U.S. 9th Circuit Court of Appeals

Appeal from the United States District Court
for the District of Oregon
Helen J. Frye, District Judge, Presiding

Argued and Submitted
July 10, 1997--Portland, Oregon

Filed August 25, 1997

Before: Warren J. Ferguson, Stephen Reinhardt, and
Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Ferguson; Partial Concurrence and
Partial Dissent by Judge Rymer

_________________________________________________________________

COUNSEL

Thomas F. Spaulding, Portland, Oregon, for plaintiff-
appellant Blue Fox Inc.

Herbert C. Sundby, Assistant United States Attorney, Portland
Oregon, for defendants-appellees United States Small Busi-
ness Administration and the United States Department of the
Army.

_________________________________________________________________

OPINION

FERGUSON, Circuit Judge:

Blue Fox appeals from a summary judgment in favor of the
Small Business Administration and the Department of the
Army. Blue Fox was a subcontractor which worked on a con-
struction project at an Army Depot. After the prime contractor
failed to pay Blue Fox in full, Blue Fox sought an equitable
lien against funds held by the Army and Small Business
Administration which has since been distributed to the prime
contractor. Contrary to the district court, we hold that the
Administrative Procedures Act permits Blue Fox's equitable
lien claim against the Army because an action for specific
performance for the payment of money is not an action for
money damages. We affirm the district court's decision that
a lien cannot be enforced against the Small Business Admin-
istration because that agency never possessed nor controlled
the contract fund.

I. FACTUAL BACKGROUND

Section 8(a) of the Small Business Act, 15 U.S.C.S 637(a),
established a business development program for firms deemed
to be socially and economically disadvantaged. The purpose
of the 8(a) program is to help small businesses owned and
controlled by socially and economically disadvantaged indi-
viduals and economically disadvantaged Indian tribes "to
compete on an equal basis in the mainstream of the American
economy." 13 C.F.R. S 124.1(a). This is accomplished by set-
ting aside certain government procurement contracts to be
awarded by the Administrator of the SBA to firms determined
by the SBA to be socially and economically disadvantaged.
The Small Business Act also authorizes SBA to provide
financial assistance to support such small business concerns
with regard to costs and technical and management assistance.
13 C.F.R. S 124.1(b).

In September, 1993, pursuant to Section 8(a) of the Small
Business Act, 15 U.S.C. S 637(a), the United States Depart-
ment of the Army awarded a contract to the United States
Small Business Administration. The contract involved the
installation and testing of a telephone switching system and
the construction of a facility to house the switching system at
the Umatilla Army Depot, Oregon. SBA agreed to furnish the
supplies and services requested by the Army by subcontract-
ing with Verdan Technology, Inc.

The Army, SBA, and Verdan then signed a tripartite agree-
ment. Under the terms of the contract, SBA delegated respon-
sibility for administering the contract back to the Army. Thus,
Verdan was to be paid directly by the Army. The SBA did not
receive any funds in connection with the contract, the total
amount of which was $432,392.13.

The original solicitation issued by the Army required the
contractor to furnish payment and performance bonds if the
contract exceeded $25,000. However, the Army later
amended the solicitation, deleting the bond requirements.
Defendants now concede that the Verdan contract was subject
to the Miller Act, 40 U.S.C. S 270a-270d. 1 However, SBA did
not grant an exemption to Verdan from Miller Act bond
requirements under C.F.R. S 124.305 (1990), which enumer-
ated requirements concerning SBA control of contract funds
and notice to subcontractors in the event that SBA granted an
exemption to the Miller Act bond requirement.2

Verdan entered into a subcontract with Blue Fox, Inc.,
whereby Blue Fox agreed to construct a concrete block build-
ing to house the switching system and install several other
specific items of the contract. The total cost of the work to be
performed by Blue Fox was $186,347.80.

Blue Fox did not know until it had completed its perfor-
mance under the contract that Verdan had not furnished a pay-
ment or performance bond. Verdan failed to pay Blue Fox its
full contract price -- the sum of $46,586.14 remained due.
Blue Fox informed the Army and SBA in writing on May 26,
1994, and again on June 15, 1994, that it had not been fully
paid. The Army disbursed a total of $86,132.33 to Verdan
between July 5, 1994 and October 11, 1994.

