throbber
Case 1:20-cv-00365-RAH-JTA Document 11 Filed 09/09/20 Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF ALABAMA
`SOUTHERN DIVISION
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`CHRIS LOVE et al.,
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`) CIVIL ACTION NO.: 1:20-cv-365-ALB-JTA
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`Plaintiff,
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`v.
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`UNITED STATES DEPARTMENT
`OF AGRICULTURE, et al.,
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`Defendants.
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`DEFENDANTS’ MEMORANDUM
`IN SUPPORT OF MOTION TO DISMISS
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`COMES NOW, Defendants United States Department of Agriculture (“USDA”), Sonny
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`Perdue in his official capacity as Secretary of the USDA, and Richard Fordyce, in his official
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`capacity as Administrator of the Farm Service Agency (“FSA”), (hereinafter collectively “the
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`Federal Defendants”), by and through Louis F. Franklin, Sr., United States Attorney for the Middle
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`District of Alabama, and submit this Memorandum in Support of their Motion to Dismiss. As set
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`forth below, Plaintiffs’ claims against the Federal Defendants should be dismissed pursuant to
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`Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure because this Court lacks
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`subject matter jurisdiction and Plaintiffs fail to state a claim upon which relief may be granted.
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`Plaintiffs filed this purported class action lawsuit challenging the Federal Defendants’ alleged
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`failure to timely process and pay benefits that they claim they are due under the USDA’s
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`Noninsured Crop Disaster Assistance Program (“NAP” or “the Program”). (Complaint, ¶ 1).
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`Plaintiffs, however, have not even attempted to plead a cause of action under the exclusive
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`administrative and judicial review scheme that Congress created to handle challenges to USDA
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`decisions regarding or relating to the NAP. This review scheme provides for federal court review
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`of final agency decisions after they have been fully exhausted. Plaintiffs cannot show the existence
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`Case 1:20-cv-00365-RAH-JTA Document 11 Filed 09/09/20 Page 2 of 16
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`of subject matter jurisdiction for the tort, contractual, and Florida state-law legal theories that they
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`chose to plead in their Complaint instead of filing an appeal pursuant to the review scheme
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`established by Congress. It follows that their claims should be dismissed.
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`STATEMENT OF THE CASE
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`This is a purported class action lawsuit brought by farmers who allege that they are due NAP
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`benefits from the FSA, a component of the USDA. Plaintiffs Chris Love and RWE Farms, LLE,
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`allege that they applied for NAP benefits, paid the premiums, suffered a loss, submitted a claim,
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`and that they have not been paid. (Complaint, ¶¶ 12-13). In their six-count Complaint, they allege
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`that the Federal Defendants failure to timely pay these NAP benefits constitutes: (1) common law
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`negligence; (2) common law negligence per se; (3) breach of contract; (4) breach of an implied
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`duty of good faith and fair dealing; and (5) violation of the Florida Deceptive and Unfair Trade
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`Practices Act, Fla. Stat. § 501.201 et seq. (Complaint, ¶¶ 5, 49, 57, 62, 66 & 70). They also seek
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`relief under the Declaratory Judgement Act. (Id. at ¶¶ 67-68). In addition, Plaintiffs’ Complaint
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`purports to represent a putative class of other farmers who have also allegedly not been timely paid
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`NAP benefits. (Id. at ¶¶ 33-42). Plaintiffs seek declaratory relief, damages, punitive damages,
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`injunctive relief, and attorney’s fees. (Id. at ¶ 6 & pg. 17, Prayer for Relief).
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` A.
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`Non-insured Crop Disaster Assistance Program.
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`The NAP is a program authorized by section 196 of the Federal Agriculture Improvement and
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`Reform Act of 1996, 7 U.S.C. § 7333. The FSA administers the Program and uses the funds of
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`the Commodity Credit Corporation. See Mahon v. USDA, 485 F.3d 1247, 1253 (11th Cir. 2007).
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`As part of administering the Program, the FSA has issued regulations governing NAP as well as a
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`2
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`Case 1:20-cv-00365-RAH-JTA Document 11 Filed 09/09/20 Page 3 of 16
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`Handbook with additional provisions and explanations.1 See 7 C.F.R. pt. 1437 (2019). See also
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`Mahon, 485 F.3d at 1253 (discussing regulations).
