Free Reply to Response to Motion - District Court of Federal Claims - federal

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No. 05-990C (Chief Judge Damich)

IN THE UNITED STATES COURTOF FEDERAL CLAIMS JEFFREY D. COTTRELL, Plaintiff,
V.

THE UNITED STATES, Defendant.

DEFENDANT'SREPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTIONTO DISMISS

PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director BRYANTG. SNEE Assistant Director KELLY B. BLANK Attorney CommercialLitigation Branch Civil Division Departmentof Justice Attn: Classification Unit, 8th Floor 1100 L St., N.W. Washington, D.C. 20530 Tele: (202) 353-7961 Fax: (202) 353-7988 Attorneys for Defendm~t

Of Counsel: STEVEN G. REED Assistant Regional Attorney Office of General Counsel United States Departmentof Agicultare Columbus, OH 43215

February 17, 2006

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TABLE OF CONTENTS PAGE S(~

ARGUMENT ................................................................................................................................ This Court LacksJurisdiction To Entertain Mr. Cottrell's Claim Based UponAlleged Denial Of Payments UponHis 1996 Production Flexibility Contract Because The NAD The District Court Possess And Exclusive Jurisdiction HisClaim Over .................................................................. This Court LacksJurisdiction To Entertain Mr. Cottrell's Claim Based UponDenial Of His 1989 CRPApplication Because Mr. Cottrell Has Neither Alleged Nor Established The Elements OfAnExpress ImpliedContractWithTheUnitedStates ................................ Or Mr. Cottrell Fails To Allege The Existence Of A Money-Mandating Statute Upon Which ClaimFor Damages A CouldBe Based............................... Mr. Cottrell's Claim Arising Out Of His 1989 CRP Application Is Barred The By Statute Limitations Of ................................................................. Mr. Cottrell's Claim Based UponHis 1989 CRP Application Is Barred By Doctrine Judicata The OfRes ......................................................................... CONCLUSION ............................................................................................................................

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TABLE OF AUTHORITIES CASES PAGE S(~ AlderTe~ace,hlc. v. UnitedStates, 161F.3d (Fed. 1998) 1372 Cir. ....................................................................................... Cot~ellv. Yeu~er, 38F.3d1215,1994WL560967 1994) (6~ Cir. ........................................................... Eas~ortS.S. Corp. v. United Staes, 372 1002 ...................................................................................................... F.2d (1967) Farrners&Merchmats of Eatonton. Georgiav. United States, Bank 43Fed. (1999) C1.38 ........................................................................................................ Harbert/LummusA~ifuels Pr~s.v. UnitedlSt~es, 142 1429(Fed. 1998) F.3d Cir. ......................................................................................... Heimv. United St~ea, 50Fed. 225 C1. (2001) .................................................................................................... Hopland Band ofPomoIndians v. United St~es, 855 1573 Cir.1988) F.2d (Fed. ....................................................................................... JotmMuirMem. Hosp.,hac. v. United States, 221Ct. 843, CI. 845-46 .......................................................................................... (1979) Leev. UnitedStates, 33Fed. 374 CI. (1995) ...................................................................................................... Ma~inez UnitedStates, v. 48Fed. 851 C1. (2001) .................................................................................................... M~son Navigation Co. v. United St~es, 284U.S. 352(1932) .......................................................................................................... Nat'IMed. Enter.,Inc. v. UnitedSt~es, 28Fed. 540 C1. (1993) ...................................................................................................... Smithv. UnitedStates, 51Fed. 36(2001) C1. ........................................................................................................

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UnitedStates v. FaustQ, 484 439 U.S. (1988) .......................................................................................................... United States v. Mendoza, 464 154 U.S. (1984) ........................................................................................................ UnitedStates v. Testan, 424 392 U.S. (1976) ........................................................................................................

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DOCKETED CASES Southern District Ohio, C-2-99-282 of No. .................................................................................. 5

STATUTES 7 U.S.C. §6912(e) ................................................................................................................ 7 U.S.C. ............................................................................................................................. § 6991 7 U.S.C. ..................................................................................................................... § 6999 7 U.S.C. ............................................................................................................................. 87212 7 U.S.C. §7212(a)(2)(3)(A) and .................................................................................................. 16U.S.C. ........................................................................................................................... §3833 28U.S.C. ........................................................................................................................... §1491 28 U.S.C.2501 § ......................................................................................................................... 7C.F.R §704.3(a) ......................................................................................................................... 7C.F.R §704.11 ....................................................................................................................... (e) 7C.F.R. §780.6(a) ........................................................................................................................ 7C.F.R.780.15(c) § ...................................................................................................................... 7 C.F.R. §1412.105 ...................................................................................................................... 7 C.F.R.1412.303(c) § .................................................................................................................. -iii3, 4, 5 4 3, 4, 5 9 9 9 2 10 7 7 4 4 4 3

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IN THE UNITED STATESCOURT OF FEDERAL CLAIMS JEFFREY D. COTTRELL, Plaintiff,

THE UNITED STATES, Defendant.