On January 3, 1995, the Army terminated the contract for
default because Verdan failed to adhere to the contract's
delivery schedule and to submit required contractor Data
Requirement Lists. In its notice of intention to terminate the
contract, the Army indicated that one of its "most severe
items of concern" was Verdan's failure to pay Blue Fox.

After the termination of the Verdan contract, the Army
chose Dynamic Concepts, Inc. to finish the uncompleted por-
tion of the work, under an existing contract between the Army
and Dynamic. This contract did not include the SBA as a
party. The modification contract with Dynamic was for
$126,772.78 and was partially funded with the undisbursed
balance on the Verdan contract, $84,910.52.3

Blue Fox obtained a default judgment in the Tribal Court
of the Yakima Indian Nation against Verdan and its officers.
Blue Fox asserts that it is unlikely to collect on these judg-
ments because existing liens against Verdan precede Blue
Fox's judgment and the judgment exceeds the officers' indi-
vidual net worths.

In this litigation, the district court denied Plaintiff's motion
for summary judgment and granted Defendant's motion for
summary judgment. The court held that it did not have juris-
diction over Blue Fox's claim against the Army because the
Administrative Procedures Act did not constitute a waiver of
sovereign immunity in this case. Additionally, the court held
that it could not grant an equitable lien against SBA because
there had been no res in SBA's possession and control to
which an equitable lien could attach.

II. DISCUSSION

We review questions involving principles of sovereign
immunity de novo. United States v. Woodley, 9 F.3d 774, 781
(9th Cir. 1993). A grant of summary judgment is reviewed de
novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996).

A. Equitable Lien Claim Against the Army

[1] The district court held that Blue Fox's suit against the
Army is barred by the doctrine of sovereign immunity. How-
ever, sovereign immunity against federal agencies has been
waived as to suits "seeking relief other than money damages,"
under the Administrative Procedures Act, 5 U.S.C.S 702
("APA"). The Supreme Court has held that monetary relief is
available under the APA when it takes the form of specific
relief rather than compensatory damages. Bowen v. Massa-
chusetts, 487 U.S. 879, 893 (1988). In Bowen, the Supreme
Court quoted from Judge Bork's opinion in Maryland Depart-
ment of Human Resources, 763 F.2d 1441, 1446 (D.C.Cir.
1985), to explain the scope of the APA waiver of immunity
for suits seeking other than money damages:

       "We begin with the ordinary meaning of the words
       Congress employed. The term `money damages,' 5
       U.S.C. S 702, we think, normally refers to a sum of
       money used as compensatory relief. Damages are
       given to the plaintiff to substitute for a suffered loss,
       whereas specific remedies `are not substitute reme-
       dies at all, but attempt to give the plaintiff the very
       thing to which he was entitled.' D. Dobbs,
       Handbook on the Law of Remedies 135 (1973).

       Thus, while in many instances an award of money is
       an award of damages, `[o]ccasionally a money award
       is also a specie remedy.' Id. Courts frequently
       describe equitable actions for monetary relief under
       a contract in exactly those terms."

Bowen, 487 U.S. at 895. Here, Blue Fox seeks an equitable
lien only for the very thing to which it is entitled under the
contract. Blue Fox does not seek any consequential damages
to compensate losses suffered beyond the contract price.
Therefore, the district court had jurisdiction to consider its
claim under the APA.

1. APA Waiver Not Limited to Statutory Rights

[2] The district court erred in assuming that because Blue
Fox sought monetary relief and its right was not statutorily
derived, such relief constituted "money damages " and was
excluded from the waiver of sovereign immunity contained in
the Administrative Procedures Act. The district court charac-
terized the issue as a choice between an action for damages
or an action for payment of money to which Blue Fox was
statutorily entitled. Because the Miller Act does not provide
a remedy for subcontractors against the government, the dis-
trict court held that nonstatutory remedies were barred and the
APA could not apply to waive immunity. However, there is
no requirement in Bowen or the APA that the specific relief
requested be statutorily granted. That is, a party need not rely
upon a statute in order to obtain federal court jurisdiction
under the APA. See Aetna Casualty and Surety Co. v. United
States, 71 F.3d 475 (2nd Cir. 1995) (APA waived sovereign
immunity against subrogation claim because surety's right to
subrogation, arising by operation of law, was equitable and
therefore included in APA waiver). Although Bowen itself
was concerned with funds to which Massachusetts was enti-
tled by statute, there is nothing in that opinion that suggests
the APA's waiver of immunity is limited to suits brought
under another statute. Thus, the district court erred in assum-
ing that because Blue Fox was not entitled to relief under the
Miller Act, its equitable lien claim was impermissible under
the APA.

