Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

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No. 05-990C (Chief Judge Damich)

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

THE UNITED STATES, Defendant.

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 Defendant

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

December29, 2005

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TABLE OF CONTENTS PAGE_CS] ISSUES PRESENTED ................................................................................................................... STATEMENT ................................................................................................... OF FACTS THE I. 1I. Plaintiff's CRP 1989 Application .......................................................................... Plaintiff'sAlleged CRP 1996 Application ............................................................ 1 2 3 6 7

ARGUMENT ................................................................................................................................ Standard Of ReviewFor Motions To Dismiss Pursuant To RCFC 12(b)(1) RCFC And 12(b)(6) ..................................................................... This Court Should Dismiss Mr. Cottrell's ComplaintFor Lack OfSubject Jurisdiction Matter ............................................................................... This Court LacksJurisdiction To Entertain Mr. Cottrell's Claim Based Upon Alleged Denial Of His 1996 CRP Application Because The NAD The District Court And Possess Exclusive Jurisdiction Over Claims Arising Out Of CRP Eligibility Decisions ........................................................................ This Court LacksJurisdiction To Entertain Mr. Cottrell's Claim Based UponDenial Of His t 989 CRPApplication BecauseMr. Cottrell Has Neither Alleged Nor Established The Elements Of An Express Or Implied Contract With The United States, AndHas Not Alleged A Money-Mandating Provision ..................................................................................... Of Law Mr. Cottrell's Claim Based UponDenial Of His 1989 CRP Application Barred the StatuteOfLimitations Is By ............................... Mr. Cottrell's Claim Based UponHis 1989 CRP Application Is Barred By Doctrine Judicata The OfRes ........................................................................ CONCLUSION ............................................................................................................................

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TABLE OF AUTHORITIES FEDERAL CASES PAGE(S~ Ace Propertv&Casualtvlns. Co.v. United St~es, 60Fed. 175 C1. (2004) .................................................................................................... Achenbachv. United St~es, 56Fed. C1.776 ...................................................................................................... (2003) Atlas Corp. v. UnitedStates, 15C1. 681 Ct. (1988) ....................................................................................................... Boylev. UnitedStates, 200 1369(Fed. 2000) F.3d Cir. ......................................................................................... BrightonViltageAssociates v. UnitedSt~es, 52F.3d (Fed. 1995) 1056 Cir. ......................................................................................... City ofCincinnafi v. UnitedStates, 153 1375 Cir.1998) F.3d (Fed. ....................................................................................... Cit~ofE1Centrov. United States, 922 816(Fed. 1990) F.2d Cir. ......................................................................................... Conlev v. Gibson, 355 41(1957) U.S. ........................................................................................................ Cottretlv. Yeutte~, 38F.3d1215, 1994WL (6th Cir. 1994) 560967 .................................................. CubicDeESys. Inc. v. United States, 45Fed. 239 C1. (1999) ...................................................................................................... Davis v. MonroeCountv Bd. ofEduc., 526U.S. (1999) 629 .......................................................................................................... DvnalectronCorp. v. United States, 4 CI.Ct. 424,affd, 758 665(Fed. 1984) F.2d Cir. ............................................................ Farmers&Merchants BaN~ofE~onton. Georgia v. United St~es, 43Fed. 38(1999) C1. .......................................................................................... -ii-

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GrassValley Terrace UnitedStates, v. 2005 3497799 21,2005) WL (Dec. ................................................................................ Harbert/Lummus A~faels Prois. v. United States, t42F.3d (Fed. 1998) 1429 Cir. ....................................................................................... Heim UnitedStates, v. 50Fed. 225 C1. (2001) .................................................................................................... Herrmann Cencom v. Cable Assocs.. Inc., 999 223 Cir.1993) F.2d (7th ........................................................................................... Hevdtv. UnitedStates, 38Fed. C1.286 .............................................................................................. (1997) Hopland Bandof Pomo Indians v. United States, 855 1573 Cir.1988) F.2d (Fed. ....................................................................................... Indium Corp. of Am.v. Semi-Alloys. Inc., 781F.2d879(Fed.Cir. 1985),cert. denied_, U.S.820(1986)................................... 479 Jet, Inc. v. Sewage AerationSystems, 223 1360 Cir.2000) F.3d (Fed. ................................................................................. JolmMuirMem. Hosp., Inc. v. UnitedStates, 221 C1. (1979) Ct. 843 ..................................................................................................... Maniere UnitedStates, v. 31Fed. 410 C1. (1994) ...................................................................................................... Martinez UnitedStates, v. 48Fed. 851 C1. (2001) .................................................................................................... Matson NavigationCo. v. UnitedStates, 284 352 U.S. (1932) ........................................................................................................ Milasv. UnitedStates, 42Fed. 704 C1. (1999) ................................................................................................ Nat'l Med. Enter., Inc. v. United States, 28Fed. 540 Ct. (1993) ....................................................................................................

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Noel v. UnitedStates, 16C1. 166 Ct. (1999) ....................................................................................................... Reynolds v. Army Air Force Exch. Serv., & 846 746 Cir.1988) F.2d (Fed. ........................................................................................... Scheuerv. Rhodes, 416 232(1974) U.S. .......................................................................................................... Smith v. United St~es, 51Fed. (2001) C1.36 ................................................................................................ Sommers Co. v. United States, Oil 241 1375 Cir.2001) F.3d (Fed. ......................................................................................... Sunshine Antt~acite Coal Co.v. Adkins, 310 381(1940) U.S. ........................................................................................................ TownofFloydv. United St~es, 34Fed. 170 C1. (1995) .................................................................................................... UnitedStates v. Fausto, 484U.S. (1988) 439 ........................................................................................................ UnitedStates v. King, 395 1 (1969) U.S. .............................................................................................................. United St~es v. MendozG 464U.S. 154(1984) ........................................................................................................ UnitedStates v. Mitchell, 445U.S. (1980) 535 .......................................................................................................... United States v. Sherwood, 312 584 U.S. (1941) .......................................................................................................... UnitedStates v. Testan, 424 392 U.S. (1976) .......................................................................................................... United Technologies Corp. v. Clwomaltov Turbine Corp., Gas 189 1338 Cir.t999) F.3d (Fed. .......................................................................................

