Albert Ginsberg v. Richard G. Austin, Adm'r, Gen. Servs. Admin., 968 F.2d 1198 (Fed. Cir. 1992). · Go Syfert
Albert Ginsberg v. Richard G. Austin, Adm'r, Gen. Servs. Admin., 968 F.2d 1198 (Fed. Cir. 1992). Cases Citing This Book View Copy Cite
“all of its right, title and interest in, to and under the tenant leases”
52 citation events (46 in the last 25 years) across 14 distinct courts.
Strongest positive: Callaway Manor Apartments v. United States (cafc, 2019-10-02)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 26 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Callaway Manor Apartments v. United States
Fed. Cir. · 2019 · signal: compare · quote attribution · 1 verbatim quote · confidence high
all of its right, title and interest in, to and under the tenant leases
discussed Cited as authority (rule) 29 Main Street LLC v. United States Postal Service
D. Conn. · 2022 · confidence medium
Ubl v. IIF Data Sols., 650 F.3d 445, 451 (4th Cir. 2011) (“When applying federal common law to contract issues, courts generally look to the Restatement for guidance.”); Ginsberg v. Austin, 968 F.2d 1198, 1200 (Fed.
discussed Cited as authority (rule) Westdale Northwest Center, Lp v. United States (2×)
Fed. Cl. · 2021 · confidence medium
Cir. 1986) and quoting Ginsburg v. Austin, 968 F.2d 1198, 1200 (Fed.
discussed Cited as authority (rule) Westdale Northwest Center, Lp v. United States (2×)
Fed. Cl. · 2021 · confidence medium
Cir. 1986) and quoting Ginsburg v. Austin, 968 F.2d 1198, 1200 (Fed.
discussed Cited as authority (rule) Kansas City Power & Light Co. v. United States (2×) also: Cited "see"
Fed. Cl. · 2019 · confidence medium
When “existing federal law is not determinative,” the court “tak[es] into the account” the “best in modern decision and discussion,” id., which involves “looking to general . . . contract law principles as they are embodied in state law pronouncements,” Ginsberg v. Austin, 968 F.2d 1198, 1200 (Fed.
discussed Cited as authority (rule) Kansas City Power & Light Co. v. United States
Fed. Cl. · 2018 · confidence medium
When “existing federal law is not determinative,” the court “tak[es] into the account” the “best in modern decision and discussion,” id., which involves “looking to general . . . contract law principles as they are embodied in state law pronouncements,” Ginsberg v. Austin, 968 F.2d 1198, 1200 (Fed.
discussed Cited as authority (rule) Herr v. United States Forest Service
6th Cir. · 2015 · confidence medium
See, e.g., Peters v. Bowman, 98 U.S. 56, 58-59 , 25 L.Ed. 91 (1878) (right to enforce covenant does not run with land); Ginsberg v. Austin, 968 F.2d 1198, 1201 (Fed.Cir.1992) (right to recover outstanding rent payments does not run with land); In re Nucorp Energy Sec.
discussed Cited as authority (rule) Ensley, Inc. v. United States
Fed. Cl. · 2014 · confidence medium
“It is well settled that contracts to which the government is a party—and though a lease may concern and convey a property interest it is also very much a contract—are normally governed by federal law, not by the law of the state where they are made or performed.” Ginsberg v. Austin, 968 F.2d 1198, 1200 (Fed.Cir.1992) (citing Prudential Ins.
cited Cited as authority (rule) 17 Mile, L.L.C. v. Kruzel
Ohio Ct. App. · 2013 · confidence medium
Ginsberg v. Austin, 968 F.2d 1198, 1201 (Fed.Cir.1992).
discussed Cited as authority (rule) Dominion Resources, Inc. v. United States (2×)
Fed. Cir. · 2011 · confidence medium
The government also argued that pursuant to Ginsberg v. Austin, 968 F.2d 1198, 1199 (Fed.Cir.1992), Congress must, but did not, expressly waive the Claims Act as to existing breach of contract claims. 84 Fed.Cl. at 286 .
discussed Cited as authority (rule) Bailey v. United States
Fed. Cl. · 2007 · confidence medium
For examples of this, see, e.g., Ginsberg v. Austin, 968 F.2d 1198, 1200 (Fed.Cir.1992) (explaining settlement of takings claim by subsequent owner when government occupied space in a building beyond the expiration of the lease); Sampson v. United States, 208 Ct.Cl. 656, 660-61, 665 , 529 F.2d 1299 (1976) (explaining that assignee of owner of building at the time additional lease was condemned received award). .