2. An Equitable Lien Claim is Not an Action for Damages

[3] This circuit has recognized subcontractors' equitable
rights against the government where the subcontractor was
not paid by the prime contractor, the government had notice,
and the government did not pay the subcontractor or withhold
payment to the prime contractor. Wright v. United States
Postal Service, 29 F.3d 1426 (9th Cir. 1994). The Army has
conceded that Blue Fox would have an equitable lien claim,
i.e. a non-damages claim, if a private party, rather than a gov-
ernment agency had contracted with Verdan. The fact that the
Army is the defendant does not change the nature of the
claim, but only requires analysis of the Army's immunity.
Since the APA waives immunity for equitable actions, the dis-
trict court had jurisdiction under the APA. Below we recon-
struct a brief history of the right asserted by Blue Fox in order
to trace its roots in equity.

The Suretyship Cases -- Equitable Right of Subrogation

In Henningsen v. United States Fidelity & Guaranty Co.,
208 U.S. 404 (1908), the Court held that a surety had an equi-
table right of subrogation against the United States because it
had "paid the laborers and material-men, and thus released the
contractor from his obligations to them, and to the same
extent released the Government from all equitable obligations
to see that the laborers and supplymen were paid. " Id. at 410.
The surety's right of subrogation was found to be superior to
that of a bank which had loaned money to the contractor to
finish the project because the surety was bound by contract to
pay the subcontractor.

The equitable right of subrogation by a surety has been
extended in a number of cases. See e.g. Pearlman v. Reliance
Ins. Co., 371 U.S. 132 (1962) (Miller Act does not alter sure-
ty's equitable right of subrogation which arose out of surety's
payment of laborers and materialmen in accordance with bond
agreement); Aetna Casualty, 71 F.3d 475 (APA waived sover-
eign immunity against subrogation claim because surety's
right to subrogation, arising out of payments to coal mine
employees suffering from black lung disease, was equitable
and therefore included in APA waiver).

Extension to Equitable Rights in Subcontractors 

[4] The Henningsen line of cases decree that the doctrine
of subrogation is an equitable one. Blue Fox does not assert
a right of subrogation against the Army. However, following
the suretyship cases, courts have recognized subcontractors'
equitable rights against government agencies in situations
where a surety who paid the subcontractor would have had a
equitable right of subrogation against the government. See
e.g. Wright, 29 F.3d 1426; Active Fire Sprinkler Corp. v.
United States Postal Service, 811 F.2d 747 (2d Cir. 1987);
Kennedy Electric Co. v. United States Postal Service, 508
F.2d 954 (10th Cir. 1974). The question presented in this
appeal is whether these equitable rights are enforceable under
the APA.

In Wright, we held that subcontractors could institute
actions to establish equitable liens against the U.S. Postal Ser-
vice. It was clear in Wright that such equitable liens are prop-
erly characterized as equitable remedies, rather than money
damages. In recognizing that the Miller Act's provision of a
remedy to sue on the bond did not preclude the assertion of
an equitable lien, we quoted approvingly from a Second Cir-
cuit case that presented a similar question:

       `Prior to the waiver of immunity, subcontractors pos-
       sessed an equitable right . . ., but apparently lacked
       a remedy due to immunity. Any equitable rights held
       by subcontractors as against [the] USPS, which may
       have been unenforceable where sovereign immunity
       existed, became enforceable upon immunity being
       waived.'

Wright, 29 F.3d at 1430 (quoting Active Fire, 811 F.2d at
754).

