           In the United States Court of Federal Claims
                                           No. 18-228C
                                     Filed: February 22, 2019

                                               )
 FIRST MORTGAGE CORPORATION,                   )
                                               )
                        Plaintiff,             )       Breach Of Contract; Motion To Dismiss;
                                               )       Res Judicata; Judicial Estoppel; RCFC
 v.                                            )       12(b)(6); Failure To State A Claim;
                                               )       Defendant Preclusion; Claim Preclusion.
 THE UNITED STATES,                            )
                                               )
                        Defendant.             )
                                               )

      Jerry Stouck, Attorney of Record, Greenberg Traurig, LLP, Washington, DC; Jacob D.
Bundick, Of Counsel, Greenberg Traurig, LLP, Las Vegas, NV, for plaintiff.

      Vincent D. Phillips, Trial Attorney, Elizabeth M. Hosford, Assistant Director, Robert E.
Kirschman, Jr., Director, Joseph H. Hunt, Assistant Attorney General, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant.

                          MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I.     INTRODUCTION

       Plaintiff, First Mortgage Corporation (“FMC”), brought this breach of contract action
alleging that the Government National Mortgage Association (“Ginnie Mae”) violated the terms
of several guaranty agreements that FMC entered into with Ginnie Mae in connection with
Ginnie Mae’s mortgage-backed securities program. See generally Compl. The government has
moved to dismiss this matter upon the grounds that FMC’s claims are barred under the doctrines
of res judicata and judicial estoppel, and that FMC has failed to state plausible breach of contract
claims, pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims
(“RCFC”). Def. Mot. at 14-37. For the reasons set forth below, the Court GRANTS the
government’s motion to dismiss and DISMISSES the complaint.
II.    FACTUAL AND PROCEDURAL BACKGROUND1

       A.      Factual Background

       FMC is a privately-held corporation based in Ontario, California. Compl. at ¶¶ 9, 13.
During the period 1975-2015, FMC participated in Ginnie Mae’s mortgage-backed securities
program (the “MBS Program”) as an originator and servicer of government-guaranteed home
mortgages and an issuer of Ginnie Mae mortgage-backed securities. Id. at ¶¶ 4, 13, 21.

       In this breach of contract action, FMC alleges that Ginnie Mae breached the terms of
several guaranty agreements (the “Guaranty Agreements”) that FMC entered into with Ginnie
Mae in connection with the MBS Program, by improperly terminating FMC from this program in
2015. See id. at ¶¶ 6-7. As relief, FMC seeks to recover monetary damages from the
government and other costs and fees. Id. at Prayer for Relief.

               1.      The MBS Program

       As background, Ginnie Mae is a wholly-owned corporation of the United States
Government that is managed and operated by the United States Department of Housing and
Urban Development. 12 U.S.C. § 1717(a)(2)(A). In connection with its mission to expand
affordable housing, Ginnie Mae serves as a vehicle for government-insured and government-
guaranteed mortgage loans. 12 U.S.C. § 1716; see also Compl. at ¶ 19.

       Specifically relevant to this dispute, Ginnie Mae operates the MBS Program, which
allows issuers to pool, securitize, and sell mortgage accounts to investors. See Pl. Ex. B at 10-15
(Issuer Guide at § 1-11). Under the MBS Program, mortgage-backed securities issuers originate
loans with home buyers and, through securitization, these issuers sell a portion of the mortgage
income stream to investors. See Pl. Ex. B at 8 (Issuer Guide at § 1-10(B)); see also Def. Mot. at
5. Ginnie Mae guarantees the payments to investors under the MBS Program, regardless of the
performance of the underlying loan to homebuyers. 12 U.S.C. § 1721(g)(1); Pl. Ex. A at 12-13
(Sample FMC Guaranty Agreement at § 8.01); Pl. Ex. B at 5 (Issuer Guide at § 1-5).



1
  The facts recited in this Memorandum Opinion and Order are taken from the complaint (“Compl.”) and
the exhibits attached thereto (“Pl. Ex.”), the government’s motion to dismiss (“Def. Mot.”) and the
appendices attached thereto (“Def. App’x”). Except where otherwise noted, the facts recited herein are
undisputed.



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       To participate in the MBS Program, issuers must agree to abide by the terms of Ginnie
Mae’s guaranty agreement—which describes the rights and obligations of Ginnie Mae and the
issuers participating in the program—and Ginnie Mae’s Mortgage-Backed Securities Guide (the
“Issuer Guide”). Pl. Ex. A at 2, 4 (Sample FMC Guaranty Agreement at §§ 1.01, 1.06); see
generally Pl. Ex. B. FMC has entered into several such guaranty agreements with Ginnie Mae
under the MBS Program. Compl. at ¶ 5. These Guaranty Agreements require, among other
things, that FMC:

       [C]onform with the servicing standards, procedures, methods, and practices
       required by the applicable mortgage insurer or guarantor, and any applicable
       requirements contained in the [Issuer] Guide, and shall establish and maintain
       books, files, and accounting records in accordance with all of the foregoing.

Pl. Ex. A at 6 (Sample FMC Guaranty Agreement at § 4.01(d)).

