity: “[t]he Exxon contracts grant Exxon-Mobil the
right to be the sole fuel supplier throughout the eastern
seaboard region and central region . . . and the right to BP
Amoco to be the sole fuel supplier in the central, midwestern
and western regions of the United States . . . .” (Petitioners’
Br. at 9.) The Exxon contracts designate the material terms
of the sale of fuel, including price, fuel grade and quality,
quantity, and timing.

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5
In addition, the contracts give Exxon-Mobil and BP Amoco
the right to enter certain properties to supply fuel: “[t]he
Exxon contracts identify the motor carriers with bulk fuel
tanks within the specific geographic location and designate
them as ‘fuel sites’ to which the sale and delivery of fuel will
be made.” (Petitioners’ Br. at 9.) This provision appears to
give Exxon-Mobil and BP Amoco the right to enter certain
Plaintiffs’ land to fill certain fuel tanks, since some or all of
Plaintiffs have installed their own private “bulk fuel tanks
(tanks that are used not just for mail transportation but for all
their business needs and that were installed, on their own
property, at their expense, and not pursuant to any terms of a
USPS contract).” (Petitioners’ Br. at 20-21.)
None of Plaintiffs were privy to the Exxon contracts, and
none of Plaintiffs were consulted regarding the terms of these
contracts. Plaintiffs’ original contracts with the USPS did not
contain terms governing the choice of fuel suppliers. The
fuel-cost-reduction program was expanded to reach Plaintiffs
through implementation of the Bulk Fuel Purchase Plan,
which, in Defendant’s view–through Amendment 3 to
Defendant’s contracts with Plaintiffs–requires mail
transporters to purchase fuel from Exxon-Mobil and BP
Amoco. Some but not all of Plaintiffs agreed to
Amendment 3 to contracts with the USPS, without overt
pressure from the USPS. Then, at some point, those Plaintiffs
whose contracts did not yet contain Amendment 3 were
pushed to adopt the amendment, inasmuch as they were
“flatly told that [their] contracts would not be renewed
without the clause.” (J.A. at 394) (affidavit of an officer of
one of Plaintiffs).
Compliance with the Exxon contracts was problematic for
Plaintiffs. Arguably, arranging for their own fuel supply for
their vehicles had allowed Plaintiffs to meet their fuel needs
most effectively, altering the fuel supplied to their own trucks
to reflect climate, terrain, road, and truck-specific conditions
and variables. Some or all of Plaintiffs had installed their
6 B&B Trucking, Inc., et al. v.
United States Postal Service
No. 02-1562
own fuel tanks at their own expense, as part of the endeavor
of arranging for their own fuel supply. The Exxon contracts
gave control to Exxon-Mobil and BP Amoco over the fuel to
be supplied to these tanks and the pricing of the fuel.
DISCUSSION
The only issue before this Court is whether the district court
properly dismissed for lack of subject matter jurisdiction. A
dismissal for lack of subject matter jurisdiction is reviewed
de novo, with the plaintiff bearing the burden of establishing
jurisdiction and the court taking the allegations in the
complaint as true. Nichols v. Muskingum Coll., 318 F.3d 674,
677 (6th Cir. 2003). See also Green v. Ameritech Corp., 200
F.3d 967, 972 (6th Cir. 2000) (de novo standard of review).
There are two steps to the analysis, each of which is briefly
summarized here. The first step is to place this case within
the framework of the applicable larger jurisdictional issues
and to set forth the appropriate legal standard. Where, as
here, the government is the defendant, the Contract Disputes
Act bars a district court from exercising jurisdiction over any
individual claim that is contractual, when evaluated by the
source of the rights claimed and the relief sought (or
appropriate). Case law clearly establishes that claims are not
necessarily rendered contractual by the presence of a
contractual relationship between the parties. In two
prominent cases, there was a contractual relationship between
plaintiffs and defendants, but nonetheless the claims were
held to be non-contractual. Commercial Drapery
Contractors, Inc. v. United States, 133 F.3d 1, 3-4 (D.C. Cir.
1998); Megapulse, Inc. v. Lewis, 672 F.2d 959, 961-62, 968-
69 (D.C. Cir. 1982).
The second step is to determine whether the standard for
jurisdiction is satisfied. In the present case, much of the
determination as to whether the standard is met depends on
the relevance of Defendant’s arguments that Plaintiffs

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contractually waived the rights that they assert. Here, it is
important to note that the applicable test (as set forth and as
clarified in case law) is similar to the well-pleaded complaint
rule (which governs the more general jurisdictional issue of
whether there is federal question jurisdiction, under 28 U.S.C.
§ 1331). Under the Contract Disputes Act, the relevant
question is whether a claim (measured by the rights claimed
and the proper relief) would appear to be contractual on the
face of a well-pleaded complaint. As with the well-pleaded
complaint rule, the substance of a defense is irrelevant–a
well-taken contractual rebuttal argument has no bearing on
jurisdiction, if the issue would not appear in a well-pleaded
complaint. Applying these principles, the district court had
jurisdiction over all claims, except for the claim for
enforcement of the HCR contracts.
I.
Plaintiffs contend, and Defendant does not contest, that if
sovereign immunity has been waived, then the district court
would have jurisdiction over the claims in this case. Plaintiffs
argue that absent sovereign immunity, the district courts
would have jurisdiction through at least one of three
independent grants of jurisdiction, each of which would be
sufficient. First, Plaintiffs cite the Postal Reorganization Act,
39 U.S.C. § 401 et seq., whose section 401(1) grants the
USPS the authority “to sue and be sued in its official name.”
Secondly, Plaintiffs point to 28 U.S.C. § 1339, which states:
“The district courts shall have original jurisdiction of any
civil action arising under any Act of Congress relating to the
postal service.” See also Owen v. Mulligan, 640 F.2d 1130,
1134 n.10 (9th Cir. 1981) (“if the suit is characterized as one
requiring the Postal Service to follow its own regulations,
there is jurisdiction. 39 U.S.C. § 409(a); 28 U.S.C. § 1339.”).
Finally, Plaintiffs point out that there may be federal question
jurisdiction, under 28 U.S.C. § 1331. Plaintiffs claim that
Califano v. Sanders, 430 U.S. 99, 105 (1977) establishes that
regulations of federal agencies are federal “laws.”
8 B&B Trucking, Inc., et al. v.
United States Postal Service
No. 02-1562
Without determining the validity of the third basis of
jurisdiction claimed, Plaintiffs’ first and second proffered
bases for jurisdiction establish that if sovereign immunity
does not apply, then the district court had jurisdiction. The
question, then, is whether sovereign immunity applies. The
Contract Disputes Act (“CDA”) states: “All claims by a
contractor against the government relating to a contract shall
be in writing and shall be submitted to the contracting officer
for a decision.” 41 U.S.C. § 605(a). If Plaintiffs’ claims
against Defendant do not “relat[e] to a contract,” under the
meaning of the CDA, then sovereign immunity has been
waived; otherwise, a district court would lack jurisdiction to
hear the claims, which could only be brought before the Court
of Federal Claims. 41 U.S.C. § 609(a)(1) (“Except as
provided in paragraph (2), and in lieu of appealing the
decision of the contracting officer under section 6 [41 U.S.C.
§ 605] to an agency board, a contractor may bring an action
directly on the claim in the United States Claims Court
[United States Court of Federal Claims], notwithstanding any
contract provision, regulation, or rule of law to the
contrary.”).
At the outset, it is apparent that the contract itself does not
answer the question of whether Plaintiffs’ claims “relat[e] to
a contract.” The contract in the present case contains a clause
that states: “This contract is subject to the Contract Disputes
Act of 1978 (41 U.S.C. 601-613) (‘the Act’). Except as
provided in the Act, all disputes arising under or relating to
this contract must be resolved under this clause.” (J.A. at
327.) This language begs the question. The clause only
applies to disputes “arising under or relating to this contract.”
The term “relating to a contract” is the same standard used by
the CDA. Thus, the contractual clause resolves nothing. If a
claim “relat[es] to a contract” then, regardless of any language
in the contract, the CDA bars the claim from being brought in
a district court. If a claim does not “relat[e] to a contract,”
then neither the contract clause nor the CDA bars the claim
from being brought in a district court. (The contractual