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`The general purpose of the NAP is to “provide [] financial assistance to producers of non-
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`insurable crops when low yields, loss of inventory or prevented planting occurs due to natural
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`disasters.” (NAP Fact Sheet, USDA, FSA).2 The Program, therefore, helps reduce the production
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`risks faced by producers of certain commercial crops for which catastrophic loss coverage under
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`the Federal Crop Insurance Act is not available. See 7 CFR § 1437.1(a) and (b).
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`In order to demonstrate eligibility for NAP payments, an otherwise eligible farmer’s crop loss
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`must come from “an eligible cause of loss.” See 7 C.F.R. § 1437.9 (a) & (c). The statute defines
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`eligible cause of loss as being due to drought, flood, or other natural disaster as determined by the
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`Secretary of the USDA. See 7 U.S.C. § 7333(a)(3). The implementing regulations further define
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`the eligible causes of loss as including such things as damaging weather (which includes drought,
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`hail, excessive moisture, freeze, tornado, hurricane, excessive wind, or any combination therefore),
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`natural occurrences (which includes earthquakes, floods, and volcanic eruptions), or conditions
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`related to these types of events (such as heat, insect infestation, disease, insufficient chill hours, or
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`wildlife). See 7 C.F.R. § 1437.10. Among other things, if a farmer’s reported loss is not due to
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`an eligible cause, then he is not entitled to NAP benefits.3 See Uschock v. USDA, 2011 U.S. Dist.
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`LEXIS 137052, at *19-20 (W.D. Pa. Nov. 29, 2001) (upholding agency denial of NAP benefits).
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`1 The manual for 2015 and subsequent years can be found at:
`https://www.fsa.usda.gov/Internet/FSA_File/1-nap_r02_a16.pdf.
`2 The 2019 Fact Sheet can be found at: https://www.fsa.usda.gov/Assets/USDA-FSA-
`Public/usdafiles/FactSheets/noninsured_crop_disaster_assistance_program-nap-fact_sheet.pdf
`3 As one example, the NAP Handbook states that losses due to failure to follow good farming practices
`for the eligible crop are not covered. See NAP Handbook, at pg. 2-6, 51A.
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`3
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`Case 1:20-cv-00365-RAH-JTA Document 11 Filed 09/09/20 Page 4 of 16
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`B.
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`National Appeals Division Administrative and Judicial Review.
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`The Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of
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`1994 (the “Reorganization Act”), 7 U.S.C. § 6901 et seq., and its implementing regulations
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`established specific and exclusive administrative procedures to process claims related to USDA
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`programs such as the NAP at issue in this case. See Allied Home Mortgage Capital Corp., v.
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`United States, 95 Fed. Cl. 769, 778 (2010); Farmers & Merchants Bank of Eatonton v. United
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`States, 43 Fed. Cl. 38, 40-41 (1999). The Reorganization Act directed the Secretary of the USDA
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`to create an independent National Appeals Division (“NAD”) within USDA to review “adverse
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`agency decisions.” See Aageson Grain & Cattle v. USDA, 500 F.3d 1038, 1042 (9th Cir. 2007);
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`7 U.S.C. ' 6992(a). An adverse agency decision is defined as “an administrative decision made
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`by an officer, an employee, or committee of an agency that is adverse to the participant…” as well
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`as “the failure of an agency to issue a decision or otherwise fail to act on the right or request of a
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`participant.” See 7 U.S.C. ' 6991(1). It even includes decisions on whether an issue can be raised
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`through the NAD appeal process. See Bartlett v. USDA, 716 F.3d 464, 470 (8th Cir. 2013).