       FMC’s Guaranty Agreements also require that FMC “establish and maintain a Central
[Principal & Interest] Custodial Account with a commercial bank, a mutual savings bank, a
savings and loan association, or a credit union, the deposits at which are insured by the Federal
Government, and which meets any and all other requirements of Ginnie Mae.” Id. at 8 (Sample
FMC Guaranty Agreement at § 5.01). And so, the Guaranty Agreements mandate that any other
collection accounts “must be cleared daily [and funds transferred into the custodial account],
unless the Issuer uses [Automated Clearing House] transfer, in which case the accounts must be
cleared every 48 hours.” Id. at 9 (Sample FMC Guaranty Agreement at § 5.06).

       FMC’s Guaranty Agreements also incorporate by reference Ginnie Mae’s Issuer Guide,
which provides guidance regarding the obligations of issuers with respect to terminating
defaulted or delinquent mortgages. See Pl. Ex. B at 173-77 (Issuer Guide at § 18-3); see also Pl.
Ex. A at 4 (Sample FMC Guaranty Agreement at § 1.06). The Issuer Guide requires, among
other things, that FMC maintain an acceptable rate of delinquent loans in its mortgage portfolio.
Pl. Ex. B at 46 (Issuer Guide at § 3-16).

       The Issuer Guide also permits issuers to repurchase loans that are overdue and unpaid for
three consecutive months for the amount of the remaining outstanding principal loan balance. Id.
at 174 (Issuer Guide at § 18-3(B)(1)(c)). In addition, the Issuer Guide allows issuers to re-pool
and re-sell repurchased loans, if the loans become current after becoming eligible for repurchase.
See id. at 83-84, 175 (Issuer Guide at §§ 9-2(E), 18-3(B)(5)).


                                                                                                    3
        Lastly, FMC’s Guaranty Agreements also contain default provisions that are central to
this breach of contract dispute. Pl. Ex. A at 13-16 (Sample FMC Guaranty Agreement Art. X).
Specifically, FMC’s Guaranty Agreements provide that:

        (a) Immediate Default. An event of default by the Issuer occurs if Ginnie Mae, in
            its sole discretion, determines that any of the following acts or conditions have
            occurred or exist:
           ....
           (7) Any unauthorized use of Custodial Funds;
           ....
           (9) Any submission of false reports, statements or data or any act of dishonesty
               or breach of fiduciary duty to Ginnie Mae related to the MBS program.

Id. at 13-14 (Sample FMC Guaranty Agreement at § 10.01). The Guaranty Agreements also
provide that:

        On the occurrence or development of any event of default, Ginnie Mae may, in its
        sole discretion, but is not required to, confer and negotiate with the Issuer with
        respect to remedying and correcting the default. Any such arrangements mutually
        agreed upon shall be placed in written contractual form, and shall be supplementary
        to this Agreement.

Id. at 14 (Sample FMC Guaranty Agreement at § 10.03). In addition, the Guaranty Agreements
provide that “[o]n the occurrence or development of any event of default . . . Ginnie Mae may,
by letter directed to the Issuer . . . automatically effect and complete the extinguishment of any
redemption, equitable, legal, or other right, title, or interest of the Issuer in the Mortgages.” Id. at
14-15 (Sample FMC Guaranty Agreement at § 10.04).

                2.      FMC’s Termination From The MBS Program

        On May 16, 2014, Ginnie Mae issued a letter to all participants in the MBS Program
clarifying the agency’s general loan buyout policy with respect to delinquent mortgage loans.
See generally Pl. Ex. D. Ginnie Mae acknowledged in this letter that the agency’s Issuer Guide
“has created confusion as to whether, if a borrower remits any payment including a partial
payment while the loan is in default, the Issuer must wait a minimum of three additional months
before the loan can be bought out of the pool.” Id. at 1. And so, Ginnie Mae clarified in the
letter that “[p]ayments from delinquent borrowers, including partial payments, do not re-start the
calculation period unless they are sufficient to bring the loan current.” Id.


                                                                                                      4
       After Ginnie Mae became aware of certain loan repurchasing practices by FMC that
might constitute a violation of FMC’s Guaranty Agreements, Ginnie Mae conducted an on-site
servicing audit and compliance review of FMC in March 2015. Pl. Ex. E at 1; see also Compl. at
¶ 39; Def. Mot. at 7. On May 12, 2015, Ginnie Mae served FMC with a notice of default stating
that FMC’s loan repurchasing practices “constitute events of immediate default under the terms
of the Guarantee Agreements.” See generally Pl. Ex. E. In the default notice, Ginnie Mae
identified FMC’s failure to transfer borrower payments to the Ginnie Mae custodial fund and
FMC’s false reports to Ginnie Mae regarding delinquent loans, as violations of Sections
10.01(a)(7) and (a)(9) of the Guaranty Agreements. Id. at 1.