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STATUTES

7 U.S.C. §6912(e) ...................................................................................................................... 7 U.S.C. et se~l §86991 ............................................................................................................... 7 U.S.C. ..................................................................................................................... 8 6999 16U.S.C.3830, seo 8 et ................................................................................................................ 16U.S.C. 3831(a), .......................................................................................................... 88 3832 16U.S.C3831(e) 8 ................................................................................................................ 16U.S.C. 3833, ............................................................................................................... 88 3834 28U.S.C.1491(a)(1) 8 .................................................................................................................. 28U.S.C. ......................................................................................................................... 82501 7C.F.R.704.3(a)(1989) 8 ....................................................................................................... 7C.F.R.704.3(b)(1989) 8 ............................................................................................... 7C.F.R.704.6(a)(1989) 8 ............................................................................................................ 7C.F.R.704.9(1989) 8 ................................................................................................................. 7C.F.R.704.11(e)(1989) 8 ..................................................................................................... 7C.F.R. 8780.6(c) ...................................................................................................................... 7C.F.R.780.15(c) 8 .................................................................................................................... 7C.F.R 81410.59 .......................................................................................................................

11 11 11,12 2 3 2 3 9 16 4, 15 3, 4, 5, t5 3 3 4, 15 11 11 11

MISCELLANEOUS H.R. No. Rep. 103-714(1994) .................................................................................................... 11

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INDEX TO APPENDIX Item CRP Application, dated July 17, 1989 Letter to Jeffrey Cottrell fromLoranStutz, dated August8, 1989 Conservation Plan, dated September5, 1989 Minutes of Coshocton County Committee, dated September 6, 1989 Letter to Jeffrey Cottrell from CountyCommittee,dated October4, 1989 Letter to Jeffrey Cottrell from LoranStutz, dated November 1989 14, Letter to Jeffrey Cottrell from DorothyLeslie, dated November 1989 22, 1990 Price Support and Production Adjustment Pro~amsContract, dated April 11, 1990 CRPWithdrawalLetter, dated March15, 1990 Letter to BruceMalek, attorney, from LoranStutz, dated March29, 1990 Letter to Curt Zimmasky, attorney, from Loran Stutz, dated May2, 1990 Letter to GradyPetti~ew, Jr., attorney, from DorothyLeslie, dated July 19, 1990 Letter to Williana Adams,attorney, from Thomas Vongarlem, dated March3, 1991 Opinionand Order of the UnitedStates District Court, dated November 15, 1991 Minutes of Coshocton County Comanittee, dated November 1997 5, Letter to NancyCottrell from Michael Jacob, dated November 1997 6, Table ofCRPSiNaup Periods, dated May1, 2003 Production Flexibility Contract, dated September17, 2001 Pa_gg~ 1 15 16 17 18 19 20

22 23 25 26

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32 42 44 46 47

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Memorandum the County Committeefrom State Executive Director, to dated January 9, 2002 Excerpts from PaymentRecords, dated January 11, 2002

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS JEFFREY D. COTTRELL, Plaintiff, No. 05-990C (Chief Judge Damich) THE UNITED STATES, Defendant. DEFENDANT'S MOTIONTO DISMISS Pursuantto Rule 12(b)(1) and, alternately, Rule 12(b)(6) of the Rules of the United Court of Federal Claims("RCFC"), defendant, the United States, respectfidly requests that the Courtdismiss the complaintof plaintiff, Jeffrey D. Cottrell, for lack of subject matter jurisdiction and/or for failure to state a claim uponwhichrelief can be ganted, h~ support of this motion, we rely uponthe complaiut, the following brief, and the appendixaccompanying brief] this DEFENDANT'S BRIEF ISS~S 1. PRESENTED

Whether this Court possessesjurisdiction to entertain plaintiff's claim for

damages arising out of defendant'salleged denial of plaintiff's 1996application to enroll in the Conservation Reserve Program("CRP"), where Mr. Cottrell was required to raise such claims before the National Appeals Division ("NAD") the United States Departmentof Agriculture of ("USDA") pursuant to the Federal Crop Insurance Reforn~ and Departmentof Agriculture Reorganization Act of 1994.

~ Citations to "Compl. ']I" refer to a specific para~aph plaintiffs complaint."Def. of App.__" refers to citations to the appendixaccompanying brief. this

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2.

Whetherthis Court should dismiss plaintiff's claim for damages,based upon the

USDA's decision to deny Mr. Cottrell's 1989application to enroll in the ConservationReserve Program,for lack of subject matter jurisdiction becausethe complaintfails to allege or establish the existence of an express or implied-in-fact contract betweenMr. Cottrell and the United States. 3. Whether this Court possesses jnrisdiction to entertain a claim filed morethan six

years after plaintiffwas informedof an adverse determinationthat he nowchallenges. 4. Whether plaintiffs claim arising out of the denial of his 1989CRP application is

barred by tbe doctrine ofres judicata becausethe UnitedStates District Court for the Southern District of Ohiopreviously decided Mr. Cottrell's claims uponthe merits. STATEMENT TI-IE FACTS OF OnSeptember 2005, Mr. Cottrell filed his complaintwith this Court. Mr. Cottrell's 13, complaint alleges that the USDA improperly denied him enrollment in the 1989 CRPafter approvinghis application. Compl.~ 8. Mr. Cottrell further alleges that the USDA improperly denied him enrollment and/or witN~eld paymentupon an approved 1996 CRPcontract. Compl. ¶7 11-12, 17. ha his complaint,Mr. Cottrell fails to allege either a breachof an express or implied-in-fact contract, or a money-mandating statute or regulation entitling himto compensation. This complaintconcernsMr. Cottrell's alleged efforts to enroll certain farmacreage in the CRP 1989and 1996. Se_~e16 U.S.C. § 3830, et se_~q. Pursuant to 16 U.S.C. in § 3831(e), the USDA authorized to enter into rental contracts with the ownersor operators is eligible farmland. Underthis program,the owneror operator of the farmland must agree to 2