[5] The Army claims the Postal Service cases are inappo-
site because they rely on the Postal Reorganization Act, 39
U.S.C. S 401(a) (1982), which authorized the U.S. Postal Ser-
vice to "sue and be sued," and therefore did not speak to the
ability of subcontractors to sue under the APA. However, the
Postal Service Cases are relevant because although the waiver
of sovereign immunity is found in the Postal Reorganization
Act, they recognize non-Miller Act claims against federal
agencies for equitable liens as equitable in nature. Since such
equitable liens are not actions for "money damages," they are
allowed by the APA's waiver of sovereign immunity as well.4

3. Equitable Lien Attached Upon Notice to Army of
       Blue Fox's Non Payment

[6] "An equitable lien can be established and enforced only
if there is some property which is subject to the lien." Restate-
ment of Restitution S 161, comment e (1937). Blue Fox gave
notice to the Army on May 26, 1994 and June 15, 1994 that
it had not been fully paid. The Army subsequently paid Ver-
dan $86,132.33 before terminating the contract. Thus, at the
time the Army received notice from Blue Fox, it retained
funds to which the equitable lien attached. The fact that the
Army has since paid out the monies to which the lien attached
does not thwart Blue Fox's equitable lien claim. In the surety-
ship context, the Federal Claims Court has noted:

       where the government has on hand contract funds
       owing for work done and is alerted . . . to the possi-
       bility of unpaid materialmen's claims . . . it may not
       dispense those funds to the contractor -- at least not
       without running the distinct risk of having to pay
       twice.

Transamerica Premier Ins. Co. v. U.S., 32 Fed. Cl. 308, 314
(1994). The Army cannot escape Blue Fox's equitable lien by
wrongly paying out funds to the prime contractor when it had
notice of Blue Fox's unpaid claims.

B. Equitable Claim Against SBA

[7] The district court granted the SBA's motion for sum-
mary judgment because it found that, as the Army had sole
possession and control over the contract and made all pay-
ments to Verdan, there was no res or fund which the SBA
controlled or possessed. Because an equitable lien may only
exist where there is a res to which it attaches, and because
SBA did not have possession or control of any contract funds,
we affirm the district court.

[8] This is a somewhat atypical case. The Small Business
Act provides opportunities for socially and economically dis-
advantaged businesses through SBA recruitment, support, and
loans. 15 U.S.C. S 636. Thus, the SBA usually plays a protec-
tive and supportive role to the small business which is
awarded a contract with a governmental agency.5 However, in
this case, the SBA delegated nearly all responsibility for the
contract administration to the Army, and abdicated any pro-
tective role toward Verdan and the subcontractors. Thus,
while the SBA ordinarily would have at least constructive
possession of contract funds to which an equitable lien could
attach, SBA's delegation of responsibility to the Army,
another government agency which itself may be held liable,
requires a different result.

[9] Blue Fox argues that the SBA had the opportunity,
authority, and duty to intervene, and therefore should be liable
for an equitable lien. Blue Fox correctly observes that SBA
was largely responsible for the Army's withdrawal of its Mil-
ler Act requirement in the tripartite contract. 6 In addition,
SBA did not conform to regulations in place at the time of the
contract which would have required the SBA to administer a
special bank account upon the waiver of Miller Act require-
ments. Although these actions show SBA's responsibility and
culpability for the harm Blue Fox suffered in this case, the
fact remains that SBA did not have possession of a res to
which an equitable lien could attach. Thus, although we agree
with Blue Fox that SBA did not fulfill its statutory duties, an
equitable lien theory cannot provide Blue Fox with relief
against the SBA.
CONCLUSION

For the foregoing reasons, the district court decision is
REVERSED IN PART and AFFIRMED IN PART and
REMANDED for further proceedings consistent with this
opinion. Blue Fox is entitled to its costs on appeal.

_________________________________________________________________

RYMER, Circuit Judge, concurring in part and dissenting in
part:

Never before has a court held that a subcontractor may sue
an agency of the United States, which has not agreed to be
sued, for contract monies that the prime contractor should
have paid to the subcontractor but didn't. It has been the law
for decades that subcontractors cannot enforce a lien on gov-
ernment property unless the government has waived sover-
eign immunity. Yet, the majority now says that a district court
has jurisdiction to consider a subcontractor's claim for an
equitable lien under the Administrative Procedure Act,
because it is not an action for money damages but "an action
for specific performance for the payment of money. " Maj. op.
at 10569. However, no matter how you slice Blue Fox's
claim, it seeks funds from the treasury to compensate for the
Army's failure to require Verdan to post a bond. Since the law
is well settled that this may not be done unless the contracting
agency has agreed to be sued, I dissent.

Congress chose to protect those who work on government
property (who would otherwise have materialmen's and
workmen's liens for work on non-government property) pri-
marily through the Miller Act, by requiring contractors to fur-
nish a payment and performance bond, instead of by
permitting subcontractors to enforce liens through an overar-
ching waiver of sovereign immunity. The Miller Act gives
subcontractors the right to sue on the bond "in the name of the
United States for the use of the person suing." 40 U.S.C.