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No. 02-1562 B&B Trucking, Inc., et al. v.
United States Postal Service
9
phrase “arising under . . . this contract” is not sufficiently
different from the phrase “relating to this contract” to alter
this analysis.)
To resolve the question of whether the CDA bars a district
court from assuming jurisdiction over some or all of
Plaintiffs’ claims, the analysis is rather complicated. Some
complexity arises from the fact that a dispute as a whole may
relate in part to a contract between the plaintiff(s) and the
defendant(s)–i.e., the dispute may “relat[e] to” quite a number
of issues, some of which involve a contract, perhaps as an
ancillary item. The CDA makes clear that the nature of the
dispute as a whole is irrelevant. Rather, claims must be
examined individually to determine whether the CDA applies.
The CDA states: “All claims by the government against a
contractor relating to a contract shall be the subject of a
decision by the contracting officer.” 41 U.S.C. § 605(a)
(emphasis added); Campanella v. Commerce Exch. Bank, 137
F.3d 885, 891 (6th Cir. 1998) (“We must next decide which
of the plaintiffs’ claims constitute ‘contract’ claims within the
meaning of the CDA.”).
In determining whether the CDA applies to a given claim,
an individual claim may appear to relate only in part to a
contract between the parties, creating difficulty in
determining whether the claim as a whole “relat[es] to a
contract.” Furthermore, it is not wholly obvious what it
means to “relat[e]” to a contract, in the first place.
Fortunately, the standard has been defined through case law.
In RMI Titanium Co. v. Westinghouse Elec. Corp., this Court
provided the applicable standard, which was adopted from the
D.C. Circuit’s ruling in Megapulse, Inc. v. Lewis:
[F]or the CDA to apply, it must first be determined that
the claims asserted are “essentially contractual” in nature.
Megapulse, Inc. v. Lewis, 217 U.S. App. D.C. 397, 672
F.2d 959, 967 (D.C. Cir. 1982). . . . “The classification
of a particular action as one which is or is not ‘at its
10 B&B Trucking, Inc., et al. v.
United States Postal Service
No. 02-1562
1The two cases are discussed in more detail, below. The D.C.
Circuit’s rulings on this issue are of great importance, considering that
this Court adopted the applicab le legal standard from the D .C. Circuit’s
Megapulse ruling.
essence’ a contract action depends both on the source of
the rights upon which the plaintiff bases its claim, and
upon the type of relief sought (or appropriate).”
Megapulse, supra at 968.
RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d
1125, 1136 (6th Cir. 1996). As RMI Titanium stated the
Megapulse test (hereinafter, “the RMI Titanium/Megapulse
test”), the district court has jurisdiction over those claims, and
only those claims, that are not deemed “essentially
contractual,” after a consideration of “the source of rights” of
the plaintiff’s claim and “the type of relief sought (or
appropriate).” This test makes clear that the determination of
whether the CDA bars jurisdiction depends on the plaintiff’s
claims, as stated in the complaint–as explained in issue II,
below, a defendant’s rebuttal points are not considered in this
analysis, which makes the test similar to the well-pleaded
complaint rule of federal question jurisdiction.
Under the RMI Titanium/Megapulse test, the presence of a
contractual relationship between plaintiffs and defendants
does not in itself render all claims “essentially contractual;”
rather, the presence of a contract is relevant only insofar as it
provides the source of the legal rights being claimed or the
basis for relief. Thus, in the D.C. Circuit’s Megapulse case
itself, and in another ruling by the same circuit, the plaintiffs
had contracts with the government, but, based upon analysis
of the rights claimed and the relief requested, the court held
that the CDA did not bar jurisdiction. Commercial Drapery
Contractors, Inc. v. United States, 133 F.3d 1, 3-4 (D.C. Cir.
1998); Megapulse, Inc. v. Lewis, 672 F.2d 959, 961-62, 968-
69 (D.C. Cir. 1982).1

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United States Postal Service
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The RMI Titanium/Megapulse test for whether the CDA
bars a district court from exercising jurisdiction, then,
examines the legal basis for a plaintiff’s well-pleaded
complaint. The test looks at the totality of both the source of
the rights in a given claim and the type of relief sought (or
appropriate) for that claim. If an individual claim appears
contractual after a consideration of the totality of the source
of the rights and the relief, then the CDA bars a district court
from exercising jurisdiction over that claim. If, after this
analysis, the claim does not appear to be contractual, then a
district court maintains jurisdiction over the claim.
II.
The RMI Titanium/Megapulse test can be applied to the
present case. Plaintiffs’ second amended complaint asserted
three causes of action. Plaintiffs sought declaratory and
injunctive relief for (a) violation of the mail transporters’
Fifth Amendment rights, (b) violation of postal regulations,
and (c) violation of the due process clause by arbitrary agency
action without statutory authority. The first “cause of action”
asserted multiple claims.
As stated above, each of Plaintiffs’ claims must be
examined individually, in order to determine whether each
claim is “essentially contractual.” Yet because the relief
sought (or appropriate) for most of the claims in this case is
identical–declaratory and injunctive relief–most of the
analysis of relief can be done without treating the claims
separately. After examining relief, the analysis will look at
the source of the rights for each individual claim, revisiting
the issue of relief only as needed.
Before proceeding to the analysis of relief, there is a point
of clarification. There are two categories of contracts in this
case: first, the Exxon contracts (between the USPS and
Exxon-Mobil and BP Amoco) and, secondly, those between
the USPS and Plaintiffs. It is not disputed that privity is a
12 B&B Trucking, Inc., et al. v.
United States Postal Service
No. 02-1562
2Despite properly stating that the “essentially contractual” test
demands consideration of both the rights and relief at stake, the district
court never examined the relief sought (or appropriate) to determine
whether or not the claims we re “essentially contractual.”
3In Ingersoll, the rights that served as the basis for the claim were
viewed as contractual; the claim was characterized as essentially one of
breach of contract. 780 F.2d at 77-78. The rights arose from a contract
to supply the A ir Force with air com pressors. Id. a 76.
requirement for a contract to fall under the scope of the CDA,
meaning that the first category of contracts are excluded–i.e.,
the Exxon contracts cannot be contracts to which Plaintiffs’
claims “relat[e].”
A. The type of relief sought (or appropriate) for
Plaintiffs’ claims
The district court did not consider the question of relief in
the present case,2 and so this Court must be the first to
examine it. Plaintiffs argue that for their claims they seek
non-contractual damages: “They ask neither for damages nor
specific performance, but to enjoin the USPS from acting
outside its authority.” (Petitioners’ Br. at 25.)
Defendant cites Ingersoll-Rand Co. v. United States, 780
F.2d 74 (D.C. Cir. 1985), in an apparent attempt to argue that
the type of relief alone is not dispositive. Defendant states
that “[e]ven though IR sought only declaratory and injunctive
relief . . . , the court followed the framework of Megapulse
. . . concluding that the source of rights at stake was
essentially contractual and IR could not avoid the
jurisdictional bar of the CDA.” (Respondent’s Br. at 29.)3
If Defendant cites Ingersoll as an illustration of a case in
which the (contractual) source of rights trumped the (non-
contractual) relief requested, then Defendant is mistaken. In
Ingersoll, the plaintiff had a contract to supply air