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`Pursuant to the NAD review scheme established by the Reorganization Act and its
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`implementing regulations, a NAP participant who suffers an adverse decision from the FSA must
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`first appeal for an evidentiary hearing before a NAD Hearing Officer. See 7 C.F.R. ' 11.6(b)(1);
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`7 U.S.C ' 6996. The hearing before the NAD Hearing Officer is de novo as the administrative
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`judge is not bound by any prior factual findings of the agency and may consider evidence that was
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`not before the initial decision-maker. See 7 C.F.R. '' 11.8(b)(3); 11.10(a). The hearing is
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`adversarial in nature, and the Hearing Officer receives written statements from both parties,
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`accepts evidence, creates a transcript, and establishes a record upon which the decision will be
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`based. See 7 C.F.R. 11.8(c); Mahon, 485 F.3d at 1256. The party challenging the agency action
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`has the burden of showing it is erroneous by a preponderance of the evidence. See 7 C.F.R. § 11.8.
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`4
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`Case 1:20-cv-00365-RAH-JTA Document 11 Filed 09/09/20 Page 5 of 16
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`If a participant is unsatisfied with the Hearing Officer’s decision, then an appeal may be taken
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`to the NAD Director. See 7 C.F.R. 11.9; 7 U.S.C. 6998; Aageson Grain & Cattle, 500 F.3d at
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`1042. The Director will issue a determination that upholds, reverses, or modifies the decision of
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`the Hearing Officer. See 7 U.S.C. § 6998. Either party can then seek reconsideration of the
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`Director’s decision. See 7 C.F.R. § 11.11. The final determination of the NAD Director, after any
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`request for reconsideration is resolved, becomes the agency’s final determination, and it should be
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`implemented within 30 days of its effective date. See 7 U.S.C. § 7000.
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`After exhausting the mandatory administrative review provisions of this remedial scheme, a
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`participant may appeal the final determination of the NAD to federal court pursuant to 7 U.S.C. §
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`6999.4 See Bruhn v. United States, 74 Fed. Cl. 749, 755 (2006) (“section 6999 provides the district
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`court with jurisdiction over all final determinations of the NAD.”). See also 7 C.F.R. ' 11.13 (“an
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`appellant may not seek judicial review of any agency adverse decision appealable under this part
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`without receiving a final determination from the Division…”) (emphasis added). The statutory
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`exhaustion procedures that lead to a final agency decision are mandatory in nature and apply to all
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`claims and theories of relief. See Bastek v. Fed. Crop Ins. Corp., 145 F.3d 90, 94-95 (2d Cir.
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`1998); Gaunce v. De Vincintis, 708 F.2d 1290, 1293 (7th Cir. 1983) (“Where Congress has
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`provided a statutory procedure for the review of an administrative order, such procedure is
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`exclusive.”). See also Farmers & Merchants Bank of Eatonton, 43 Fed. Cl. at 40-41 (“the plain
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`language of the statute demonstrates a clear congressional intent to require all parties dissatisfied
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`4 Not only is finality a requirement for judicial review of NAD decisions by statute, but it is also an aspect
`of standing. See Mississippi Chemical Corp. v. EEOC, 786 F.2d 1013, 1016 (11th Cir. 1986) (applying
`ripeness doctrine and stating that ‘a court’s determination that agency action is not final ends its inquiry”
`into standing). Indeed, a plaintiff still before the NAD may obtain relief that moots any claim. Review
`only after full exhaustion also leads to a complete record for judicial review. See Nat’l Advertising Co. v.
`City of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005) (“when a court is asked to review agency decisions
`of administrative agencies, it is hornbook law that courts must exercise patience and permit the
`administrative agency the proper time and adherence for those agencies to consider the case fully.”).
`5
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`

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`Case 1:20-cv-00365-RAH-JTA Document 11 Filed 09/09/20 Page 6 of 16
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`with [covered USDA] decisions to exhaust the NAD appeal process, before filing suit in court.”).
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`Importantly, the plaintiff bears the burden of alleging and showing full exhaustion prior to
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`appealing to federal court under section 6999, and any issue or argument not explicitly raised and
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`exhausted during NAD review is waived and cannot be raised on appeal to federal court. See
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`Mahon, 485 F.3d at 1256; Bass v. Vilsack, 595 Fed. App’x 216, 222 (4th Cir. 2014); Kleissler v.
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`U.S. Forest Serv., 183 F.3d 196, 202 (3rd Cir. 1999).