discussed Cited as authority (rule) California Oregon Broadcasting, Inc. v. United States
Fed. Cl. · 2006 · confidence medium
However, the Federal Circuit has also held that where federal law is not dispositive, courts should look to “general property and contract law principles as they are embodied in state law pronouncements.” Ginsberg v. Austin, 968 F.2d 1198, 1200 (Fed.Cir.1992).
discussed Cited as authority (rule) Spodek v. United States
Fed. Cl. · 2006 · confidence medium
See Brooklyn Waterfront Terminal Corp. v. United States, 117 Ct.Cl. at 84 , 90 F.Supp. at 948 ; Ginsberg v. Austin, 968 F.2d 1198, 1200 (Fed.Cir.1992) (stating that if federal law does not resolve the issue presented, a court may then consider “general property and contract law principles as they are embodied in state law pronouncements.”).
discussed Cited as authority (rule) United States v. Prudencia Portocabrero
11th Cir. · 2006 · confidence medium
Furthermore, in designing the guidelines “the Sentencing Commission fully anticipated sentencing disparity between defendants involved in the same offense.” United States v. Chotas, 968 F.2d 1198, 1197 (11th Cir.1992); see also United States v. Hendrieth, 922 F.2d 748, 752 (11th Cir.1991) (stating that “this court has rejected as ‘frivolous’ challenges to sentencing because a co-defendant received a less severe penalty”).
discussed Cited as authority (rule) Rochester Gas & Electric Corp. v. United States
Fed. Cl. · 2005 · confidence medium
In making this argument, it relies upon Ginsberg v. Austin, 968 F.2d 1198, 1200 (Fed.Cir.1992), which cited various authorities in property and contract law for the proposition that assignments of rights under a continuing contract do not imply assignment of pre-existing claims.
discussed Cited as authority (rule) C.H. Guernsey & Co. v. United States (2×) also: Cited "see"
Fed. Cl. · 2005 · confidence medium
Co. of America v. United States, 801 F.2d 1295, 1298 (Fed.Cir. 1986) (“To the extent existing federal law is not determinative of the issue and permits an area of choice between the merits of competing principles, the best in modern decision and discussion, including the general principles of contract ... law, should be taken into account.”); see also Dureiko v. United States, 209 F.3d 1345, 1356 (Fed.Cir. 2000) (holding that release would be interpreted according to federal law where the federal government was a party to the release); Ginsberg v. Austin, 968 F.2d 1198, 1200 (Fed.Cir.1992)…
discussed Cited as authority (rule) North Star Alaska Housing Corp. v. United States
Fed. Cl. · 1993 · confidence medium
See also, Appeal of Lea Company, GSBCA No. 5697, 81-2 BCA U 15,208 (1981) (finding that, rent paid in monthly increments and “in arrears,” is the rent for a given month’s occupancy which is due and payable in the following month); Ginsberg v. Austin, 968 F.2d 1198, 1199 (Fed.Cir.1992) (concluding that lease required monthly payment “in arrears,” and payment made anywhere from 8 to 30 days after the month of occupancy was satisfactory); cf ., Corman v. United States, 26 Cl.Ct. 1011, 1015 (1992) (describing “in arrears” as the rate of payment, not the time period in which rental pa…
discussed Cited "see" 10X Genomics, Inc. v. Vizgen, Inc.
D. Del. · 2023 · signal: see · confidence high
See In re Frescati Shipping Co., 718 F.3d 184, 197 (3d Cir. 2013), as amended on denial of reh'g and reh'g en banc (July 12, 2013) ("Before a stranger can avail himself of the exceptional privilege of suing for a breach of an agreement, to which he is not a party, he must at least show that it was intended for his direct benefit." (quoting Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 307 (1927))). 10x asserts, and Vizgen does not dispute in its briefing, that federal common law applies to "contracts to which the government is a party." Ginsberg v. Austin, 968 F.2d 1198, 1200 (Fed.
discussed Cited "see" 10X Genomics, Inc. v. Bruker Spatial Biology, Inc.
D. Del. · 2023 · signal: see · confidence high
