GRANT et al v. USA

Filing 21

REPORTED OPINION granting 4 Motion for Leave to Proceed in forma pauperis; denying as moot 16 Motion for Discovery; granting 17 Motion to Dismiss - Rule 12(b)(1); granting 17 Motion for Summary Judgment; denying 18 Motion for Discovery. The Clerk is directed to enter judgment. Signed by Judge Elaine D. Kaplan. [U.S. Certified Mail Tracking# 7017 1450 0000 1346 2519](vds) Copy to parties.

3ln tbe Wniteb ~tates (!Court of jfeberal C!Claims'FI LED
No. 16-1660C
Pro Se
(Filed: September 29, 2017)

SEP 2 9 2017
U.S. COURT OF

FEDERAL CLAIMS

ESTATE OF MATTHEW GRANTet al,
Plaintiffs,
v.

THE UNITED STATES OF AMERICA,
Defendant.

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Keywords: Pro Se Complaint; RCFC
12(b)(l); Motion to Dismiss; Equal Credit
Oppmtunity Act; Pigford Litigation;
USDA; Statute of Limitations; 28 U.S.C.
§ 2501 ; Summary Judgment; RCFC 56.

~~~~~~~~~~~~~~~-)

Gary Grant, Tillery, NC, Pro Se. 1
Michael A. Rodriguez, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, for Defendant, with whom were Deborah A. Bynum, Assistant Director,
Robert E. Kirschman, Jr. , Director, and Chad A. Readier, Acting Assistant Attorney General. J
Carlos Alarcon, Attorney-Advisor, and Brandi A. Peters, Senior Counsel, U.S . Department of
Agriculture, Office of the General Counsel, Civil Rights, Labor and Employment Law Division,
Of Counsel.

OPINION AND ORDER
KAPLAN, Judge.
The plaintiffs in this case are the estates of two African American farmers, Matthew and
Florenza Grant. The complaint alleges that the Grants were victims of racial discrimination by
the U .S. Department of Agriculture (USDA) in the administration of its loan programs for
fa1mers. Specifically, the estates allege that in 1998, the Grants and the USDA entered into a
settlement agreement to compensate the Grants for discrimination they had suffered. But,
according to Plaintiffs, the government never paid them the compensation they were owed under
the agreement. Ultimately, Plaintiffs filed this suit alleging a breach of contract, along with a
number of other claims relating to their allegations of discrimination.
Before the Court is the government's motion to dismiss and for summary judgment. The
government's primary assertion is that there was no valid agreement between the Grants and the
United States entitling them to compensation for discrimination, and that as a result, it is entitled
1

Mr. Grant is the son of Matthew and Florenza Grant and the executor of their estates. See
Compl. at 3, Docket No. l ; see also Compl. Exs. 1, 7.

7017 1450 DODO 13 46 2519

to summary judgment on Plaintiffs' breach claim. Alternatively, it argues that, assuming the
existence of a valid agreement, the Court lacks jurisdiction over the breach claim because it is
barred by the statute of limitations. The government also asserts that Plaintiffs' other claims are
outside the Court's jurisdiction and must be dismissed. Plaintiffs have filed an opposition as well
as two identical motions for discovery.
For the reasons set forth below, the Court concludes that it lacks jurisdiction over all of
Plaintiffs' claims, and the government's motion to dismiss is therefore GRANTED. Plaintiffs'
motions for discovery are DENIED as moot. 2

BACKGROUND 3
I.

The Grants' Resolution Agreement with the USDA

Matthew and Florenza Grant were African American farmers who owned farmland in
North Carolina. See Am. Comp!. ifif 1, 18-19, Docket No. 15. During the 1970s, the Grants
applied for and received loans from the Farmers Home Administration (FHA) to operate their
fann. See Def.'s Mot. to Dismiss & for Summ. J. (Def.'s Mot.) App. at 11, Docket No. 17. From
the 1970s through the early 1990s, the Grants had numerous interactions with the FHA in
relation to their loans, including exchanges related to loan servicing, repayment, and loan
restructuring. See id. at 11-12. The FHA denied most of the Grants' applications and requests
during that time. See id.
In 1995, Matthew Grant filed a claim of discrimination with the USDA's Farm Service
Agency (FSA), the successor agency to the FHA. In it, he alleged that the FHA and FSA had
engaged in racial discrimination in their processing of the Grants' loan applications and in
servicing and managing the Grants' existing loans. See Am. Comp!. ifif 1-3, 9; see also Def.'s
Mot. App. at 11-15. In 1997, the USDA's Office of Civil Rights issued a final agency decision
in which it determined that the FSA had discriminated against Matthew Grant in relation to the
farm loans provided to him and others for which he had applied. See Am. Comp!. if 2.
On March 2, 1998, Lloyd E. Wright, the director of the USDA's Office of Civil Rights,
and Matthew Grant executed a "Final Resolution Agreement" to settle Mr. Grant's claims
against the USDA. Am. Comp!. Ex. 4. In it, the parties agreed that the settlement "constitute[d] a
full, complete, and final settlement of all claims for relief for the years 1994 through 1998 raised
in Mr. Grant's December 6, 1995, discrimination complaint submitted to USDA." 4 Id. The

2

Along with their complaint, Plaintiffs filed a motion for leave to proceed in forma pauperis.