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`
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`Notably, a district court reviewing a final NAD determination under this jurisdictional grant
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`applies the procedural and review framework of the Administrative Procedures Act (“APA”). 5
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`See Mahon, 485 F.3d at 1253; Deaf Smith County Grain Processors, Inc. v. Glickman, 162 F.3d
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`1206, 1211-1213 (D.C. Cir. 1998). Accordingly, a district court hearing a section 6999 appeal
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`conducts a deferential review of the final agency decision based on the specific NAD
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`administrative record before the agency decision-maker. See, e.g., Payton v. USDA, 337 F.3d
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`1163, 1169 (10th Cir. 2003) (reviewing agency action in section 6999 appeal based on record before
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`the agency); McElmurray v. USDA, 535 F. Supp. 2d 1318, 1325 (S.D. Ga. 2008). The reviewing
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`court must determine whether the agency decision was arbitrary and capricious, an abuse of
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`discretion, or not supported by substantial evidence. See Mahon, 485 F.3d at 1253 (reviewing
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`NAD final decision under APA standards); Payton v. USDA, 337 F.3d 1163, 1169 (10th Cir. 2003)
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`(reviewing agency action in section 6999 appeal based on record before the agency). See also
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`Uschock, 2011 U.S. Dist. LEXIS 137052, at *6-9 (reviewing final agency decision denying NAP
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`benefits due to farmer’s poor farming practices under section 6999 and affirming decision).
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`C.
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`Plaintiffs’ Lawsuit.
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` Instead of appealing a final agency decision issued by the NAD under the exclusive
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`5 Notably, the APA also does not confer a right to a jury trial or money damages. See W. Radio Servs. Co.
`v. United States Forest Serv., 578 F.3d 1116, 1123 (9th Cir. 2009).
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`6
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`Case 1:20-cv-00365-RAH-JTA Document 11 Filed 09/09/20 Page 7 of 16
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`jurisdictional grant of section 6999, Plaintiffs have filed a lawsuit asserting tort, contract, and state-
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`law claims. They do not mention the NAD administrative scheme, the status of any claims or
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`issues that may have been presented to the NAD and whether they have been fully exhausted, any
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`specific final agency determinations that are being challenged, or even the jurisdictional grant of
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`section 6999 that would be the sole basis to challenge NAD decisions.6 Indeed, Plaintiffs appear
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`to be seeking de novo review under tort and contract theories of recovery instead of the deferential
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`standard of review, based upon the administrative record, of final agency decisions mandated by
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`Congress. Plaintiffs’ tort, contract, and state-law claims should thus be dismissed.
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`ARGUMENT AND CITATION OF AUTHORITY
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`This Court should dismiss Plaintiffs’ Complaint because the Federal Defendants have not
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`waived sovereign immunity for the tort or state-law statutory claims pled in this lawsuit and this
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`Court lacks jurisdiction over such claims and the contract claims. Sovereign immunity is
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`jurisdictional, and if the United States does not waive its immunity for a claim then a court lacks
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`subject matter jurisdiction. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). When ruling on a Rule
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`12(b)(1) motion to dismiss for lack of jurisdiction, the Court need not accept the factual allegations
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`in the complaint as true and may consider documents outside the pleadings and make factual
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`findings. See Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1237-38 (11th Cir. 2002); Williamson
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`v. Tucker, 645 F.2d 404, 412-415 (5th Cir. 1981). The plaintiff bears the burden of showing the
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`6 Moreover, in addition to not including a specific cause of action in their lawsuit appealing from a final
`agency decision under section 6999, Plaintiffs have not met their burden of showing that every claim and
`issue they presented in their Complaint has been fully exhausted in the NAD review. See Mahon, 485 F.3d
`at 1256; Colorado Farm Bureau Fed. v. United States Forest Servs., 220 F.3d 1171, 1174 (10th Cir. 2000).
`Indeed, in this case, USDA records show that all the NAP claims by RWE Farms, Inc., are still pending
`before the NAD and no final decisions have been issued. As for Plaintiff Love, USDA records show that
`his claim relating to collard greens (2019S000059) is still pending before the NAD. His claim regarding
`his watermelon crops (no. 2019S000058), however, appears to be complete. As for this one claim that no
`longer appears to be pending before the NAD, however, Plaintiff Love has not pled the appropriate cause
`of action to review it in federal court or shown that every issue has been exhausted.