See In re Frescati Shipping Co., 718 F.3d 184, 197 (3d Cir. 2013), as amended on denial of reh'g and reh'g en banc (July 12, 2013) ("Before a stranger can avail himself of the exceptional privilege of suing for a breach of an agreement, to which he is not a party, he must at least show that it was intended for his direct benefit." (quoting Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 307 (1927))). 10x asserts, and NanoString does not dispute in its briefing, that federal common law applies to "contracts to which the government is a party." Ginsberg v. Austin, 968 F.2d 1198, 1200 (Fed.
discussed Cited "see" Insurance Co. of the West v. United States
Fed. Cl. · 2011 · signal: see · confidence high
See Ginsberg v. Austin, 968 F.2d 1198, 1200 (Fed.Cir.1992); Hicks v. United States, 89 Fed.Cl. 243, 257 (2009) (quoting Restatement (Second) of Contracts § 280 (1981) (defining novation as "a substituted contract that includes as a party one who was neither the obligor nor the obligee of the original duty”)); see generally Black’s Law Dictionary 1168 (9th ed. 2009) (defining novation). .
discussed Cited "see" Haddon Housing Associates, LLC v. United States
Fed. Cl. · 2011 · signal: see · confidence high
See id., 641 F.3d at 1363-64 (distinguishing Ginsberg v. Austin, 968 F.2d 1198, 1201 (Fed.Cir.1992), and noting that Ginsberg “recites no requirement that the transfer of an existing breach of contract cause of action requires a separate, specific, express designation of the claim in the assigning document” but rather allows for “implied[] designation]” of accrued causes of action); see also Campus Sweater & Sportswear Co. v. M.B.
discussed Cited "see" Modeer v. United States
Fed. Cl. · 2005 · signal: see · confidence high
See Ginsberg v. Austin, 968 F.2d 1198, 1200 (Fed.Cir.1992) (stating that when “federal law does not answer the issue, we look to general property and contract law principles as they are embodied in state law pronouncements”); Allenfield Assocs. v. United States, 40 Fed.Cl. 471, 481 (1998) (applying “Pennsylvania landlord-tenant law regarding the expiration of subleases ... because it fully conforms to the general principles of landlord-tenant law that represent ‘the best in modern decision and discussion’ ”).
cited Cited "see" Prisco v. State of NY
S.D.N.Y. · 1995 · signal: see · confidence high
See Murtha, 968 F.2d at 1198.
discussed Cited "see, e.g." A.J. Properties, LLC v. Stanley Black and Decker, Inc.
Mass. · 2014 · signal: see also · confidence medium
See also Ginsberg v. Austin, 968 F.2d 1198, 1201 (Fed.
discussed Cited "see, e.g." United States Postal Service v. Sunshine Development, Inc.
M.D. Penn. · 2010 · signal: see also · confidence low
Co. of Am. v. United States, 801 F.2d 1295, 1298 (Fed.Cir.1986) *625 (explaining that it is “well settled that contracts to which the government is a party ... are normally governed by federal law, not by the law of the state where they are made or performed”); see also Ginsberg v. Austin, 968 F.2d 1198 (Fed.Cir.1992) (holding that when “federal law does not answer the issue, we look to general property and contract law principles as they are embodied in state law pronouncements”).
discussed Cited "see, e.g." Stratton Oakmont Inc v. Vaswani Place Corp
4th Cir. · 1999 · signal: see, e.g. · confidence medium
See, e.g., Ginsberg v. Austin, 968 F.2d 1198, 1201 (Fed.
Retrieving the full opinion text from the archive…
Albert GINSBERG, Appellant,
v.
Richard G. AUSTIN, Administrator, General Services Administration, Appellee
91-1433.
Court of Appeals for the Federal Circuit.
Jun 18, 1992.
968 F.2d 1198
James J. McCullough, Fried, Frank, Harris, Shriver & Jacobson, Washington, D.C., argued for appellant. With him on the brief was Deneen J. Melander., Steven L. Schooner, Attorney, Commercial Litigation Branch, Dept, of Justice, Washington, D.C., argued for appellee. With him on the brief were Stuart M. Ger-son, Asst. Atty. Gen., David M. Cohen, Director and Mary Mitchelson, Deputy Director. Also on the brief were William T.K. Dolan and Robert W. Sehlattman, Office of General Counsel, General Services Admin., of counsel.
Archer, Plager, Clevenger.
Cited by 31 opinions  |  Published
CLEVENGER, Circuit Judge.