) ) ) ) ) ) ) )
)

No. 05-990C (Chief Judge Damich)

DEFENDANT'SREPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTIONTO DISMISS In our December 2005 motionto dismiss, we established that this Court should 29, dismissplaintiff Jeffrey D. Cottrell's complaintfor lack of subject matter jurisdiction and/or for failure to state a claim uponwhichrelief can be ganted. Wedemonstrated that this Court lacks jurisdiction to entertain Mr. Cottrell's claim for damages arising out of the denial of an alleged 1996 Conservation Reserve Program("CRP")application because he was required to raise such claim before the National Appeals Division ("NAD") the United States Department of Agriculture ("USDA"), pursuant to the Federal Crop Insurance Reformand Department Agriculture Reorganization Act of 1994. Wealso demonstratedthat the Court lacks jurisdiction to entertain Mr. Cottrell's claim for damages arising out of denial of his 1989CRP application becausehe failed to allege or establish the elementsof an express or implied-in-fact contract with the Government upon which a claim for damages could be based. Finally, we established that his 1989CRP claimxvas barred by the statute of limitations and the doctrine of res j.udicata. In response to our motion, Mr. Cottrell argues that his complaintshould not be dismissed because: (1) this Court has jurisdiction to entertain a breachof contract claim, regardless statutory provisions directing certain appeals from USDA progamsto the NAD district mad

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courts, P1. Br. at 7;~ (2) the 1989CRP binding because USDA was officials allegedly appeared believe that a contract had beenformed,P1. Br. at 7-8; and (3) certain statutory provisions applicable to CRP contracts mandatethe paymentof damages this case. PI. Br. at 2-3. in As set forth belo~v, the Court should reject Mr. Cottrell's argmnents dismiss his mad complaintbecausenone of Mr. Cottrell's arguments establish this Court's jurisdiction pursuant to the TuckerAct, 28 U.S.C. § 1491, or state a claim uponwhichrelief can be granted. ARGUMENT I. This Court Lacks Jurisdiction To Entertain Mr. Cottrell's Claim Based UponAlleged Denial of PaymentsUponHis 1996 Production Flexibility Contract Because The NAD AndThe District Court Possess Exclusive Jurisdiction Over His Claim Mr. Cottrell concedesthat his complaintmisstated the facts by alleging that a CRP contract wasdenied in 1996. Pl. Br. at 3. As wenoted in our rnovillg brief, Mr.Cottrell did not file a CRP application in 1996.-' Rather, Mr. Cottrell submitted, and the CoshoctonCounty

~ "P1. Br. at __" refers to a.specific page in Plaintiffs MemorandumOppositiou To In Defendant's Motion To Dismiss AndPlaintiff's Motion To Allow A Supplemental Response FollowingDiscovery, filed in this Court on January 31, 2006. Citations to "Compl. __" refer to 4[ a specific paraN'aph plaintiffs complaint. "Def. App.__" refers to citations to the appendix of accompanying our movingbrief. To the extent that Mr. Cottrell's brief seeks discoveryin the fomaof depositions to address the jurisdictional issues raised in our moving brief, such discoveryis irrelevmat and unnecessarybecause the allegations as stated in the complaintand the documentary evidence providedin our appendixdemonstratethat Mr. Cottrell's claims fail to comewithin the limited jurisdiction of this Court. We will address Mr. Cottrell's request for discoveryin ~eater detail in the event that he properlyraises such a request in a motionto this Court stating the reasons supporting his request. '- Mr. Cottrell misstates the contents of our moving brief when asserts that we denied he the existence of a 1996ProductionFlexibility Contract. P1. Br. at 4. Manifestly, weasserted the existence of a ProductionFlexibility Contract, but denied receiving a 1996CRP application from Mr. Cottrell. Def. Br. at 6-7.

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Agricultural Stabilization and Conservation Service Committee("County Committee") approved, a Production Flexibility Contract ("PFC") in 1996. Def. App. 42-43; Compl.at Exh. D. Thus, Mr. Cottrell s all%at~on ~s actually that the USDA improperly denied paymentto him upo~~ 1996PFC.P1. Br. at 6. the However, Cottrell's attempt to establish jurisdiction by reformulatingthe allegations Mr. in his complaintfails. If Mr. Cottrell desired to appeal the paymentdecision madeby tbe County Committeeupon the 1996 PFC, his appeal should have been submitted to the NAD and, subsequently, to district court. Sere 7 U.S.C. § 6912(e); 7 U.S.C. § 6999. OnNovember 1997, 6, NancyCottrell was denied payment upon the 1996 PFCbecause ofau ongoing dispute regarding tbe ownershipof shares in the farmland at issue. Def. App. 42-45. The CountyCommittee's letter explainingits decision plainly states ttiat administrativeappealrights, includingappeal to the NAD, could be pursuedas a result of its decision. Id_~. at 44-45. OnSeptember 2001, the 17, County Committeeapproveda revised PFCfollowing the conclusion of legal proceedings involving the Stuller estate. Def. App. 47-52. OnJanuary 11, 2002, the CoshoctonCountyFama Service Agency("FSA")issued paymentsaccording to the share division provided in the revised PFC.Se__~e,e.~., Def. App.53-57; se_~eals~o 7 C.F.R.§ 1412.303(c) (2001)(providingthat CountyCommitteeshall approve the division of paymentwhen, amongother things, the "landowners, tenants and sharecroppers sign the contract and a~ee to the paymentsbares shown on the contract.") Mr. Cottrell concedesin his brief that he siNaed the revised PFCuponwhich final paymentswere made. P1. Br. at 6; Def. App. 51. Ho~vever,he does not state whetherhe pursued an administrative appeal of the FSA'spaymentdecision.