       Although Ginnie Mae was entitled to immediately terminate FMC from the MBS
Program, Ginnie Mae stated in the default notice that it would “forbear from immediately
effectuating the termination and extinguishment of [FMC] provided that [FMC] delivers to
Ginnie Mae, within 14 days of this letter, a detailed written response that affirms its intent to
comply with the conditions established by Ginnie Mae in this letter and otherwise address[es]
each of the items identified [by Ginnie Mae in the letter].” Id. at 1-2. On May 26, 2015, FMC
responded to Ginnie Mae’s notice of default by stating that FMC would abide by the conditions
set forth in the notice of default. Pl. Ex. F at 1-4. Nonetheless, on June 11, 2015, Ginnie Mae
terminated FMC’s participation in the MBS Program. See generally Pl. Ex. G.2

               3.      The SEC Civil Enforcement Action

       After Ginnie Mae terminated FMC from the MBS Program, the United States Securities
and Exchange Commission (the “SEC”) initiated a civil enforcement action against FMC and its
corporate officers in the United States District Court for the Central District of California on
May 31, 2016 (the “SEC Civil Enforcement Action”). See generally Def. App’x A (SEC
Compl.). In the SEC Civil Enforcement Action, the SEC alleged that, during the period March
2011–March 2015, FMC misled investors in the MBS Program by “falsely claiming to both
[Ginnie Mae] and investors that certain mortgage loans in [FMC’s] securities were delinquent
when, in fact, such loans were current.” Id. at 2-3 (SEC Compl. at ¶ 4). The SEC also alleged


2
 Ginnie Mae afforded FMC a 90-day forbearance period to permit FMC “to negotiate for the sale of its
Ginnie Mae portfolio to an acceptable counterparty.” Pl. Ex. G at 1. And so, FMC sold its Ginnie Mae
portfolio. Compl. at ¶ 58.



                                                                                                       5
that FMC “improperly exercised” the option to repurchase delinquent loans by “delay[ing]
depositing the curing borrower payments until after [FMC] had repurchased the loans and placed
them back into FMC inventory.” Id. at 3 (SEC Compl. at ¶ 7). And so, the SEC contended in
that action that FMC falsely certified its compliance with Ginnie Mae’s Issuer Guide to Ginnie
Mae. Id. at 10 (SEC Compl. at ¶ 40).

        On June 3, 2016, the SEC and FMC entered into a consent agreement in which FMC
agreed to, among other things, have judgment entered against it in the SEC Civil Enforcement
Action and pay certain civil penalties and fees (“Consent Agreement”). See generally Def.
App’x B at 11-16 (Consent Agreement). The Consent Agreement requires that FMC:

        (i) will not take any action or make or permit to be made any public statement
        denying, directly or indirectly, any allegation in the complaint or creating the
        impression that the complaint is without factual basis; (ii) will not make or permit
        to be made any public statement to the effect that [FMC] does not admit the
        allegations of the complaint, or that this Consent [Agreement] contains no
        admission of the allegations, without also stating that [FMC] does not deny the
        allegations . . . .

Id. at 14 (Consent Agreement at ¶ 11). In addition, paragraph 11 of the Consent Agreement
provides that “[n]othing in this paragraph affects [FMC]’s . . . right to take legal or factual
positions in litigation or other legal proceedings in which the [SEC] is not a party.” Id.

        On July 20, 2016, the United States District Court for the Central District of California
entered a consent judgment that incorporates the Consent Agreement and resolves the SEC Civil
Enforcement Action (“Consent Judgment”). See generally Def. App’x C (Consent Judgment).
In the Consent Judgment, the district court found FMC liable to the government for
disgorgement of $7,500,000.00, together with prejudgment interest in the amount of $534,474.82
and a civil penalty in the amount of $3,750,000.00. Id. at 3. The district court also ordered FMC
to abide by the terms of the Consent Agreement.3 Id. at 1-4.



3
  After the district court entered the Consent Judgment, FMC commenced a breach of contract action
against Ginnie Mae in the United States District Court for the Central District of California challenging
FMC’s termination from the MBS Program. See generally Compl., First Mortg. Corp. v. Gov’t Nat’l
Mortg. Assoc., No. 5:17-cv-01225 (C.D. Cal. June 20, 2017), at Entry No. 1. The district court dismissed
that case for lack of subject-matter jurisdiction on January 4, 2018. See Order, First Mortg. Corp. v.
Gov’t Nat’l Mortg. Assoc., No. 5:17-cv-01225 (C.D. Cal. Jan. 4, 2018), at Entry No. 29.



                                                                                                        6
       B.      Procedural Background

       On February 14, 2018, FMC filed the complaint in this matter. See generally Compl. On
July 16, 2018, the government filed a motion to dismiss this matter, pursuant to RCFC 12(b)(6).
See generally Def. Mot.

       On August 24, 2018, FMC filed a response and opposition to the government’s motion to
dismiss. See generally Pl. Resp. On September 21, 2018, the government filed a reply in
support of its motion to dismiss. See generally Def. Reply.

       This matter having been fully briefed, the Court resolves the pending motion to dismiss.

III.   LEGAL STANDARDS

       A.      Jurisdiction And Breach Of Contract Claims

       Pursuant to the Tucker Act, this Court possesses subject-matter jurisdiction to consider
express or implied-in-fact contract claims brought against the United States. See Aboo v. United
States, 86 Fed. Cl. 618, 626-27 (2009). In such cases, the plaintiff bears the burden of proving
the existence of a contract with the United States and it must demonstrate that there is
“something more than a cloud of evidence that could be consistent with a contract to prove a
contract and enforceable contract rights.” D & N Bank v. United States, 331 F.3d 1374, 1377
(Fed. Cir. 2003).