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4Not only was the type of relief sought, specific performance, related
directly to the contract between the plaintiff and the Air Force; but also,
other types of relief “appropriate” presumably would have included
money damages–com puted to place the plaintiffs in a position equal to
that for which they had contracted. See RMI Titanium, 78 F.3d at 1136
(“‘the type of relief sought (or ap propriate).’ Meg apulse, supra at 968”)
(emphasis added).
compressors to the Air Force, but the Air Force terminated the
contract. 780 F.2d at 75. The plaintiff sought declaratory and
injunctive relief that would prevent the Air Force from
soliciting new bids–thus, the plaintiff sought to prevent the
Air Force from replacing the plaintiff’s contract. Id. The
court concluded that essentially the plaintiff was seeking
contractual relief, in the form of specific performance of the
Air Force’s contract with the plaintiff. Id. at 79-80 (“we find
that the essence of I-R’s claim is a request for specific
performance of the original contract. From the outset, I-R has
requested an order reinstating the original award of the
contract.”).4
Nor does another case cited by Defendant, Campanella v.
Commerce Exchange Bank, 137 F.3d 885 (6th Cir. 1998),
prove relevant to the relief requested in the present case. In
Campanella, the plaintiff was due payment on a contract to
which the Small Business Administration was a guarantor.
Id. at 888. Two of the plaintiff’s claims were “to enforce
payment,” i.e., to seek specific performance of a contract
where payment was due–it was so clear that the relief
requested for these claims was contractual that the plaintiff
did not even contest this point. Id. at 888, 889 (describing the
claims for rent and fees in commercial transactions as “two
straight contract claims”), 891-92 (stating that the plaintiff did
not dispute that two of the claims were contract claims).
Another claim, based on quantum meruit, was clearly
attempting to enforce a contract, as well. Id. at 892 (“The
equitable doctrine of quantum meruit is based on an implied
promise on the part of the defendant to pay the plaintiff as
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United States Postal Service
No. 02-1562
much as he reasonably deserved to have for his labor.”)
(citation and internal quotation marks omitted). These
circumstances are not similar to those in the present case.
By contrast to Ingersoll and Campanella, it is difficult in
the present case to characterize as essentially contractual any
of the relief sought or otherwise appropriate. Plaintiffs had
contracts with Defendant which, through Amendment 3,
appear to contain terms binding Plaintiffs to purchase fuel
from the parties to the Exxon contracts. But Plaintiffs do not
seek specific performance of this contract. In fact,
Amendment 3 is the apparent cause of Plaintiffs’ frustration.
Thus, as in the Megapulse case itself (from which the legal
standard was adopted by this Court), “It is actually the
Government, and not Megapulse [the plaintiff], which is
relying on the contract . . . .” Megapulse, Inc. v. Lewis, 672
F.2d 959, 969 (D.C. Cir. 1982); see also id. (“[the plaintiff]
does not claim a breach of contract, . . . it seeks no monetary
damages against the United States, and its claim is not
properly characterized as one for specific performance. . . .”).
The government seeks to enforce Amendment 3, to the
frustration of Plaintiffs.
Perhaps it could be argued that Plaintiffs really seek
specific performance of the original, unamended
contracts–thus the case would be similar to Ingersoll, in
which the court determined that the plaintiff sought specific
performance of the original contract. 780 F.2d at 79-80. But
the original, unamended contract did not contain any terms
guaranteeing Plaintiffs freedom to choose fuel suppliers. If
anything, the original, unamended contract contained
language stating that so long as it adjusts the contract price
accordingly, Defendant has the right to dictate which fuel

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5Clause B-65(d) states, “Should the Postal Service introduce
procedures which affect the supplier’s obligations with respect to the costs
of fuel or taxes, the contract price will be adjusted . . . .” (J.A. at 290.)
6The present case cannot be analogized to Ingersoll, based upon
vague, general similarities, such as the presence of a contract. As
Ingersoll stated, “As to whether the relief sought was essentially
contractual, the [Megapulse] court recognized that the question ‘may be
resolved only against the facts of each case.’ [Megapu lse, 672 F.2d] at
970.” 780 F.2d at 76-77. Hence, it is not surprising that there was a
different ruling on jurisdiction in Com mercia l Drapery Contractors,
which also involved a contract but which had different facts than
Ingersoll.
suppliers Plaintiffs use.5 This case contrasts with the
Ingersoll case, which dealt with a narrow set of facts relating
to competitive bidding–as explained in issue II, below, the
facts and the court’s rationale are distinguishable from the
present case, and one relevant part of Ingersoll is not good
law in the D.C. Circuit. On the issue of relief requested, the
present case is more analogous to Commercial Drapery
Contractors, Inc. v. United States, 133 F.3d 1 (D.C. Cir.
1998), which is described below; in that case, the plaintiffs
challenged the government’s termination of a contract, but
nevertheless, the court determined that the CDA did not bar
the claims. Id. at 3-4.6
Although the relief requested does not initially appear to be
contractual, the RMI Titanium/Megapulse test demands a
consideration of both relief and the source of rights upon
which each claim is based. Thus, before reaching any final
conclusions, the source of rights must be considered for each
claim.
16 B&B Trucking, Inc., et al. v.
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No. 02-1562
B. The sources of the rights upon which Plaintiffs base
their claims
Plaintiffs assert three causes of action, the first of which
encompasses multiple claims.
1. Plaintiffs’ numerous claims for declaratory and
injunctive relief for violation of the mail
transporters’ Fifth Amendment rights
Plaintiffs’ first cause of action is an amalgam of numerous
Fifth Amendment claims for deprivation of liberty and
property interests without due process of law. (J.A. at 17-18)
(Plaintiffs’ Second Amended Complaint, paragraphs 6.1, 6.2,
and 6.3). There are three types of claims here. Plaintiffs
claim a violation of the property right to control use of
Plaintiffs’ fuel tanks. Plaintiffs also claim the freedom to
contract with fuel suppliers of their own choosing. In
addition, Plaintiffs assert various liberty rights to control the
manner of the operation of Plaintiffs’ business. Each of the
three categories is examined here.
a. Deprivation of property interests
In one claim, Plaintiffs assert a deprivation of property
interests. Plaintiffs assert that the USPS violated “Plaintiffs’
freedom to use their bulk fuel tanks for fuel products of their
choosing, to limit and exclude products not of their choosing,
and to control the use of their tanks and the surrounding