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This Court does not possess jnrisdiction to entertain a claim ansm~out ofFSAs paylnent decision upon Mr. Cottrell's 1996 PFCbecause such a claim must first be submitted to tbe NAD, and then appealed to the district courts, whichpossess exclusive jurisdiction to review NAD decisions. 7 U.S.C. 8§ 6912(e) and 6999; 7 C.F.R. § 780.6(a) (appeal procedures for covered programs administered by the FSAfor the Commodity Credit Corporation ("CCC"), are appealable to the NAD). regulations applicable to production flexibility contracts provide The that a "producer mayobtain reconsideration and review of any adverse determination madeunder this part in accordance with the appeal regulations foundat parts 11 and 780 of this title." 7 C.F.R. § 1412.105(2001).3 Therefore, this Court does not possess jurisdiction to entertain Mr. Cottrell's claim that paymentsmadeupon tlie 1996 PFCwere improper. As discussed in our movingbrief, the Federal Crop Insurance Refomland Departmentof Agricnlture Reorganization Act of 1994 (P.L. 103-354) ("1994 Reorganization Act") established the NAD adjndicate disputes arising from USDA to progams, effective October 13, 1994. Se_.~e 1994 ReorganizationAct § 271 et seq.; 7 U.S.C. § 6991et seq. Pursuant to 7 U.S.C. § 6912(e), Mr. Cottrell wasrequired to exhaust his administrative remediesby filing a claim with the NAD 4 beforefiling suit in Federalcourt. Becausethe district courts possess exclusive jurisdiction to review NAD decisions, Mr. Cottrell cannot bring a claim ill this Court tlaat could havebeeninitially broughtbefore the NAD. 3 Whether Cottrell satisfies the definition of a "producer"in order to avail himself of Mr. the appeals process is not relevant to the jurisdictional argument before the Court and, therefore, is not addressed this brief. in 4 Pursnant to 7 C.F.R. § 780.15(c), Mr. Cottrell has 30 days fromreceipt of ~vritten uotice of the a~encys adverse dec~smn file ml appeal of the a=encys detemamatmn. to Thns, it appears tbat Mr. Cottrell's administrative appeal maybe time barred. 4

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Congressexpressly provided that appeals of NAD determinations "shall be reviewable and enforceable" only in the district courts. 7 U.S.C. § 6999. If Congesshas madeavailable a remedy other than a suit in the Court of Federal Claimsand has explicitly or implicitly indicated that this remedy to be exclusive, suit in the Court of Federal Claimswill be precluded. Matson is NavigationCo. v. United States, 284 U.S. 352, 359-60(1932); see also UnitedStates v. Fausto, 484 U.S. 439, 452-53 (1988); John Muir Mem. Hosp.. Inc. v. United States, 221 Ct. C1. 843, 845-46(1979); Nat'l Med.Enter.. Inc. v. United States, 28 Fed. C1. 540, 545 (1993). Because Congress,in ganting the district courts exclusive jurisdiction to reviewand enforce NAD determinations,did not also expressly preserve this Court's jurisdiction to entertain these appeals, this Court mayno longer review NAD appeals. Nevertheless, Mr. Cottrell contends that 7 U.S.C. §§ 6912(e) and 6999 do not apply to his causeof action because, in a prior lawsuit brought in the UnitedStates District Court for the SouthernDistrict of Ohio, No. C-2-99-282,the court dismissed Mr. Cottrell's breach of contract claim uponthe basis that "a district court does not havejurisdiction wherea plaintiff is seeking money damages alleged breach of contract," and, thus, the claim must be brought in this for Court. P1. Br. at 7; See AttaclunentB at 9-14. Mr. Cottrell's contentionis incorrect. First, the district court's decision does not confer jurisdiction uponthis Court. Lee v. UnitedStates, 33 Fed. C1. 374, 380 (1995) ("[a]nother court's jurisdictional determinationcannot confer jurisdiction on this or any other court."); see also Farmers& Merchants Bankof Eatonton, Georgiav. UnitedStates, 43 Fed. CI. 38, 44 (1999) (the Court lacked jurisdiction to entertain plaintiff's claim for an alleged breach of contract becauseCongressdisplaced TuckerAct jurisdiction in favor of"administrative review in the [NAD] judicial reviewin a district and 5

