Arthur Pew Construction Company, Inc. v. Lurton E. Lipscomb, First National Bank of Atlanta, William L. Cooney, L. Patrick Claiborne

TJOFLAT, Chief Judge,

dissenting:

Respectfully, I dissent. I would affirm the district court’s judgment in favor of FNBA. As a matter of law, FNBA could not have owed Pew a duty to maintain the “assignments” at issue in this case since those “assignments” were conceived and executed as a means to defraud the federal government.

I.

Under Georgia law, “[o]ne who, by a gratuitous promise ... which he should realize will cause another reasonably to rely upon [him to] perform[, as the other’s agent,] definite acts of service ... is subject to a duty to use care to perform sueh service or ... to give notice that he will not perform.” Mixon v. Dobbs Houses, Inc., 149 Ga.App. 481, 254 S.E.2d 864, 865-66 (1979) (quoting Restatement (Second) of Agency § 378 (1958)); see also Simmerson v. Blanks, 149 Ga.App. 478, 254 S.E.2d 716, 718 (1979). Pew, relying on this voluntary-agency principle, concludes that FNBA, through its promise or assurance to Pew, assumed a duty to protect Pew’s interest in the “assignments” by not releasing them to Fenwick; Pew contends that FNBA’s breach of this duty damaged it.

Pew ignores, however, that there were, in fact, no actual assignments to FNBA of the contract proceeds due Fenwick from the government.1 Rather, Fenwick and *1578FNBA merely represented to the government that Fenwick had assigned these proceeds to FNBA. FNBA never acquired any interest in the funds in question. In a true assignment, however, FNBA would have acquired some right to these funds. See Bank of Cave Spring v. Gold Kist, Inc., 173 Ga.App. 679, 327 S.E.2d 800, 802 (1985) (“An assignment is a contract and, in order to be valid, must possess the same requisites ... as any other contract.”). In effect, then, Pew asks us to hold that FNBA voluntarily assumed a duty to assist Pew in ensuring that Fenwick continued to represent to the government that it had assigned the funds at issue to FNBA— when no actual assignment had occurred— and that FNBA is liable for its breach of this duty. I believe we should decline to do so.

The evidence is overwhelming that Fen-wick and FNBA misrepresented to the government the nature of their transaction in order to induce the government to deposit the funds in Fenwick’s Buckhead account which the government believed belonged to FNBA. Shortly after Pew entered into an arrangement with Fenwick to manage and complete several of Fenwick’s construction projects in exchange for a share of the profits generated, Lurton Lipscomb, Fen-wick’s president, wrongfully diverted some .of the proceeds earned on the government contracts, which the government had paid directly to Fenwick, for his personal use. Pew, therefore, in order to protect its investment, needed to ensure that such diversions did not occur in the future. One way in which Pew might have been expected to protect itself would have been to seek to amend the government contracts to reflect Pew and Fenwick’s joint venture arrangement2 and, therefore, to become a joint payee on the checks. Pew did not do so, however. Steve Martin, Pew’s attorney, testified that the Small Business Administration (SBA) would not permit Fenwick to enter into a joint venture;3 Harold Hearn, *1579Pew’s president, testified that the government will make payments for its contracts only to the firm originally awarded the contract.

Another way in which Pew might have been expected to protect its interests would have been to require Fenwick to assign the proceeds from its government contracts to Pew as collateral for the amounts due to Pew under the agreement. Federal law, however, prohibits such an assignment. Under the Assignment of Claims Act of 1940, 31 U.S.C. § 3727 (1988) and 41 U.S.C. § 15 (1988), a party that contracts with the government may not transfer the contract or “any interest therein”; any such transfer causes “the annulment of the contract ... transferred, so far as the United States are concerned.” 41 U.S.C. § 15. In addition, claims against the United States may be assigned only in limited circumstances, which did not exist in this case. 31 U.S.C. § 3727. Thus, as Hearn testified, if Fen-wick had assigned the money due on its government contracts to Pew, the assignment “would not have been honored.”

