99 F. Supp.2d 105 (2000) | Cited 0 times | D. Maine | May 5, 2000



The plaintiffs, Gregory and Kathryn Harriman, a married couplewho are farmers in Waldo County, Maine, have brought this lawsuitagainst the United States Department of Agriculture and its FarmService Agency and Rural Economic and Community DevelopmentAdministration (hereafter, collectively, "USDA"). The Harrimansclaim that, because the USDA failed to approve an operating loanapplication and instead accelerated existing loans incontravention of USDA regulations, they have been economicallydamaged and are entitled to recover their damages from the UnitedStates Treasury. The USDA has moved for summary judgment. BecauseI find that the USDA has not waived sovereign immunity to thisclaim for damages, I GRANT the motion.


When the Harrimans first filed this lawsuit, they named boththe USDA and Fleet Bank of Maine ("Fleet") as defendants. Fleethad loaned them money, secured by a guarantee from the USDA and amortgage on the Harrimans' farm. See Verified Compl. ¶¶ 9-11.The Harrimans requested declaratory and injunctive relief both toprevent the USDA from accelerating the notes, and to preventFleet from foreclosing on the farm. Alternatively, they askedthat the farm be placed into escrow or a constructive trustpending the resolution of this matter. See Verified Compl. at5. The Harrimans also asked for damages "for lost income and formonies paid to the Fleet Bank as and for down payment at theinception of the financing," as well as for fees and costs.Verified Compl. at 5.

By the time the Harrimans' motion for a temporary restrainingorder was heard before District Court Judge Morton Brody, Fleethad foreclosed and Maine's statutory redemption period hadexpired. See Order and Mem. of Decision, Apr. 15, 1999, at 1(denying the plaintiffs' motion for a temporary restrainingorder). Fleet was then dismissed from the lawsuit with theHarrimans' agreement. See Order, May 24, 1999, at. 1 (denyingplaintiffs' motion for preliminary injunction). The USDA alsomoved for dismissal on grounds of sovereign immunity, among otherthings. At that point, the Harrimans said they wanted bothdamages and declaratory relief against the USDA. In denying theUSDA's motion, Judge Brody treated the Harrimans' claim asseeking judicial review of an administrative law decision. SeeOrder and Mem. of Decision, Sept. 22, 1999, at 2. He ruled thatthe USDA had waived sovereign immunity for judicial review ofUSDA decisions, citing 7 U.S.C. § 6999 (conferring jurisdictionon district courts to review decisions of the USDA's NationalAppeals Division) and Deaf Smith County Grain Processors, Inc.v. Glickman, 162 F.3d 1206, 1211 (D.C.Cir., 1998).

Now the Harrimans no longer want declaratory relief. SeeOpp'n Mem. at 2 n. 1. The USDA seeks summary judgment on theremaining damages claims. The USDA argues, first, that this Courtis unable to award monetary damages under 7 U.S.C. § 6999 becausethe judicial review permitted there is limited to nonmonetaryrelief; second, that this Court lacks jurisdiction to awardmonetary damages under the Harrimans' only other viable theory,the Tucker Act, 28 U.S.C. § 1346(a)(2) and28 U.S.C. § 1491(a)(1).1The Harrimans level no response to the USDA's argument thatmonetary relief is unavailable under section 6999 judicialreview. Instead, they shift their attention to the Tucker Act andargue that the USDA has breached express and implied contracts.


This is not a lawsuit to enforce loan agreements or to compelthe USDA to disburse loans or benefits. Nor do the Harrimans anylonger seek judicial review of an administrative law decisionsuch as might be available under section 6999. The sole questionremaining before me is whether, as a matter of law, the Harrimanscan recover a money award from the United States Treasury tocompensate them for the economic injury they have suffered.

To recover money damages from the United States Treasury, alitigant must point to a specific congressional waiver ofsovereign immunity conferring jurisdiction on a court to hear theclaim. Only the Tucker Act potentially allows plaintiffs like theHarrimans to obtain damages from the USDA. Due to jurisdictionallimits, the plaintiffs can proceed in this Court only under theso-called Little Tucker Act, 28 U.S.C. § 1346(a)(2). But theTucker Act "does not create any substantive right enforceableagainst the United States for money damages." United States v.Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580(1983) (quotation and citation omitted).2 Instead, thesubstantive right must be found in the sources specified by theTucker Act — federal Constitution, legislation, regulation orcontract.

At various points in their pleadings, the Harrimans havealleged that the USDA violated Acts of Congress and regulationsof an executive department. That is not enough. The Supreme Courtsaid in Mitchell:

Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act. The claim must be one for money damages against the United States and the claimant must demonstrate that the source of substantive law he relies upon can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.