Docket No. 4. The Court GRANTS that motion for the sole purpose of dismissing the complaint.

3

The facts in this section are based on the documents attached to the parties' briefs as well as the
allegations in Plaintiffs' complaint and amended complaint, which the Court assumes to be true
for purposes of deciding the motion to dismiss.
4

The settlement also resolved "any and all claims Mr. Grant may have [had] against USDA
based on facts occurring prior to the date of th[ e] agreement, except for those events between the
years 1972 and 1993 that were raised in Mr. Grant's December 6, 1995, discrimination
2

USDA agreed, among other things, to pay Matthew Grant $312,000 "as soon as practicable but
no later than 30 calend[a]r days after th[e] agreement [w]as ... signed by all parties, reviewed by
the Department of Justice (DOJ), and, ifDOJ approval [wa]s required, approved by DOJ." Id.
if I. It also agreed to "pay all of Mr. Grant's unpaid outstanding debt owed to FSA," and "forever
discharge and hold harmless [Mr. Grant] from liability for such debt." Id. if 2.
As noted, the settlement agreement was "subject to review by DOJ." Id. if 8. The parties
agreed that "[i]n the event that DOJ [did] not approve th[e] agreement, neither party [would be]
under any obligation to carry out the terms of the agreement and Mr. Grant [could] have
reinstated the complaint that [wa]s the subject of the agreement." Id.
In their complaint here, Plaintiffs allege that after the parties signed the agreement neither
the USDA nor DOJ informed them as to the status of any DOJ review. See Arn. Comp!. if 15.
But the record reveals that, at least as of the year 2000, the Grants understood that DOJ had
declined to approve the settlement agreement. See Def.'s Mot. App. at 15. In any event, the
government never paid Matthew Grant any money pursuant to the Resolution Agreement. Arn.
Comp!. if 7; see also id. ifif 15-16; Def.'s Mot. at 7.
Approximately a decade later, in 2008 and 2009, Gary Grant wrote to Presidents Bush
and Obama, respectively, regarding the USDA's failure to pay his father compensation under the
Resolution Agreement. Arn. Comp!. Ex. 8; Comp!. Ex. 7. In the letter to President Bush, dated
August 6, 2008, Mr. Grant wrote that "[t]he USDA did not live up to" the "1998 'Final
Resolution Agreement."' Comp!. Ex. 7. He also noted that as a result, his parents had joined a
lawsuit against the USDA. Id. Mr. Grant requested a meeting between the "USDA and the
Moore-Grant heirs to negotiate a final and just settlement in the discrimination matter." Id. On
March 14, 2009, Mr. Grant wrote to President Obama, asserting, among other things, that
"[b ]ecause of the government's failure to live up to the 'Final Settlement Agreement,' on
October 19, 2000, [his] parents became named plaintiffs in a class action lawsuit comprised
primarily of North Carolina women and African American farmers." Arn. Comp!. Ex. 8. He
sought President Obama's assistance in addressing the discrimination as well as debt issues
affecting his late parents' farm. Id.
Sometime later, Gary Grant contacted Congressman G.K. Butterfield. See Arn. Comp!.
Ex. 7. He asserted that his parents had entered into an agreement with the USDA but that the
USDA never "enforced" it. Id. On September 29, 2016, Congressman Butterfield wrote to thenSecretary of Agriculture Tom Vilsack, inquiring about the USDA's agreement with Matthew
Grant. Id. On November 30, 2016, the USDA's Office of the General Counsel responded to
Congressman Butterfield. Comp!. Ex. 8. It asserted that "there never was a fully executed
agreement." Id. Rather, according to the USDA, "[a] tentative settlement agreement was entered
into between Mr. Grant and Mr. Lloyd Wright ... in or about March 1998," but it "required
complaint." Arn. Comp!. Ex. 4 if 6. As Mr. Wright explained, the settlement agreement only
covered discrimination occurring during the period of time which at that point was not barred by
the statute of limitations, but the parties agreed that Mr. Grant could pursue compensation for
discrimination occurring in previous years if Congress amended the applicable statute of
limitations. Arn. Comp!. Ex 5 ifif 5-6; see also Arn. Comp!. Ex. 4 iii! 6, 9.

3

approval by the U.S. Department of Justice." Id. "The DOJ," it continued, "declined to approve
the settlement, the settlement was thus void, and the Estate of Mr. Grant filed subsequent actions
in federal district court." Id. Finally, the USDA noted that it had "settled all complaints of
discrimination with the Estate of Matthew Grant through [its] attorney Stephon Bowens" in
2011. Id.

II.