As Hearn indicated in his testimony, however, the Assignment of Claims Act provides an exception to the general prohibition against assignments of government contracts: a party that contracts with the government may assign money due or about to become due from a government contract to a bank or other financing institution, such as FNBA.4 See 31 U.S.C. § 3727; 41 U.S.C. § 15. Accordingly, Pew elected to ensure that Lipscomb would not divert any more funds to his personal use by amending its agreement with Fenwick; a new provision required all proceeds from Fenwick’s government contracts to be “assigned” to FNBA, and stated that “funds received [by FNBA] w[ould] be deposited in a bank account in the name of Fenwick.”

As required by this provision, Fenwick, with the assistance of FNBA, represented to the government — using government forms promulgated under the Assignment of Claims Act — that Fenwick had assigned the proceeds from its government contracts to FNBA. This obligated the government to send payment on Fenwick’s contracts to the account specified by FNBA in the “instruments of assignment” it sent to the government, account number 14389368 at FNBA’s Buckhead branch in Atlanta. This account, however, belonged to Fenwick, rather than FNBA; the documents Fen-wick and FNBA sent to. the government did not disclose this fact.5 Thus, Fenwick did not actually assign its interest in the proceeds from its government contracts to FNBA: FNBA did not have, or acquire, any right to the proceeds from Fenwick’s government contracts. FNBA did not, for instance, lend money to Fenwick and take an assignment of the proceeds as collateral. Rather, Fenwick retained its right to these funds — which were deposited in an account in its name — and owed a portion of them to Pew pursuant to their contractual arrangement.6

*1580This “assignment,” which obligated the government to send the proceeds on Fen-wick’s contracts to Fenwick’s Buckhead account, was in actuality a direct deposit arrangement: Fenwick opened the Buckhead account and arranged to have the proceeds from its government contracts directly deposited into it. This arrangement protected Pew because Pew and Fenwick controlled the account jointly; representatives of both companies were signatories on the account.

If Fenwick and FNBA knowingly misrepresented to the government the nature of their transaction to induce the government to deposit the funds in Fenwick’s account— and there is no reason to suspect that these parties did not know the true nature of their arrangement — this would violate 18 U.S.C. § 1001 (1988).7 To continue this scheme, as Pew suggests FNBA was obligated to do, would further violate federal law. See id. Thus, Pew’s argument that FNBA owed it a duty, in tort, to ensure that the “assignments” were not released is, essentially, an argument that FNBA had a duty to continue to perform, or assist in the performance of, an illegal act. I do not believe that Georgia law would countenance such an argument. Contracts that require individuals to perform illegal acts are unenforceable under Georgia law. O.C.G.A. § 13-8-1 (1982). Similarly, although I have found no case on point, I do not believe that any Georgia court would allow a cause of action in tort based on a person’s voluntary assumption of a duty to perform, or to aid in the performance of, an illegal act. Cf. Hamm v. Auld, 192 Ga. App. 717, 386 S.E.2d 385 (1989) (promise that was unenforceable — because illegal— when made cannot serve as the basis for a fraud action); O.C.G.A. § 51-1-6 (1982) (“When the law requires a person to perform an act for the benefit of another ... the injured party may recover for the breach of such legal duty if he suffers damage thereby.”) (emphasis added); Prosser & Keeton on the Law of Torts 356 (W. Keeton 5th ed. 1984) (duty is “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another”). Obvious policy reasons support this conclusion: if courts enforce a party’s promise to perform an illegal act, or impose tort liability when a party voluntarily assumes a duty to perform an illegal act, they encourage violations of the law.

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

It is clear, then, that FNBA owed Pew no duty to monitor Fenwick in order to ensure that Fenwick continued the scheme at issue — a scheme whose main ingredient involved deceiving the government. Since FNBA owed Pew no duty to continue the scheme at issue, there can be no liability in tort for FNBA’s release of the “assignments” to Fenwick. Therefore, the jury’s verdict in favor of Pew on its negligence claim cannot stand as a matter of law.8

II.

The majority insists that the court cannot properly reach the issue of illegality. I disagree. We need not be concerned that FNBA never pled the defense of illegality. Illegality in this case is not a distinct defense but rather is intertwined with the duty issue. FNBA has maintained from the beginning of this litigation that it did not. have a duty to refrain from releasing the “assignments” in question. Further, when it moved for summary judgment, and again when it moved for judgment n.o.v., *1581FNBA argued that it owed.no duty to Pew. The argument that one owed no duty to assist an illegal act is subsumed under the argument that one owed no duty at all. Thus, having pled that it owed no duty whatsoever, FNBA was not obligated to plead more specifically that it owed no duty because the transactions at issue were illegal.