S 270b(b). But neither the Federal Tort Claims Act, the Miller
Act, nor the Tucker Act, waives sovereign immunity to permit
a subcontractor to sue the United States directly in its own
right for monies the subcontractor should have received, but
did not receive, from the prime contractor. See Westbay Steel,
Inc. v. United States, 970 F.2d 648, 650-51 (9th Cir. 1992)
(FTCA); Arvanis v. Noslo Eng'g Consultants, Inc., 739 F.2d
1287, 1289-90 (7th Cir. 1984) (Miller Act); United Elec.
Corp. v. United States, 647 F.2d 1082, 1087 (Ct. Cl. 1981)
(Tucker Act). As Judge Easterbrook recently observed for the
Seventh Circuit, "[W]hen a prime contractor on a federal con-
struction project fails to obtain a Miller Act payment bond
and then defaults without paying his subcontractors . . . the
hapless subcontractor, not the United States, is left holding
the bag." Automatic Sprinkler Corp. v. Darla Envt'l Special-
ists, Inc., 53 F.3d 181, 182 (7th Cir. 1995). Whether felicitous
or not, this has been the conventional wisdom for at least fifty
years. See United States v. Munsey Trust Co., 332 U.S. 234,
241 (1947) ("[N]othing is more clear than that laborers and
materialmen do not have enforceable rights against the United
States for their compensation.").

For sure, we indicated in Wright v. United States Postal
Service, 29 F.3d 1426 (9th Cir. 1994), that equitable liens may
be enforced, like other remedies available to subcontractors
may be pursued, when there is a specific waiver of immunity
as there is, for example, for the Postal Service, in the Postal
Reorganization Act, 39 U.S.C. S 401(1). However, in the
absence of an agency waiver, subcontractors cannot achieve
"by indirection a result that they could not reach directly
under the Miller Act." Westbay, 970 F.2d at 651 (quoting
Arvanis, 739 F.2d at 1292); cf. Wright, 29 F.3d at 1428 (spe-
cific waiver in Postal Reorganization Act); Active Fire Sprin-
kler Corp. v. United States Postal Service, 811 F.2d 747, 754
(2d Cir. 1987) (same); J.C. Driskill, Inc. v. Abdnor, 901 F.2d
383, 386 (4th Cir. 1990) (waiver of sovereign immunity under
Small Business Act not broad enough to support an equitable
lien claim by a subcontractor against the SBA).

This is just what the majority has managed to allow. It rea-
sons that the APA waiver recognized in Bowen v. Massachu-
setts, 487 U.S. 879 (1988), is not limited to statutory rights,
but whether that is so or not is beside the point unless the gov-
ernment has a duty which can be specifically enforced. Here,
it has none. Under the Miller Act there is no question the
Army should not have approved the Verdan contract without
ensuring that there was an adequate surety bond, but its fail-
ure to do so is not actionable. Westbay, 970 F.2d at 650 (cit-
ing authorities). The absence of a bond is precisely what
caused Blue Fox's loss -- or, put another way, gave rise to
its asserted equitable lien against the retainage -- in this case.
Unlike the majority, I don't think it matters that the right
asserted is equitable, see Pearlman v. Reliance Ins. Co., 371
U.S. 132, 141 (1962), because equitable rights held by sub-
contractors become enforceable only when immunity is
waived by the contracting agency. See Wright, 29 F.3d at
1428; Active Fire, 811 F.2d at 754; United Elec. Corp., 647
F.2d at 1086. Otherwise, the Miller Act provides the remedy
available to subcontractors for contractor defaults.

As the Seventh Circuit has remarked:

       The result is . . . unjust. A subcontractor who fulfills
       his part of the bargain should not suffer because the
       prime contractor defaulted, and the government con-
       tracting officer had not insisted on compliance with
       the Miller Act. We agree that there is a practical
       problem (how widespsread we do not know) that is
       not addressed by the Miller Act, but that is a prob-
       lem that can only be addressed, and redressed, by
       Congress.