The Pigford Litigation

In the meantime, in 1997, the Pigford class action lawsuit was filed. The plaintiffs in
Pigford alleged that the USDA had violated the Equal Credit Opportunity Act (ECOA) in that it
had "willfully discriminated" against African American farmers "on the basis of their race when
it denied their applications for credit and/or benefit programs or delayed processing their
applications," and that "when [they] filed complaints ... with the USDA, the USDA failed
properly to investigate and resolve those complaints." Pigford v. Glickman, 18S F.R.D. 82, 86,
89 (D.D.C. 1999), affd, 206 F.3d 1212 (D.C. Cir. 2000). 5
The Pigford litigation resulted in a consent decree establishing a "two-track dispute
resolution mechanism" to provide class members with monetary compensation and other
equitable relief. See id. at 9S, 112-13. The district court "retain[ed] jurisdiction to enforce the
Consent Decree." See id. at 98; see also Pigford v. Glickman, 206 F.3d at 1216. On November 2,
201S, the district court "entered a wind-down stipulation and order terminating the stipulations of
the [Pigford] consent decree, with limited exceptions." Parker v. United States, 131 Fed. Cl. 1, 8
(2017).
Both Matthew and Florenza Grant were included within the certified class in Pigford. See
Wise v. Glickman, 2S7 F. Supp. 2d 123, 129 (D.D.C. 2003). Matthew Grant, however, opted out
of the Pigford class. Am. Comp!. Ex. 4; see also Wise, 2S7 F. Supp. 2d at 129. Florenza Grant
did not. Wise, 2S7 F. Supp. 2d at 129. As the government points out, the current record does not

5

The lawsuit was filed after Congress passed legislation that tolled the statute of limitations for
actions under ECOA where claimants had filed complaints of discrimination with the USDA
during certain time periods, as long as such actions were filed by October 21, 2000. See
Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. lOS277, § 741(a), 112 Stat. 2681 (1998); see also Pigford, 18S F.R.D. at 88-89; Allen v. United
States, No. 03-92C, 200S WL 6112631, at *4 (Fed. Cl. May 10, 200S). This waiver of the statute
oflimitations was set out in§ 741 of the legislation. In§ 741(d), Congress gave the Court of
Federal Claims and the district courts "exclusive original jurisdiction" over "eligible" complaints
filed pursuant to§ 741, as well as over actions for review of USDA administrative
determinations where claimants chose to re-file their administrative complaints with the USDA
rather than filing suit. See Pub. L. lOS-277, § 741(d). The USDA regulations for these renewed
administrative proceedings are codified at 7 C.F.R. Part !Sf. See Benoit v. U.S. Dep't of Agric.,
S77 F. Supp. 2d 12, 17-18 (D.D.C. 2008), afrd, 608F.3d17 (D.C. Cir. 2010); see also
Administrative Civil Rights Adjudications Under Section 741, 63 Fed. Reg. 67,392-01 (Dec. 4,
1998) (codified at 7 CFR Part ! Sf).

4

reveal whether Ms. Grant ever pursued either relief track provided for in the Pigford consent
decree. See Def.'s Reply in Supp. of Mot. to Dismiss at 4 n.3, Docket No. 20.

III.

The Grants' Previous Litigation

As Gary Grant referenced in his letters to Presidents Bush and Obama, in light of the
USDA's "failure to live up to" the Resolution Agreement, Matthew and Florenza Grant were
named as plaintiffs in another purported class action lawsuit that was filed against the Secretary
of Agriculture on October 19, 2000. This action, like Pigford, was filed in the district court for
the District of Columbia. Def.'s Mot. App. at l; see also Wise, 257 F. Supp. 2d at 126-27
(describing lawsuit as "another in a series of suits filed after Congress, responding to reports that
USDA dismantled its civil rights enforcement program in the early 1980s, extended the statute of
limitations ... for 'eligible complaints' of discrimination alleged to have taken place at USDA
between 1981and1996"). 6 In the complaint, the plaintiffs alleged that the USDA
"discriminate[d] against African-American and female family fatmers" and "maintained a
system whereby county administrators intentionally and pervasively discriminate[ d]" against
them "with regard to their participation in federal farm credit and non-credit benefit programs."
Def.'s Mot. App. at 2. Particularly with respect to the Grants, the complaint also alleged that "the
Grants and Mr. Wright executed the [1998] settlement agreement," but that "the U.S.
Department of Justice (DOJ) refused to sign" it. Id. at 15.
On March 17, 2009, the District of Columbia district court transferred the case to the
Eastern District of North Carolina. Order, Wise v. Vilsack, No. 00-2508 (D.D.C. Mar. 17, 2009),
ECF No. 51. On January 26, 2011, the North Carolina district court dismissed the complaint for
failure to state a claim. Order, Grantv. Vilsack, No. 5:10-CV-201-BO (E.D.N.C. Jan. 26, 2011),
ECF No. 85. Matthew Grant's estate then appealed the dismissal to the Court of Appeals for the
Fourth Circuit, Notice of Appeal, Grant v. Vilsack, No. 5:10-CV-201-BO (E.D.N.C. Feb. 26,
2011), ECF No. 87, but on September 6, 2011, the patiies settled the case in lieu of further
litigation, Def.'s Mot. App. at 37-38. Gary Grant, as executor of the estate, and the USDA
agreed that "the settlement ... [was] based upon partial debt forgiveness and the release of all
claims by the plaintiff against defendants." Def.'s Mot. App. at 37. Specifically, the parties
agreed that the "settlement resolve[d] all issues presented in this civil action and plaintiff Estate
of Matthew Grant releases the Secretary of the United States Department of Agriculture, the
USDA ... , and the United States from any civil or administrative claims arising before the date
of this settlement agreement, including but not limited to all discrimination claims raised in the
plaintiffs complaint." Id. at 38.