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court."). Second,the district court's decision did not address Mr. Cottrell's claim for damages arising out of improper paymentsmadeupon the 1996 PFC.Rather, the district court dismissed Mr.Cottrell's claim arising out of the denial of his 1989CR~ application, s Thus, Mr. Cottrell's contentionthat the district court opinionhas any bearing uponthe jurisdiction of this Court to entertain Mr.Cottrell's PFC claim is incorrect. BecauseMr. Cottrell's claim must first be submitted to the NAD, becausethe district and courts possess exclusive jurisdiction to review NAD decisions, this Court does not possess jurisdiction to entertain Mr. Cottrell's claim arising out of alleged improperpaymentsmadeupon his 1996 PFC. II. This Court Lacks Jurisdiction To Entertain Mr. Cottrell's Claim Based UponDenial Of His 1989 CRP Application Because Mr. Cottrell Has Neither Alleged Nor Established The Elements Of An Express Or Implied Contract With The United States Mr. Cottrell's complaint alleges that lhe USDA improperly denied him enrollment in the 1989CRP after approvinghis application. Compl. 8. In his brief, Mr. Cottrell contendsthat, '~ although his 1989 CRP application wasnever si~m~ed,it became binding contract because Loran a Stutz, ExecutiveDirector of the CountyCommittee,placed a handwritten note in Mr. Cottrell's file stating, "it is OK the 10 yr at this time," and Mr.Cottrell obtainedan approved for conservation plan in accordancewith Mr. Stutz's August8, 1989letter. P1. Br. at 7-8; Def. App. 1, 15. Mr.Cottrell's contentionlacks merit becauseneither of these alleged facts establish an express or implied-in-fact contract with the Government. The CountyCommittee possessed delegated authority to approve or deny Mr. Cottrell's 5 Additionally, the district court dismissedMr. Cottrell's breach of contract claim upon txvo alternative gounds.Thedistrict court found that Mr.Cottrell's breach of contract claim arising out of denial of the 1989CRP application could also be dismissedfor failure to exhaust administrative remediesand uponthe basis ofres judicata. Attaclm~entB at 18-23. 6

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,~ ' CRP application. 7 C.F.R §§ 704.3(a) and 704.11(e) (1989). Mr. Cottrell 's su~gest~on that tbe submission of an approvedconservation plan operated to automatically create a binding CRP contract is incorrect. The appendixto the 1989CI~ application signed by Mr. Cottrell plainly states that the contract is not effective unless signed by "an authorizedrepresentative of CCC." Def. App. 13-14. The CRP application was never approved and signed by the County Committee.Def. App. 1, 17. Evenassumingtbat Mr. Stutz included a handwrittennote in Mr. Cottrell's file stating that the application is "OK the 10yr at this time," this note is properlyconstruedas an initial for assessment or recommendation, an attthorization of the CRP not contract. Moreover,the uote is dated August8, 1989, the sameday that Mr. Stutz sent a letter to Mr. Cottrell infomainghimthat be appearedto satisfy someof the eligibility criteria. Def. App.15. OnceMrs. Stuller was deceased, however,the application ceased to be acceptable and was not authorized by the County Committee.Def. App. 17-21. The lack of a sigued CRP contract, or any evidence that the CRP application was accepted by the CountyCommittee,demonstrates that there was no unambiguous offer and acceptance betweenMr. Cottrell and an authorized agent of the Government. Se__9.e Harbert/Lnmmus A~rifuels Prois. v. United States, 142 F.3d 1429, 1434 (Fed. Cir. 1998). Mr.Cottrell's reliance uponthe August8, 1989letter as evidenceof a binding contract is also misplaced. The letter plainly infomaedMr. Cottrell that the CountyCommittee must considerall of the eligibility criteria before approving signing the CRP and contract, stating that, "it has not yet been detemainedwhetherother CRP eligibility criteria have been met." Def. App. 15. Underthe temasof the contract, Mr. Cottrell's application constituted an irrevocable offer whichthe CountyCommittee could accept until 30 days after the end of the applicable signup 7

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period.6 Def. App.11. Mr. Stutz informedMr. Cottrell tbat, after the Soil ConservationService "has providedthis office with an approvedconservation plan...[p]ractices to be carried out under CRP be started at this time.., with the understand~n~tbat payanent will not be made may if the "[c]ontract is not approved the CountyCommittee. by" Id_~. Thus, the letter explainedthat approval of a conservation plan did not conStitute approval of the CRP contract. Mr. Cottrell alleges that, because"USDA officials believed that there wasa contract," a valid contract must have existed. P1. Br. at 8. Evenassumingthat any evidence exists to support tbis allegation, despite tbe amount correspondence of indicating that the USDA not, in fact, did believe a contract had been formed, it is irrelevant what USDA officials mayhave believed about the CRP application approval process. Ultimately, the four comersof the CRP application itself, as well as tbe applicable statutes and regnla~ions, determinewhethera binding contract was fomaed.Theonly relevant issue is ~vhether the CRP application ~vas approvedofficially by the Cmmty Committee pursuant to its delegated authority to bind the Government a CRP to contract. The evidence demonstrates that the County Committeenever approved such a contract. Def. App. I, 17-21. AlthoughMr. Cottrell mistakenly alleges that the CountyCommittee "voted not to makepaymentunder tbe contract," the facts demonstratethat the CountyCommittee,in fact, voted to table Mr. Cottrell's application. Pl Br. at 8; Def. App.17. Moreover,Mr. Cottrell concedesthat he "with[drew]his CRP application" whenhe applied to participate in the 1990 Wheatand Feed Grain program,thus suggesting that he formally rescinded his application prior to approval. P1. Br. at 9; Def. App.23-24. 6 Mr. Cottrell miscbaracterizesthis Contractualprovision in Iris brief by representing that "the farmercan accept the contract within the first 30 days." P1. Br. at 8. ha fact, the farmer's application is an irrevocable_ offer, and the CountyCommittee the right to accept the contract has ~vithin the first 30 days. Def. App.11. 8

