Wolf Creek Railroad LLC v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WOLF CREEK RAILROAD LLC,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-1873
______________________
Appeal from the United States Court of Federal Claims
in No. 1:23-cv-01684-CNL, Judge Carolyn N. Lerner.
______________________
Decided: November 25, 2025
______________________
L EWIS P. RHODES , Reston Law Group LLP, Reston, VA,
argued for plaintiff-appellant. Also represented by
T HOMAS D AVID.
SEAN K ELLY G RIFFIN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also repre-
sented by BRIAN M. BOYNTON, ERIC P. BRUSKIN, P ATRICIA
M. MCCARTHY .
______________________
Case: 24-1873 Document: 47 Page: 1 Filed: 11/25/2025

-- 1 of 13 --

WOLF CREEK RAILROAD LLC v. US 2
Before D YK, T ARANTO, and CHEN, Circuit Judges.
T ARANTO, Circuit Judge.
In 2023, Wolf Creek Railroad LLC sued the United
States Army Joint Munitions Command (the Army) in the
United States Court of Federal Claims (Claims Court) for
compensation for alleged breach of a contract with the
Army, including breach of an implied covenant of good faith
and fair dealing. Wolf Creek brought its action under the
Contract Disputes Act (CDA), 41 U.S.C. §§ 7101(7),
7104(b)(1), invoking the Claims Court’s jurisdiction under
28 U.S.C. § 1491(a)(1)–(2). As relevant here, the Claims
Court dismissed the complaint for lack of subject matter
jurisdiction because the Army contract alleged was not one
to which Wolf Creek was a party or under which the Army
owed Wolf Creek a contractual duty. Wolf Creek Railroad,
LLC v. United States, No. 23-1684, 2024 WL 1270189 (Fed.
Cl. Mar. 26, 2024) (CFC Decision). We affirm.
I
A
In 2008, the Army executed Contract No. W52P1J-09-
E-0001 (Facility Contract) with American Ordnance, LLC,
effective October 2, 2008, whereby American Ordnance
agreed to perform operations and maintenance services at
the Milan Army Ammunition Plant (Plant) in Milan, Ten-
nessee. J.A. 40, 49. The Army and American Ordnance
also executed Contract No. W52P1J-09-G-0001 (Basic Or-
dering Agreement), effective the same day, providing for
the Army to obtain operation and maintenance services
from American Ordnance beyond those explicitly identified
in the Facility Contract. J.A. 219–303. Within the Basic
Ordering Agreement was a statement of work, in further-
ance of the Armament Retooling and Manufacturing Sup-
port (ARMS) Initiative, stating that the Army could
authorize American Ordnance to put Army facilities to
Case: 24-1873 Document: 47 Page: 2 Filed: 11/25/2025

-- 2 of 13 --

WOLF CREEK RAILROAD LLC v. US 3
commercial use by, among other things, entering into “ten-
ant use agreements” with third parties. J.A. 233.
The statement of work (SOW) provided:
The Government may authorize the Contractor
[i.e., American Ordnance] to use facilities in sup-
port of . . . tenant use agreements under this facil-
ity contract during the term hereof. . . . Approval
for such use shall not be construed as an extension
of the facility contract. The approval for each use
shall stand as separate agreements entered into
under the authority of the facility contract, allow-
ing use of those facilities specifically identified in
the agreement for the specified period. Execution
of each use and/or extension/option is dependent
upon receipt of written authorization from the [Fa-
cility Contract] Contracting Officer.
J.A. 233 (SOW § 2.1.1). The SOW also clarified that, when
American Ordnance entered into a tenant use agreement
with the Army’s authorization,
[t]he [Army] is not a party to the Tenant Use Agree-
ments and does not deal directly with the tenants;
all consideration/revenue is considered due from
[American Ordnance].
J.A. 235 (SOW § 3.3.7). And the SOW addressed termina-
tion and ensuing settlement costs:
The FAR [(Federal Acquisition Regulation)] Part
. . . 49 . . . sets forth the terms for establishing ap-
propriate termination settlement costs associated
with any . . . tenant use agreements. . . . Settle-
ment consideration costs must be found allowable,
allocable, and reasonable in accordance with the
FAR requirements. Settlement consideration will
include the contractors/subcontractors/tenant use
contractor’s financial investment and contractual
commitment for each individual . . . tenant use
Case: 24-1873 Document: 47 Page: 3 Filed: 11/25/2025