IV.

This Action

A little over five years later, on December 19, 2016, Gary Grant filed suit here on behalf
of his parents' estates. See Docket No. 1. The estates named as defendants twenty-one
individuals including then-President Obama and then-Secretary Vilsack. Plaintiffs made a
variety of allegations, including that the USDA breached the 1998 Resolution Agreement. See id.
6

Because Florenza Grant did not opt out of the Pigford class, her claims in this second action
were precluded and ultimately dismissed. Wise, 257 F. Supp. 2d at 129.

5

Specifically, Plaintiffs alleged that the named defendants "collectively, negligently or
intentionally, and maliciously violated the 1998 USDA/Grant Resolution Agreement by refusing
to honor the contract with payment to the Grants." Id. if 48. Plaintiffs also included various
assertions of jurisdiction and alleged violations of constitutional and statutory provisions
including the Fourth, Eighth, and Fourteenth Amendments, ECOA, the Civil Rights Act of 1964,
North Carolina state statutes and its constitution, and the Freedom oflnformation Act (FOIA),
among others. See, e.g., id. ifif 6, 37-46. Plaintiffs sought $25,000,000 for breach of the
agreement, $75,000,000 for "nearly 20 years of continued discrimination," $25,000,000 in
punitive damages, and attorneys' fees. Id. if 65.
Along with their complaint, Plaintiffs included a motion for a temporary restraining order
with respect to the FOIA claims and a motion to use the court's electronic filing system. See
Order at 2-3 & n.2, Docket No. 5. On December 21, 2016, the Court denied both requests. Id. at
3 & n.2. On February 13, 2017, Plaintiffs filed a "motion for default judgment," alleging that the
individual named defendants had failed to respond in a timely manner pursuant to the Federal
Rules of Civil Procedure. See Mot. for Default J. at 1-2, Docket No. 8. On February 22, 2017,
the Court denied Plaintiffs' motion, noting that proceedings in this court are governed by the
Rules of the Court of Federal Claims (RCFC), and that pursuant to those rules, the government
had timely filed a request for an extension, which the Court had granted. Order at 1-2, Docket
No. 12. The Court also raised the issue of subject matter jurisdiction sua sponte and dismissed
Plaintiffs' claims against all defendants other than the United States for lack of subject matter
jurisdiction. Id. at 2.
On April 17, 2017, with the Court's leave, Plaintiffs filed an amended complaint. Docket
No. 15; see also Docket Nos. 13-14. Its title states: "Administrative Review Pursuant [to] 52.1
and Motion to Stay Action and Remand to Administrative Law Judge Pursuant [to] RCFC 52.2."
Docket No. 15. Plaintiffs name the United States as defendant, but also persist in naming former
Secretary Vilsack as an additional defendant. See id. The amended complaint appears to set out
an extensive background discussion of previous litigation against the USDA for discrimination,
including large portions of the court's decision in Parker v. United States, 131 Fed. CL 1 (2017),
verbatim. See id. at 3-9. It also restates many of the original complaint's allegations regarding
the Grants and the alleged breach of the 1998 Resolution Agreement. See id. at 9-14. Plaintiffs
also appear to have dropped the other causes of action set forth in their initial complaint,
replacing them in the amended complaint with new allegations of negligence, fraud, a violation
of § 741 of the 1999 omnibus legislation, breach of the implied duty of good faith and fair
dealing based upon the USDA's "repudiation of contract of the Pigford consent decree," and
violations of§ 14012 of the 2008 Farm Bill and the Due Process Clause of the Fifth Amendment.
Id. at 14-27. Plaintiffs request that the "matter be remanded back to the ALJ with the instructions
to have a formal hearing on the merits within 120 days of the court order," a stay while the
remand is pending, and $10,000,000 for "continued discrimination stemming from breach of
contract." Id. at 28.
On May 4, 2017, the government filed a motion to dismiss and for summary judgment.
Docket No. 17. Plaintiffs responded on June 5, 2017, and have also filed two identical motions
for discovery. Docket Nos. 16, 18-19.

6

DISCUSSION
I.

Motions to Dismiss for Lack of Subject Matter Jurisdiction

In deciding a motion to dismiss for lack of subject matter jurisdiction, the court accepts as
true all undisputed facts in the pleadings and draws all reasonable inferences in favor of the
plaintiff. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). But the
court may "inquire into jurisdictional facts" outside of the pleadings to determine whether it has
jurisdiction. Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991).
It is well established that complaints that are filed by pro se plaintiffs are held to "less
stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519,
520 (1972). Nonetheless, even pro se plaintiffs must persuade the court that jurisdictional
requirements have been met. Bernard v. United States, 59 Fed. Cl. 497, 499, affd, 98 F. App'x
860 (Fed. Cir. 2004).

II.