`7
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`

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`Case 1:20-cv-00365-RAH-JTA Document 11 Filed 09/09/20 Page 8 of 16
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`existence of the necessary jurisdiction. See OSI v. United States, 285 F.3d 947, 951 (11th Cir.
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`2002). Furthermore, the existence of subject matter jurisdiction is determined at the time a lawsuit
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`is filed, and it cannot be cured by a subsequent action. See Dresser v. Ingolia, 307 Fed. Appx.
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`834, 840-841 (5th Cir. 2009); Telestar, Inc. v. FCC, 888 F.2d 132, 133 (D.C. Cir. 1989) (per
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`curiam); Gaunce v. De Vincentis, 708 F.2d 1290, 1293 (7th Cir. 1983).
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`
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` A plaintiff thus cannot maintain a lawsuit against the United States unless he or she first
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`identifies a specific waiver of sovereign immunity in their complaint.7 See Weeks v. Housing
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`Auth. of Opp, 887 F. Supp. 2d 1232, 1235-1236 (M.D. Ala. 2012) (“[I]t is clear that a plaintiff
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`must cite a statute containing an express waiver of sovereign immunity before it can sue the Federal
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`Government and proceed past the motion to dismiss stage.”). If a plaintiff identifies a waiver, he
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`or she must bring a lawsuit in strict compliance with its terms. See Dalm, 494 U.S. at 608; Koehler
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`v. United States, 153 F.3d 263, 266 (5th Cir. 1998). See also Deaf Smith County Grain Processors,
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`Inc., 162 F.3d at 1210 (“[T]he federal government may be sued in federal court only if Congress
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`has waived sovereign immunity for the lawsuit.”).
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`In the present case, Plaintiffs have not met their burden of establishing a waiver of
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`sovereign immunity or subject matter jurisdiction to challenge USDA decisions relating to the
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`NAP for any of the claims pled in their Complaint. 8 Plaintiffs’ causes of action consist of tort
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`7 A lawsuit against the head of a federal agency in his official capacity or an agency itself is the same as a
`lawsuit against the United States for sovereign immunity purposes. See Kentucky v. Graham, 473 U.S.
`159, 165-166 (1985).
`8 The Complaint has one jurisdictional paragraph that states that “[t]he declaratory, injunctive and other
`relief requested by Plaintiffs” is authorized by 5 U.S.C. §§ 702, 703, and 706, and 28 U.S.C. §§ 2201-2202.
`(Complaint, ¶ 7). Without specifically naming them, this paragraph references the Declaratory Judgements
`Act and the Administrative Procedures Act (“APA”). The Declaratory Judgment Act, however, is not a
`separate cause of action and it does not provide a jurisdictional basis for any claim. See Aguilera v. Dist.
`Dir., 423 Fed. App’x 916, 918 (11th Cir. 2011); St. Andrews Park, Inc., v. United States Dep’t of Engineers,
`314 F. Supp. 2d 1238, 1242 (S.D. Fla. 2004). Furthermore, Plaintiffs’ conclusory references to provisions
`of the APA in this one paragraph is not sufficient to provide jurisdiction or state an APA claim. See Haines
`v. Fed. Motor Carrier Safety Admin., 814 F.3d 417, 427 (6th Cir. 2016) (“To state a claim for relief under
`the APA, a plaintiff must allege that his or her injury stems from a final agency action for which there is no
`other adequate remedy in court.”). Plaintiffs have not identified specific final agency actions in this case
`8
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`

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`Case 1:20-cv-00365-RAH-JTA Document 11 Filed 09/09/20 Page 9 of 16
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`claims in Counts One and Two (negligence and negligence per se), contractual claims in Counts
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`Three and Four (breach of contract, breach of duty of good faith), and a statutory claim in Count
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`Six (Florida Deceptive and Unfair Trade Practices Act). Notably, however, Congress has dictated
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`that an agency decision regarding or relating to the NAP can only be challenged in federal court
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`as an appeal from a final NAD determination, after full exhaustion, via section 6999. See Deaf
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`Smith County Grain Processors, Inc., 162 F.3d at 1213. See also Bruhn, 74 Fed. Cl. at 755
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`(“Congress empowered the NAD with exclusive authority to adjudicate disputes arising from
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`USDA programs.”). Plaintiffs do not plead a claim for record review of any NAD final agency
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`determinations pursuant to the provisions of section 6999.9
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`I.