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7This claim is found in Plaintiffs’ Complaint at paragraph 6.2,
subpart (c). (J.A. at 18.) Plaintiffs assert that the USPS violated property
rights, “including but not limited to 1) protecting their dominion over
their privately owned bulk fuel tanks (tanks that are used not just for mail
transportation but for all their business needs and that were installed, on
their property, at the ir expe nse, and not pursuant to any terms of a USPS
contract) . . . .” (Petitioners’ Br. at 20-21.)
8The due process clause itself does not provide the source of property
rights. See Bd. of Regen ts v. Roth, 408 U.S. 564 , 577 (1972) (“Pro perty
interests, of course, are not created by the Constitution. Rather, they are
created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law --
rules or und erstand ings that secure certain benefits and that support claims
of entitlement to those benefits.”).
property.”7 The Exxon contracts grant Exxon-Mobil and BP
Amoco the right to enter certain properties to supply fuel.
Plaintiffs’ asserted right to protect their property from being
entered and used is not a contractual right. Plaintiffs were not
parties to any contract with Exxon-Mobil or BP Amoco. The
rights upon which this claim is ultimately based8 arise from
these Plaintiffs’ title over the property upon which they have
installed their own fuel tanks. Plaintiffs’ Complaint describes
this claim as “deprivation . . . of Plaintiffs’ liberty and
property interests, including . . . Plaintiffs’ freedom to use
their bulk fuel tanks for the fuel products of their choosing, to
limit and exclude products not of their choosing, and to
control the use of their tanks and the surrounding property.”
The title to the property is not a contractual right.
The only contract issues relating to the fuel tanks are
Defendant’s rebuttal points, which are not “the source of the
rights upon which the plaintiff bases its claim.” RMI
Titanium, 78 F.3d at 1136. Perhaps the Fifth Amendment
property right claim of Plaintiffs who own fuel tanks has no
merit because, by signing Amendment 3, Plaintiffs bargained
away their Fifth Amendment rights–but this argument speaks
18 B&B Trucking, Inc., et al. v.
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No. 02-1562
to the merits of the claim, not to the jurisdictional issue of the
source of the rights upon which the claim is based.
It is well-established that the existence of contractual
rebuttal points does not render a claim “essentially
contractual,” in CDA analysis. The D.C. Circuit–the very
circuit that devised the CDA test adopted by this Court–has
ruled that a claim is not rendered “essentially contractual”
merely because a contract issue may prove dispositive to the
claim. In Commercial Drapery Contractors, Inc. v. United
States, 133 F.3d 1 (D.C. Cir. 1998), a business, Commercial
Drapery Contractors (“Commercial”), had contracts with the
federal government’s General Services Administration
(“GSA”). Id. at 3. After a grand jury returned a fraud
indictment against Commercial and its president, the GSA
terminated its contract with Commercial and suspended future
contracting with Milford Acquisition Corporation
(“Milford”), a company that was owned by Commercial’s
president and his wife. Id. Commercial and Milford brought
suit, “claiming that GSA’s cancellation and suspension
decisions violated multiple government procurement statutes
and regulations, and constituted ‘de facto debarment’ or
‘blacklisting,’ thereby depriving them of due process.” Id.
The D.C. Circuit ruled that the CDA did not bar
jurisdiction:
Among other things, Commercial and Milford complain
about the termination clause in their contracts. That
sounds like a claim founded on a contract. But
“classification of a particular action as one which is or is
not ‘at its essence’ a contract action depends both on the
source of the rights upon which the plaintiff bases its
claim, and upon the type of relief sought (or
appropriate).” Megapulse, Inc. v. Lewis, 672 F.2d 959,
968 (D.C.Cir.1982). The basis of Commercial’s and
Milford’s claim is that GSA’s repeated attempts to
extricate the government from financial dealings with

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them constituted unlawful “blacklisting.” The dispute
over the termination clause in their contracts is
embedded within this broader claim, and is not an
independent cause of action. . . . The claim and the type
of relief requested thus reveal that this is not “at its
essence” a contract action. Accordingly, we have
jurisdiction.
Id. at 4. This ruling made clear that the mere existence of a
contract issue within a broader claim does not make the claim
“essentially contractual,” where the source of the rights
claimed and the relief are not contractual.
The ruling in Commercial Drapery Contractors cited
Megapulse, the very case that defined the applicable legal
standard. In Megapulse, the plaintiff, Megapulse, had
contracts with the Coast Guard, pursuant to which Megapulse
had developed proprietary data. 672 F.2d at 961-62. When,
based on the Coast Guard’s determination that the data had
not been developed solely at Megapulse’s expense, the Coast
Guard decided to release the data to other parties, Megapulse
brought suit for an injunction to prevent the release of data.
Id. at 962. The D.C. Circuit made clear that the existence of
relevant contractual issues did not render all claims
“essentially contractual”:
Contract issues may arise in various types of cases where
the action itself is not founded on a contract. A license,
for example, may be raised as a defense in an action for
trespass, or a purchase contract may be raised to counter
an action for conversion. But the mere fact that a court
may have to rule on a contract issue does not, by
triggering some mystical metamorphosis, automatically
transform an action based on trespass or conversion into
one on the contract and deprive the court of jurisdiction
it might otherwise have.
20 B&B Trucking, Inc., et al. v.
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No. 02-1562
Id. at 968. Applying this general principle, the court
determined that the CDA did not bar jurisdiction, because,
“Appellant’s position is ultimately based, not on breach of
contract, but on an alleged governmental infringement of
property rights and violation of the Trade Secrets Act. It is
actually the Government, and not Megapulse, which is relying
on the contract . . . .” Id. at 969. As in Megapulse, so too in
the present case, it is the government–and not any of the
plaintiffs–that is attempting to assert contractual rights (those
purportedly in Amendment 3).
The rule that a rebuttal issue cannot alter the nature of the
claims is analogous to the well-pleaded complaint rule that
governs federal question jurisdiction under 28 U.S.C. § 1331.
Under the well-pleaded complaint rule, “‘[W]hether a case is
one arising under [federal law], in the sense of the
jurisdictional statute, . . . must be determined from what
necessarily appears in the plaintiff’s statement of his own
claim in the bill or declaration, unaided by anything alleged
in anticipation of avoidance of defenses which it is thought
the defendant may interpose.’ Taylor v. Anderson, 234 U.S.
74, 75-76 (1914); Louisville & Nashville R. Co. v. Mottley,
211 U.S. 149 (1908).” Okla. Tax Comm’n v. Graham, 489
U.S. 838, 840-41 (1989) (emphasis added). The RMI
Titanium/Megapulse test is similar to the well-pleaded
complaint rule in that both tests evaluate jurisdiction by the
underlying rights upon which a plaintiff bases its claims,
without reference to any rebuttal points. This similarity is
logical. Both tests concern the issue of jurisdiction.
Jurisdiction is generally established by a plaintiff, through the
complaint. E.g., Nichols v. Muskingum Coll., 318 F.3d 674,
677 (6th Cir. 2003) (the plaintiff bears the burden of
establishing jurisdiction with the court taking the allegations
in the complaint as true).
In the present case, a well-pleaded complaint would not
necessarily even mention the very term of the contract that
Defendant considers dispositive, i.e., Amendment 3. A well-