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refrain from planting crops uponthe land and must establish appropriate vegetative cover to conserve and improvesoil and water resources. 16 U.S.C. §§ 383 l(a), 3832. In exchange, the USDA shares the cost of conservation measuresand makesan annual rental paymentto compensate owneror operator for the conversionof the cropland to a less intensive use. 16 the U.S.C. §§ 3833, 3834. Underthe applicable regulations, a CRP contract had to include a conservation plan approvedby the Soil ConservationService.'- Se__qe7 C.F.R. §§ 704.3(b) and 704.9 (1989). In addition, a party to a CRP contract whois not an ownerof the famalandat issue mustprovide assuranceof control of the land for the duration of the period of the contract. Def. App.4; 7 C.F.R. § 704.6(a) (1989). I. Plaintiff's 1989 CRP Application OnJuly 17, 1989, Mr. Cottrell and his grandmother,Lucille Stuller, ownerof the farmlandat that time, submitted a FomaCRP-1,or application to participate in the CRP program for a ten-year period from January 1, 1990, through December 1999. Compl.']l 4; Def. App. 31, 1-I4. OnAugust8, 1989, Loran F. Stutz, Executive Director of the CoshoctonCounty, Ohio Agricultural Stabilization and Conservation Service ("ASCS")Committee("County Committee"),notified Mr. Cottrell that his "bid under the 1990[CRP]is within the Maximum Acceptable Rental Rate established by the [USDA] this bid pool. ''3 Def. App. 15. However, for Mr. Stutz informedMr. Cottrell that "it has not yet been determinedwhetherother CRP eligibility criteria havebeenmet." Id_~. Under temasof the contract, Mr.Cottrell's application the 2 The former Soil Conservation Service is nowcalled the Natural ResourceConservation Service ("NRCS'). 3 The former Agricultural Stabilization and ConservationService is nowcalled the Farm Service Agency("FSA'). 3

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constituted an irrevocable offer whichthe CountyColmnitteecould accept until 30 days after the end of the applicable signup period. Def. App.11. Accordingly, Mr. Cottrell wasinformed that the CountyCommittee to accept his request to participate in the CRP September1, 1989. had by Def. App. 15. If the CountyCommittee failed to do so, Mr. Cottrell could withdrawor modify his application, or simplyleave his bid "on file." Id_._~. TheCountyCommittee possessed delegated authority to approve or deny CRP applications. 7 C.F.R§§ 704.3(a) and 704.1 l(e) (t989). OnSeptember4, 1989, Mrs. Stuller died and, subsequently, her estate wasadmitted to probate. Def. App.33. OnSeptember5, 1989, TinmthyHalt, District Couservationist for the Soil ConservationService, signed and dated an approvedconservation plan in support of Mr. Cottrell's CRPapplication. Def. App. 16. On September6, 1989, the County Committee determinedto hold Mr. Cottrell's CRP application until additional information wasreceived regarding Lucille Stuller's estate. Def. App.17. OnOctober 4, 1989, Mr. Cottrell met with the CountyCommittee discuss its decision to to table his CRP application. Def. App. t8. After the meeting, the CountyCommittee requested copies of the farmland leases and Lucille Stuller's will. Id~ OnNovember 1989, after 14, consideration of all relevant documents,inclnding review by the USDA Office of the General Counsel,Mr. Stutz informedMr. Cottrell by letter that, in order to accept his CRP application, it wouldbe necessaryto obtain the signatures of the executorsof Lucille Stuller's estate as well as the signature of every heir whowouldacquire an interest in the land pursuant to Mrs. Stuller's will. Def. App. 19. OnNovember 1989, Dorothy L. Leslie, ASCS 22, State Executive Director, informedMr. Cottrell that in order to accept his CRP application, he must demonstratelegal 4

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control of the land offered for the life of the contract. Def. App.20-21. OnMarch15, 1990, Mr. Cottrell applied to participate in the 1990 Wheatand Feed Grain program. Def. App. 22.4 Accordingly, on March15, 1990, Mr. Cottrell voluntarily withdrewbis CRP application in writing, stating, "I ca~motsign into the 0/92 [1990 Wheatand Feed Grain] programand continue on with myapplication with the 10 CRP according to Mr. Stutz. Due to the time of year and appeal process [,] I anl forced into signing into the 0/92 for the 1990crop year." Def. App. 23-24. OnApril 11, 1990, the CountyCommitteeapproved Mr. Cottrell's application to participate in the 1990Wheatand Feed Grain progranl. Def. App.22. OnMarch 1990, Mr.Stutz sent a letter to Mr.Cottrelt's attorney reiterating that Mr. 29, Cottrell's CRP wouldnot be accepted without the additional signatures of individuals bid identified ill Mrs. Stuller's estate as possible heirs. Def. App.25. OnApril 25, 1990, the County Committeeconducted a recons~deratmn heann~, upon Mr. Cottrell s CRPapphcatmn. Def. App. 26. OnMay2, 1990, Mr. Stutz infomled Mr. Cottrell's attorney by letter that the County Committee denied Mr. Cottrell's CRP application. Id_~. Mr. Cottrell appealed the County Committeedecision to the ASCS Ohio State Committee and, following a heariug at wbichMr. Cottrell wasrepresented by counsel, on July 19, 1990, the State Committee denied the appeal. Def. App. 27-28. Subsequently, Mr. Cottretl appealed the County Committee'sdetermination to the USDA Deputy Administrator, State and County Operations. Def. App. 29-31. On March3, 1991, following a telephonic hearing, the USDA deniedthe appeal. Id_~. 4 Theapplication is entitled "Contract to Participate in the 1990Price Supportand Prodnction AdjustmentProgranas." Def, App. 22. Underthis program, farmers enter into a~mual contracts with the USDA agree to limit acreage for certain crops for conservation purposes. and