       The United States Court of Appeals for the Federal Circuit has held that a plaintiff must
have privity of contract with the United States to pursue a breach of contract claim against the
United States. Flexfab, L.L.C. v. United States, 424 F.3d 1254, 1263 (Fed. Cir. 2005) (citations
omitted) (“[T]he ‘government consents to be sued only by those with whom it has privity of
contract.’”). The Federal Circuit has also held that a plaintiff must support a contract claim with
well-pleaded allegations going to each element of a contract. See Crewzers Fire Crew Transp.,
Inc. v. United States, 741 F.3d 1380, 1382 (Fed. Cir. 2014) (holding that to invoke the
jurisdiction of this Court under the Tucker Act, a plaintiff must present a well-pleaded allegation
that its claims arose out of a valid contract with the United States); see also RCFC 9(k) (“In
pleading a claim founded on a contract or treaty, a party must identify the substantive provisions
of the contract or treaty on which the party relies.”); Gonzalez-McCaulley Inv. Grp., Inc. v.
United States, 93 Fed. Cl. 710, 715 (2010).



                                                                                                   7
        In this regard, it is well-established that the requirements for establishing a contract with
the United States are identical for express and implied-in-fact contracts. See Night Vision Corp.
v. United States, 469 F.3d 1369, 1375 (Fed. Cir. 2006); Huntington Promotional & Supply, LLC
v. United States, 114 Fed. Cl. 760, 767 (2014) (“The elements are the same for an express or
implied-in-fact contract. . . .”). Specifically, a plaintiff must show: (1) mutuality of intent; (2)
consideration; (3) lack of ambiguity in the offer and acceptance; and (4) actual authority to bind
the government in contract on the part of the government official whose conduct is relied upon.
Kam-Almaz v. United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012); see also Trauma Serv. Grp.
v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997). In addition, this Court has recognized
that a government official’s authority to bind the United States must be express or implied. Roy
v. United States, 38 Fed. Cl. 184, 188-89 (1997), dismissed, 124 F.3d 224 (Fed. Cir. 1997). And
so, “the [g]overnment, unlike private parties, cannot be bound by the apparent authority of its
agents.”4 Id. at 187.

        B.      RCFC 12(b)(6)

        When deciding a motion to dismiss based upon failure to state a claim upon which relief
can be granted, this Court must assume that all undisputed facts alleged in the complaint are true
and draw all reasonable inferences in the non-movant’s favor. See Redondo v. United States, 542
F. App’x 908, 909-10 (Fed. Cir. 2013). And so, to survive a motion to dismiss under RCFC
12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).




4
  A government official possesses express actual authority to bind the United States in contract “only
when the Constitution, a statute, or a regulation grants it to that agent in unambiguous terms.” Jumah v.
United States, 90 Fed. Cl. 603, 612 (2009), aff'd, 385 F. App’x. 987 (Fed. Cir. 2010) (internal citations
omitted); see also City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990). On the other
hand, a government official possesses implied actual authority to bind the United States in contract “when
the employee cannot perform his assigned tasks without such authority and when the relevant agency’s
regulations do not grant the authority to other agency employees.” SGS-92-X003 v. United States, 74 Fed.
Cl. 637, 652 (2007) (citations omitted). In addition, when a government agent does not possess express
or implied actual authority to bind the United States in contract, the government can still be bound by
contract if the contract was ratified by an official with the necessary authority. Janowsky v. United States,
133 F.3d 888, 891-92 (Fed. Cir. 1998).



                                                                                                           8
       When the complaint fails to “state a claim to relief that is plausible on its face,” the Court
must dismiss the complaint. Iqbal, 556 U.S. at 678 (citation omitted). On the other hand,
“[w]hen there are well-pleaded factual allegations, a court should assume their veracity,” and
determine whether it is plausible, based upon these facts, to find against the defendant. Id. at
678-79 (“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

       C.        Res Judicata And Judicial Estoppel

       The Federal Circuit has recognized that “[t]he doctrine of res judicata involves the related
concepts of claim preclusion and issue preclusion.” Phillips/May Corp. v. United States, 524
F.3d 1264, 1267 (Fed. Cir. 2008). Claim preclusion prevents a party from relitigating the same
claims that were, or could have been, raised in a prior action. Goad v. United States, 46 Fed. Cl.
395, 397 (2000) (citations omitted). And so, claim preclusion serves the public interest by
reducing the number of lawsuits, conserving judicial resources, and preventing inconsistent
decisions. Id.