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`Plaintiffs’ Tort Claims Must be Dismissed (Counts One and Two).
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`As an initial matter, Plaintiffs cannot show a waiver of sovereign immunity regarding their
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`tort claims in Counts One and Two of the Complaint. The Federal Tort Claims Act (“FTCA”) is
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`the exclusive avenue for plaintiffs to pursue claims against the United States for torts committed
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`by federal employees within the scope of their office or employment. See Millbrook v. United
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`States, 569 U.S. 50, 52 (2013); United States v. Smith, 499 U.S. 160, 166 (1991). The FTCA is a
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`limited waiver of sovereign immunity, and its terms and exceptions define a court’s subject matter
`
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`and have not alleged or shown that no other adequate remedy exists. Absent a final agency decision, a
`court has no jurisdiction to consider or review agency actions under the APA. See National Parks
`Conservation Assoc. v. Norton, 324 F.3d 1229, 1236 (11th Cir. 2003). Moreover, the Eleventh Circuit has
`noted, “absent a final action, the courts are to exercise restraint so that the administrative agency may correct
`any errors by conducting its own internal appeals and by applying its institutional expertise.” See LABME,
`Inc. v. FTC, 776 F.3d 1275, 1278 (11th Cir. 2015).
`9 Notably, pursuant to section 6999, each Plaintiff would have to appeal to federal court from a separate
`fully exhausted NAD decision, and each decision would be subject to review by a court upon its
`individualized administrative record and the issues raised during the NAD review. It follows that Plaintiffs
`Love and RWE Farms, LLC, would be improperly joined under Rule 20 of the Federal Rules of Civil
`Procedure if they tried to bring their claims in the same lawsuit and their claims would have to be severed.
`See e.g., Wilson v. United States, 2014 U.S. Dist. LEXIS 18476, at *4-5 (D. Col. Feb. 11, 2014) (“Because
`the claims of [plaintiffs] depend on their individual administrative records, their claims are not properly
`brought in one action.”). Plaintiff RWE, LLC, which has no connection to Alabama, would have file its
`section 6999 appeal sin the Middle District of Florida, where it resides, or the District of Columbia.
`9
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`
`
`

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`Case 1:20-cv-00365-RAH-JTA Document 11 Filed 09/09/20 Page 10 of 16
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`jurisdiction. See Meyer, 510 U.S. at 475; Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 261
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`(1999); Dalrymple v. United Sates, 460 F.3d 1318, 1324 (11th Cir. 2006). Plaintiffs cannot pursue
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`their tort claims in this lawsuit under the FTCA because they have not even identified the FTCA
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`as a basis for their tort claims in Counts One and Two. Furthermore, even if Plaintiffs had meant
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`to plead FTCA claims in these counts, this Court should dismiss the claims for several reasons.
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`First, Plaintiffs cannot assert their state-law tort claims for negligence pursuant to the
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`FTCA in this lawsuit because they have not named the proper party-defendant. See Galvin v.
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`OSHA, 860 F.2d 181, 183 (5th Cir. 1988). Congress has made the United States the only proper
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`party-defendant in an FTCA action. See 28 U.S.C. 1346 §§ (b)(1); 2679 (a); (b)(1). Since lawsuits
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`must strictly comply with the terms of any waiver of sovereign immunity, an “FTCA claim against
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`a federal agency or employee as opposed to the United States itself must be dismissed for want of
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`jurisdiction.” See Galvin, 860 F.2d at 183. In this case, Plaintiffs have named as defendants the
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`USDA, Secretary Perdue in his Official Capacity, and Administrator Fordyce in his Official
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`Capacity, but they have not named the United States. Accordingly, even if Plaintiffs had meant
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`to invoke the FTCA, this Court must dismiss their tort claims against these Federal Defendants.