Moreover, I do not find it problematic that the district court did not mention illegality in its ruling on FNBA’s motion for judgment n.o.v. Although we disagree with the rationale given by a district court for its decision, nevertheless, we may properly affirm that decision on other grounds. Federal Deposit Ins. Corp. v. 232, Inc., 920 F.2d 815 (11th Cir.1991).

The majority also argues that the prior panel’s reversal of the district court’s granting of summary judgment and remand for a trial of the facts necessarily rejected the possibility of nonliability as a matter of law; thus, the “law of the ease doctrine” precludes us from upholding the trial court’s judgment n.o.v. based upon the rationale that FNBA owed no duty as a matter of law. Again, I disagree. The law of the case doctrine is the principle that “findings of fact and conclusions of law by an appellate court are generally binding in all subsequent proceedings in the same case in the trial court or on a later appeal.” Dorsey v. Continental Casualty Co., 730 F.2d 675, 678 (11th Cir.1984). The law of the case doctrine, however, does not preclude the district court on remand or the appellate court itself on a subsequent appeal from considering matters that the appellate court did not resolve in earlier proceedings. Luckey v. Miller, 929 F.2d 618, 621 (11th Cir.1991). The prior panel did not address the issue of illegality or the issue of whether a court could find, based upon the facts adduced at a trial, that the defendant owed no duty to the plaintiff as a matter of law; thus, we are not precluded by the law of the case doctrine from addressing these issues as we see fit.

It is significant that the prior panel was addressing a summary judgment while we are faced with a full record following a trial. The application of the law of the case doctrine principle “will, in accord with the rule’s purpose of promoting finality, depend considerably on the stage a case has reached when it goes up on appeal _” Barber v. International Brotherhood of Boilermakers, 841 F.2d 1067, 1071 (11th Cir.1988). We should be wary of applying the law of the case doctrine in any mandatory fashion. Foster v. Tandy Corp., 828 F.2d 1052, 1058 (4th Cir.1987). “This is particularly true where the previous ruling has been on pre-trial motion, and the subsequent ruling comes after the full development of the case.” Id. This court has recognized that an appellate court’s reversal of a district court’s grant of summary judgment and remand for a trial of the facts says nothing about how the evidence should be viewed after a trial. See, e.g., Shelkofsky v. Broughton, 388 F.2d 977 (5th Cir.1968) (reversal of summary judgment for a trial by jury would not preclude the district court from later entering summary judgment or judgment n.o.v. if the evidence offered at trial was insufficient to warrant submission to the jury).

The prior panel held that, on the record before it, a question of fact arose as to whether FNBA owed Pew a duty to maintain the “assignments.” The prior panel did not say, however, how it would decide the duty issue after reviewing the record developed at trial. The panel’s mandate ordered the district court to proceed further to discover the facts; the district court carried out that mandate. We are now presented with additional facts, adduced through a full trial, that bear on the issue of FNBA’s duty. A review of the entire record leads me to conclude that much of the activity at issue in this case violated federal law and, thus, could not possibly have given rise to a duty owed by FNBA to Pew. Nothing in the prior panel’s mandate precludes this conclusion.

Even if I were to concede arguendo that the prior panel intended by its mandate to preclude the district court and any subsequent panel of this court from holding that FNBA, as a matter of law, owed no duty to Pew, I would still conclude that we could find no duty as a matter of law without *1582violating the law of the case doctrine. The law of the case doctrine is “self-imposed by the courts ... in the interests of judicial efficiency.” Conway v. Chemical Leaman Tank Lines, Inc., 644 F.2d 1059, 1061 (5th Cir.1981). Thus, while “federal courts usually refuse to reopen issues that have been previously decided on appeal, it is within their power to do so.” Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir.1984). This court has emphasized that “justice is better than consistency,” Wm. G. Roe & Co. v. Armour & Co., 414 F.2d 862, 867 (5th Cir.1969) (citation omitted), and has recognized three circumstances where the law of the ease doctrine does not apply to preclude reconsideration of an issue previously decided; “[tjhese exceptions occur when (1) the evidence on a subsequent trial was substantially different, (2) controlling authority has since made a contrary decision of the law applicable to the issue, or (3) the previous decision was clearly erroneous and would work a manifest injustice.” Westbrook, 743 F.2d at 768-69. Even if I were to conclude that the prior panel intended to preclude, regardless of any evidence adduced at a subsequent trial, the finding of no duty as a matter of law, I would find that both the first and third exceptions to the law of the case doctrine are applicable here.