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9There may be some confusion here, because there are two sets of
contracts, first, those b etween Plaintiffs and Defendant and, secondly, the
Exxon contracts between Defendant and Exxon-Mobil and BP Amoco.
Yet Plaintiffs’ claim here is not founded upon the rights in either class of
contracts.
10For a claim to be contra ctual–and thus fall within the realm of the
Court of Fed eral Claims–the claim must attempt to enforc e a contract to
which the plaintiff was a party. E.g., Katz v. Cisne ros, 16 F.3d 1204,
1210 (Fed. Cir. 1994) (“Absent privity between Hollywood Associates
and the government, there is no case [in the Court of Federal Claims].”).
11Plaintiffs’ actual complaint is relevant only insofar as it confirms
our analysis of a we ll-pleaded comp laint. That is, even if Plaintiffs’
actual complaint was not well-pleaded but, rather, set forth rebuttal
argum ents to contractual defenses, this would not alter the nature of
pleaded complaint would not refer to the contracts between
Plaintiffs and Defendant. Rather, the complaint would only
refer to the Exxon contracts–which were made without
Plaintiffs’ consent, and which Plaintiffs seek to nullify.9 A
complaint would allege that the Exxon contracts had violated
Plaintiffs’ property rights, by granting Exxon-Mobil and BP
Amoco the right to enter Plaintiffs’ land. The Exxon
contracts are a key part of the factual basis for the complaint.
But source of the rights upon which Plaintiffs base their claim
is not the Exxon contracts or any other contract. It is
undisputed that Plaintiffs were not privy to the Exxon
contracts.10 The property rights claim attempts to void the
Exxon contracts due to violation of Plaintiffs’ constitutional
rights. The contractual relationship between Plaintiffs and
Defendant is not the source of the rights upon which Plaintiffs
base their property rights claim–this is similar to Commercial
Drapery Contractors and Megapulse, in which the rights
claimed did not stem from the contractual relationship
between the parties.
Plaintiffs actual complaint is consistent with this analysis
of a well-pleaded complaint.11 The actual complaint focuses
22 B&B Trucking, Inc., et al. v.
United States Postal Service
No. 02-1562
Plaintiffs’ claims.
12Even if, in describing the factual background, Plaintiffs’ complaint
had referenced Plaintiffs’ co ntracts with Defendant, this would not alter
the nature of P laintiffs’ claims.
13This claim is found in Plaintiffs’ Complaint at paragraph 6.2,
subpart (a). (J.A. at 18.)
almost entirely on the Exxon contracts, as violating Plaintiffs’
property rights, without Plaintiffs’ consent. Nowhere in
Plaintiffs’ actual complaint is there any mention of Plaintiffs’
contracts with Defendant12–even though Amendment 3 to
these contracts might rebut Plaintiffs’ claims, on the merits.
A well-pleaded complaint does not refute itself. Defendant’s
rebuttal does not bear on the source of rights upon which
Plaintiffs base their property rights claim.
Absent the contractual rebuttal points, there are no
contractual issues relating to the claim for deprivation of
property–the source of the rights asserted in this claim is not
found in any contract. The source of the rights asserted is the
title to Plaintiffs’ land.
b. Freedom to contract with fuel suppliers of
Plaintiffs’ choosing
Moving on to other claims in the first “cause of action,”
Plaintiffs also claim a liberty interest in the “freedom to
contract with fuel suppliers of their own choosing.”13 On
rebuttal, it is possible that Defendant would establish that
Plaintiffs chose to forfeit this freedom, in order to maintain
their USPS contracts. If Plaintiffs had chosen not to sign
Amendment 3 to their USPS contracts, the USPS would not
have interfered with their fuel dealings; instead the USPS
merely would have declined to renew its contracts with
Plaintiffs. But, as stated directly above, contract issues that

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14(J.A. at 18) (Plaintiffs’ Com plaint, paragraph 6.2, subpart (b )).
would arise only in rebuttal do not render contractual an
otherwise non-contractual claim. Commercial Drapery
Contractors, 133 F.3d at 4; Megapulse, 672 F.2d at 968.
c. Other liberty interests
Additionally, Plaintiffs attempt to assert multiple liberty
interests, in asserting a deprivation of “freedom from
interference to operate their business, perform their HCR
contracts, and to make business decisions concerning the
terms and conditions of the purchase of supplies such as
fuel.”14 Plaintiffs “freedom from interference . . . and to
make business decisions” is not rooted in contract. It is
possible that Plaintiffs bargained away the freedoms being
claimed, but again that is merely a rebuttal point.
Commercial Drapery Contractors, 133 F.3d at 4; Megapulse,
672 F.2d at 968.
The only rights asserted in this “cause of action” that are
based upon contractual sources are Plaintiffs’ rights to
“perform their HCR contracts.” The HCR contracts are the
original contracts between Plaintiffs and Defendant as they
existed prior to Amendment 3–here, Plaintiffs assert that
subsequent acts by the USPS breached that contract. Clearly,
a claim to enforce the original contracts is grounded in rights
whose source is contractual–this claim is identical to the
attempt to enforce the original contract (by requesting specific
performance) in Ingersoll, where the plaintiff sought
declaratory and injunctive relief to prevent the Air Force from
soliciting new bids in a process that would replace the
plaintiff’s contract. 780 F.2d at 79-80. That this claim is
based on a contract is clear from the fact that the very rights
at stake can only be identified with reference to the HCR
contracts. As in Ingersoll, the relief requested here is specific
performance of the original contract. The claim of a right to
24 B&B Trucking, Inc., et al. v.
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No. 02-1562
1578 F.3d at 1136.
perform HCR contracts is “essentially contractual.” This
claim provides a striking contrast to all of the other claims in
this case, which are not based on rights found in a contract
and which do not seek contractual relief, in the form of
specific performance (or money damages).
The contractual claim for performance of HCR contracts
does not pollute the non-contractual assertions of Fifth
Amendment rights. It would be absurd to characterize
Plaintiffs’ entire first “cause of action” as one “claim.” The
first “cause of action” contains three sub-parts. Hence, it is
likely that there are at least three claims under this “cause of
action,” and in fact there are probably even more, since one
of the sub-parts (asserting, inter alia, the HCR contract
argument) asserts numerous legal rights. The definition of a
claim, within the CDA context, comes from the RMI
Titanium/Megapulse test–a claim is distinct if it is founded
upon distinct legal rights. In stating that the characterization
of a claim as “essentially contractual” depends on “the source
of the rights upon which the plaintiff bases its claim,”15 RMI
Titanium indicated that claims are defined by their underlying
rights; thus, by definition, in CDA analysis, an assertion of
non-contractual legal rights would be a distinct “claim” from
an assertion of contractual legal rights. See also BLACK’S
LAW DICTIONARY 240 (7th ed. 1999) (one definition of a
“claim” is “the assertion of an existing right”). (If, arguendo,
the entire first “cause of action” were somehow viewed as a
single “claim,” then it is doubtful that there would be a valid
basis for dismissing the entire “claim,” on the basis of the
small part of the claim that is based upon the rights in the
HCR contracts. This question, though, need not be
considered.)