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OnAugust15, 1990, Mr. Cottrell filed a complaintin tbe United States Dist~ct Court for the SouthernDistrict of Ohioagainst several parties including ClaytonYeutter, then-Secretary of Agriculture. Se__~e Case No. 90-609; Def. App.32-33. In his complaint, Mr. Cottrell alleged that the USDA's denial of his CRP application was arbitrary and capricious, and requested equitable relief directing the Secretary to enroll his farmlandin the CRP well as monetarydamages as from the members the CountyCommitteeand the Stuller heirs whowould not agree to the CRP of contract. Se__~e Cottrelt v. Yeutter, 38 F.3d 1215, 1994WL 560967 (6th Cir. 1994). *2 November 1991, the district conrt granted sunm~ary 15, judgmentto defendant, finding that the USDA acted properly in denying Mr. Cottrell's CRPapplication. Def. App. 40-41. OnOctober 11, 1994, the UnitedStates Conrt of Appealsfor the Sixth Circuit affirmed the district court's decision, stating that the "evidentiary material of record amply supports the district conrt's decision. Neither the statutes codifying the [CRP]...nor the regulations promulgated to administer the program.., confer an absolute right upon an individual to have his CRP application approved." Cottre 1994 WL 560967at *3. Accordingly, the district court's

opinion "represents the reasonable view, supportedby the record, that Cottrell does not appear to be a personeli~ble to participate in the CRP defiued.'" Id_=. at *4. as 1i. Plaintiff's Alleged t996 CRP Application Mr. Cottrell alleges that he applied to FSA enroll his farmlandin the CRP 1996. to in Compl. 'I110. However, application attached to Mr. Cottrell's complaintis, in fact, a Form the CCC-478 application for a Production Flexiblity Contract ("PFC"), dated July 12, 1996. Compl. at Exh. D. On July 31, 1996, the FSACounty Committeeapproved the PFCsubmitted by Mr. Cottrell for enrolhneut, but not for payment to the ongoingdispute betweenthe heirs to the due 6

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Stuller estate. Def. App. 42-45; Compl.at Exh. E. The CountyCommittee not approve a did CRP contract, as alleged by Mr. Cottrell in his complaint. Compl. 11. '~I Defendanthas no record of any CRP application filed by Mr. Cottrell for progmnyear 1996. The CRPsignup period during which owners or operators were required to apply for CRP enrollment for the year 1996 was from September11, 1995, through September22, 1995. Def. App. 46 ~SAHandbook 2-CRP(Rev. 4), Amend.1, Exhibit 15). Defendant has no record Mr. Cottrell submitting a CRP application during this time. OnSeptember 17, 2001, the County Committeeapproved a revised PFCfor the 1996 crop year followingthe conclusionof legal proceedingsinvolving the Stuller estate. Def. App. 47-52. On January 11, 2002, the CoshoctonCounty FSAissued paymentsaccording to the share division provided in the revised PFC,filed on September17, 2001. See, e.~., Def. App.53-57. Mr. Cottrell seeks recovery from the United States in the mnount $328,296.50for of damages arising out of denial of his 1989 CRP application, and $221,571.00for damages arising out of the alleged denial of his 1996CRP application. Compl. '~['~l 8-9, 17. ARGUMENT I. Standard of ReviewFor Motions To Dismiss Pursuant To RCFC 12(b)(1) and 12(b)(6) In general, the Court should not gant a motionto dismiss "unless it appears beyonddoubt that the plaintiffcan prove no set of facts in support of his claim whicbwouldentitle himto relief." Coulevv. Gibson, 355 U.S. 41, 45-46 (1957). Subject matter jurisdiction, however,may be cballengedby tbe parties or raised by the Court at any time, and, if jurisdiction is foundto be lacking, the Court must dismiss the action. Sere RCFC 12(h)(3).

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In evaluating a motionto dismiss for lack of subject matter jurisdiction, the Court must presume undisputedfactual allegations to be tree and constrae all reasonableinferences in all favor of the plaintiff. Scheuerv. Rhodes, 416 U.S. 232, 236-37 (1974); Reynoldsv. Army Air &

Force Exch.Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). Notwithstanding this general rule, it well settled that wherethe movant challengesspecific jurisdictional facts set forth in the complaint, the Court mayconsider all relevant evidence(including matters not raised in the pleadings) and makeany factual findings necessary to resolve the issue of jurisdiction. See, IndiumCorp. of Am.v. Semi-Alloys,Inc., 781 F.2d 879, 884 (Fed. Cir. t985), cert. denied, 479 U.S. 820 (1986); Manierev. United State~, 31 Fed. C1. 410, 413 (1994). Wherethe underlying jurisdictional facts are challenged,plaintiff bears the burdenof establishing the Court's jurisdiction by a preponderance the evidence. See, e_~., CubicDef. Sys. Inc. v. UnitedStates, of 45 Fed. C1. 239, 245 (1999). RCFC 12(b)(6) provides that the Court should dismiss claims ~vhen, in view of the record presented, "it appearsbeyond doubt that the plaintiff can prove no set of facts in support of his [or her] claim which wouldentitle him to relief." Conlev, 355 U.S. at 45-46. Pursuant to RCFC 12(b)(6), the Court must accept as tree the facts alleged in the complaint, Davis v. Monroe CountyBd. of Educ., 526 U.S. 629, 633 (1999), and must construe all reasonable inferences favor of the non-movant.Sommers Co. v. United States, 241 F.3d 1375, 1378 (Fed. Cir. Oil 2001). The Court must, however, grant the motion"whenthe facts asserted by the plaintiffdo not entitle himto a legal remedy."Boylev. United States, 200 F.3d 1369, 1372(Fed. Cir. 2000).