In this case, the evidence on subsequent appeal after a full trial was substantially different from the evidence that the first panel had before it; thus, the law of the case doctrine does not preclude us from concluding that FNBA was under no duty to assist Pew in continuing its illegal behavior even if the prior panel did not so conclude. Moreover, if the prior panel s mandate must, for whatever reason, be interpreted to preclude a finding of no duty as a matter of law despite overwhelming evidence that the transactions from which this alleged duty arose violated federal law and were undertaken with intent to defraud the government, then I would conclude that the prior panel’s decision is clearly erroneous and would work a manifest injustice. Pew and Fenwick, in violation of 18 U.S.C. § 371 (1988),9 concealed the nature of their relationship from the federal government because they feared that the government would disqualify Fen-wick from the lucrative minority-owned business program if it discovered the nature of Pew’s involvement. In order to circumvent the Assignment of Claims Act, Fenwick and FNBA, at Pew’s behest, misrepresented to the government that Fen-wick had assigned project proceeds to FNBA. This misrepresentation violated 18 U.S.C. § 1001. Pew asks this court to hold that FNBA had a duty to continue defrauding the government and was negligent in failing to continue defrauding the government. Such a rule of law, it should go without saying, is contrary to the best interests of society.

For the foregoing reasons, I respectfully dissent.

. I recognize that 41 U.S.C. § 15 (1988) states: "Notwithstanding any law to the contrary governing the validity of assignments, any assignment pursuant to this section, shall constitute a valid assignment for all purposes.” I believe, however, that "assignment pursuant to this section” means an interest in moneys due under a federal contract taken by a financing institution in return for valuable consideration. In most cases, this will occur when the financing institution lends money to the party who has the contract with the government, and takes the assignment of money due that party as collateral. The legislative history to the Assignment of Claims Act supports this position. The Senate Report, for instance, stated that, under the law existing before Congress passed the Assignment of Claims Act,

banks and other lending agencies which might otherwise be willing to extend credit to finance the performance of contracts with the Government are unable to rely upon assignments of amounts payable under such contracts as security, because they [could not rely on assignments of the proceeds of these contracts as collateral].
If ... businesses [bidding on Government contracts] could offer security in the form of assignments of claims against the Government growing out of such contracts they would in many instances be able to obtain the necessary credit from their own local banks and other financing institutions....

S.Rep. No. 2136, 76th Cong., 3d Sess. (1940); see abo H.Rep. No. 2925, 76th Cong., 3d Sess. (1940) (same); 86 Cong.Rec. 12,560 (1949) (statement of Rep. Wolcott) (Act intended to correct "prohibition in existing law against the pledging of Government contracts as security for loans by banks”); General Casualty Co. v. Second Nat'l Bank, 178 F.2d 679, 680 (5th Cir.1949) (one purpose of Assignment of Claims Act “was to make it possible for contractors to pledge to a bank, as collateral security, their claims against the Government in order to en*1578able them to borrow money to do the work required by the contract" (citing 86 Cong.Rec. 12,557 (1940))).

. Although the agreement was headed "management contract,” Pew admitted, in its briefs, that it and Fenwick were engaged in a joint venture.