The Tucker Act

Pursuant to the Tucker Act, the United States Court of Federal Claims has jurisdiction to
"render judgment upon any claim against the United States founded either upon the Constitution,
or any Act of Congress or any regulation of an executive department, or upon any express or
implied contract with the United States, or for liquidated or unliquidated damages in cases not
sounding in tort." 28 U.S.C. § 149l(a) (2012). The Tucker Act serves as a waiver of sovereign
immunity and a jurisdictional grant, but it does not create a substantive cause of action. Jan's
Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008). A
plaintiff, therefore, must establish that "a separate source of substantive law ... creates the right
to money damages." Id. (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)
(en bane in relevant part)).

III.

Plaintiffs' Breach Claim

Because federal courts are not courts of general jurisdiction, they must always satisfy
themselves of their subject matter jurisdiction over a case as a "threshold" matter. Fanning,
Phillips, Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998); see also Rick's Mushroom Serv.,
Inc. v. United States, 521 F.3d 1338, 1346 (Fed. Cir. 2008) (noting that a court may raise subject
matter jurisdiction sua sponte at any time). As discussed below, the statute of limitations
applicable to actions in this court is jurisdictional in nature. Therefore, although the
government's first argument is that it is entitled to summary judgment with respect to Plaintiffs'
breach claim, its alternative argument that the Court lacks subject matter jurisdiction over the
claim because it is barred by the statute of limitations must be addressed first.
The statute oflimitations for actions in this court states that"[ e]very claim of which the
United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon
is filed within six years after such claim first accrues." 28 U.S.C. § 2501. This statute of
limitations is jurisdictional. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-34
(2008); San Carlos Apache Tribe v. United States, 639 F.3d 1346, 1349-50 (Fed. Cir. 2011). "A
cause of action cognizable in a Tucker Act suit accrues as soon as all events have occurred that
are necessary to enable the plaintiff to bring suit, i.e., when 'all events have occurred to fix the

7

Government's alleged liability, entitling the claimant to demand payment and sue here for his
money."' Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (quoting Nager Elec.
Co. v. United States, 166 Ct. Cl. 234, 240 (1966)). A cause of action for breach of contract
accrues when the breach occurs. Alder Terrace, Inc. v. United States, 161F.3d1372, 1377 (Fed.
Cir. 1998).
Plaintiffs' complaint was filed December 19, 2016. Docket No. 1. As a consequence, the
Court lacks subject matter jurisdiction over Plaintiffs' breach claim if it accrued prior to
December 19, 2010. See 28 U.S.C. § 2501. Plaintiffs, however, do not allege when the breach
occurred. Nor do they identify any specific theory of breach. But, it is undisputed that by
October 2000, DOJ had declined to approve the Resolution Agreement, and as a result, the
USDA was not going to pay Matthew Grant. See Def.'s Mot. App. at 15; see also Comp!. Ex. 7;
Am. Comp!. Ex. 8. Thus, on October 19, 2000, Matthew and Florenza Grant filed suit against the
Secretary of the USDA, alleging that "the Grants and Mr. Wright executed the [1998] settlement
agreement," but that "the U.S. Department of Justice (DOJ) refused to sign" it. Def. 's Mot. App.
at 15. Plaintiffs have since described that lawsuit as resulting from "the government's failure to
live up to the" Resolution Agreement. Am. Comp!. Ex. 8; see also Comp!. Ex. 7. Any breach,
therefore, occurred prior to October 2000. Accordingly, this suit was filed more than sixteen
years after any alleged breach took place and more than ten years after the statute oflimitations
for that breach expired.
Plaintiffs bear the burden of demonstrating the Court's jurisdiction by a preponderance of
the evidence. M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir.
2010) (citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)).
For the reasons set foith above, they have not met this burden. Accordingly, Plaintiffs' breach
claim must be dismissed. RCFC 12(h)(3). 7
Finally, the Court notes that, even ifthe statute of limitations was not a bar, the
government would be entitled to summary judgment as to Plaintiffs' breach of contract claim. 8
7

Plaintiffs' amended complaint also contains allusions to a breach of the covenant of good faith
and fair dealing implied in the 1998 Resolution Agreement and, seemingly, the Pigford consent
decree. See Am. Comp!. at 9, 24. There are no factual allegations to support this cause of action.
To the extent that the claim relates to the government's failure to pay the Grants pursuant to the
Resolution Agreement, it is likewise barred by the statute oflimitations.
8

The standards for granting summary judgment are well established. Summary judgment may be
granted where there is no genuine issue of material fact and the movant is entitled to judgment as
a matter of law. RCFC 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact
is material ifit "might affect the outcome of the suit under the governing law." Anderson, 477
U.S. at 248. An issue is genuine if it "may reasonably be resolved in favor of either party." Id. at
250. "The moving party bears the burden of establishing the absence of any genuine issue of
material fact," and all significant doubts regarding factual issues must be resolved in favor of the
party opposing summary judgment. Mingus Constructors, Inc. v. United States, 812 F.2d 1387,
1390 (Fed. Cir. 1987). But, "the party opposing summary judgment must show an evidentiary
conflict on the record; mere denials or conclusory statements are not sufficient." Id. at 1390-91.