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II.

This Court Should Dismiss Mr. Cottrell's ComplaintFor Lack Of Subiect Matter Jurisdiction TheUnited States Court of Federal Claimsis a court of limited jurisdiction. Dvnalectron

Corp. v. UnitedStates, 4 C1. Ct. 424, 428, affd, 758 F.2d 665 (Fed. Cir. 1984). Its jurisdiction entertain a suit and to grant relief dependsupon, and is circumscribed the extent to whichthe by, United States has waivedits sovereign inmaunity. United States v. Testan, 424 U.S. 392, 399 (1976); United States v. Sherwood,312 U.S. 584, 586 (1941). A waiver of sovereig-n immunity offlae United States ceamotbe implied, but must be unequivocallyexpressed by Congress. Testan, 424 U.S. at 399; United States v. King, 395 U.S. I, 4 (1969). Absentcongressional consentto entertain a claim against the UnitedStates, the Court of Federal Claimslacks authority to grant relief. Testa_n, 424 U.S. at 399; Sherwood, U.S. at 586. 312 Pursuant to the TuckerAct, the Court of Federal Claimspossesses jurisdiction to render jud~mnentuponany monetaryclaim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an Executivedepartment, or upon any express or implied-in-fact contract with the UnitedStates, or for liquidated or unliquidated damagesin cases not sounding in tort. 28 U.S.C. § 1491(a)(1). However,the Tucker Act itself does not create a substantive right enforceableagainst flae UnitedStates for monetary damages.See United States v. Mitchell, 445 U.S. 535, 538 (1980); Achenbach United States, v. 56 Fed. C1. 776, 777 n.1 (2003); Milas v. United States, 42 Fed. C1. 704, 710 (1999). For a plaintiff to invokethis Court's limited jurisdiction, he mustallege an express or implied-in-fact contract with the UnitedStates or '"state a claim basedon one of the specific constitutional provisions, federal laws, or federal regulations that mandatepaymentof money damages.'"

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Smithv. UnitedStates, 51 Fed. C1. 36, 37 (2001) (quoting Noelv. UnitedStates, 16 CI. Ct. 166, 169(1999));Mila___~s, Fed. C1.at 710. 42 This Court Lacks Jurisdiction To Entertain Mr. Cottrell's Claim Based Upon Alleged Denial Of His 1996 CRPApplication Because The NAg)And The District Court Possess Exclusive Jurisdiction Over Claims Arising Out Of CRP Eligibility Decisions In his complaint, Mr. Cottrelt alleges that the USDA "wrongfully denied" him enrollment in the CRP 1996. Compl.¶¶ 12, 17. Even assumingthat Mr. Cottrelt submitted a CRP in application in 1996, this Court does not possess jurisdiction to entertain his claim for damages based upondenial of such an application. Beforeaddressingthe jurisdictional issue, it is si~fificant that the USDA no record of has Mr. Cottrell applying to participate in the CRP 1996. Theexhibit attached to Mr. Cottrell's in complaintthat he alleges is a CRP application is actually a 1996ProductionFlexibility Contract. Compl.at Exh. D. Moreover,although Mr. Cottrell's complaint alleges that the County Committeeapproved his 1996 CRPapplication, the County Committee's minutes demonstrate that Mr. Cottrell's PFCwas approvedfor enrollment, not a CRP contract. 5 Compl.at Exh. E. Thus, becausethere is no record of a t 996 CRP application submitted by Mr. Cottrell, it is not possible for the USDA deny such an application, as Mr. Cottrell alleges in his complaint. to Compl.~ 17. s Despitethe plain languageof the allegations containedin his complaint,if Mr. Cottrell is actually alleging that the USDA improperly denied paymentupon the 1996 PFC, Mr. Cottrell was denied paymentupon the 1996 PFCbecause of an ongoing dispute regarding the ownership of shares in the farmland at issue. Def. App. 42-45. The CountyCommittee's letter explaining its decision plainly states that administrative appeal rights, including appeal to the NAD, could be pursuedas a result of its decision. Ida. at 44-45.In 2002,at the conclusionof the litigation involving the Stuller estate, paymentwas madeuponthe 1996 PFCaccording to the division of shares. Def. App. 53-57. 10

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Evenassumingthat Mr. Cottrell's CRP application were denied in 1996, this Court does not possess jnnsdlctlon to entertain a clmmansm~out ofUSDA alleged denial because s Congaess expressly providedthat all claims related to the CRP must first be submittedto the NAD, then appealedto the district courts, whichpossess exclusive jurisdiction to review and NAD decisions. Se__~e7 U.S.C. §8 6912(e) and 6999; 7 C.F.R§ 1410.59; 7 C.F.R. § 780.6(c) (appeal procedures for prograns under Title XII of the FoodSecurity Act of 1985, which includes the CRP,are appealable to tbe NAD). Therefore, this Court does not possess jurisdiction to entertain Mr. Cottrelt's 1996CRP claim. The Federal Crop Insurance Refomaand Department of A~culture Reorganization Act of 1994 (P.L. 103-354) ("1994 Reorganization Act") established the NAD adjudicate disputes to arising from USDA proganas, effective October 13, 1994. Se__~e1994 Reorganization Act § 27t et seq.; 7 U.S.C. § 6991et seq. Pursuant to 7 U.S.C. § 6912(e), Mr. Cottrell wasrequired exhaust his administrative remediesby filing a claim witb the NAD before filing suit in Federal court. 6 Claims arising out ofUSDA progranas and activities which are appealable to the NAD include, "[e]ligibility detemainationsfor participation in the [CRP]." Farmers& Merchants Bank