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`See id. See also Allgeier v. United States, 909 F.2d 869, 971 (6th Cir. 1990) (“Failure to name the
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`United States as a defendant in an FTCA suit results in a fatal lack of jurisdiction.”).
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`Second, even if Plaintiffs had referenced the FTCA in their complaint and brought their
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`tort claims against the correct defendant, this Court would still lack subject matter jurisdiction
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`because Plaintiffs have not complied with the administrative exhaustion prerequisites of the FTCA.
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`See McNeil v. United States, 508 U.S. 106, 111-113 (1993); Suarez v. United States, 22 F.3d 1064,
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`1065-66 (11th Cir. 1994). Prior to filing an FTCA lawsuit, a plaintiff must present a written
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`administrative claim to the agency whose activities gave rise to the claim and have the claim finally
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`denied. See 28 U.S.C. 2675(a); McNeil, 508 U.S. at 111-113. This exhaustion requirement is
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`
`
`10
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`

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`Case 1:20-cv-00365-RAH-JTA Document 11 Filed 09/09/20 Page 11 of 16
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`mandatory, and the law is clear that A[t]he FTCA bars claimants from bringing suit in federal court
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`until they have exhausted their administrative remedies.@ See McNeil, 508 U.S. at 113. As a
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`result, the failure to comply with these administrative remedies prior to filing a lawsuit mandates
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`dismissal. See 28 U.S.C. ' 2679(d)(5). Plaintiffs have not filed any administrative tort claims
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`with the USDA, and thus this Court must dismiss these claims. See McNeil, 508 U.S. at 113
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`II.
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`Plaintiffs’ Florida Statutory Claim must be Dismissed (Count Six).
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`Plaintiffs also fail to establish a waiver of sovereign immunity to allow them to pursue any
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`claims against the Federal Defendants under the Florida statute in Count six of their Complaint.
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`As stated supra, plaintiffs attempting to bring suit against the United States bear the burden of
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`showing that the United States has waived its sovereign immunity for every one of their claims.
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`See Miami-Dade County v. United States, 345 F. Supp. 2d 1319, 1354 (S.D. Fla. 2004). When a
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`state statue is involved, the plaintiff must point to a federal law where Congress has waived
`
`sovereign immunity to allow for claims under that specific state-law claim. See Goble v. Ward,
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`628 Fed. App’x 692, 699 (11th Cir. 2015) (“[O]nly Congress can waive an agency’s sovereign
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`immunity.”). Plaintiffs have not, and cannot, point to any such waiver here.
`
`In this case, Plaintiffs’ mere citation to a Florida statute is not sufficient to establish any
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`waiver. See Smallwood v. United States Army Corp. of Engineers, 2009 U.S. Dist. LEXIS 5508,
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`at *21 (D. Haw. Jan. 26, 2009) (“There is no evidence that the United States has consented to be
`
`sued for violations of Hawaii statutes or Hawaii common law claims.”) Stated another way, there
`
`is no clear indication that the United States has consented to be sued under this specific Florida
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`statute. See Johnson v. USPS, 2009 U.S. Dist. LEXIS 49364, at *10 n.4 (D. Conn. June 5, 2009)
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`(noting that “a state statute … cannot on its own waive the sovereign immunity of the federal
`
`government.”). Accordingly, this claim must also be dismissed. See Johnson v. Devos, 2017 U.S.
`
`Dist. LEXIS 128299, at *13 (D. Md. Aug. 11, 2017) (noting that the language of a state statute “in
`
`
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`11
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`Case 1:20-cv-00365-RAH-JTA Document 11 Filed 09/09/20 Page 12 of 16
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`no way operates to waive sovereign immunity” of a federal agency).
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`III. Plaintiffs’ Contractual Claims must be Dismissed (Counts Three and Four).