"[E]ntry of summary judgment is appropriate against a [party] 'who fails to make a showing
8

To prevail on a breach of contract claim, a party must establish: 1) a valid contract between the
parties; 2) an obligation or duty arising out of the contract; 3) a breach of that duty; and
4) damages caused by the breach. San Carlos Irrigation & Drainage Dist. v. United States, 877
F.2d 957, 959 (Fed. Cir. 1989). The government argues that it is undisputed that DOJ did not in
fact approve the agreement, that as a result no valid contract exists, and, accordingly, that it is
entitled to judgment as a matter of law. Def.' s Mot. at 5. The Court agrees.
If in a purported contract the parties agree that the compact is subject to the approval of
another person, that provision is a condition precedent to the validity of the agreement, and the
contract is only tentative and not binding absent that approval. Cutler-Hammer, Inc. v. United
States, 194 Ct. Cl. 788, 794 (1971) (stating that a provision subjecting an agreement to the
approval of another "is alone sufficient to negate the existence of a contract until the approval is
granted"); see also Wells v. United States, 199 Ct. Cl. 324, 337 (1972) (observing that "[w]here
action with reference to the contract to be executed between the parties is subject to approval by
another and that approval is not subsequently given, no binding contract exists on which the
United States may be required to respond in damages as for a breach" (quotation omitted));
Momoe v. United States, 35 Ct. Cl. 199, 205 (1900); Darragh v. United States, 33 Ct. Cl. 377,
391 (1898) (concluding that a provision subjecting the purported contract to approval of the
Quartermaster General was "a condition precedent to the legal effect of the agreement," and that
the "alleged agreement had no vitality as a contract until approved").
Here, as noted above, the Resolution Agreement was "subject to review by DOJ." Am.
Comp!. Ex. 4. As a result, the agreement was only tentative, and not binding upon the parties,
absent that approval. See Cutler-Hammer, Inc., 194 Ct. Cl. at 794. Further, it is undisputed that
DOJ declined to approve the Resolution Agreement. Comp!. Ex. 8 (letter from USDA stating
that "DOJ declined to approve the settlement [and] the settlement was thus void"); see also
Def.'s Mot. App. at 15; Comp!. Ex. 7; Am. Comp!. Ex. 8. Accordingly, the Resolution
Agreement became a "nullity" with no binding legal effect. See Darragh, 33 Ct. Cl. at 391. There
was thus no valid agreement between the parties and the government would be entitled to
judgment as a matter oflaw, even ifthe Court had subject matter jurisdiction.

IV.

Plaintiffs' Other Claims

The government argues that the estates' remaining claims are not within the Court's
subject matter jurisdiction and must be dismissed. See Def.'s Mot. at 10-12. As described above,
in their original complaint, Plaintiffs alleged violations ofECOA, FOIA, Article I of the
Constitution, the Fourth, Eighth, and Fomieenth Amendments to the Constitution, the Civil
Rights Act of 1964, 42 U.S.C. § 1985, the North Carolina state constitution and bill ofrights, a
North Carolina state statute, the Clayton Act, and unidentified provisions of the Code of Federal
Regulations. The Grants' amended complaint does not appear to include the majority of these
claims, but appears to replace them with new causes of action for negligence, fraud, violations of
sufficient to establish the existence of an essential element to [its] case, and on which [it] will
bear the burden of proof at trial.'" Zafer Taahhut Insaat ve Ticaret A.S. v. United States, 833
F.3d 1356, 1362-63 (Fed. Cir. 2016) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)) (third and fourth alterations in original).

9

the Fifth Amendment's Due Process clause, breach of the covenant of good faith and fair
dealing, and a claim under§ 14012 of the 2008 Fatm Bill. Because the allegations in the
amended complaint are somewhat difficult to follow, and in light of the estates' pro se status, the
Court will address subject matter jurisdiction with respect to all of the claims set forth in both the
original and amended complaints.
First, actions pursuant to ECOA "may be brought in the appropriate United States district
court without regard to the ainount in controversy, or in any other court of competent
jurisdiction." 15 U.S.C. § 169le(f). But "[i]t is ... well settled that this Court does not have
subject-matter jurisdiction to consider [a] plaintiffs claims brought pursuant to the ECOA."
Davis v. United States, 123 Fed. Cl. 235, 241 (2015) (citing, among others, Hall v. United States,
69 Fed. Cl. 51, 55-56 (2005)), affd, 642 F. App'x 982 (Fed. Cir. 2016). To the extent Plaintiffs
are instead asserting jurisdiction under ECOA pursuant to§ 741(d) of the 1999 appropriations
act, Plaintiffs' complaint was not filed prior to October 21, 2000, nor does it seek judicial review
of an administrative complaint refiled with the USDA pursuant to§ 74l(b) prior to October 21,
2000. See Pub. L. 105-277 § 741. 9 Accordingly, the Court does not have jurisdiction over any
claims Plaintiffs are asserting under ECOA, and they must be dismissed.
With respect to disputes under FOIA, only the district courts have subject matter
jurisdiction; the Court of Federal Claims does not have subject matter jurisdiction over alleged
violations of its provisions. 5 U.S.C. § 552(a)(4)(B); Frazier v. United States, 683 F. App'x 938,
940 (Fed. Cir. 2017). Plaintiffs' claims under FOIA, therefore, must also be dismissed.
