Gray v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF OKLAHOMA

DAVID GRAY, )

Plaintiff,

v. )

) Case No. 6:25-ev-77-JAR

UNITED STATES OF AMERICA, )

Defendant.

OPINION AND ORDER

Before the court is the motion to dismiss [Doc. 11]! filed on behalf of defendant

United States of America pursuant to Fed. R. Civ. P. 12(b)(1). Plaintiff David Gray,

proceeding pro se, timely responded in opposition [Doc. 15] and the United States

filed a reply brief [Doc. 16].

I, PLAINTIFF'S ALLEGATIONS

This case arises under the Federal Tort Claims Act ("FTCA") and centers on

plaintiffs claim that the United States, acting through the Federal Crop Insurance

Corporation ("FCIC") and its 2020 Board of Directors, negligently disrupted a private

commodities market in which plaintiff operated as a professional market maker.

From 2003 to 2022, plaintiff traded Chicago Mercantile Exchange ("CME")

Feeder Cattle Index "put" options. [Doc. 2, 9] 6-7, 33]. The CME Feeder Cattle Index

is a daily average of feeder cattle prices collected from major cattle-producing regions

in the United States. [Id., § 9]. According to plaintiff, a "put" option on the CME

1 For clarity and consistency herein, when the court cites to the record, it uses the pagination

and document numbers provided by CM/ECF.

Feeder Cattle Index is a "financial contract" that gives its holder the right (but not

the obligation) to sell futures at a fixed price before the option expires. This type of

option is essentially insurance that protects cattle producers from downside price

movements in the CME market. [/d., | 10]. As a market maker, plaintiff facilitated

market liquidity by continuously quoting put option buy and sell prices for CME "put"

options, enabling cattle producers to efficiently execute trades. [/d., § 11].

Between July 1, 2020 and May 19, 2022, plaintiff purchased 4,325 CME Feeder

Cattle Index "put" options at a total premium of $5,766,490.63. Plaintiff alleges these

purchases occurred during a period in which, unbeknownst to him, the private

market was destabilized by regulatory actions to the FCIC's Livestock Risk

Protection ("LRP") pilot insurance program.? [/d., | 17]. He specifically challenges

two changes approved by the FCIC Board of Directors in 2020: (1) allowing cattle

producers to defer premium payments until after the coverage period ended, which

plaintiff contends made LRP coverage cost-free to initiate; and (2) significantly

increasing premium subsidies—ranging from 35% to 65%—depending on producer

eligibility. These modifications took effect on July 1, 2020. [/d., J 14-15].

According to plaintiff, these changes distorted normal market behavior by

incentivizing cattle producers to abandon CME "put" option trading in favor of

subsidized LRP policies, thereby collapsing the two-sided flow essential to his

2 The FCIC is responsible for administering federal crop insurance programs under the

oversight of the USDA Risk Management Agency ("RMA"), including the LRP pilot program. □□□□□

13]. The LRP program provides federally subsidized insurance product that functions similarly to a

"put" option onthe CME Feeder Cattle Index, allowing cattle producers to hedge against price declines.

LRP coverage is priced using data derived directly from the CME market, including settlement prices

and implied volatility. Only cattle producers are eligible to purchase LRP policies. [/d., 12, 24-25].

market-making function. As cattle producers increasingly exited the CME market,

plaintiff claims he was left with one-sided exposure and an inability to offset risk. On

May 20, 2022, he ceased all market-making activity and completed liquidation of his

positions by November of that year. [Id., 9] 22, 26-30, 32-33].

Plaintiff asserts that the FCIC acted negligently by implementing changes that

violated statutory and regulatory safeguards designed to prevent government

interference in private markets. He further cites the emergence of "subsidy

harvesting," whereby cattle producers allegedly purchased subsidized LRP policies

while simultaneously selling CME "put" options to capture the subsidy while

offsetting risk. [Id., 9] 29, 34-35].

Plaintiff seeks compensatory damages in the amount of $3,748,219, asserting

claims for negligence and negligence per se. [Id. at 12-15]. He contends this figure

represents the overpayment he made on CME "put" options during the period in

which LRP premiums, reduced by subsidies and deferred payment terms, rendered

CME market prices artificially uncompetitive. [/d., 54-59].

II. DISMISSAL STANDARD

The United States seeks dismissal of this action pursuant to Fed. R. Civ. P.