Albert Ginsberg (Ginsberg) appeals the April 4,1991 decision of the General Services Board of Contract Appeals (Board), which dismissed his claim for lack of standing under the Contract Disputes Act, 41 U.S.C. §§ 602, 609(a)(1) (1988) (CDA). Ginsberg v. General Servs. Admin., 91-2 B.C.A. (CCH) ¶ 23,784 (1991). Because the Board based its decision on an error of law, we reverse the dismissal and remand for adjudication on the merits of Ginsberg’s claim.

I

This case involves Ginsberg’s claim against GSA for arrearage rent arising from a lease for space in Ginsberg’s Plaza West Building (Plaza West). The original lease expired September 30, 1985. GSA and Ginsberg, in a supplemental lease agreement, agreed to extend the term of the lease until September 30, 1986. That agreement contained the following holdover provision:

If, after expiration of the lease, the government shall retain possession of the premises, the lease shall continue in force and effect on a month-to-month basis not to exceed 90 days. Rent shall be paid monthly in arrears on a prorated basis at a rate to be agreed upon.

GSA remained in the Plaza West throughout the holdover period of the lease.

On December 5, 1986 Ginsberg agreed to sell two buildings to London & Leeds (L & L). One of these buildings was the Plaza West. The sales contract specifically provided that L & L would purchase Ginsberg’s lease with GSA, and thus required Ginsberg to assign the lease to L & L. The December 5 sales contract set the closing date for December 23, 1986. At the closing, Ginsberg assigned to L & L all his right, title and interest in, to and under the tenant leases:

Assignor hereby assigns to Assignee all of its right, title and interest in, to and under the Tenant Leases, and, from and after the date hereof Assignee hereby accepts such assignment as of the date hereof and hereby agrees to be bound by all provisions of the Tenant Leases governing the Landlord thereunder.

Ginsberg, 91-2 B.C.A. at 119, 123.

On December 22, 1986 Ginsberg filed a properly certified claim with the contracting officer for additional rent incurred by GSA’s holdover. Earlier, GSA had sent checks dated December 1 and 8, each in the amount of $200,627.94, for occupancy during October and November. The monthly rate under the lease was $329,649.18. In addition to the rent deficiency, Ginsberg’s claim also included a rent increase of $1,095.48 per month, reflecting claimed increased operating costs, as well as a lump sum adjustment of $106,414.53 for a real estate tax escalation. Ginsberg’s letter also told of the imminent sale of the Plaza West.

After the sale, L & L’s counsel contacted GSA about the change in the Plaza West’s ownership. GSA advised L & L that it required evidence of transfer of title, a list of partners or corporate officers, and the new lessor’s IRS identification number. GSA also stated a further requirement:

Completion of the Assignment and Assumption form (copy enclosed) by the Successor-Lessor assuming, approving and adopting the GSA lease and agreeing to be bound by its terms and by the prior lessor waiving all rights under the GSA lease against the United States of America, except any unpaid rent due the lessor through a specified date.