As to Plaintiffs' constitutional allegations, the estates do not identify which section of
Article I the government has allegedly violated. Comp!. if 6(f). Article I of the Constitution
generally sets out the composition and powers of the United States Congress. See generally. U.S.
Const. Art. I. To the extent Plaintiffs are attempting to assert a violation of Article I's Contract
Clause, the Court lacks jurisdiction over the same. El v. United States, 122 Fed. CL 707, 709
(2015) (citing, among others, McNeil v. United States, 78 Fed. Cl. 211, 225 (2007), affd, 293 F.
App'x 758 (Fed. Cir. 2008)). The Contract Clause prohibits the states from "impairing the
Obligation of Contracts" and is not a money-mandating provision as to the federal government.
Plaintiffs do not identify any money-mandating provision in Article I as the basis for their claim
and the Court must dismiss it for lack of jurisdiction. See Carpenter v. United States, 118 Fed.
Cl. 712, 712-13 (2014) (finding that plaintiffs allegations of illegal confinement in violation of,
among other things, Article I, did not assert a violation of a money-mandating constitutional
provision).
Additionally, the Comi lacks jurisdiction over claims under the Fourth Amendment, the
Fifth Amendment's Due Process Clause, and the Eighth and Fourteenth Amendments because
these provisions are not money-mandating. Trafny v. United States, 503 F.3d 1339, 1340 (Fed.
Cir. 2007) (Eighth Amendment); Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997)
(Fourth Amendment); Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997) (Fifth
9

In fact, Plaintiffs elected to proceed pursuant to§ 741in1997 by joining the Pigford litigation
in district court, after which Matthew Grant opted-out and negotiated the 1998 Resolution
Agreement.

10

Amendment Due Process Clause); LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995)
(Due Process and Equal Protection Clauses of Fourteenth Amendment). The Court must dismiss
these claims as well.
The Court also has no jurisdiction over the estates' claim under the Civil Rights Act of
1964. Caravetta v. United States, 122 F. App'x 992, 993 (Fed. Cir. 2004) ("With respect to ...
the Civil Rights Act of 1964, it has long been held that the Court of Federal Claims lacks
jurisdiction over such claims."); see also Pleasant-Bey v. United States, 99 Fed. CL 363, 368
(2011 ). Nor does it have jurisdiction over actions under 42 U.S.C. § 1985, as jurisdiction over
actions pursuant to that section lies exclusively with the district courts. 28 U.S.C. § 1343(a); see
also Willis v. United States, 96 Fed. CL 467, 470 (2011). Similarly, claims under the Clayton Act
are outside the Court's jurisdiction because they are committed to the district courts. See Hufford
v. United States, 87 Fed. Cl. 696, 703 (2009); see also 15 U.S.C. §§ 4, 18a(f). These claims are
therefore dismissed.
As to Plaintiffs' state law claims, this Court cannot adjudicate claims founded upon state
law and must also dismiss Plaintiffs' claims pursuant to North Carolina's constitution and its
statutes. See Souders v. S.C. Pub. Serv. Auth., 497 F.3d 1303, 1307 (Fed. Cir. 2007); see also 28
U.S.C. § 1491.
With respect to Plaintiffs' claims of negligence and fraud, those claims sound in tort, and
the Court of Federal Claims lacks jurisdiction over torts. Keene Com. v. United States, 508 U.S.
200, 214 (1993); Brown, 105 F.3d at 623 (fraud); O'Connorv. United States, 355 F. App'x 412,
413 (Fed. Cir. 2009) (per curiam) (negligence); see also Rick's Mushroom Serv., Inc., 521 F.3d
at 1343. These claims also, therefore, must be dismissed.
Plaintiffs' claim under the Farm Bill of2008 is difficult to understand. The estates
mention the statute in their amended complaint, but do not make any specific allegations based
upon it. See Am. Comp!. at 8 (describing history of§ 14012); id. at 22-23 (quoting section). In
Plaintiffs' briefin response to the government's motion, however, Plaintiffs assert that§ 14012
of the 2008 Farm Bill is the basis for their request for remand to an administrative law judge.
Pet'rs' Obj. to Resp't's Mot. to Dismiss (Pis.' Resp.) at 6, Docket No. 19.
Regardless of the claim Plaintiffs are attempting to assert pursuant to § 14012, the Court
lacks jurisdiction over it. Section 14012 of the 2008 Farm Bill, also known as the Food,
Conservation and Energy Act of2008, authorized Pigford claimants who were late in filing for
compensation under the consent decree, and were thus unable to obtain relief pursuant to it, to
institute new proceedings to determine the merits of their claims. Food, Conservation, and
Energy Act of2008, Pub. L. No. 110-246, 122 Stat. 1651 (2008). But Congress gave exclusive
jurisdiction over such claims to the district court for the District of Columbia. Id. Therefore, to
the extent Plaintiffs are attempting to pursue relief pursuant to § 14012, it is outside the Court's
jurisdiction and must be dismissed. 10

The Court also notes that relief under§ 14012 is available only to Pigford claimants; Matthew
Grant ultimately chose to opt out of that class.