       It is well-established that claim preclusion bars a claim where: “(1) the parties are
identical or in privity; (2) the first suit proceeded to a final judgment on the merits; and (3) the
second claim is based on the same set of transactional facts as the first.” Cunningham v. United
States, 748 F.3d 1172, 1179 (Fed. Cir. 2014) (internal quotation marks omitted) (quoting Ammex,
Inc. v. United States, 334 F.3d 1052, 1055 (Fed. Cir. 2003)); see also Federated Dep’t Stores,
Inc. v. Moitie, 452 U.S. 394, 398 (1981) (citations omitted) (“A final judgment on the merits of
an action precludes the parties or their privies from relitigating issues that were or could have
been raised in that action.”). With regards to the third factor of claim preclusion, the Federal
Circuit has held that “the somewhat different rules” of defendant preclusion apply when the
defendant in the first suit is the plaintiff in the second action. Nasalok Coating Corp. v. Nylok
Corp., 522 F.3d 1320, 1324 (Fed. Cir. 2008) (citing Wright, Miller & Cooper, Fed. Prac. & Proc.
§ 4414 (2d ed. 2002)). Under such circumstances, a claim or defense asserted by a defendant is
precluded only if: (1) the claim or defense asserted in the second action was a compulsory
counterclaim that the defendant failed to assert in the first action, or (2) the claim or defense
represents what is essentially a collateral attack on the first judgment. Id. (citing Baker v. Gold
Seal Liquors, Inc., 417 U.S. 467, 469 n.1 (1974); Restatement (Second) of Judgments §§ 18(2),



                                                                                                       9
22(2) (Am. Law Inst. 1982)). And so, the Federal Circuit has recognized that claim preclusion
bars a collateral attack on an earlier judgment. Id. at 1328 (citing Faust v. United States, 101
F.3d 675, 678 (Fed. Cir. 1996)).

       In addition, this Court has held that the doctrine of judicial estoppel estops a party that
has successfully urged a particular position in a legal proceeding from taking a contrary position
in a subsequent proceeding, where its interests have changed. Buckley v. United States, 57 Fed.
Cl. 328, 341 (2003) (citations omitted). Judicial estoppel is “designed to prevent the perversion
of the judicial process and, as such, is intended to protect the courts rather than the litigants.” Id.
And so, the Court considers three factors when determining whether judicial estoppel should bar
a claim: (1) whether the party’s later position is clearly inconsistent with its earlier position; (2)
whether the party has succeeded in persuading a court to accept that party’s earlier position, so
that judicial acceptance of an inconsistent position in a later proceeding would create the
perception that either the first or the second court was misled; and (3) whether the party seeking
to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment
on the opposing party if not estopped. Trustees in Bankruptcy of N. Am. Rubber Thread Co. v.
United States, 593 F.3d 1346, 1354 (Fed. Cir. 2010) (citations omitted).

IV.    LEGAL ANALYSIS

       The government has moved to dismiss this matter for failure to state a claim upon which
relief can be granted for several reasons. First, the government argues in its motion to dismiss
that res judicata and defendant preclusion bar FMC’s breach of contract claims in this case,
because FMC’s complaint seeks to collaterally attack the Consent Judgment previously entered
by the district court in the SEC Civil Enforcement Action. Def. Mot. at 14-22. The government
also argues that the doctrine of judicial estoppel bars FMC’s claims, because “FMC has taken a
completely contrary position [in this case] compared to the one that it took in the [SEC Civil
Enforcement Action].” Id. at 22-23.

       In addition, the government contends that FMC fails to allege plausible breach of contract
claims in the complaint, because Ginnie Mae did not breach or repudiate FMC’s Guaranty
Agreements and no cure agreement exists between FMC and Ginnie Mae that would allow FMC
to continue performance under the Guaranty Agreements. Id. at 23-37. And so, the government




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requests that the Court dismiss FMC’s complaint for failure to state a claim upon which relief
can be granted, pursuant to RCFC 12(b)(6). Id. at 37.

        In its response and opposition to the government’s motion to dismiss, FMC counters that
res judicata and defendant preclusion do not bar its claims in this matter because, among other
things, this case is not a collateral attack on the district court’s Consent Judgment. Pl. Resp. at 7-
11. FMC also argues that the doctrine of judicial estoppel is not applicable to this case, because
FMC’s position in this litigation is not contrary to the Consent Agreement that it entered with the
SEC. Id. at 11-12. In addition, FMC argues that it states plausible breach of contract claims in
the complaint. Id. at 12-39. And so, FMC requests that the Court deny the government’s motion
to dismiss and permit it to proceed with this litigation. Id. at 40.

        For the reasons set forth below, a careful reading of FMC’s complaint makes clear that
res judicata and defendant preclusion preclude FMC from proceeding with this litigation because
FMC’s breach of contract claims present a collateral attack on the district court’s Consent
Judgment. And so, the Court GRANTS the government’s motion to dismiss and DISMISSES
the complaint. RCFC 12(b)(6).

        A.      FMC’s Breach Of Contract Claims Are Precluded

        The government persuasively argues that res judicata and defendant preclusion bar FMC
from bringing this breach of contract action. It is well-established that claim preclusion bars a
claim where: (1) the parties are identical or in privity; (2) the first suit proceeded to a final
judgment on the merits; and (3) the second claim is based on the same set of transactional facts
as the first. Cunningham v. United States, 748 F.3d 1172, 1179 (Fed. Cir. 2014); Sharp
Kabushiki Kaisha v. ThinkSharp, Inc., 448 F.3d 1368, 1370 (Fed. Cir. 2006). The Federal
Circuit has also held that, when the defendant in the first action later brings a second action
related to the first case, the doctrine of defendant preclusion is used to determine whether the
second case is based on the same set of transactional facts as the first. Nasalok Coating Corp. v.
Nylok Corp., 522 F.3d 1320, 1324 (Fed. Cir. 2008).