Id. Ginsberg completed the Assignment and Assumption form on January 29, 1987. He thus agreed that “said lease is as[*1200] signed, transferred, and conveyed to ... London & Leeds [and he] relinquishes all rights under the lease agreement effective December [ ] 1986.” Id. at 119, 124. L & L likewise agreed to be bound by the lease.

GSA ultimately vacated the Plaza West on February 29, 1988. Subsequently, L & L and the government settled a lawsuit brought by L & L for just compensation for a 5th Amendment taking. The parties stipulated that the taking occurred from December 29, 1986 through February 29, 1988.

The contracting officer denied Ginsberg’s claims for unpaid rent, inter alia on the grounds that Ginsberg lacked standing under the CDA.

II

Ginsberg timely appealed to the Board. The Board, however, agreed with the contracting officer that Ginsberg had no standing under the CDA. Specifically, the Board construed Ginsberg’s contract with L & L as an unqualified transfer to L & L of all right, title, claim and interest in the lease, including claims for back rent. The Board then held that pursuant to the Anti-Assignment Acts, 41 U.S.C. § 15 (1988) and 31 U.S.C. § 3727 (1988), the government by a novation accepted the assignments. That being so, Ginsberg was held to lack privity with the government after GSA accepted the assignments. In the absence of privity Ginsberg was no longer a contractor within the contemplation of the CDA, thus he lacked standing under it to make any claim on the government. The Board therefore dismissed his claim.

III

The linchpin of the Board’s decision is the purely legal determination that upon transfer of real property, all rights to back rent are transferred to the assignee unless those rights are expressly reserved to the assignor:

We have no quarrel with the statement that the buyer assumed the rights and obligations from the date of closing forward. This, however, does not mean that from that date forward, preexisting contract rights and obligations have not been effectively transferred to the buyer from the seller. Indeed, in the absence of qualifying language to the contrary, we assume that with successor contractors, this is what reasonably should be expected to occur.

Ginsberg, 91-2 B.C.A. at 119, 126.

Section 609(b) of the CDA governs our review of the Board’s decision. 41 U.S.C. § 609(b) (1988). While the legal determinations of the Board are not binding on this Court, they are often helpful, even if not compelling. US West Communications Servs. Inc. v. United States, 940 F.2d 622, 625 (Fed.Cir.1991). However, when the Board's legal interpretation is unsupportable and no other grounds exist upon which to uphold the decision, we must reverse or vacate. Id.

“It is well settled that contracts to which the government is a party — and though a lease may concern and convey a property interest it is also very much a contract — are normally governed by federal law, not by the law of the state where they are made or performed.” Prudential Ins. Co. of Am. v. United States, 801 F.2d 1295, 1298 (Fed.Cir.1986), cer t. denied, 479 U.S. 1086, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987). Here, though, the parties do not cite, and we have not found, any federal law dispositive of the issue of whether rights to back rent are presumed transferred unless expressly reserved. Indeed, the government conceded at oral argument that no legal authority, federal, state or common law, supports the Board’s interpretation that the right to back rent travels with the assignment of a lease, absent express reservation.

Since federal law does not answer the issue, we look to general property and contract law principles as they are embodied in state law pronouncements. See id.; Forman v. United States, 767 F.2d 875, 880 (Fed.Cir.1985); Keydata Corp. v. United States, 504 F.2d 1115, 1123-24, 205 Ct.Cl. 467 (1974). Two federal courts in construing state law have held that “it is well settled that in the absence of an express[*1201] intention to do so, an assignment of a re-versionary interest in a lease will not cover rent already accrued.” Shell Petroleum Corp. v. Jackson, 77 F.2d 340, 342 (6th Cir.1935); see also Federal Savings & Loan Ins. Corp. v. C & J Oil Co., 632 F.Supp. 1296, 1300 (W.D.Va.1986) (“It is well established in leases involving real property that absent a clearly expressed intention to the contrary, the assignment of [a lease] does not transfer the right to rental payments already accrued but unpaid at the time of assignment.”). While the federal courts’ interpretations of state law is not dispositive, both state law and respected treatises are in harmony with the federal courts’ construction of state law.