of Eatonton, Georgiav. United States, 43 Fed. C1. 38, 41 (1999) (quoting H.R. Rep. No. 103-714 (1994)). Becausethe district courts possess exclusive jurisdiction to review NAD decisions, Mr. Cottrell cmmot bring a claim in this Court that could have been initially brought before the NAD. Pursuant to section 279 of the 1994Reorganization Act, Congressexpressly provided that appeals of NAD determinations shall be reviewedand enforced exclusively by the district courts. 6 Pursuant to 7 C.F.R. § 780.15(c), Mr. Cottrelt has 30 days from receipt of written notice of the agency'sadverse decision to file an appeal of the agency'sdetemaination. 11

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1994ReorganizationAct § 279. This provision was later codified at section 6999of title 7, UnitedStates Code,and specifically states that: A final determination of the [NAD] shall be reviewable and enforceable by any United States district court of competent jnrisdiction in accordance with chapter 7 of Title 5. 7 U.S.C. § 6999. The United States Snpreme Court has stated that if Congresshas madeavailable a remedy other than a suit in the Court of FederalClaimsand has explicitly or implicitly indicated that this remedyis to be exclusive, suit in the Court of Federal Claimswilt be precluded. Matson NavigationCo. v United States, 284 U.S. 352, 359-60(1932); see also United States v. Faustq, 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 State6, 28 Fed. C1. 540, 545 (1993). Congress has explicitly stated that appeals of NAD determinations "shall be reviewable and enforceable" only in the district courts. 7 U.S.C.§ 6999. Congress not preserve this Court's jurisdiction to did entertain NAD appeals. BecauseCongress,in granting the district courts exclusive jurisdiction to review and enforce NAD detemainations, did not also expressly preserve this Court's jurisdiction to entertain these appeals, this Court mayno longer reviewNAD appeals. Id_=. In Famaers& MerchantsBankof Eatonton, Georgia v. United States, 43 Fed. C1. 38 (1999), this Court considered a claim for an alleged breach of contract by FSAarising from its refusal to guaranteea loan issued by the plaintiff. Id_~. at 38. TheCourtheld that "[t]he text and legislative history of the 1994ReorganizationAct demonstrate.., that the district courts are intendedas the exclusive recoursefor a plaintiff dissatisfied with the ontcome the relevant of mandatoryappeals process." Ida. at 43. The Court further stated that "Congressempowered the 12

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NAD with exclusive authority to adjudicate disputes arising fiom USDA programs... NAD adjudication is determinativeof the rights in issue and is bindinguponthe parties unless reviewedand reversed by the designated court of competent jurisdiction." Id_=. at 43-44. The Court concludedthat "Congresshas displaced TuckerAct jurisdiction in favor of another remedial scheme,nanely, administrative review in the [NAD] judicial review in a district and court." Id_~. at 44. Thus, the FarmersCourt dismissedthe plaintiff's complaintfor lack of jurisdiction. Ida; see also AceProperty & CasualtyIns. Co. v. UnitedStates, 60 Fed. CI. 175, 184-85(2004) (holding the Court lacked jurisdiction to entertain crop insurers' breach of contract claim, even if plaintiffs had exhaustedtheir administrative remedies, because Congressvested exclusive jurisdiction in the district courts over claims against the USDA's Federal Crop Insurance Corporation). Becauseall claims related to CRP eligibility determinationsmust first be submitted to the NAD, because the district courts possess exclusive jurisdiction to review NAD and decisions, this Court does not possess jurisdiction to entertain the Mr.Cottrell's claim arising out of alleged denial of his 1996 CRP application. B. This Court Lacks Jurisdiction To Entertain Mr. Cottrell's Claim Based Upon Denial Of His 1989 CRP Application Because Mr. Cottrell Has Neither Alleged Nor Established The Elements O fAn Express Or Implied Contract With The United States. AndHas Not Alleged A Money-Mandating Provision Of Law

In its complaint,Mr. Cottrell alleges that he is entitled to damages based uponthe USDA's refusal to enroll him in the 1990 CRP programdespite the fact that he completedone of the conditions for acceptance of his application by obtaining an approvedconservation plm~. Compl. ~l~[ 5-7. Because,as weestablish below, Mr. Cottrell has neither alleged nor

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demonstratedthe elements of an express or implied-in-fact contract with the Government, and because Mr. Cottrell has not alleged the existence of a money-mandating provision of law that wouldprovide jurisdiction, this Court should dismiss this claim for lack of subject matter jurisdiction. To establish the existence of either an express or implied-in-fact contract with the United States, Mr. Cottrell mustdemonstrate:(1) mutualintent to contract; (2) consideration; (3) tack ambiguityin an offer and acceptance; and (4) actual authority on the part of the Government representative to bind the United States in contract. Harbert/Lummus A~fuels Prois. v. United States, 142 F.3d 1429, 1434(Fed. Cir. 1998); City of E1 Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990). To prove an implied-in fact contract, Mr. Cottrell must establish all of the above elements by alleging conduct from which the existence of a contract can be inferred. ~ of Cincinnati v. United States, 153 F.3d 1375, 1377(Fed. Cir. 1998) (citations omitted); Town Floyd v. United States, 34 Fed. C1. 170, 172-173(1995). Mr. Cottrell does not allege, nor do the materials in the complaintdemonstrate,that the required elementsexist to establish an express or implied-in-fact contract with the Government. Mr. Cottrell appears to be alleging, based uponthe materials in his complaint, that the Government automatically approved his t989 CRPapplication upon receipt of an approved conservation plan, but then improperly denied him enrollment and, thus, breached the CRP contract. Compl. '~l~l 5, 7-8. This contention, however,fails to allege the creation of an express or implied-in-fact contract with the Govermnent. In this case, the CountyCommittee the representative authorized to approveand sign is Mr. Cottrell's CRP application. Pursuant to the applicable regulation, the CountyCommittee ~is 14