Id. at 216-17, 103 S.Ct. 2961 (emphasis added; citations,quotation, and footnote omitted). After carefully reviewing thestatutes and regulations cited by the Harrimans,3 I concludethat they cannot "fairlybe interpreted as mandating compensation by the FederalGovernment for the damages sustained." Id. at 217, 103 S.Ct.2961.

Finally, the Harrimans attempt to shoehorn their Tucker Actclaim into that Act's contracts prong ("express or impliedcontract with the United States"). They assert in their legalmemoranda that the USDA has breached express and impliedcontracts with them, but neither there nor, more importantly, intheir Verified Complaint, do they refer to any specific contractor contractual provisions.4

Consequently, the Little Tucker Act does not apply.


Because I lack jurisdiction to consider the Harrimans' claims,the USDA's Motion for Summary Judgment on Counts I and II isGRANTED.5 My ruling on the motions of the Harrimans'lawyers to withdraw is deferred until the USDA informs the Courthow it wishes to proceed on the counterclaim. The USDA shall doso by May 15, 2000.


1. The Tucker Act waives sovereign immunity for claims"founded either upon the Constitution, or any Act of Congress, orany regulation of an executive department, or upon any express orimplied contract with the United States. . . ."28 U.S.C. § 1346(a)(2); see also 28 U.S.C. § 1491. Section 1491(a)(1), theso-called Big Tucker Act, confers exclusive jurisdiction upon theCourt of Federal Claims to hear claims against the United States.Section 1346, the so-called Little Tucker Act, confers concurrentjurisdiction upon the district courts to hear claims against theUnited States not exceeding $10,000. I understand the plaintiffsto be proceeding under the Little Tucker Act, section 1346, theonly wing of the Tucker Act under which this Court hasjurisdiction.

2. Although Mitchell involved section 1491(a)(1), theso-called Big Tucker Act, there is no reason that it should notguide my understanding of section 1346(a)(2). See Army and AirForce Exch. Serv. v. Sheehan, 456 U.S. 728, 734 n. 5, 102 S.Ct.2118, 72 L.Ed.2d 520 (1982) (pointing out that the statutes areidentical, save for the Little Tucker Act's concurrentjurisdiction provision for claims not exceeding $10,000).

3. I look principally to the plaintiffs' Memorandum of Pointsand Authorities in Opposition to the United States Defendants'Motion to Dismiss and in Response to Court's Show Cause Order, inwhich the plaintiffs explicate their theory of the case andidentify 7 U.S.C. § 1983a(c) and 7000, and 7 C.F.R. § 11.12 asthe statutes and regulations on which they base their claims.

Section 1983a(c) provides that if the Secretary of Agriculturedisapproves a loan or loan guarantee application, "but suchaction is subsequently reversed or revised as the result of anappeal within the Department of Agriculture or to the courts ofthe United States and the application is returned to theSecretary for further consideration," the Secretary must act uponthe application within 15 days. 7 U.S.C. § 1983a(c). Theprovision cannot reasonably be read to provide money damages.

Section 1983a is part of a subchapter IV (AdministrativeProvisions) of chapter 50 (Agricultural Credit) of Title 7. TheHarrimans have not predicated their lawsuit on specific loanprovisions of chapter 50 and I do not comment on whether suchprovisions support money damages. I observe, however, that theClaims Court and Federal Circuit have routinely have concludedthat chapter 50 does not provide for monetary damages. SeeNelson v. United States, 16 Cl.Ct. 510, 514 n. 4 (1989)(administrative provisions of subchapter IV); see also Cummingsv. United States, 17 Cl.Ct. 475, 479 (1989) (emergency loanprovisions of subchapter II, 7 U.S.C. § 1961-1970), aff'd onother grounds, 904 F.2d 45 (Fed.Cir. 1990) (unpublished);Campbell v. United States, 16 Cl.Ct. 690, 696 (1989) (severalregulations of the operating loan provisions of subchapter II,7 U.S.C. § 1941-1949); Hanson v. United States, 13 Cl.Ct. 519,527-28 (1987) (emergency loan provisions of subchapter II,7 U.S.C. § 1961-1970), aff'd, 861 F.2d 728 (Fed.Cir. 1988)(unpublished).

Section 7000 is part of a subchapter establishing the USDA'sNational Appeals Division. See 7 U.S.C. § 6991 et. seq. Thatsubchapter and its implementing regulations, see7 C.F.R. § 11.1 - 11.33, concern administrative and judicial appeals ofadministrative decisions, and neither implicitly nor explicitlyprovide for compensation by the federal government.

4. The closest the Harrimans come is in ¶ 10 of the VerifiedComplaint, but there the alleged breach was by Fleet, not theUSDA.

5. It is unnecessary to consider the USDA's exhaustionarguments.

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