Arvanis, 739 F.2d at 1293. Because Congress has not waived
the Army's sovereign immunity, I dissent from Part IIA of the
majority opinion, and because even assuming Congress has
waived the SBA's immunity to be sued for an equitable lien1
there is no fund to which Blue Fox can lay claim, I concur in
the result of Part IIB.2
_______________________________________________________________

FOOTNOTES

1 The Miller Act provides that before any contract exceeding $25,000 for
the construction, alteration, or repair of any public building or public work
of the United States is awarded to a contractor, that contractor shall fur-
nish both a payment bond and a performance bond "for the protection of
the United States." 40 U.S.C. S 270a. The purpose of the Act "is to protect
those who would have materialmen's and workmen's liens under state law
if they were not working on a structure exempt as a federal public work
or building." United Bonding Ins. Co. v. Catalytic Constr. Co., 533 F.2d
469, 473 (9th Cir. 1976).
2 13 C.F.R. S 124.305 (1990) outlined the conditions upon which the
SBA could exempt an 8(a) participant from any payment and performance
bonds required by the Miller Act. Subsection (d) of that section lists sev-
eral precautions that were to be taken to secure payment to subcontractors.
For example:

       (2) There must be established a special bank account in an insti-
       tution insured by the Federal Deposit Insurance Corporation
       (FDIC), into which the procuring agency will deposit all pay-
       ments relating to the performance of the contract, or, in the alter-
       native, the procuring agency, at its option, shall provide for direct
       disbursement of contract proceeds to suppliers, subcontractors,
       laborers and others.

       (3) All disbursements from any special bank account established
       shall be subject to the approval and counter signature by SBA
       . . . .

       (4) The 8(a) contractor must notify persons supplying it with
       materials or labor in writing that the contract is exempt from the
       Miller Act's bonding requirements and must also notify such sup-
       pliers in writing that SBA will not be liable for payment for mate-
       rials or labor. The 8(a) contractor must obtain a written
       acknowledgment . . . and such acknowledgment(s) must be in
       SBA's possession prior to award of the contract where practica-
       ble, and, in all instances prior to payment of invoices.
3 The Army did not authorize payment to Dynamic for its work in com-
pleting the project until July 27, 1995, two months after Blue Fox filed
this action in district court, asking inter alia, that the court enjoin Defen-
dants from paying any further moneys or making any payments from
funds available or appropriated for a follow-on contract for completion of
the Umatilla Army Depot Electronic Switching System project, until
Plaintiff's unpaid bill is satisfied.
4 In Active Fire, the court noted that there was a long line of cases that
characterize the Miller Act as the only remedy for subcontractors in a gov-
ernment building contract. Active Fire, 811 F.2d at 754. The government's
brief similarly emphasizes broad language from Arvanis v. Noslo Eng'g
Consultants, Inc., 739 F.2d 1287, 1288 (7th Cir. 1984) (if prime contractor
fails to obtain a payment bond, the subcontractor, rather than the govern-
ment, is "left holding the bag.") However, none of these cases considered
an equitable lien theory, and as we have previously recognized, "Nothing
in the Miller Act evinces a legislative intent to limit remedies available to
subcontractors." Wright, 29 F.3d at 1431.
5 It is the declared policy of the Congress that the Government should
aid, counsel, assist, and protect, insofar as is possible, the interests of
small-business concerns . . . ." 15 U.S.C. S 631(a), Declaration of Policy.
6 Blue Fox provided evidence of the SBA's conscious avoidance of the
Miller Act requirements in the form of notes of telephone conversations
within the SBA. The notes recorded a conversation between officers of the
SBA and the Army in which they discussed the need for a bond and the
fact that "Verdan doesn't have the experience to get a bond in this area."
The Army official explained that she was advised by "Ms. Witty, out of
the SBA office," that "in order to protect the government's interest, [they
should] require that Verdan show the government evidence that their sub-
[contractor] had bonded the construction portion of the contract." How-
ever, neither party has claimed that Blue Fox was ever required to acquire
a bond on the construction portion of the contract.
1 Compare Driskill, 901 F.2d at 386 (subcontractor cannot sue SBA for
equitable lien), with ATC Petroleum, Inc. v. Sanders, 860 F.2d 1104, 1113
(D.C. Cir. 1988) (subcontractor can sue the SBA for an equitable lien).
2 As the SBA never possessed contract funds, there has never been a res
to which an equitable lien might attach. In my view, that is dispositive of
the legal issue before us, and so I do not join the majority's discussion of
the SBA's culpability. the end