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authorized to approve CRP contracts on behalf of the [Commodity Credit Corporation ("CCC")]."7 C.F.R. § 704.1 l(e) (1989); see also 7 C.F.R. § 704.3(a) (1989). Mr. suggestion that the submission of an approvedconservation plan somehow operated to automatically create a binding CRP contract is incorrect and unsupportedby any contractual term, or statutory or regulatory provision. Theappendixto the I989 CRP application signed by Mr.Cottrell plainly states that the contract is not effective unless signed by "an authorized representative of CCC."Def. App. 13-14. The CRPapplication was never approved and signed by the County Committee. Def. App.1. The lack of a signed CRP contract, or any evidence that the CRY' application was accepted by the County Committee,demonstrates that there was no unambiguous offer and acceptance betweenMr. Cottrell and an authorized agent of the Govermnent. Further, all of the correspondencesent to Mr. Cottrell from the CountyCommittee plainly states that his CRP application wastabled pendingapprovalof the contract by the necessaryparties to the Stuller estate. Def. App. t8-21, 25-28. See Hevdtv. United States, 38 Fed. CI. 286, 300 (1997) (the party asserting the existence of an implied-in-fact contract must showevidence from whicha willingnessto enter into a contract may inferred) (citations omitted). be Althoughan approved conservation plan was submitted by the Soil Conservation Service to the CountyCommittee support of Mr. Cottrell's CRP in application, he failed to satisfy all of the necessary criteria for CRP enrollment and his application wasproperly denied. Mr. Stutz plainly informedMr. Cottrell that the CountyCommittee consider all of the eligibility must criteria before approvingand signing the CRP contract. Def. App.15. Indeed, Mr. Stutz informedMr. Cottrell that, after the Soil Conservation Service "has providedthis office with an 15

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approvedconservation plan...[p]ractices

to be carried out under CRP be started at this time may

¯.. with the understandingthat" paymentwill not be madeif the "[c]ontract is not approvedby" the CouutyCommittee. Id__~. Thus a clear distinction wasdrawnbetweeuapproval of a conservation plan, and authorization ofa CRP contract. Moreover,Mr. Cottretl withdrewhis 1989CRP application in writing in order to participate in a separate program,thus rescinding his offer. Def. App. 23-24. Consequently,Mr. Co~ell's allegations are facially insufficient to establish any of the required elementsof a contract with the Government. In the absenceof a contract, an action bronght pursuant to the TuckerAct mustidentify a constitutional, statutory or regulatory provision mandatingpaymentof monetarydamages.Smith v. UnitedStates, 51 Fed. C1. 36, 37 (2001). Thecomplaintin this action fails to identify money-mandating provision upon which a claim for damagescould be based. Mr. Cottrelt's complaint merely asserts that the CountyCommittee improperly decided not to enroll him in the CRP, fails to provideany detail as to a required statutory basis for an obligation by the yet Govenmaent pay Mr. Cottrell. Compl.~ 8. to C. Mr. Cottrell's Claim Based UponDenial Of His 1989 CRPApplication Is Barred By The Statute Of Limitations

Mr. Cottrelt's claim arising from his 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 United States 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. The six-year statute of limitations "is a jurisdictional requirementattached by Congress a condition as of the government's waiver of sovereign immunity and, as such, must be strictly construed."

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HoplandBandof Pomo Indians v. United States, 855 F.2d 1573, 1577-78(Fed. Cir. 7 1988). 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. 85t, 857 (2001). "A claim accrues whenall the events have occurred whichfix the liability the Government entitle the claimant to institute an action." BrightonVillage Associates v. and United States, 52 F.3d 1056, 1060 (Fed. Cir. 1995). Mr. Cottrell filed his complaintin this Court on September13, 2005. Everyaction cited to support his claim, however,occurred morethan six years before filing his complaint. Assuming ar~uendothat the USDA breach the CRP did contract by refusing to enroll Mr. Cottrell into the program,Mr. Cottrell's claim accrued, a_t the latest, on March 1991, whenthe 3, USDA DeputyAdministrator of State and CountyOperations denied his appeal, stating that "[t]his concludesthe administrative appeal rights afforded at 7 CFR Part 780." Def. App.31. BecauseMr. Cottrell does not allege any improper actions by the USDA relevant to the 7 We mindful of this Court's recent opinion in Grass Valley Terrace v. UnitedStates, are 2005WL 3497799 (Dec. 21, 2005), whichheld that the issue of whethera claim is filed within the statute of limitations period shouldbe tested by a motionto dismiss for failure to state a claim, not for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1). However, plaintiff's claim also fails under a RCFC 12(b)(6) motionto dismiss because the complaint alleges that the submissionof an approvedconservation plan on August31, 1989, created a binding contract whichthe Government allegedly breachedby failing to enroll the land into the CRP uponsubmissionof the approvedlpJg!!. Compl.¶¶ 5-8. Althoughplaintiff alleges that the Govermnent never formally denied his CRP application, Compl.¶ 7, that allegation is false, as demonstratedby the outcomeof the administrative appeals process pursued by Mr. Cottrell. Def. App. 30-31. Althoughwerely upon official documents outside the pleadings to demonstratethe insufficiency of Mr. Cottrell's claim, this is not fatal to a RCFC 12(b)(6) motion. See Atlas Corp. v. United States, 15 CI. Ct. 681,683-84(1988) (in reviewing a motionto dismiss failure to state a claim, the allegations in the complaintmust"be exmnined the relevant in historical context and, to this end, in resolving the issues raised, the court may also consider certain material outside the pleadings such as official documents"). 17

