The United States itself generally is immune from so-called
"quasi-contract" claims. Quasi-contracts, also known as contracts
"implied in law," "impose duties that are deemed to arise by
operation of law, in order to prevent an injustice." Lumbermens
Mut. Cas. Co. v. United States, 654 F.3d 1305, 1316 (Fed. Cir.
2011) (citing Hercules Inc. v. United States, 516 U.S. 417,
423 (1996) (additional citations omitted)). They can be contrasted
with implied in fact contracts, which "are 'founded upon a meeting
of the minds, which, although not embodied in an express contract,
is inferred, as a fact, from conduct of the parties.'" Id.
(citations omitted). The government's waiver of sovereign immunity
extends only to implied in fact contracts, and does not permit
claims upon contracts implied in law. Id.; 28 U.S.C. §
1491(a)(1) (Tucker Act waives sovereign immunity only as to claims
based "upon any express or implied contract with the United
States"); see also id. § 1346(a)(2).|
However, the government can proceed against a defendant to recover
monies illegally or improperly disbursed, including those disbursed
on an erroneous understanding of facts, in a quasi-contractual suit
for unjust enrichment. See, e.g., Mt. Sinai Hospital of Greater
Miami v. Weinberger, 517 F.2d 329 (5th Cir. 1975); J.W.
Bateson Co., Inc. v. United States, 308 F.2d 510, 514-515 (5th
Cir. 1962); Kingman Water Co. v. United States, 253 F.2d 588
(9th Cir. 1958); United States v. Independent School District
No. 1 of Okmulgee, OK, 209 F.2d 578 (10th Cir. 1954); United
States v. Bentley, 107 F.2d 382 (2d Cir. 1939). Similarly, the
United States may recover the value of government services provided
under a mistake as to the recipient's eligibility for such
services. United States v. Shanks, 384 F.2d 721 (10th Cir.
No statutory authority is necessary to sustain a suit for public
monies which have been erroneously, wrongfully, or illegally
disbursed. Fansteel Metallurgical Corp. v. United States,
145 Ct. Cl. 496, 500 (Ct. Cl. 1959); see also United States v.
Wurts, 303 U.S. 414, 415 (1938) ("The Government by appropriate
action can recover funds which its agents have wrongfully,
erroneously, or illegally paid."); Johnson v. All-State Const.,
Inc., 329 F.3d 848, 852-53 (Fed. Cir. 2003) (the United States
Court of Appeals for the Federal Circuit and its predecessor court
"have repeatedly recognized the government's right of set-off,"
which "can be defeated only by explicit language"); Great Am.
Ins. Co. v. United States, 492 F.2d 821, 826 (Ct. Cl. 1974)
("The Government's right to recover funds, from a person who
received them by mistake and without right, is not barred unless
Congress has 'clearly manifested its intention' to raise a
statutory barrier" (quoting Wurts, 303 U.S. at 416)). The
Government may recover erroneous overpayments through setoff
without recourse to the procedures of the Contract Disputes Act.
See Applied Cos. v. United States, 144 F.3d 1470, 1478 (Fed.
Under certain circumstances, a specified federal official may
choose to waive the government's entitlement to recoup improper
payments of: (1) government civilian pay, (2) pay and allowances
for member and former members of the uniformed services, and (3)
pay and allowances of members and former members of the National
Guard under 5 U.S.C. § 5584, 10 U.S.C. § 2774, and 32 U.S.C. §
716, respectively, as interpreted in 4 C.F.R. § 91.1 et
seq. Such statutes provide only for discretionary
administrative relief and do not impose any legal limitation upon
the right of the United States to seek recoupment. See United
States v. Kelley, 192 F. Supp. 511, 513 (D. Mass. 1961).
[updated September 2013;
cited in USAM 4-4.420]