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`Finally, this Court should also dismiss Plaintiffs’ contractual claims in Counts Three and
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`Four of the Complaint because they have not pled a basis for jurisdiction in this Court as they are
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`currently pled. A plaintiff who alleges a breach of contract claim against the federal government
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`must also show that sovereign immunity has been waived and that a court has jurisdiction. See
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`Labat-Anderson, Inc. v. United States, 346 F. Supp. 2d 145, 149-50 (D.D.C 2004). Plaintiffs do
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`not cite to any statutory provision in their Complaint that would give this Court jurisdiction to hear
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`their breach of contract or related breach of a duty of good faith claims. Nor do they identify the
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`precise contract at issue. They simply allege that the Federal Defendants breached contracts with
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`them by failing to adjudicate and or pay their NAP claims, and they ask for damages. (Complaint,
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`¶¶ 60-61, 64). Accordingly, Plaintiffs contract-based claims should also be dismissed.
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`Some federal district courts have held, without much analysis, that breach of contract
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`claims that arise out of government programs subject to the NAD belong in the Court of Federal
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`Claims under the Tucker Act. See e.g., Balfour Land Co. v. United States, 2009 U.S. Dist. LEXIS
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`52289, at *8-9 (M.D. Ga. June 22, 2009). The Tucker Act and the Little Tucker Act generally
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`serve to confer jurisdiction for contractual disputes in the Court of Federal Claims for any claims
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`against the federal government seeking more than $10,000 in damages and in district court for
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`claims under $10,000. See United States v. Bormes, 568 U.S. 6, 11-12 & n.2 (2012); Weeks, 887
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`F. Supp. 2d at 1238-1239; Balfour Land Co., 2009 U.S. Dist. LEXIS 52289, at *8-9. The Tucker
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`Act, however, does not create a substantive right for damages against the federal government. See
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`Bormes, 586 U.S. at 10. “Instead, to invoke jurisdiction under the Tucker Act, a plaintiff must
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`identify a contractual relationship, constitutional provision, statute, or regulation that provides a
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`substantive right to money damages.” See Baker v. United States, 50 Fed. Cl. 483, 487 (2001).
`
`
`
`12
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`Case 1:20-cv-00365-RAH-JTA Document 11 Filed 09/09/20 Page 13 of 16
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`When Congress creates a specific remedial scheme establishing judicial review, however,
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`it displaces the more general jurisdictional grant of the Tucker Act. See Bormes, 568 U.S. at 9.
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`The Federal Circuit thus recently concluded that Congress “displaced Tucker Act jurisdiction”
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`when it created the extensive NAD scheme with its administrative review followed by judicial
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`review in federal district court. See St. Bernard Parish Gov’t v. United States, 916 F.3d 987, 991-
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`992 (Fed. Cir. 2019). More specifically, in the case, the plaintiff sought to pursue a breach of
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`contract claim involving a USDA program that was subject to the NAD. See id. The Federal
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`Circuit refused to address the merits of the claim on appeal, and stated that “we conclude that
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`Congress has barred claims such as [plaintiffs] from being adjudicated in the Court of Federal
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`Claims, and instead has provided for such claims to be addressed first in administrative review
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`proceedings before the [USDA], followed by judicial review in a federal district court.” See id. at
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`991. Accordingly, when a plaintiff is merely alleging breach of contract as another way of
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`challenging agency decisions covered by the NAD, then such claims must be pursued through the
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`administrative process culminating in judicial review of a final NAD determination in federal
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`district court. See St. Bernard Parish Gov’t, 916 F.3d at 995-997; Deaf Smith County Grain
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`Processors, Inc., 162 F.3d 1206 at 1213; Bruhn, 74 Fed. Cl. at 755.
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`This approach is consistent with the principle that when Congress creates a specific system
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`for administrative and judicial review then it preempts more general remedies. See Bormes, 586
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`U.S. at 9 (“[A] precisely drawn, detailed statute pre-empts more general remedies.”). Cf. Austin
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`v. United States, 118 Fed. Cl. 776, 795 (2014) (“In order to dispute such actions plaintiffs were
`
`required to utilize specific administrative procedures implemented to process claims arising from
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`participation in the underlying USDA Rural Development Assistance Program.”). Furthermore,
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`this approach also makes logical sense because “disputes arising regarding … payments are
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`intrinsic to the programs administered by [a federal agency] and thus [are] particularly suitable for
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`13
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`Case 1:20-cv-00365-RAH-JTA Document 11

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