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16See Alexander v. Sandoval, 532 U.S. 275 (2001).
The rights upon which Plaintiffs base their claims are not
contractual with respect to any Fifth Amendment claim other
than the claim of liberty to perform HCR contracts.
2. Plaintiffs’ claim for declaratory and injunctive
relief for violation of postal regulations
Plaintiffs’ second cause of action is the claim that
Defendant has violated its own regulations. Plaintiffs state
that regulations forbid the USPS from limiting Plaintiffs’
freedom to purchase fuel from any source that Plaintiffs wish.
Plaintiffs cite a regulation that “[t]he postal service is not
permitted to tell a contractor how or when to purchase
supplies . . . .” (J.A. at 209) (quoting USPS Management
Instruction PO-530-97-1). Plaintiffs also cite a regulation that
“[p]urchases of fuel may be made from any source at the
option of the contractor.” (J.A. at 216) (quoting USPS
Management Instruction PO-530-97-1).
On the merits, a question arises as to whether these
regulations vest private rights of action to enforce the
regulations. The question is whether mail transporters
(Plaintiffs) and/or fuel suppliers (e.g., those other than Exxon-
Mobil and BP Amoco) have the right to sue to force the USPS
to comply with the regulations.16 But this question is not
relevant to a ruling on jurisdiction. The “essentially
contractual” test of RMI Titanium, from Megapulse, examines
“the source of the rights upon which the plaintiff bases its
claim,” without requiring that those claimed rights even exist.
If the rights do not exist, then the court will grant a motion to
dismiss for failure to state a claim–but the court will not deny
its jurisdiction over the claim.
The district court and Defendant attempt to deem this claim
contractual, by likening it to Ingersoll. In Ingersoll, the
26 B&B Trucking, Inc., et al. v.
United States Postal Service
No. 02-1562
named plaintiff “alleg[ed] that the government’s decision to
terminate I-R’s contract to supply air compressors and to
resolicit bids for the contract was . . . contrary to several
federal acquisition regulations.” 780 F.2d at 74. Yet
Ingersoll does not govern the present case. In Ingersoll, the
court, in addition to classifying the relief sought as
contractual, offered three reasons for ruling that the source of
the rights in the claim for violation of regulations was
contractual. The court stated:
First, it is possible to conceive of this dispute as entirely
contained within the terms of the contract. The contract
included a termination-for-convenience clause. . . .
Second, the issues raised by plaintiff's complaint are
within the unique expertise of the Court of Claims. The
substance of I-R's complaint is that the Air Force had no
good reason to terminate the contract and begin
resolicitation. This complaint, unlike a complaint based,
for example, on a violation of the civil rights of the
contractor, calls for knowledge of the government
contracting process. . . .
Finally, despite I-R’s characterization, see Br. for
Appellant at 34, we find that I-R is not a “frustrated
bidder.” I-R asserts that its action is no different from a
bid protest action. See Scanwell Laboratories, Inc. v.
Shaffer, 137 U.S. App. D.C. 371, 424 F.2d 859 (D.C.
Cir. 1970).
Id. at 78. None of these three reasons prove controlling in the
present case.
Setting aside the first reason momentarily, it is clear that
the other two reasons do not apply to the present dispute. The
second reason from Ingersoll is not applicable to the present
dispute, because Plaintiffs claim in the present case does not
relate to the contracting process. Ingersoll was a case

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17LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en
banc) (“One three-judge panel . . . does not have the authority to o verrule
another three-judge panel of the court.”).
involving the rules and process of competitive bidding for the
awarding of government contracts. Id. at 75. The present
case does not involve the awarding of contracts among
competitors; thus, the third reason in Ingersoll clearly does
not apply to the present case, which does not involve a
“frustrated bidder.”
The first reason given in Ingersoll might apply to the
present case: by signing Amendment 3, Plaintiffs might have
contractually waived any rights that vested under the
regulations. Nonetheless, the present dispute is not governed
by Ingersoll. It appears that the D.C. Circuit’s first reason for
ruling that the source of the rights was contractual never was
good law within that circuit. In ruling that the source of the
rights in the claim was contractual because “it is possible to
conceive of this dispute as entirely contained within the terms
of the contract,” the D.C. Circuit classified the claim on the
basis of a rebuttal point embedded within a larger claim–the
D.C. Circuit thus ran afoul of the principle that the mere
existence of a contract issue within a broader claim does not
make the claim “essentially contractual,” where the source of
the rights claimed and the remedies are not contractual.
Commercial Drapery Contractors, 133 F.3d at 4; Megapulse,
672 F.2d at 968. Since the “within the terms of the contract”
point in Ingersoll, a 1985 opinion, is contrary to the same
circuit’s 1982 ruling in Megapulse (and the same circuit’s
1998 ruling in Commercial Drapery Contractors), it appears
that this point from Ingersoll never was good law in the D.C.
Circuit.17
Moreover, even if the “within the terms of the contract”
point were good law, this one similarity is not enough to
make the present dispute similar to Ingersoll. As discussed
28 B&B Trucking, Inc., et al. v.
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No. 02-1562
above, the D.C. Circuit’s second and third reasons given for
determining the source of the Ingersoll claim to be contractual
are not applicable to the present dispute. Also, as discussed
above, the Ingersoll court ruled that the relief sought was
specific performance, a contractual remedy–the relief issue
alone is sufficient to distinguish Ingersoll from the present
case. Finally, the many differences between the present case
and Ingersoll are quite important–Ingersoll itself stressed the
case-specific nature of the CDA inquiry. 780 F.2d at 76-77
(“As to whether the relief sought was essentially contractual,
the [Megapulse] court recognized that the question ‘may be
resolved only against the facts of each case.’ [Megapulse,
672 F.2d] at 970.”).
The claim for violation of postal regulations is not a claim
“relating to a contract,” under the CDA, but rather is a claim
based upon rights established in government regulations. The
claim is analogous to that in Commercial Drapery
Contractors, where the CDA did not bar jurisdiction over the
plaintiffs’ claims “that GSA’s cancellation and suspension
decisions violated multiple government procurement statutes
and regulations.” 133 F.3d at 3.
This claim should be decided on the merits. If the
regulations do not vest any rights in mail transporters, then
the district court should grant a motion to dismiss this claim.
But if a regulation does vest a right of action in the mail
transporters, then the source of this right is the regulation,
notwithstanding that a contract issue arises in rebuttal.
Ingersoll is not controlling, and there is no other valid
argument for classifying the rights found in the regulation as
contractual.