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Accordingly,Mr. Cottrell has failed to establish the required elementsof an express or implied-in-fact contract with the USDA establish this Court's jurisdiction. to III. Mr. Cottrell Fails To Allege The Existence Of A Money-Mandating Statute UponWhich A Claim For DamagesCould Be Based Mr. Cottrell contendsthat this Court possesses jurisdiction to entertain his claims because 16 U.S.C. § 3833 and 7 U.S.C. §7212are money-mandating provisions of law entitling him to paymentunder the CRP prograna. P1. Br. at 2-3; See Smithv. United States, 51 Fed. CI. 36, 37 (2001). Mr.Cottrell's assertion is unavailingbecausethe statutes he relies uponto create jurisdiction only mandatepaylnent wherea CRP contract exists betweenthe claimant and the Government.Because Mr. Cottrell lacks a binding CRPcontract with the Govermnent,he may not avail himselfof these statutory provisionsto establish jurisdiction. Section 3833of title 16 provides tbat "fAin return for a contract entered into by an owner or operator.., the Secretary shall.., share the cost of carrying out the conservation measures.. ¯ [and] pay an annual rental payment.... '! 16 U.S.C. § 3833 (emphasis added). Thus, the Secretary is only obligated to makepayments an owneror operator upona valid contract. to Section 7212(a) of title 7 provides that, after August1, 1996, the Secretary shall ~ allow "an eligible owneror produceron a farna coveredb..y a conservationreserve contract" to enter into a production flexibility contract. 7 U.S.C. § 7212(a)(2) and (3)(A) (emphasis added)]

Mr. Cottrell wasnot coveredby a conservation reserve contract, this provision is not applicable to him. Mr. Cottrell does not point to any statutory provision whichmandatesthat the Government makepaymentto him npon his 1989 CRPapplication because he entered into a 7 Mr. Cottrell entered into his productionflexibility contract on July 3 I, 1996¯Compl. at Exhibit D. 9

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productionflexibility contract in 1996.In the absenceof a contract, neither of these statutes expressly mandatecompensationby the Government the damageallegedly sustained by Mr. for Cottrell. See United States v. Testan, 424 U.S. 392, 400 (1976) (quoting Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1009 (1967)). IV. Mr. Cottrell's Claim Arising Out Of His 1989 CRP Application Is Barred By The Statute Of Limitations Mr. Cottrell's claim arising fromhis 1989CRP applications is barred by the six-year statute of limitations set forth in 28 U.S.C. § 2501. Section 2501states that "[e]very claim of whichthe UnitedStates Court of Federal Claimshas jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues." 28 U.S.C. § 2501. To prove that his claim is not time barred, Mr. Cottrell must showthat his "claim first accrued within six years of the filing of the complaint." Martinezv. United States, 48 Fed. C1. 851,857 (2001) (emphasisadded). A claim first accrues "whenall the events which fix the government's alleged liability haveoccurred and the plaintiff wasor should have beenawareof their existence." HoplandBandof Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988). In the case of an alleged breach of contract, "a cause of action accrues whenthe breach occurs." Alder Terrace. Inc. v. United States, 161 F.3d 1372, 1377(Fed. Cir. 1998) (qnotation omitted). Mr. Cottrell's breach of contract claim is foundeduponhis allegation that the USDA improperly denied hime~a'ollment in the 1989 CRP despite the fact that his CRP application was automatically authorized uponapproval of his conservation plan. Compl.'~t~] 7, 8. Althoughthe CountyCommittee decided in 1989 not to enroll Mr. Cottrell in the CRP,Mr. Cottrell contends

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that his claim is not time barred becausehe"did not havekmowledge all the operative facts of relating to the approvaland submission his conservationplan until recently." PI. Br. at 10. of However, Cottrell stated in a signed affidavit that he learued in 1991that the conservation Mr. plan had beenapproved.AttactunentA 4[ 31 (Cottrell affidavit). To the extent that Mr. Cottrell argues that the statute of limitations accrued whenhe received informationregarding the approved conservationplan, Mr. Cottrell's affidavit states that this occurredin 1991. Mr.Cottrell further alleges that the statute of limitations did not accrue until his administrative appeals were exhaustedon April 22, 2004, citing to Exhibit Gof his complaintin ~vhich the USDA info1~nedMr. Cottrell, "[f]rom vour messa~-es,it appears that you have exhausted your administrative appeals with [USDA] related to your 1989 CRPcontract." Compl.at Exh. G (emphasisadded). However,the USDA's letter only states that administrative appeals had beenexhausted, not that they wereexhaustedas of the date of the letter. Indeed, there was no administrative appeals process pendingto conclude. Thefacts demonstratethat Mr. Cottrell's administrative appeals were exhausted on March3, 1991, whenthe USDA Deputy Administrator of State and County Operations denied his appeal of the County Committee's decision regarding his 1989CRP application, stating that ~'[t]his concludesthe administrative appeal rights afforded at 7 CFR Part 780." Def. App. 31. Given the plain evidence that Mr. Cottrell pursued and exhaustedhis administrative appeals in 1990-1991,Mr. Cottrell's assertion to the contrary mischaracterizesthe April 2004letter by suggesting that Mr. Cottrell exhausted his appealsuponits receipt. BecauseMr. Cottrell does not allege any improper actions by the USDA relevant to the denial of his 1989claim within the six years prior to filing his complaintin this Courton 11