IO

11

Finally, Plaintiffs' allegations with respect to the Code of Federal Regulations are
similarly unclear. The estates alleged in their original complaint a violation of "7 CFRs
prohibiting discrimination in USDA farm programs," but did not identify which specific
provisions were violated or otherwise identify a money-mandating regulation promulgated by the
USDA. See Comp!. at 17. In their amended complaint, Plaintiffs appear to allege violations of
the USDA's anti-discrimination policy set out in 7 C.F.R. Part 15d and the§ 741 administrative
procedures contained in Part 15f, but still fail to identify which specific provision or provisions
the USDA allegedly violated or how it did so. See Am. Comp!. at 9, 18-20. In fact, the amended
complaint's references to federal regulations appear more as a background discussion of the
history of the Pigford litigation than an allegation of wrongdoing by the USDA with respect to
Plaintiffs. See id.
In any event, to the extent Plaintiffs are attempting to assert a claim based upon the
§ 741(b) procedures contained in 7 C.F.R. Part 15f, the Court lacks jurisdiction over the same.
Section 741 only provides this court with jurisdiction to review a USDA administrative decision
ifthe underlying claim was refiled with the USDA before October 21, 2000, and the complaint in
this court was filed within 180 days of the USDA's subsequent decision. Pub. L. 105-277
§§ 741(b), (d); see also 7 C.F.R. §§ 15f.5(c), 15f.26. Here, Plaintiffs have failed to plead or
identify an administrative complaint refiled with the USDA prior to October 21, 2000, nor have
they alleged a decision issued on that claim within the 180 days prior to filing suit here. Plaintiffs
have thus not demonstrated that the Comt has jurisdiction under§ 741(d). See M. Maropakis
Carpentry, Inc., 609 F.3d at 1327 (stating that plaintiffs bear the burden of demonstrating
jurisdiction).
As to 7 C.F.R. Part 15d, that part sets out the USDA's general anti-discrimination policy.
7 C.F.R. § 15d.1. Plaintiffs do not point to any provision as money-mandating or even identify
the specific provision the USDA allegedly violated. This is insufficient for Plaintiffs to meet
their burden of demonstrating subject matter jurisdiction. But in any event, even if Plaintiffs had
identified a money-mandating provision that the USDA allegedly violated, the Court would still
lack jurisdiction over such a claim because Plaintiffs' discrimination claims are barred by the
statute of limitations.
As noted above, "[e]very claim of which the United States Court of Federal Claims has
jurisdiction shall be barred unless the petition thereon is filed within six years after such claim
first accrues." 28 U.S.C. § 2501. Plaintiffs allege throughout their original and amended
complaints that the USDA discriminated against Matthew and Florenza Grant with respect to
loans for their farm. See Am. Comp!. at 9. But both Matthew and Florenza Grant had passed
away by 2001. Comp!. Ex. 6. Plaintiffs do not allege any instances of discrimination in violation
of the USDA's policy after 2001. See generally, Am. Comp!. Thus, to the extent Plaintiffs'
allegations of discrimination are assertions that the USDA violated its anti-discrimination policy
in Part 15d, those instances took place no later than 2001. Accordingly, even ifthe Court could
have jurisdiction over a discrimination claim under part 15d, Plaintiffs' allegations of
discrimination occurred well more than six years prior to the filing of the complaint in 2016 and
are thus barred by the statute of limitations and must be dismissed.

12

Accordingly, for these reasons, all of Plaintiffs' claims are DISMISSED without
prejudice for lack of subject matter jurisdiction. 11

V.

Plaintiffs' Motion for Remand

Plaintiffs' amended complaint contains a request that the case be remanded to an
administrative law judge, pursuant to RCFC 52.2. Am. Comp!. at 1. The estates appear to base
this request on their allegation that the government "failed to live up to the bargain," presumably
the Resolution Agreement, and that as a result Plaintiffs "should be reinstated into [Pigford]
track b status and ... have a hearing before the ALI for actual damages." Am. Compl. at 15.
They also assert that their request is pursuant to "section 14012 of the Food Energy and
Conservation Act of2008." Pls.' Resp. at 6. As noted above, however,§ 14012 of that act
revived certain potential Pigford litigants' claims, including the opportunity to pursue
administrative relief before the USDA, but placed exclusive jurisdiction over any claims under
that section in the district court for the District of Columbia. Pub. L. No. 110-246.
In any event, RCFC 52.2 provides that "[i]n any case within its jurisdiction, the court, on
motion or on its own, may order the remand of appropriate matters to an administrative or
executive body or official." RCFC 52.2(a) (emphasis added). Here, the Court lacks jurisdiction
over the entirety of Plaintiffs' complaint. Therefore, because the Court does not have
jurisdiction, it cannot remand Plaintiffs' claims, and Plaintiffs' motion is DENIED.

CONCLUSION
Based on the foregoing, the government's motion to dismiss is GRANTED and
Plaintiffs' claims are DISMISSED without prejudice for lack of subject matter jurisdiction.
Because the Court lacks subject matter jurisdiction, Plaintiffs' motions for discovery are
DENIED as moot. The Clerk is directed to enter judgment accordingly. Each side shall bear its
own costs.

IT IS SO ORDERED.

ELAINED. KAPLAN
Judge

11

Because the Court does not have jurisdiction over Plaintiffs' complaint, Plaintiffs' motions for
discovery are DENIED as moot.

13