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3. Plaintiffs’ claim for declaratory and injunctive
relief for arbitrary agency action without
statutory authority
Plaintiffs’ third cause of action is the claim that the Exxon
contracts created third-party obligations, obligating Plaintiffs
to certain fuel supply provisions, and that because the USPS
lacks statutory authority to obligate third parties, such
obligations were arbitrary and capricious. Plaintiffs assert
that arbitrary and capricious action violates due process.
Tolchin v. Supreme Court, 111 F.3d 1099, 1115 (3rd Cir.
1997) (“Due process may also be violated if the government
acts arbitrarily or capriciously. Grayned, 408 U.S. at 109.”).
Plaintiffs assert irreparable harm.
Nothing in this claim relates to the contractual relationship
between Plaintiffs. The claim itself is structured and argued
such that it would be the same if, hypothetically, Plaintiffs
had no contractual relationship with the USPS: i.e., if,
hypothetically, the USPS attempted to obligate all gas stations
to give discounts to mail transporters, and gas stations had no
contractual relationship with the USPS, then the gas stations
could assert the exact same legal rights.
The source of the rights in this claim is not distinguishable
from the source of rights in claims over which the CDA did
not bar jurisdiction in Commercial Drapery Contractors. 133
F.3d at 3 (holding that the CDA did not bar jurisdiction over
the plaintiffs’ claims “that GSA’s cancellation and suspension
decisions . . . constituted ‘de facto debarment’ or
‘blacklisting,’ thereby depriving them of due process.”).
On the merits, contract issues certainly may be relevant:
Plaintiffs’ contracts with the USPS may be considered in
determining disputed factual issues concerning whether
Plaintiffs agreed to abide by the Exxon contracts. But the
contract issues would arise only in rebuttal, not in setting
forth the source of rights upon which Plaintiffs base their
30 B&B Trucking, Inc., et al. v.
United States Postal Service
No. 02-1562
claims. Again, the existence of contract issues as rebuttal
points does not change the nature of the source of the rights
claimed. Commercial Drapery Contractors, 133 F.3d at 4;
Megapulse, 672 F.2d at 968.
CONCLUSION
In summary, the “essentially contractual” standard requires
analysis of both the source of rights and the relief sought (or
appropriate), for each of Plaintiffs’ claims. The relief
requested is non-contractual, in seeking declaratory and
injunctive measures to enforce (1) property rights whose
source is found in the title to land, and various claimed liberty
rights (with the exception of the right to perform HCR
contracts); (2) rights whose source is USPS regulations (if
these rights are vested at all), and (3) rights whose source is
the due process entitlement to be free from arbitrary and
capricious government action that harms Plaintiffs’ interests.
The only “essentially contractual” claim is the liberty right to
perform the HCR contracts–for this claim, the source of the
rights claimed and the relief sought are contractual. The
district court has jurisdiction over all of the claims in this case
except for the claim of liberty to perform HCR contracts.
For the aforementioned reasons, we REVERSE the
judgment of the district court on all claims, except for the
claim for performance of the HCR contracts.

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_________________
DISSENT
_________________
COOK, Circuit Judge, dissenting. This appeal concerns the
sole issue of which court—the district court or the Court of
Federal Claims—has subject matter jurisdiction over the
truckers’ claims against the United States Postal Service
(USPS). If, as USPS argues, the claims are essentially
contractual, then the Contract Dispute Act (CDA) governs
them and the Court of Federal Claims has exclusive subject
matter jurisdiction. 41 U.S.C. §§ 601-13 (governing all
contracts that an executive agency enters into for procuring
goods and services). But if, as the truckers contend, their
claims are based on constitutional and statutory rights, then
the district court has subject matter jurisdiction.
The district court concluded that the claims are essentially
contractual and granted USPS’s motion to dismiss for lack of
subject matter jurisdiction. The majority, accepting almost
completely the truckers’ characterization of their claims as
constitutional and regulatory, concludes that the district court
has subject matter jurisdiction over most of the claims.
Because the district court correctly determined that all of the
claims are essentially contractual, I respectfully dissent.
I
The majority proposes that in deciding whether the CDA
governs the truckers’ claims, the district court should have
followed the well-pleaded-complaint rule and based its
decision only on the truckers’ pleadings, without evaluating
any issue USPS raised in defense. But a corollary to the well-
pleaded complaint rule—the artful-pleading doctrine—not
only allows but requires courts to look beyond the pleadings
to ascertain the source of a plaintiff’s claims. Although the
majority is correct that under the well-pleaded-complaint rule,
32 B&B Trucking, Inc., et al. v.
United States Postal Service
No. 02-1562
federal question jurisdiction exists only if the federal element
is part of the plaintiff’s claim, Gully v. First Nat’l Bank, 299
U.S. 109 (1936), the plaintiff is not free to manipulate
jurisdiction by omitting necessary federal elements from its
claim. Rivet v. Regions Bank, 522 U.S. 470, 475 (1998) (“As
a corollary to the well-pleaded defense rule, a plaintiff may
not defeat removal by omitting to plead necessary federal
questions. If the plaintiff thus ‘artfully pleads’ a claim, a
court may uphold removal even though no federal question
appears on the face of the complaint.” (citation and internal
punctuation omitted)); Franchise Tax Bd. v. Constr. Laborers
Vacation Trust, 463 U.S. 1, 13 (1983) (stating that when a
plaintiff pleads only state causes of action, “original federal
jurisdiction is unavailable unless it appears that some
substantial, disputed question of federal law is a necessary
element of one of the well-pleaded state claims, or that one or
the other claim is ‘really’ one of federal law” (emphasis
added)); Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394,
397 n.2 (1981) (agreeing that removal was proper when
“respondents had attempted to avoid removal jurisdiction by
‘artful[ly]’ casting their ‘essentially federal law claims’ as
state-law claims”). In short, the artful-pleading doctrine
requires a court to “look[] past the surface allegations to make
its own assessment of what law the claim arises under.” Int’l
Armor & Limousine Co. v. Moloney Coachbuilders, Inc., 272
F.3d 912, 914 (7th Cir. 2001).
Courts apply the artful pleading doctrine not only in federal
question cases but also in a variety of other cases, when
plaintiffs attempt to manipulate procedural rules. See, e.g.,
Harrow v. Prudential Ins. Co., 279 F.3d 244, 253 (3d Cir.
2002) (“Plaintiffs cannot circumvent the exhaustion
requirement by artfully pleading benefit claims as breach of
fiduciary duty claims.”); Hartz v. Liberty Mut. Ins. Co., 269
F.3d 474, 476 (4th Cir. 2001) (“By styling her complaint as
one for breach of contract, Hartz attempts to avoid the
Maryland bar against tort actions. No amount of artful
pleading such as terming the damages ‘consequential’ can