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September 2005, this action is barred by the statute of limitations. Consequently, 13, this Court is without jurisdiction to entertain Mr. Cottrell's claim for damages his complaint. RCFC in 12(b)(1). V. Mr. Cottrell's Claim Based UponHis 1989 CRPApplication Is Barred By The Doctrine Of Res Judicata Pursuant to the doctrine ofres ~, once a litigant has had a full and fair opportunity to litigate a claim, a final judgment uponthe merits of that action precludesthe relitigation of issues that were or could have been raised in that action. UnitedStates v. Mendoza, U.S. 464 154, 171 (1984); Heimv. United State~, 50 Fed. CI. 225,233 (2001). As discussed in our moving brief, the elementsofres 2udicata are satisfied in this case. Mr. Cottrell's previous action in the UnitedStates District Court for the SouthernDistrict of Ohiosatisfies the requirementthat there mustbe a prior final judgmentuponthe merits. In 1990, the district court issued a decision dismissing Mr. Cottrell's claim uponhis motionfor summary judgment,finding that it "in order to gain enrollmentin the program [Mr. Cottrell] musthave unfettered control over the property for ten years .... Therefore, unless he can demonstratethe validity of the lease, his claim for instatement must fail." Def. App.40. Mr. Cottrell contends that the facts "establishing the existence" ofa CRP contract were not available in 1991. P1. Br. at 10. Ho~vever, Cottrell received copies of the approvedconservation plan, upon~vhich he Mr. appears to base his claim, during discovery in 1991. Attachment ¶¶ 31-32 (Cottrell affidavit, A dated February28, 2000). Althoughthe district court dismissed CountI of Mr. Cottrell's complainton November 1991, it continued to litigate his other claims and did not enter final 15, jud~nent until October 7, 1993. See Cottrell v. Yeutter_, 38 F.3d 1215, 1994 WL 560967*1 (6th

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Cir. 1994). Thus, Mr. Cottrell possessed mnpletime to submit his breach of contract theory to the district court, but opted not to. To the extent that Mr. Cottrell nowalleges a breach of contract, this claim could havebeenraised before the dist~ct court becauseall of the facts necessary to support Mr. Cottrell's breach of contract theory were madeavailable to himduring discoveryin that cause of action. Mr.Cottrell also alleges that res j.udicata does not apply becauseresolution of"estate and lease disputes did not occur until the year 2000." PI. Br. at 10. Mr. Cottrell does not explain howthis allegation is any wayrelevant to his breach of contract claim. Mr. Cottrell's breach theory relies upon the CountyCommittee'sdenial of paymentupon an alleged CRP contract. Accordingly, his claim accrued at the time he was madeaware of the CountyCommittee's decision. Thedisputes regarding the Stuller estate are irrelevant to the issue of~vhetberMr. Cottrell had an opportunityto litigate his breachof contract claimbefore the district court. Finally, Mr. Cottrell's assertion that res judicata cannot apply becausehis administrative appeals were not exhausteduntil 2004is factually incorrect. Mr. Cottrell's administrative appeals were exhausted on March3, 1991. Def. App. 319-31. Accordingly,Mr. Cottrell's 1989 claim is barred by the doctrine ofres~udicata and his claim should be dismissedfor failure to state a claim uponwhichrelief can be granted. CONCLUSION For the foregoingreasons, and for the reasons stated in our moving brief, we respectfully request that the Court grant defendant'smotionto dismiss for lack of subject matter jurisdiction and/or for failure to state a claim uponwhichrelief can be granted.

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

S/BRYANT G. SNEE BRYANTG. SNEE Assistant Director

Of Counsel: STEVEN G. REED Assistant Regional Attorney Office of General Counsel United States Departmentof Agriculture Columbus, OH43215

S/KELLY B. BLANK KELLY B. BLANK Attorney CommercialLitigation Branch Civil Division Departmentof Justice Attn: Classification Unit, 8th Floor 1100 L St., N.W. Washington, D.C. 20530 Tele: (202) 353-7961 Fax: (202) 353-7988 Attorneys for Defendant

February 17, 2006

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ATTACHMENT A

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IN THE UNITEDSTATF.~ DISTRICT COURT FOR ~ SOUTHERN DIb"TI~CT OF OHIO, EA..qTI~N DMSION

Plaintiff, Dan Glickman, SeczelaryU~ited of States Deparlzaen~ Agriculture, ~t al., of Defendants, AFFIDAVIT STATE OF OHIO )SS COUNTY OF KNOX

Case No. C2-99-282 Judge Graham Magistrate Judse Abel

OF ~ cOTrRELL

Nowcomes Jeffrey D. Cottrell,

hav/ng been duly cautioned and sworn, and states

that the following facts are true based on his personal knowledge. 1) Iamafarmer. On Dec~17,1986, I entered into a Cash Farm Lease with my

grandmother, Ludlle Stu~ler, whereby I leased 338 acres of farmland which she owned in Perry Township, Coshocton County, Ohio for a ten-year period, from lanuary 1, 1987 through December31,1996 2) Alsoon December 1986, entered 17, I intoa FarmLease withLucille Stuller,

C", ~.w~herebv I leased another 200+ acres of farmland which she owned in Perry L~...~ ~ow~'q~oshocton Colmty, Ohio for a twenty-year period, from January 1, 1987 "-~ ~ _.D:ecember 31, 2007.