12(b)(1) for a lack of subject matter jurisdiction. Dismissal under Rule 12(b)(1) is not

a judgment on the merits, but only a determination that the court lacks authority to

adjudicate the matter. See Casteneda v. INS, 23 F.8d 1576, 1580 (10th Cir. 1994)

(recognizing federal courts are courts of limited jurisdiction and may only exercise

jurisdiction when specifically authorized to do so). A court lacking jurisdiction "must

dismiss the cause at any stage of the proceeding in which it becomes apparent that

jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th

Cir. 1974). A Rule 12(b)(1) motion to dismiss "must be determined from the

allegations of fact in the complaint, without regard to mere [conclusory] allegations

of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). The burden

of establishing subject matter jurisdiction is on the party asserting jurisdiction.

Basso, 495 F.2d at 909. As plaintiff proceeds pro se, the court construes his complaint

liberally. See Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002).

Since the United States is a sovereign, plaintiff must also point to a statute

which provides for a specific waiver of the United States' immunity. See Normandy

Apts., Ltd. v. U.S. Dep't of Hous. & Urb. Dev., 554 F.3d 1290, 1295 (10th Cir. 2009).

Absent a waiver, sovereign immunity shields the federal government and its agencies

from suit. FDIC v. Meyer, 510 U.S. 471, 475 (1994) (citations omitted). Sovereign

immunity is jurisdictional in nature, as the "terms of [the United States'] consent to

be sued in any court define that court's jurisdiction to entertain the suit." United

States v. Sherwood, 312 U.S. 584, 586 (1941); see also United States v. Mitchell, 463

U.S. 206, 212 (1983) ("It is axiomatic that the United States may not be sued without

its consent and that the existence of consent is a prerequisite for jurisdiction."). A

waiver of sovereign immunity is to be strictly construed, in terms of its scope, in favor

the sovereign. See e.g., Lane v. Pena, 518 U.S. 187, 192 (1996). Here, plaintiff invokes

the FTCA asa purported waiver of the United States' sovereign immunity.

Til. DISCUSSION

In support of its Rule 12(b)(1) dismissal motion, the United Sates asserts the

following arguments: (1) plaintiffs FTCA claims are based on "interference with

contract rights" and, thus, are barred by 28 U.S.C. § 2680(h); (2) the FTCA claims are

also barred by the "discretionary function jurisdictional exception" under 28 U.S.C. §

2680(a); (8) plaintiff has failed to establish an appropriate private party analogue for

his negligence claim; and (4) his claim for negligence per se fails because the FCIC

and its LRP pilot program are not subject to the jurisdiction of the Commodity

Futures Trading Commission, and the violation of a federal statute or regulation

cannot be the basis for liability under the FTCA.

A. PLAINTIFF'S FTCA CLAIMS BASED ON "INTERFERENCE WITH CONTRACT

RIGHTS" ARE BARRED BY 28 USS.C. § 2680(H).

The FTCA "was designed primarily to remove the sovereign immunity of the

United States from suits in tort." Levin v. United States, 568 U.S. 508, 506 (2018).

The Act gives federal district courts exclusive jurisdiction over claims against the

United States for "Injury or loss of property or personal injury or death caused by

negligent or wrongful act or omission" of a federal employee "acting within the scope

of his office or employment." 28 U.S.C. § 13846(b)C1). This broad waiver of sovereign

immunity is subject to a number of exceptions set forth in § 2680 of the FTCA,

including "[a]ny claim arising out of ... interference with contract rights." Id. §

2680(h). Whether a claim falls within § 2680(h) turns on the conduct alleged, not the

legal theory invoked. Hall v. United States, 274 F.2d 69, 71 (10th Cir. 1959); cf.

United States v. Neustadt, 366 U.S. 696, 703 (1961). Thus, a plaintiff cannot avoid

the exception by recasting an interference-with-contract-rights claim as a claim for

negligence. See United States v. Shearer, 473 U.S. 52, 55 (1985).

The United States contends that plaintiffs negligence claims are essentially

claims for interference with contract rights and are therefore barred by § 2680(h).

Plaintiff responsively asserts that § 2680(h) applies solely to "intentional torts," and

because his complaint alleges "FCIC negligence" rather than "any deliberate or

malicious act," the statute does not foreclose his claims. [Doc. 15 at 2-3, 4 4, 6]. While

the complaint acknowledges that "[a] 'put' option on the CME Feeder Cattle Index is

a financial contract" [Doc. 2, § 10], plaintiff maintains that his damages derive from

"measurable overpayment for CME 'put' options caused by FCIC's alleged

negligence—not from interference with any enforceable contract." [Doc. 15 at 3, § 5].

In support, plaintiff relies on the assertion that "[t]he Supreme Court's

language is clear, § 2680(h) is an intentional tort exception." [[d. at 3, | 6 (citing

Millbrook v. United States, 569 U.S. 50, 52 (2013))]. This argument misreads the

statute and precedent. Millbrook did not address the interference-with-contractual-

right exception or impose an intent requirement on § 2680(h) as a whole. Rather, the

Supreme Court considered the scope of § 2680(h)'s "law enforcement proviso" and

made no pronouncement about the mental state required for other exceptions under

the statute. Millbrook, 569 U.S. at 53.