-- 3 of 13 --

WOLF CREEK RAILROAD LLC v. US 4
agreement impacted. Tenant use contractors will
negotiate all settlement agreements with [Ameri-
can Ordnance].
J.A. 234 (SOW § 2.2.4).
A decade later, in April 2018, American Ordnance re-
quested authorization from the Army’s contracting officer
to “subcontract” with Wolf Creek for Wolf Creek to operate
a railway system at the Plant. J.A. 304–05. Two months
later, the contracting officer issued a memorandum ap-
proving the request if certain conditions were met. J.A.
306–09. As relevant here, the Army (1) required the agree-
ment between American Ordnance and Wolf Creek to be a
tenant use agreement in accordance with the SOW; (2) re-
quired a copy of the executed agreement to be sent to the
Army; (3) reserved the right to cancel an approved use at
no cost to itself if the Plant was closed, sold, and/or trans-
ferred to an entity outside the Department of the Army;
and (4) required the agreement to stipulate that the Army
“shall not be held liable in the event that [Wolf Creek] is
forced to cease operations and thereby vacate the facility
as a result of any change in [the Plant’s] status.” J.A. 306–
08. The Army’s authorization letter further explained that
“[i]ndemnification is not included as part of this approval.”
J.A. 308.
In June 2018, American Ordnance and Wolf Creek ex-
ecuted Tenant Use Contract AO 18-0002 (2018 TUA),
which had a twenty-five-year duration with potential for
renewal. J.A. 310–338. The Army did not review the 2018
TUA before it was executed by American Ordnance and
Wolf Creek. See Complaint, Wolf Creek Railroad LLC
v. United States, No. 24-1873 (Fed. Cl. Sept. 29, 2023), ECF
No. 1 ¶ 15 (Complaint). In the 2018 TUA, Wolf Creek
agreed to perform tasks such as railcar maintenance and
repair, including maintenance of and certain repairs for
government-owned locomotives, among other operational
duties. J.A. 313–15. American Ordnance charged Wolf
Case: 24-1873 Document: 47 Page: 4 Filed: 11/25/2025

-- 4 of 13 --

WOLF CREEK RAILROAD LLC v. US 5
Creek fixed monthly fees for its use of the Plant and col-
lected a percentage of Wolf Creek’s revenue from its opera-
tions at the Plant. J.A. 304, 314. The 2018 TUA also
addressed termination procedures, using the word “Owner”
to refer to the landowner, i.e., the Army:
(a) Convenience – The Owner’s representative [i.e.,
American Ordnance] may terminate this Agree-
ment or portions thereof at any time by giving
thirty (30) days written notice to the Tenant [i.e.,
Wolf Creek] . . . (iii) in the event the Government
determines that termination of this Agreement or
portions thereof is in the best interests of the Gov-
ernment or (iv) the Owner’s representative’s inabil-
ity to perform any of its obligations, including, but
not limited, its ability to authorize use of the Facil-
ities to the Tenant. In the event of termination un-
der this provision, the termination will be at no cost
to the Owner’s representative and the Owner’s rep-
resentative shall be held harmless for any damages
as a result of the termination. . . .
(d) This Article 13 shall be administered according
to FAR Part 49, as it relates to fixed price contracts.
J.A. 323 (2018 TUA §§ 13(a), (d)).
In 2019, Mr. Patrick Lootens, who was then the con-
tracting officer on the Army-American Ordnance contracts,
sent a letter to American Ordnance ordering cessation of
“ARMS marketing efforts . . . [that] facilitate the introduc-
tion of new tenants at [the Plant].” J.A 424. Nearly two
years later, Mr. David DeAnda, who had replaced Mr. Loo-
tens as the contracting officer, rescinded authorization for
all of American Ordnance’s tenant use agreements because
the Plant was to be sold. J.A. 365, 426. The Army ordered
all tenants to exit the Plant by December 31, 2021. Id.
American Ordnance then terminated the 2018 TUA with
Wolf Creek. Complaint, ¶ 27.
Case: 24-1873 Document: 47 Page: 5 Filed: 11/25/2025