As a matter of property law, the state courts uniformly have held that rents when due and owing become personal property, “constitut[ing] mere choses in action which are not a part of the land and do not pass as incident to a transfer of the reversion.” Ackerman v. Robertson, 240 Wis. 421, 3 N.W.2d 723, 730 (1942). See also Ennis v. Ring, 49 Wash.2d 284, 300 P.2d 773, 776 (1956); Restatement (Second) of Property: Landlord & Tenant § 16.2(1) (1977). Thus, the “transfer of ... real estate subject to the lease does not carry with it any right to accrued rents then unpaid. These belong to the person who was the landlord at the time of their accrual and not to the grantee, unless assigned to him.” Velishka v. Laurendeau, 100 N.H. 46, 118 A.2d 600, 602 (1955) (citation omitted). See also, e.g., Williams v. Martin, 83 Ohio App. 130, 82 N.E.2d 547, 547-48 (1948); Gray v. Callahan, 143 Fla. 673, 197 So. 396, 398-99 (1940); Rives v. James, 3 S.W.2d 932, 934 (Tex.Civ.App.1928); 1 Herbert T. Tiffany, The Law of Real Property § 116, at 182 (3d ed. 1939).

The law of contracts is consistent with that of property on the subject of assignments. In construing the contract of a trust certificate assignment, California has held

[ujnless an assignment specifically or impliedly designates them, accrued causes of action arising out of an assigned contract ... do not pass under the assignment as incidental to the contract if they can be asserted by the assignor independently of his continued ownership of the contract and are not essential to a continued enforcement of the contract.

National Reserve Co. of Am. v. Metropolitan Trust Co. of Cal., 17 Cal.2d 827, 112 P.2d 598, 602 (1941). Additional authorities agree: “the assignment of rights under a continuing contract does not imply an assignment of rights of action for previous breaches of the contract....” 3 Samuel Williston, A Treatise on the Law of Contracts § 431, at 175 (3d ed. 1960). “In the absence of an agreement to the contrary, a transfer of the reversion does not carry with it any right to the accrued rents, and after such a transfer the landlord may still recover all rents theretofore accrued.” 49 Am.Jur.2d Landlord & Tenant § 530, at 512 (1970) (citations omitted); 4 Arthur L. Corbin, Corbin on Contracts: A Comprehensive Treatise on the Working Rules of Contract Law § 876, at 514 (1951). See also Restatement (Second) of Contracts § 328 (1981).

Moreover, we take judicial notice that beginning at latest in 1965, GSA itself has followed the law outlined above. Its handbook Acquisition of Leasehold Interests in Real Property has, since at least May 19, 1965, instructed its' contracting officers who deal with leases to require new owners of property in which GSA leases space to require a letter from the transferor of the property “waiving all rights under the lease as against the United States of America, except unpaid rent through a specified date." GSA Handbook, Acquisition of Leasehold Interests in Real Property, Ch. 4, ¶ 4b (January 31, 1977) (emphasis added); GSA Handbook, Acquisition of Leasehold Interests in Real Property, Ch. 6, § 4b (June 22, 1981) (current version).

Consequently, in light of this uniform and long-standing legal authority, we hold that as a matter of federal law the Board erred in its application of the law. Under general principles of both property and contract law, Ginsberg cannot be held to have transferred his back rent claim, unless he expressly so stated. He did not do so. Ginsberg thus retained his claim for ac[*1202] crued but unpaid rent, and is therefore possessed of the requisite standing to pursue the merits of that claim.

We therefore reverse and remand to the Board for further proceedings consistent with this opinion.

No costs.

REVERSED AND REMANDED.