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3) Each of the Cash Farm Lease and Farm Lease gave me a first

purchase option in

the event the leased farmlandwasoffered for sale or Lucille Stuller died. 4) OnJuly 17, 1989, Lucille Stxttler, as "owner" the leased farmland, and I, as lessee of and "operator" of the leased farmland, applied ~o enroll 450 acres of the leased land in the Conservation Reserve Program("CRP") for a period of ten years, from 1990 through 1999. A ~rue and cerrect copy of the CRP-1 application which was submitted to the Coshocton County Agriculture £fabilization Service ("ASCS") is attached as Exhibit A to this affidavit. contained, among other things, confidential financial information. 5) On August 8, 1989, I was informed by the Coshocton County, Ohio o~ce of the Agricultural Stabilization and Conservation Service ("ASCS")that myapplication for instatement in the Conservation Reserve Program would be accepted, subject to the farmland's being approved and deemed"eligible" by the Soft Conservation Service. A~ae and correc~ copy of that letter is attached at Exhibit B. 6) OnAugust31, 1989, the Soft Conservation Service determined that virtually all of the leased farmland was eligible for the CRP.A true and correct copy o£ the Soft Conservation Service report regarding such eligibility this affidavit. 7) OnSeptember4, 1989, Lucille Stuller died. OnSeptember5, 1989, James Stuller, whois Lucille Stuller's son and whoclaims to be an heir to the £armlandwhichshe owned, went to the Coshocton County ASCSand spoke with its Executive Director, Mr. Loren Stut~, about the Conservation Reserve Program. Mr. Stutz informed methat this conversation occurred. 8) As/llusO:ated F.x_hibit D attached to th/s affidavit, a Ietter fromDorothyLeslie of by the ASCS dated November 1989, stated that on September 5a, 1989, Jim Stuller 22, came to the ASCS office and informed them that Luc/lle Stuller had died and the r heirs wouldnot consent to enrollment o~ the land into the program. is attached as Exhibit C to and Conservation Myapplication

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9)

On September 6, 1989, the Coshocton County ASC5 h~ private, without notice met to meand without mybeing present, to consider the effect that Lucille Stuller's death might have on my application. I learned o~ this ~act ~roma memorandum which the Coshocton County ASCS sent to the Ohio ASCS September 25, 1989. on A true and correct copy of that memorandum attached as Exhibit_E is

10) On September 25, 1989, the Coshocton County ASCSwrote to the Ohio ASCSto get its opinion concerning.theeffect of Lucille Stuller's death on myapplication, as the memorandum attached as Exhlbit_E. reflects. 11) Subsequent to Lucille Stuller's death, the Coshocton County ASCS informed me heirs also

that the CRF-Iapplication would be denied unless Lucilie Stuller's attachedas Exhibit_F.to this affidavit.

signed the application. A true and correct copy of the letter so informing meis

12) On or about September 28,1989, the Coshocton County ASC~ and the Ohio ASCS also consulted with the Washington, D.C. ASCS get its opinion concerning the to effect of Lucille Stuller's death on myapplication. A true and correct copy of a memorandum dated September 28, 1989 from the Ohio ASC$to the Coshocton CountyASCS which reflects that consultation is attached as Exhibit G 13) Onor about November 19891 received a letter from the Ohio ASCS,a true and 22, correct copy of which is attached as Exhibit G. That letter indicates that ]ames Stx~llex went to the CoshoctonCountyASCS, reported Mrs. Stnller's death, claimed to be her heir apparent and stated that he wouldnot consent to entering into or continuing a CRP contract under the temps I had proposed. 14) Between November, 1989 and March, 1990, correspondence was exchanged and meetings were held regarding my application. 15) On March 29,1990, I was informed in writing by the Coshocton County ASCS that I was not eligible to participate in the Conservation Reserve Programunless the hei~ apparent to the farmland which Lucille.Stuller had ownedand which I leased signed myapplication. A true and correct copy of that letter is attached as Exhibit

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H__.The Coshocton CountyASCS's determinationconcerningmynoneligibility was reached after that agency consulted with the Ohio ASC$ Wastdngton,D.C. and ASCS they reached same and the opinion,as the letter as Exhibit_I reflects. After receiving the March 1990letter, I then requestedreconsiderationof the 29, Coshocton C.ov.ttty ASC$'s determinationconcemh-tg noneligib{lity. my After a reconsideration healing was held by the CoshoctonCountyASCS, was I informedby that agencyin writing on May 1990that it had again determined, 2, after again consulting with the Ohio ASCS Washington,D.C. ASCS being and and advisedby those offices of whataction to take, that I wasnot eligible to partidpate in the ConservationReserveProgram denied the CRP-1 and application becauseit hadnot beensignedby Lucille Stuller's halts. Atrue andcorrect copyof that letter is at~cheda~ Exhibit L