-- 5 of 13 --

WOLF CREEK RAILROAD LLC v. US 6
B
Wolf Creek made two attempts to submit a claim letter
to the contracting officer on the Army-American Ordnance
contracts, such a pre-suit claim being required under the
CDA, 41 U.S.C. § 7103. Perhaps because Wolf Creek was
not a signatory to the contracts with the Army, it seemingly
lacked up-to-date information for reaching the actual con-
tracting officer at the time. First, on May 30, 2023, Wolf
Creek emailed a claim letter to Mr. Lootens, who no longer
was the contracting officer, having retired in 2020. Com-
plaint, ¶¶ 29–33; J.A. 365, 373. Second, on September 5,
2023, Wolf Creek emailed a claim letter to Mr. DeAnda,
who also was not the contracting officer, having ceased
serving in that role in 2022. Complaint, ¶ 34; J.A. 365. Alt-
hough Wolf Creek sent the claim letter to Mr. DeAnda’s
email address that was listed on the rescission letter, Mr.
DeAnda did not receive the letter because the Army had
migrated email accounts in 2021, and the former email ad-
dress had been deleted. CFC Decision, 2024 WL 1270189
at *4 n.2; J.A. 366.
Mr. Beau Bixler became the contracting officer in
March 2022. J.A. 364. Mr. Bixler never received corre-
spondence from Wolf Creek relating to the 2018 TUA. Id.
C
On September 29, 2023, Wolf Creek filed suit against
the Army in the Claims Court under the CDA, Complaint
¶ 5, alleging breach of contract (specifically the 2018 TUA),
specifically of an implied duty of good faith and fair deal-
ing, and seeking contract damages, Complaint, ¶¶ 37–51.
In January 2024, the Army moved to dismiss the com-
plaint. A month later, Wolf Creek mailed a third claim let-
ter to the Army Contracting Command.
On March 26, 2024, the Claims Court dismissed Wolf
Creek’s suit for lack of subject matter jurisdiction, as well
as for failure to state a claim upon which relief could be
Case: 24-1873 Document: 47 Page: 6 Filed: 11/25/2025

-- 6 of 13 --

WOLF CREEK RAILROAD LLC v. US 7
granted. CFC Decision, 2024 WL 1270189, at *9. The
Claims Court relied for its decision on some factual devel-
opment outside the Complaint, as permitted for jurisdic-
tional issues. See Reynolds v. Army & Air Force Exchange
Services, 846 F.2d 746, 747 (Fed. Cir. 1988). On appeal,
Wolf Creek does not demonstrate that such reliance was
improper. Nor does Wolf Creek challenge, on appeal, the
Claims Court’s denial of its request for additional discov-
ery. CFC Decision, 2024 WL 12701879, at *8–9.
The Claims Court found an absence of jurisdiction for
two reasons. First, it determined that Wolf Creek failed to
submit a certified claim to the contracting officer as re-
quired by the CDA, which it held to be a jurisdictional pre-
requisite to filing suit at the Claims Court. CFC Decision,
2024 WL 1270189, at *3–4. Second, and independently, the
Claims Court determined that none of the contracts at is-
sue, including the 2018 TUA, established privity of con-
tract between Wolf Creek and the Army—and, specifically,
that American Ordnance was not the Army’s agent in the
2018 TUA. Id. at *5–7. In support, the Claims Court ex-
plained that Wolf Creek had paid American Ordnance for
its use of the Plant, id. at *5–6, the Army lacked meaning-
ful control over American Ordnance’s “management of its
lessees,” id. at *6, and there was no express term in the
relevant agreements authorizing American Ordnance to be
the Army’s purchasing agent, id. at *6–7.
Wolf Creek timely appealed the dismissal. We have ju-
risdiction under 28 U.S.C. § 1295(a)(3).
II
We review and affirm the Claims Court’s conclusion
that it lacked jurisdiction under the Tucker Act because
Wolf Creek was not in privity with the Army on any con-
tract and, in particular, American Ordinance was not serv-
ing as the Army’s agent when entering into the 2018 TUA
with Wolf Creek. Our affirmance of that conclusion suffices
to affirm the jurisdictional dismissal. We do not reach the
Case: 24-1873 Document: 47 Page: 7 Filed: 11/25/2025