. The SBA regulations in force in 1982 and 1983, when Pew and Fenwick entered their agreement, did not explicitly preclude section 8(a) businesses, such as Fenwick, from entering into joint ventures. Moreover, the SBA’s Standard Operating Procedure in force at this time specifically permitted participants in the section 8(a) program to enter joint ventures “with a nondisadvantaged concern, large or small, for the purpose of performing a specific [section] 8(a) contract.” Apex Constr. Co. v. United States, 719 F.Supp. 1144, 1150 (D.Mass.1989) (emphasis deleted) (quoting Small Bus.Admin., Standard Operating Procedure 80 05, ¶ 49, a). Because I do not have a copy of this Standard Operating Procedure, I do not know what requirements the SBA imposed on the joint ventures it allowed. I think it probable, though, that, like the current SBA regulations that allow section 8(a) businesses to enter joint ventures only if the SBA approves them before the contract is awarded, see 13 C.F.R. § 124.321(d)(1) (1991), Fenwick and Pew, to enter a joint venture in 1982 and 1983, would have had to request SBA approval of their arrangement before the SBA awarded Fenwick the contracts. Cf. Apex, 719 F.Supp. at 1148 (parties “submitted a joint venture agreement to the SBA for approval"). Pew and Fenwick's arrangement may have been problematic, then, because Fenwick had been awarded the contracts before it contracted with Pew.

In addition, I note that the SBA regulations in force in 1982 and 1983 only permitted section 8(a) businesses to be partnerships and corporations when one or more socially and economically disadvantaged individuals owned 51% of the company and controlled its management and daily operations. See 13 C.F.R. § 124.1-l(c)(2)(i)(A), (B), (ii) (1982). I assume, therefore, that even if Pew and Fenwick had submitted their joint venture to the SBA for approval before Fenwick was awarded the contracts, the SBA would have required them to show that Lipscomb would receive at least 51% of the profits of the joint venture and would control the management and daily operations of the contracts the joint venture performed. Martin’s testimony indicated that Pew and Fenwick were concerned about the consequences if the SBA knew that Fenwick had entered a joint venture with Pew; for instance, Martin stated that Fen-wick “would lose [its] minority status.” This implies that Pew and Fenwick feared that the SBA would find that, under the agreement, Lipscomb no longer controlled Fenwick’s management and daily operations with regard to the projects Pew was managing, and would, accordingly, terminate Fenwick’s eligibility to participate in the section 8(a) program. See id. § 124.1 — l(e)(ii), (vii), (xviii) (1982). In this respect, I note that the SBA’s current regulations state that a nondisadvantaged business may be found to control a section 8(a) business when *1579the nondisadvantaged business "has the power to control day-to-day direction of the business affairs of the [section 8(a) ] business” or when it “provides critical ... bonding support ... which directly or indirectly allows [it] to gain control or direction.” Id. § 124.104(d)(2), (3) (1991).

. Hearn stated that "the only assignment you can make of funds due on a government contract is to a financial institution."

. These instruments of assignment informed the government that Fenwick had assigned the contracts to "The First National Bank of Atlanta, Buckhead Branch, [address], Account Number 143868”; they implied, therefore, that the account specified was FNBA’s.

. The parties, in supplemental memoranda filed at the court’s request, argue that Fenwick did in fact assign the proceeds from its government contracts to FNBA. They rely on Fenwick and FNBA’s use of the correct governmental form to support their position. Their reliance, however, is misplaced; there simply is no evidence in the record demonstrating that Fenwick actually assigned the proceeds from its government contracts to FNBA. Nor is there evidence that FNBA encouraged Fenwick to execute the "assignments” to protect FNBA’s interest in the loans to Pew. Although Hearn testified that the assignments existed to protect FNBA’s interest in the loans to Pew, FNBA officials testified that the assignments were merely an accommodation to Pew, a long-time customer. Moreover, I find no evidence, in the portion of the record Pew cites, for Pew's contention that FNBA "required that the assignments be put in place before it would extend additional credit to Pew so that [Pew] could proceed with the[ ] projects.”

. 18 U.S.C. § 1001 provides:

. The district court failed to instruct the jury as to the duty element of Pew’s negligence claim. Under Georgia law, however, the question of duty is for the court. First Fed. Sav. Bank v. Fretthold, 195 Ga.App. 482, 394 S.E.2d 128, 131 (1990) C'[I]f the court finds no duty was owed, no material question of fact remains for determination by the jury." (citing Adler’s Package Shop v. Parker, 190 Ga.App. 68, 378 S.E.2d 323 (1989))).

. 18 U.S.C. § 371 provides in pertinent part: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.