        Under the doctrine of defendant preclusion, FMC may be precluded from bringing this
action if either, (1) its breach of contract claims were compulsory counterclaims that FMC failed
to assert in the SEC Civil Enforcement Action, or (2) FMC’s breach of contract claims are
essentially a collateral attack on the district court’s Consent Judgment. Id. And so, if FMC’s


                                                                                                    11
complaint seeks to collaterally attack the district court’s Consent Judgment, the Court must
dismiss the case. Id.

       A careful reading of the complaint makes clear that FMC’s breach of contract claims are
barred under claim preclusion and defendant preclusion.

               1.       The Parties Are Identical Or In Privity

       First, as the government correctly argues in its motion to dismiss, the parties to this action
are either identical to, or in privity with, the parties to the SEC Civil Enforcement Action. The
parties agree that FMC was a party to the SEC Civil Enforcement Action in the United States
District Court for the Central District of California. Def. Mot. at 16-17; Pl. Resp. at 10. And so,
the only disagreement between the parties here is whether the SEC is in privity with the United
States for purposes of applying the doctrine of res judicata in this case.

       The Court agrees with the government that the United States is presumed to be a party to
both the SEC Civil Enforcement Action and this case, because there is privity between officers
of the same government for res judicata purposes. As the Supreme Court recognized in Sunshine
Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940), “[t]here is privity between officers of the
same government so that a judgment in a suit between a party and a representative of the United
States is res judicata in relitigation of the same issue between that party and another officer of the
government.” 310 U.S. at 402-03. The Supreme Court has also recognized that the question of
the identity of parties is not “a mere matter of form, but of substance.” Id. at 402. And so, the
Court may find privity between the SEC and United States here, if it concludes that the SEC had
the authority to represent the interest of the United States in a final adjudication of the issues in
controversy in the SEC Civil Enforcement Action. Id. at 402-03.

       The undisputed facts in this case show that the SEC possessed such authority. In the SEC
Civil Enforcement Action, the SEC alleged that FMC violated federal securities laws by
misleading investors in the MBS Program and “falsely claiming to both [Ginnie Mae] and
investors that certain mortgage loans in [FMC’s] securities were delinquent when, in fact, such
loans were current.” Def. App’x A at 2-3 (SEC Compl. at ¶ 4). The SEC also alleged in that
action that FMC “improperly exercised” the option to repurchase delinquent loans by “delay[ing]
depositing the curing borrower payments until after [FMC] had repurchased the loans and placed
them back into FMC inventory.” Id. at 3 (SEC Compl. at ¶ 7). And so, the SEC’s complaint


                                                                                                    12
makes clear that the factual basis for the agency’s civil enforcement action was FMC’s loan
repurchasing practices. Given this, the SEC could have litigated the core issue presented in this
breach of contract case—whether FMC’s loan repurchasing practices constitute an event of
default under FMC’s Guaranty Agreements.5 See Compl. at ¶¶ 29-44, 55, 76, 97; see also Pl.
Ex. A at 13-14.

        Indeed, as the government observes in its motion to dismiss, the SEC would have been
required to represent the United States in responding to any defense or counterclaim that FMC
could have asserted in the SEC Civil Enforcement Action regarding FMC’s compliance with the
Guaranty Agreements and the propriety of the decision to terminate FMC from the MBS
Program. See id. at 3, 10 (SEC Compl. at ¶¶ 7, 40). In addition, while FMC correctly argues
that the SEC is not authorized to represent the United States in this breach of contract dispute,
the fact that the Department of Justice has exclusive litigation authority to represent the United
States in this case did not preclude the SEC from fully representing the United States in
connection with any claims or defenses that FMC could have asserted during the SEC Civil
Enforcement Action. See United States v. Rogers, 960 F.2d 1501, 1507-10 (10th Cir. 1992)
(holding that a prior SEC civil enforcement action barred a criminal fraud charge under issue
preclusion even though the SEC could not have brought the criminal charge). And so, the Court
concludes that the SEC and United States are in privity for res judicata purposes and that the first
factor of claim preclusion is satisfied. Sunshine Anthracite Coal Co., 310 U.S. at 402-03.6



5
  FMC’s reliance upon United States v. Radio Corp. of America, 358 U.S. 334 (1959), to dispute privity
upon the ground that the SEC Civil Enforcement Action and this matter involve different legal issues is
misplaced. Pl. Resp. at 11 n.2. In that case, the precise issue in controversy—whether the exchange of
television stations violated antitrust provisions in the Sherman Act—had not been addressed in the prior
proceeding before the Federal Communications Commission. Radio Corp. of Am., 358 U.S. at 352. But,
in this case, the SEC Civil Enforcement Action was directly predicated upon the same loan repurchasing
practices that are at issue in FMC’s breach of contract claims. See, e.g., Def. App’x A at 4 (SEC Compl.
at ¶ 10) (“The practice also operated as a fraudulent scheme and course of business against [Ginnie Mae
MBS] investors and [Ginnie Mae].”).
6
  The Court is also not persuaded by FMC’s argument that there can be no privity between the SEC and
the United States, because the Consent Agreement “distinguishes the SEC’s role in [the SEC Civil
Enforcement Action] from other ‘litigation or other legal proceedings in which the [SEC] is not a party.’”
Pl. Resp. at 10. The language upon which FMC relies neither addresses the issue of privity, nor precludes
the SEC from being found to be in privity with the United States for res judicata purposes. FMC’s
argument that Sunshine Anthracite Coal does not control the result in this case, because “the second case
[at issue in Sunshine Anthracite Coal] involved litigation of exactly the same legal issue as the first case,”