-- 7 of 13 --

WOLF CREEK RAILROAD LLC v. US 8
question of whether Wolf Creek failed to submit a claim
within the meaning of the CDA.
In this case, the only jurisdiction invoked is the con-
tract jurisdiction under the Tucker Act, requiring an “ex-
press or implied contract with the United States,” 28
U.S.C. § 1491(a)(1), which can be a contract under the
CDA, id. § 1491(a)(2). As applied here, the provision re-
quires plaintiff-government “privity”—a “contract, express
or implied in fact, by the government with the plaintiff[.]”
Merritt v. United States, 267 U.S. 338, 341 (1925) (empha-
sis added). Where there is no privity, the provision does
not apply: “[T]he no-privity rule is synonymous with a find-
ing that there is no express or implied contract between the
government” and a complainant and, therefore no jurisdic-
tion. United States v. Johnson Controls, Inc., 713 F.2d
1541, 1550 (Fed. Cir. 1983); see also Lumbermens Mutual
Casualty Co. v. United States, 654 F.3d 1305, 1321 (Fed.
Cir. 2011); Winter v. FloorPro, Inc., 570 F.3d 1367, 1371
(Fed. Cir. 2009); Admiralty Construction by National
American Insurance Co. v. Dalton, 156 F.3d 1217, 1222
(Fed. Cir. 1998).
We review the Claims Court’s jurisdictional ruling de
novo. See, e.g., Biltmore Forest Broadcasting FM, Inc.
v. United States, 555 F.3d 1375, 1380 (Fed. Cir. 2009); Eng-
land v. The Swanson Group, Inc., 353 F.3d 1375, 1378
(Fed. Cir. 2004). Generally, and here, we also interpret
contracts and regulations de novo. See, e.g., Nova
Group/Tutor-Saliba v. United States, 87 F.4th 1375, 1378–
79 (Fed. Cir. 2023); CGI Federal Inc. v. United States, 779
F.3d 1346, 1353 (Fed. Cir. 2015). Findings of fact are re-
viewed for clear error, Stephens v. United States, 884 F.3d
1151, 1155 (Fed. Cir. 2018); Rasmuson v. United States,
807 F.3d 1343, 1345 (Fed. Cir. 2015), and we are not “re-
quired to accept a complaint’s legal conclusions.” Frankel
v. United States, 842 F.3d 1246, 1249 (Fed. Cir. 2016).
Case: 24-1873 Document: 47 Page: 8 Filed: 11/25/2025

-- 8 of 13 --

WOLF CREEK RAILROAD LLC v. US 9
Wolf Creek makes essentially two arguments that it
had a contractual relationship with the Army. First, it ar-
gues that incorporation of FAR provisions in the SOW and
the 2018 TUA imply such a relationship insofar as termi-
nation of its 2018 TUA is concerned. Second, it argues that
American Ordnance acted as the Army’s agent in entering
into the 2018 TUA with Wolf Creek. Appellant Opening
Br. at 12–18. We reject both arguments.
A
The SOW § 2.2.4, J.A. 234, and the 2018 TUA § 13(d),
J.A. 323, both incorporate FAR part 49 by reference. Sec-
tion 2.2.4 of the SOW—in a contract between the Army and
American Ordnance (not Wolf Creek)—provides: “The FAR
Part . . . 49 . . . sets forth the terms for establishing appro-
priate termination settlement costs associated with any . . .
tenant use agreements being performed within the [Plant]
. . . Tenant use contractors will negotiate all settlement
agreements with [American Ordnance].” J.A. 234. Section
13(d) of the 2018 TUA—an agreement between American
Ordnance and Wolf Creek—provides: “This Article 13 [con-
cerning termination] shall be administered according to
FAR Part 49, as it related to fixed price contracts.” J.A.
323. Based on those incorporation provisions, Wolf Creek
argues that it is “entitled to pursue a termination claim di-
rectly against the Army under the provisions of FAR Part
49” because 2018 TUA § 13(a), absolves Wolf Creek’s con-
tract counterparty, American Ordnance, from liability
when the Army revokes authorization for use of the Plant,
causing a termination of the 2018 TUA. Appellant Open-
ing Br. at 15; see J.A. 323.
Those provisions, however, do not soundly imply crea-
tion of a new contractual relationship between the Army
and Wolf Creek. FAR part 49 itself does not establish a
contractual relationship between the Army and a subcon-
tractor/tenant or otherwise provide a mechanism for the
Case: 24-1873 Document: 47 Page: 9 Filed: 11/25/2025