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denial of his 1989claimwithin the six years prior to filing his complaintin this Court on 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 danaagesin his complaint. RCFC 12(b)(1). llI. Mr. Cottrell's Claim Based UponHis 1989 CRP Application Is Barred By The Doctrine Of Res Judicata Pursuant to the doctrine of reds ~, once a litigant has had a full and fair opportunity to litigate a claim, a final judgment uponthe merits of that action precludesthe reIitigation of issues that were or could have been raised in tbat action. United States v. Mendoza, U.S. 464 154, 171 (1984); Heimv. United States, 50 Fed. C1. 225,233 (2001). By permitting a claimant only one opportunityto obtain redress, the docttine conservesjudicial resources, fosters reliance uponjudicial decisions and protects potential litigants, or their privies, fromunnecessary prospective litigation. Id__~. Tbedoctrine ofres j.udicata requires: (1) a prior final judgment,(2) uponthe merits court of competent jurisdiction, (3) involvingthe sameparties or their privies, and, (4) that claim from one action is based uponthe sameset of transactional facts as wereraised or that could havebeenraised in the prior action. Hei~m, Fed. C1. at 233 (citing Jet. Inc. v. Sewage 50 Aeration Systems,223 F.3d 1360, 1362(Fed. Cir. 2000)). In clarifying the fourth element, as relates to claim preclusion, the UnitedStates Court of Appealsfor the Federal Circuit has held: [a] subsequent suit is barred if it arises out of the samesubject matter as a previous suit and whichtltrough the exercise of diligence, could have been litigated in a prior suit... What constitutes the subject matter of a suit dependson the factual basis of the complaint,and any causeof action that arises out of the sanae facts shouldbe litigated in that sanaeaction .... 18

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United Technologies Corp. v. ChromallovGas Turbine Corp.,189 F.3d 1338, 1344 (Fed. Cir. 1999). Thefour elements res judicata are satisfied in this case. First, in the prior district court of action filed by Mr. Cottrell, the Secretary of the USDA, agencyof the UnitedStates, was an namedas a defendant. Def. App. 32. In Mr. Cottrell's complaint before this Court, he namedthe United States as defendant. In the context of rest, the United States is in privity with its authorized officials. Sere SunshineAnthracite Coal Co. v. Adkins, 310 U.S. 381,402-03(1940)

(holding that res judicata applies betweenrepresentatives of the samegoverrm~ent possess who "authorityto represent its interests in a final adjudication"). Second,Mr.Cottrell's previousaction in district court satisfies the requirement that there must be a prior final judgment uponthe merits. In 1990, the district court issued a decision dismissing Mr. Cottrell's claim uponhis motionfor summary judgxaent, finding that it "in order to gain enrolhnent in the program [Mr. Cottrell] must have unfettered control over the property for ten years... Therefore, unless he can demonstrate validity of the lease, his claim for the instatement mustfail. Yet the powerto enter into a lease is controlled by the ownerof the property, whichin turn is determinedby reference to the [Stuller] will." Def. App.40. Thus, the Court concludedthat the USDA entitled to surmnaryjudgmentupon the merits. Id._~. The was Sixth Circuit subsequentlyaffirmed the district court's dismissal of Mr. Cottrell's complaint. Cottrel____._~l, WL 1994 560967 *3-4. at Finally, as wehave demonstrated,this complaintis based uponthe identical set of transactional facts that Mr. Cottretl raised in his previous claim - namelywhetherthe USDA

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properly decided not to enroll Mr. Cottrell in the 1989 CRP.Def. App. 32-41; Cottrell, 1994WL 560967at *3 (the district court determined"whetheror not the Secretary wrongfullydecided that Cottrell wasnot eligible to participate in the CRP").To define whetherclaims arise from the sametransaction, the Federal Circuit has explainedthat courts have defined transaction in terms such as '"core of operativefacts,' the 'sameoperativefacts,' or the 'samenucleusof operative facts,' and 'based on the same,or nearly the same,factual allegations.'" Jet, 223 F.3d at 1363 (quoting Herrma~m Cencom v. Cable Assocs.. Inc., 999 F.2d 223,226 (7th Cir. 1993)). Cottrell alleges damages resulting from the USDA's decision to deny his 1989 CRP application.

Compl. 7-8. To the extent that Mr.Cottrell nowalleges a breach of contract, this claim could ~t~I
havebeen raised before the district court becauseall of the facts necessaryto support Mr. Cottrell's breach of contract theory were made available to himduring discovery in that cause of action. Thus, Mr. Cottrell's claims arise from the samenucleus of operative facts that served as a predicate for his action in district court and uponappeal. Accordingly,Mr. Cottrell's 1989claim is barred by the doctrine of res.~udicata and his claim should be dismissedfor failure to state a claim uponwhichrelief can be granted. CONCLUSION For the foregoing reasons, werespectfully request that the Court grant defendant's motion to dismiss for lack of subject matter jurisdiction and/or for failnre to state a claim uponwhich relief can be granted.

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Respectfully submitted, PETER D. I~ISLER 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

December29, 2005

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CERTIFICATE OF FILING I hereby certify that on December 2005, a copy of the foregoing "DEFENDANT'S 29, MOTION DISMISS" filed electronically. I understand that notice of this filing will be TO was sent to all parties by operation of the Court's electronic filing system. Parties mayaccess this filing throughthe Court's system.

/s/KELLY B. BLANK