                                                                                                           13
                2.      The SEC Civil Enforcement Action Proceeded To A Final Judgement

        Second, as FMC acknowledges, there is no dispute that the SEC Civil Enforcement
Action proceeded to a final judgment on the merits prior to the commencement of this case. Pl.
Resp. at 10; see also Def. App’x C (Consent Judgment). It is well-established that “consent
judgments entered pursuant to settlement agreements have the same effect as judgments after a
trial on the merits.” Ford-Clifton v. Dep’t of Veterans Affairs, 661 F.3d 655, 660 (Fed. Cir.
2011) (citing Hallco Mfg. Co. v. Foster, 256 F.3d 1290, 1294-95 (Fed. Cir. 2001)). In this case,
FMC and the SEC entered into the Consent Agreement to resolve the SEC Civil Enforcement
Action. Def. Mot. at 16-17; Pl. Resp. at 10. Thereafter, the district court entered the Consent
Judgment, which incorporates the terms of the Consent Agreement. See generally Def. App’x C
(Consent Judgment). Given this, there can be no dispute that the SEC Civil Enforcement Action
proceeded to a final judgment, and that the second factor of claim preclusion has been met in this
case.

                3.      The Cases Arise From The Same Set Of Transactional Facts

        Lastly, the final factor relevant to claim preclusion—whether the SEC Civil Enforcement
Action and this dispute arise from the same set of transactional facts—is also met in this case.
As discussed above, when the defendant in the first action later brings a second action related to
the first case—as is the case here—the doctrine of defendant preclusion is used to determine
whether the second case is based on the same set of transactional facts as the first. Nasalok
Coating Corp., 522 F.3d at 1324. And so, FMC may be precluded from bringing this action if
either, (1) the claim or defense asserted here was a compulsory counterclaim that FMC failed to
assert during the SEC Civil Enforcement Action; or (2) FMC’s breach of contract claims are
essentially a collateral attack on the district court’s Consent Judgment. Id.




is also misguided. Pl. Resp. at 10-11. FMC appears to suggest that privity between government officials
can only be found when considering issue preclusion. See id. But, courts have recognized that privity
between government agents can be found for res judicata purposes when determining whether the
doctrine of claim preclusion should apply. See, e.g., Town of Seabrook v. State of N.H., 738 F.2d 10, 11
(1st Cir. 1984) (holding that privity existed between government agencies and their employees when
applying claim preclusion, even though the suits involved different named entities or officials).


                                                                                                      14
       A careful reading of the complaint makes clear that FMC’s breach of contract claims are
essentially a collateral attack on the Consent Judgment entered by the district court for several
reasons.

       First, permitting FMC to proceed with this litigation would run afoul of the Consent
Judgment’s prohibition against FMC suggesting that the SEC’s complaint lacks a factual basis,
thereby impairing the district court’s Consent Judgment. As discussed above, the factual basis of
the SEC’s complaint in the SEC Civil Enforcement Action was that FMC engaged in improper
loan repurchasing practices, which resulted in misleading statements to Ginnie Mae and
investors and ultimately led to FMC’s termination from the MBS Program. A reading of FMC’s
complaint makes clear that FMC improperly seeks to contest these factual allegations in this
litigation. In the complaint, FMC alleges that it “performed all obligations, covenants, and
conditions required of it under all the Guaranty Agreements in force as of June 11, 2015” and
that Ginnie Mae “materially breached its obligations under the Guaranty Agreements by
terminating FMC’s issuer status with no underlying event of default.” Compl. at ¶¶ 83-84.
FMC’s allegations plainly call into question the factual basis of the SEC’s complaint—that FMC
engaged in improper loan repurchasing practices.

       Because the district court’s Consent Judgment incorporates the Consent Agreement’s
requirement that FMC “not take any action or make or permit to be made any public statement
denying, directly or indirectly, any allegation in the [SEC’s] complaint or creating the impression
that the complaint was without a factual basis,” FMC may not challenge the factual basis of the
SEC’s complaint in this proceeding without violating the terms of the district court’s Consent
Judgment. Def. App’x B at 14 (Consent Agreement ¶ 11); Def. App’x C at 4 (Consent Judgment
at § IV). Yet, that is precisely what FMC seeks to do in this case. And so, the Court concludes
that FMC’s successful prosecution of this case would impair the district court’s Consent
Judgment.