-- 9 of 13 --

WOLF CREEK RAILROAD LLC v. US 10
subcontractor/tenant to sue the Army. Indeed, the FAR
states:
A subcontractor has no contractual rights against
the [g]overnment upon the termination of a prime
contract. A subcontractor may have rights against
the prime contractor or intermediate subcontractor
with whom it has contracted. Upon termination of
a prime contract, the prime contractor and each
subcontractor are responsible for the prompt settle-
ment of the settlement proposals of their immedi-
ate subcontractors.
48 C.F.R. § 49.108-1 (emphases added).
Wolf Creek identifies no language in the 2018 TUA
that expressly or implicitly creates a contractual relation-
ship with the Army. In particular, no such creation can be
inferred from the fact that American Ordnance is “held
harmless” in the event of a termination following the
Army’s withdrawal of authorization. 2018 TUA § 13(a).
That provision, relieving American Ordnance of liability,
does not impose contract liability on the Army.
B
Wolf Creek’s second argument that it had a contractual
relationship with the Army is that American Ordnance was
acting as an agent for the Army in entering into the 2018
TUA with Wolf Creek. Appellant Opening Br. at 15–18.
We apply the test established in Johnson Controls to eval-
uate whether American Ordnance acted as the Army’s
agent and, thus, possessed the authority to waive the
Army’s sovereign immunity and establish a contractual re-
lationship between Wolf Creek and the Army. Johnson
Controls, 713 F.2d at 1551. To prevail under this test, Wolf
Creek must carry a “heavy burden”: The agency-relation-
ship is a “narrow exception to the general rule that the
[Claims Court] does not have jurisdiction over sub-contrac-
tor’s claims against the United States.” National Leased
Case: 24-1873 Document: 47 Page: 10 Filed: 11/25/2025

-- 10 of 13 --

WOLF CREEK RAILROAD LLC v. US 11
Housing Association v. United States, 105 F.3d 1423, 1436
(Fed. Cir. 1997). Under the standards articulated for as-
sessing a subcontractor’s assertion that a prime contractor
was the owner’s (government’s) agent, each of the following
crucial factors must be proved—that the prime contractor
was “acting as a purchasing agent for the govern-
ment,” “the agency relationship between the government
and the prime contractor was established by clear contrac-
tual consent,” and “the contract stated that the government
would be directly liable to the vendors for the purchase
price.” Id. (quoting from Johnson Controls, 713 F.2d at
1551). The Claims Court properly held that Wolf Creek
failed to establish the asserted agency relationship.
As an initial matter, we note, without relying on the
point, that we see no reversible error in the Claims Court’s
determination that Wolf Creek has not established that
American Ordnance acted as a “purchasing agent” for the
Army in the 2018 TUA. CFC Decision, 2024 WL 1270189,
at *5–6. To be sure, the 2018 TUA stated that American
Ordnance was acting as “(‘Owner’s Representative’) for the
U.S. Army Joint Munitions Command.” J.A. 312. But
American Ordnance had no authority to act on behalf of the
Army, and as discussed above, the agreement between
American Ordnance and the Army explicitly denied such
authority. Wolf Creek also relies on American Ordnance’s
Request for Use letter, which indicates that Wolf Creek
would “assume maintenance of the [Army] owned locomo-
tives.” Appellant Opening Br. at 16–17 (citing J.A. 304).
But it is undisputed that “[t]here [was] no ‘purchase price’
in the [2018] TUA,” and Wolf Creek does not identify any
language in the 2018 TUA (or other contracts at issue) that
demonstrates American Ordnance was even purchasing
from Wolf Creek, much less for the Army. Appellant Open-
ing Br. at 16–18. The record indicates that Wolf Creek was
paying American Ordnance—to use the Plant to generate
revenue for itself. J.A. 304, 314. Wolf Creek’s obligation to
provide maintenance and limited repair services for the
Case: 24-1873 Document: 47 Page: 11 Filed: 11/25/2025