18) I appealed the Coahocton CountyASCS's denial of the CRP-Iappl~cation to the
OhioASCS to the UnitedStates ASCS, of whichaffirmedthe denial of the and both applicationbecauseit had not been signedby LudlleStuller's hetr& 19) I then filed an appeal with the Wash~gton, ASCS. D.C. 2O) I have never revealed to ]amesStuller or to any of the other heirs apparent of LuciIIe Stuffer the terms or contents of the application andfile materials whichI provided to the Coshocton County ASCS connection with myrequest for in instatement in the ConservationReserve Program.

21) I first discoveredthat there wasa problemwith mycontract with the ASCS I when
wentinto the SCS/ASCS office on Friday, September~, 1989. 8

~2) At that time I want to see TimHalt, whowas in charge of the SCSoffice and
responsible for approvingor disapprovingmyplen. Loren Stutz blocked myaccess toTim Halt and asked meabout the death of my grandmother refused to a~ow to see TimHalt whowasin the back parts of and me the office somewhere.

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24) Because I never saw TimHalt, t was not aware that the SCShad, in fact, approved myapplication and forwarded a plan on August 31", 1989. 25) Fo~Iowingthat m~edngI received the following correspondence discussed above and which is attached. 22 26) Shortly after the date of November ~, 1989, I received the letter attached as Exhibit D which is dated November 22, 1989, from Dorothy Leslie- That letter indicates that a condition of the contract is that the land meet CRP eligibility requirements, as_ a condition of the contract. Neither this letter or any other communications from the ASCSoffice ever indicated to me that the SCS had approved myplan and, in fact, all correspondence indicated that it was condition yet to be met. 27) Over the next six months I pursued my administrative appeals pursuant to the Administrative Procedure Act through the various levels of appeals provided by the Department of Agriculture. Throughout those appeals the question was always whether or not my contract would be instated by the ASCS.At no ~meis there anything in the records of this appeal nor was I informed that the SCShad already approved mycontract on August 31~, 1989. 28) In Augustof 1990, through counsel I filed a complaint against Secretary Yeutter for violation of the Privacy Act and for equitable relief ~)rdering the ASCS enroli me to in the 10-year plato 29) At the time of filing the complaint both I and my counsel were unaware that the SCSapproved the plan and madethe con0~ugent contract binding. 30) Reviewof that complaint will showthat no such allegation was madein the recital of facts in the Compl~ut. 31) Subsequent to the filing of the complaint, pursuant to discovery in 1991 my counsel obtained copies of the SCSapproval that had been filed with the ASCS on August 31, 1989.

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15, Lhiscourt dismissed claim equitable my for relief for 32) On November 1991, ins~a~ement into ~e pro~ u~n i~ o~ motion. 3~) ~e was no oppor~ ~ amend ~e compl~t for brea~ of con~a~ or for r~men~ ~ ~e ~ ~ opposed to ~ ~fi~ i~ment to ~g~ ~. ~) P~an~ ~ ~cov~ I requ~d a ~py of my relevan~ ~e ~ regard ~o ~e ~va~ Act da~. A renew o~ ~at ~e and in a deposition Loren o~ Exe~five Dkec~r ~ ~ ~sho~on Co~ A~, showed no re~r~s

35) ~. ~ Smm ~o stated ~ ~s depositionhe had o~y s~ken ~ S~ on~ ~ r~d to my ~e ~d ~at was on ~p~b~ 5,19~. 36) Subsequ~fly, ~ M~ 1~8, p~su~t ~o a requ~t for my ~e p~t Fr~om o~ ~on ~ I ob~ ~y d~ ~om ~e ~ ~a~ I had not ~ b~m. 37) ~ong ~ose do~en~ were a n~ber o~ h~d~iR~ notes by ~r~ ~ca~ an~ber o~ ~nv~ons ~bim ~) ~ ~ough ~, ~ ~bi~ ~ J~ S~ and ~ese ~e atoned as ~n~g a n~ of ~er~ doc~en~

~e do~ w~e not a~on.

~ ~e d~ produced

by ~c~ ~ ~e prior

39) ~ ~ose

doc~

~ a do~t

of h~d~t~n

no~s

a~ed

as ~bit

~di~g ~at ~ren Sm~ had a telephone conv~sa~on ~ ~im S~er A~t ~ 1989 ~ w~ Jim S~ ~d he wo~d sue ~e ~ ~ soon as my ~o~

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attached as Exhibit _O__ previously not disclosed, and 40) In addition, the document has the signatures of DuaneCottrell my~ather, and Vince Haldeman, uncle my indicat/ng that the ASCS, the SCS only disclosed my{tle to to my or not father and myuncle, but wereobtainingtheir approvalof that samefile.

Jeffrey Cot~ell

Sworn before meand subscribed in mypresence this Monday, ~o February28, 2000.