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disguise what Hartz is seeking—extra-contractual damages
for additional medical expenses, business losses, and
emotional distress.”); Ford v. NYLCare Health Plans, 141
F.3d 243, 250 (5th Cir. 1998) (“Basing the arbitrability of an
action merely on the legal label attached to it would allow
artful pleading to dodge arbitration of a dispute otherwise
‘arising out of or relating to’ (or legally dependent on) the
underlying contract.”); Lambert v. Kysar, 983 F.2d 1110,
1121 (1st Cir. 1993) (“We cannot accept the invitation to
reward attempts to evade enforcement of forum selection
agreements through artful pleading of tort claims in the
context of a contract dispute.” (internal punctuation omitted));
Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993, 997 (9th
Cir. 1987) (finding that the district court “properly looked
beyond the face of the complaint to determine whether the
contract claim was in fact a section 301 claim for breach of a
collective bargaining agreement artfully pleaded to avoid
federal jurisdiction”). In a case involving the CDA, the D.C.
Circuit Court of Appeals observed, “Courts have not hesitated
to look beyond the pleadings of a case brought in district
court to determine if it involves a claim over which the Court
of Claims has exclusive jurisdiction.” Megapulse, Inc. v.
Lewis, 672 F.2d 959, 967 (D.C. Cir. 1982).
In this case, the majority fails to recognize the truckers’
artful pleading of their contract claims as constitutional and
regulatory claims; this failure in effect sanctions the truckers’
attempts to evade the jurisdictional mandate of the CDA. A
proper analysis of the truckers’ claims must begin with the
understanding that “[t]he plaintiff’s title or characterization of
its claims is not controlling. . . . Rather, it is the determination
of whether the action is essentially a contract dispute that
controls.” Campanella, 137 F.3d at 892 (quoting RMI
Titanium, 78 F.3d at 1136) (alteration in original). Moreover,
“a plaintiff may not avoid the jurisdictional bar of the CDA
merely by alleging violations of regulatory or statutory
provisions.” RMI Titanium, 78 F.3d at 1136 (quoting
Ingersoll-Rand Co. v. United States, 780 F.2d 74, 77 (D.C.
34 B&B Trucking, Inc., et al. v.
United States Postal Service
No. 02-1562
Cir. 1985)). Thus, the truckers’ characterization of their
claims as constitutional and statutory has no bearing on
whether the claims are contractual. Up State Fed. Credit
Union v. Walker, 198 F.3d 372, 377 (2d Cir. 1999) (rejecting
plaintiff’s “attempts to characterize this action as an APA
challenge rather than a contract dispute”); A & S Council Oil
Co. v. Lader, 56 F.3d 234, 241 (D.C. Cir. 1995) (finding
claims were contractual and noting, “It is true that plaintiffs
have disavowed the notion that they are making contract
claims. Instead, they say, the damages they have suffered
flow from unlawful agency action. . . . In any event,
plaintiffs’ labeling is of little importance.”).
Furthermore, in this case the contractual foundation of the
truckers’ claims is evident from the truckers’ pleadings, not
just from USPS’s “rebuttal points.” The truckers’ complaint
raises the indisputably contractual (as well as dispositive)
issue of the validity of the amendments to the truckers’
contracts with USPS, alleging that “Plaintiffs were never
consulted regarding the terms and conditions of these
contracts [between USPS and the fuel suppliers], nor did they
consent to be bound thereby” (Second Amended Compl.
¶ 5.4), and that USPS “is attempting to compel Plaintiffs . . .
to comply with those contracts without Plaintiffs’ permission”
(Second Amended Compl. ¶ 8.3).
II
A. The Fifth Amendment Claims
The truckers argue that by interfering with their right to
control their fuel supply, USPS deprived them of their
property without due process or just compensation. But
whether the truckers have a right to control their fuel supply
depends upon whether their contracts with USPS afford such
a right—in particular, whether the amendments to their
contracts validly require the truckers to comply with the fuel
plan. As the majority recognizes, “Amendment 3 is the

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No. 02-1562 B&B Trucking, Inc., et al. v.
United States Postal Service
35
apparent cause of Plaintiffs’ frustration.” And while it is true
that “Plaintiffs do not seek specific performance of this
[amended] contract” (emphasis added), they are in effect
seeking specific performance of their pre-amendment
contracts. The truckers’ objection to the contract amendments
is the essence of their claims; everything else is a smoke-and-
mirrors effort to obscure the claims’ contractual nature.
Additionally, if the truckers contend correctly that the
contracts do not validly restrict their right to control their fuel
supply, and USPS nevertheless has abridged that right, then
the proper recourse would be a breach of contract claim, not
a takings claim. See Hughes Communications Galaxy, Inc. v.
United States, 271 F.3d 1060, 1070 (Fed. Cir. 2001) (“[T]he
concept of a taking as a compensable claim theory has limited
application to the relative rights of party litigants when those
rights have been voluntarily created by contract. In such
instances, interference with such contractual rights generally
gives rise to a breach claim not a taking claim.” (citations and
internal punctuation omitted)).
B. The Regulatory Claims
The truckers further argue that USPS lacked authority to
develop the fuel plan because USPS regulations prohibit
USPS from interfering with the operation of its contractors’
businesses, and that in the absence of regulatory authority,
USPS’s insistence that the truckers comply with the fuel plan
violates their right to due process. Specifically, the truckers
cite two regulations that they contend render the fuel plan
invalid: USPS’s Purchasing Manual (stating that “[t]he
objective of any purchasing action is to meet contract
objectives, not control the supplier’s business”) and its
Management Instructions (stating that “[p]urchases of fuel
may be made from any source at the option of the
contractor”).
36 B&B Trucking, Inc., et al. v.
United States Postal Service
No. 02-1562
This argument, however, conflicts with the truckers’
position that the amendments to their contracts do not
obligate them to purchase fuel from the designated suppliers:
the amendments cannot be both contractually invalid (as the
truckers contend when arguing that the amendments do not
constitute consent to the fuel plan) and contractually valid (as
the truckers contend when arguing that the amendments are
inconsistent with USPS regulations). If the amendments are
contractually invalid and therefore do not compel the truckers
to comply with the fuel plan, then the amendments cannot
also violate USPS regulations by compelling the truckers to
comply with the fuel plan.
This inconsistency, although perfectly acceptable as an
alternative-pleading strategy, nevertheless highlights the
contractual nature of truckers’ claims because their contracts
with USPS are at the core of both sides of the truckers’
argument. Regardless of whether the truckers argue that
USPS’s attempts to require them to purchase fuel from the
designated suppliers violate the contracts, or that the contracts
violate USPS regulations, their claims are contractual. The
possibility that USPS’s attempts to require the truckers to
adhere to the fuel plan might violate USPS regulations does
not transform a claim into one that is regulatory and not
contractual. See Ingersoll-Rand Co. v. United States, 780
F.2d 74, 78 (D.C. Cir. 1985) (“The question presented by the
complaint could be phrased as whether the contract forbids
termination under these conditions. That the termination also
arguably violates certain other regulations does not transform
the action into one based solely on those regulations.”).
Otherwise, because every government agency is bound to
follow some set of regulations, every government contractor
could recast its contract claims as regulatory claims, thereby
nullifying the CDA. Cf. United States v. J & E Salvage Co.,
55 F.3d 985, 988 (4th Cir. 1995) (“Effective enforcement of
the jurisdictional limits of the CDA mandates that courts
recognize contract actions that are dressed in tort clothing.”);
Melanson v. United Air Lines, Inc., 931 F.2d 558, 561 n.1

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No. 02-1562 B&B Trucking, Inc., et al. v.
United States Postal Service
37
(9th Cir. 1991) (“Nearly any contract claim can be restated as
a tort claim. The RLA’s grievance procedure would become
obsolete if it could be circumscribed by artful pleading.”).
C. Relief Available from the Court of Federal Claims
Finally, the truckers contend that the district court has
jurisdiction because the Court of Federal Claims cannot grant
the injunctive relief they seek. While the truckers correctly
assert that the Court of Federal Claims cannot grant this relief
outright, the court can achieve the same result—freedom from
compliance with the fuel plan—if the court finds that such a
result is appropriate, by granting a contractual remedy such as
reforming the truckers’ contracts with USPS. See Ho v.
United States, 49 Fed. Cl. 96, 100 (2001) (“Reformation of a
contract is an equitable remedy that may be invoked in this
court . . . when the contract contains . . . provisions that are
contrary to law.” (citing Am. Tel. & Tel. Co. v. United States,
177 F.3d 1368, 1376 (Fed. Cir. 1999); McClure Elec.
Constructors, Inc. v. Dalton, 132 F.3d 709, 711 (Fed. Cir.
1997); Dairyland Power Coop. v. United States, 16 F.3d
1197, 1202 (Fed. Cir. 1994))).
III
Because all of the truckers’ claims relate to their contracts
with USPS, the CDA governs the claims, and exclusive
subject matter jurisdiction therefore lies in the Court of
Federal Claims. Thus, I dissent from the majority’s decision
reversing the district court’s dismissal of the truckers’ claims
for lack of subject matter jurisdiction.

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