-- 11 of 13 --

WOLF CREEK RAILROAD LLC v. US 12
Army’s locomotives might suggest that the Army was a
third-party beneficiary of the 2018 TUA established by and
between Wolf Creek and American Ordnance, J.A. 313–15;
see Lumbermens, 654 F.3d at 1311–12, but that is not the
same as American Ordnance purchasing from Wolf Creek
for the Army.
In any event, and decisively, as the Claims Court deter-
mined, CFC Decision, 2024 WL 1270189, at *6–7, Wolf
Creek has not shown that an “agency relationship between
the government and [American Ordnance] was established
by clear contractual consent” or that the Army agreed to be
held “directly liable to [Wolf Creek] for the [termination
costs].” Johnson Controls, 713 F.2d at 1551. Wolf Creek
argues otherwise because the SOW requires American
Ordnance to receive the Army’s authorization before enter-
ing into a tenant use agreement. Appellant Opening Br. at
17–18; J.A. 233 (SOW § 2.1.1). But more is needed to es-
tablish an agency relationship, and not enough else is pre-
sent. Johnson Controls, 713 F.2d at 1552.
In Pacific Gas & Electric Co. v. United States, we ex-
plained that we examine the relevant contract’s provisions
to determine whether (1) the principal (here, the Army)
manifested consent for another entity (here, American
Ordnance) to act on the principal’s behalf and subject to its
control, and (2) the entity agreed to do so. 838 F.3d 1341,
1359 (Fed. Cir. 2016) (citing Restatement (Third) of Agency
§ 1.01). The Supreme Court concluded in Kern-Limerick v.
Scurlock that an agency relationship existed when the
Navy entered into a cost-plus contract that explicitly pro-
vided that the “[g]overnment shall be obligated to the Ven-
dor for the purchase price.” 347 U.S. 110, 119–21 (1954).
No such language is present in the relevant contracts here.
While the SOW reflects mutual assent for American
Ordnance to execute tenant use agreements contingent on
the Army’s authorization, J.A. 233 (SOW § 2.1.1), Wolf
Creek cannot prove that the Army consented to the “direct,
Case: 24-1873 Document: 47 Page: 12 Filed: 11/25/2025

-- 12 of 13 --

WOLF CREEK RAILROAD LLC v. US 13
unavoidable contractual liability necessary to trigger a
waiver of sovereign immunity.” National Leased Housing
Association, 105 F.3d at 1436. The Army explicitly memo-
rialized in the SOW § 3.3.7 that it “is not a party to the
[t]enant [u]se [a]greements and does not deal directly with
the tenants” and that “all consideration/revenue is consid-
ered due from [American Ordnance].” J.A. 235. The Army
further stated that “[i]ndemnification is not included as
part of [its] approval” of American Ordnance’s request to
contract with Wolf Creek. J.A. 308. And the Army also
stated in the SOW that its “[a]pproval for [ ] use [of the
Plant by third parties] shall not be construed as an exten-
sion of the facility contract[.]” J.A. 233 (SOW § 2.1.1).
We have recognized that the government is permitted
to “retain[ ] a great deal of control over the actions of” a
contractor while not transforming the contractor into an
agent. Johnson Controls, 713 F.2d at 1552. Here, the var-
ious contract provisions, far from meeting the standard for
finding an agency relationship, point against such a finding
under the applicable strict legal standards. The Claims
Court, which was not obligated to take as true the legal
conclusions alleged in the complaint, Frankel, 842 F.3d at
1249, properly held there to be no agency relationship.
III
We have considered Wolf Creek’s remaining arguments
and find them unpersuasive. We therefore affirm the
Claims Court’s ruling that it lacked jurisdiction in this case
and its dismissal of Wolf Creek’s case.
AFFIRMED
Case: 24-1873 Document: 47 Page: 13 Filed: 11/25/2025

-- 13 of 13 --