       Permitting FMC to proceed with this litigation would also impair the Consent Judgment
by requiring the district court to modify the relief granted in that judgment, if FMC succeeds
upon the merits of its breach of contract claims. The district court awarded various injunctive
and monetary relief to the government in the Consent Judgement, including holding FMC liable
for disgorgement of $7,500,000.00 “representing profits gained as a result of the conduct alleged



                                                                                                    15
in the [SEC’s Complaint],” based upon the factual allegations contained in the SEC’s complaint.
Id. at 1-3. Notably, the Consent Judgment expressly states that the award of disgorgement
represents the “profits [that FMC] gained as a result of the conduct alleged in the [SEC’s]
Complaint.” Id. at 3 (emphasis supplied). And so, a determination by this Court that FMC did
not engage in this conduct would refute the very basis upon which the district court relied to
grant relief to the government, thereby impairing the judgment of the district court.

       The government also persuasively argues that the successful prosecution of this matter
could nullify the district court’s Consent Judgment altogether, because FMC would have viable
contract defenses against any liability for defaulting under the Guaranty Agreements. In Count
II of the complaint, FMC alleges that Ginnie Mae “materially breached its obligations under the
Guaranty Agreements by terminating FMC’s issuer status with no underlying event of default.”
Compl. at ¶ 84. FMC also alleges in Count IV of the complaint, that Ginnie Mae violated the
covenant of good faith and fair dealing, because FMC’s termination from the MBS program
“was ginned up due to pressure from the SEC” and made “in bad faith.” Id. at ¶¶ 67, 99.

       Should FMC substantiate these claims in this litigation, FMC would also establish
contractual defenses that could require the district court to vacate the Consent Judgment. As
discussed above, the Consent Judgment is based upon a factual finding by the district court that
FMC engaged in improper loan repurchasing practices that, among other things, warranted
FMC’s termination from the MBS Program. See 18A Edward H. Cooper, Fed. Prac. & Proc. §
4443 (3d ed. 2018). And so, permitting this litigation to proceed could require the district court
to set aside the Consent Judgment.

       Lastly, the Court is not persuaded by FMC’s arguments that this case is not a collateral
attack on the district court’s Consent Judgment, because FMC may take other legal or factual
positions in litigation in which the SEC is not a party and the resolution of this matter will not
impact the Consent Judgment. Pl. Resp. at 7-9. While FMC correctly argues that paragraph 11
of the Consent Agreement permits FMC to take a different legal or factual position from the
position taken in the SEC Civil Enforcement Action in any litigation in which the SEC is not a
party, this provision has no relevance here because, as discussed above, the SEC is a party to this
case for res judicata purposes. See Sunshine Anthracite Coal Co., 310 U.S. at 402-03; see also
Def. App’x B at 14 (Consent Agreement ¶ 11).



                                                                                                     16
       FMC’s attempt to distinguish this case from Nasalok Coating Corp. v. Nylok Corp., 522
F.3d 1320 (Fed. Cir. 2008), is also misguided. In Nasalok, the Federal Circuit held that
defendant preclusion barred a trademark invalidity claim brought by Nasalok Coating
Corporation, because success in that trademark case would undermine the default judgment and
injunction issued against Nasalok by the United States District Court for the Northern District of
Illinois in a previous trademark infringement case involving the same trademark. Nasalok
Coating Corp., 522 F.3d at 1328. Notably, the Federal Circuit recognized in Nasalok that
defendant preclusion should bar Nasalok’s trademark invalidity claim, because “a defense that
could have been interposed [in the prior trademark infringement case] cannot later be used to
attack the judgment of the first action.” Id.

       Similarly, here, FMC’s claims that Ginnie Mae breached the Guaranty Agreements by
terminating FMC from the MBS Program “with no underlying event of default”—and that
Ginnie Mae terminated FMC from that program in bad faith—are defenses that FMC could have
raised in the SEC Civil Enforcement Action to refute the government’s securities fraud claims.
While FMC certainly had the discretion not to raise these arguments during that proceeding,
FMC cannot use the present litigation as a forum to collaterally attack the Consent Judgment
entered in the SEC Civil Enforcement Action.

       Because the parties to this action are identical to, or in privity with, the parties to the SEC
Civil Enforcement Action, the SEC Civil Enforcement Action proceeded to a final judgment on
the merits, and this litigation and the SEC Civil Enforcement Action are based on the same set of
transactional facts, claim preclusion and defendant preclusion bar FMC from litigating its breach
of contract claims. And so, for these reasons, the Court GRANTS the government’s motion to
dismiss and DISMISSES the complaint.

V.     CONCLUSION

       In sum, the government has shown that FMC’s breach of contract claims in this matter
are precluded under the doctrine of res judicata, because this action is essentially a collateral
attack on the Consent Judgment entered by the United States District Court for the Central




                                                                                                    17
District of California in the SEC Civil Enforcement Action. And so, for the foregoing reasons,
the Court:

       1.     GRANTS the government’s motion to dismiss; and

       2.     DISMISSES the complaint.

       The Clerk shall enter judgment accordingly.

       Each party shall bear their own costs.

       IT IS SO ORDERED.


                                                 s/ Lydia Kay Griggsby
                                                 LYDIA KAY GRIGGSBY
                                                 Judge




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