The Supreme Court has long rejected the notion that § 2680(h)'s exceptions

apply only to intentional acts. The "arising out of" language in § 2680 of the FTCA

encompasses negligence claims if the underlying conduct fits within an enumerated

exception. See Neustadt, 366 U.S. at 702 (finding § 2680(h)'s exception for claims

arising out of "misrepresentation" covers cases in which negligence underlies the

alleged inaccurate representation); see also Shearer, 473 U.S. at 55-56 (finding §

2680(h)'s exception for claims arising out of "battery" includes claims "that sound in

negligence but stem from a battery committed by a Government employee."). The

Tenth Circuit has likewise applied this principle to interference-with-contract-rights

claims, holding them barred whether premised on negligent or intentional conduct.

See Cooper v. Am. Auto. Ins. Co., 978 F.2d 602, 611, 613 (10th Cir. 1992) (finding

claims against the government based on tortious interference with present or future

contractual relations are barred by § 2680(h)); see all United States v. Ken Mar

Assocs. Ltd., 697 F. Supp. 400, 403 (W.D. Oka. Oct. 27, 1987) (citing Dupree v. United

States, 264 F.2d 140 rd Cir. 1959) ("Section 2680(h) excludes invocation of the relief

granted under the [FTCA] and 28 U.S.C. § 1346(b) in instances where there is

interference, negligent or otherwise, by a government employee or officer with

contractual rights of an aggrieved individual).

The same principle applies here. Plaintiffs own allegations show that his

damages flow from the FCIC's conduct affecting the value of "put" options which, by

his own description, are financial contracts. See e.g., [Doc. 2, 4, 6, 58, 54]. Whether

the alleged interference was intentional or negligent, § 2680(h) of the FTCA bars

plaintiffs negligence claims. The United States is therefore entitled to dismissal of

this FTCA case pursuant to Rule 12(b)(1).

B. PLAINTIFF'S FTCA CLAIMS ARE BARRED BY THE "DISCRETIONARY

FUNCTION EXCEPTION."

The FTCA does no waive sovereign immunity for "[a]ny claim" arising from

"the exercise of performance or the failure to exercise or perform a discretionary

function or duty on the part of a federal agency." 28 U.S.C. § 2680(a). As the Supreme

Court has explained, this exception "marks the boundary between Congress’

willingness to impose tort liability upon the United States and its desire to protect

certain governmental activities from exposure to suit by private individuals."

Berkovitz v. United States, 486 U.S. 531, 536 (1988) (quoting United States v. Varig

Airlines, 467 U.S. 797, 808 (1984)). Because the discretionary function exception is

jurisdictional, the burden is on plaintiff to prove it does not apply. Hardscrabble

Ranch, LLC v. United States, 840 F.3d 1216, 1222 (10th Cir. 2016); see also 28 U.S.C.

§ 1346(b)(1).

Courts determine applicability using the two-pronged framework established

in Berkovitz. Elder v. United States, 312 F.8d 1172, 1176 (10th Cir. 2002) (citing

Berkovitz, 486 U.S. at 536). First, the court considers whether the challenged conduct

"involves an element of judgment or choice" or whether a federal statute, regulation,

or policy "specifically prescribes a course of action for an employee to follow,” in which

case the exception does not apply. Berkovitz, 486 U.S. at 536. If judgment or choice

exists, the court proceeds to determine whether that judgment "is the kind that the

discretionary function exception was designed to shield." Id. The exception protects

only those discretionary actions or decisions which are "based on considerations of

public policy." Id. at 537.

1. Berkovitz First Prong

To satisfy the first prong, plaintiff must identify a "specific and mandatory"

directive leaving no room for discretion. Kiehn v. United States, 984 F.2d 1100, 1102

(10th Cir. 1993); Aragon v. United States, 146 F.3d 819, 823 (10th Cir. 1998). Plaintiff

relies on various statutory provisions in the Federal Crop Insurance Act ("FCIA") and

purported agency guidelines to argue that the FCIC lacked discretion in approving

the July 2020 modifications to the LRP pilot program.

i. Federal Statutes Invoked by Plaintiff

Plaintiff specifically contends the challenged conduct violated § 508(i) of the

FCIA, which he asserts is codified at 7 U.S.C. §§ 1523(a)(2) and (b)(7). [Doc. 15 at 33-

34, 9 97-98]. Section 508(4) is codified at 7 U.S.C. § 1508(), however, and addresses

only the FCIC's adoption of "rates and coverages that will improve the actuarial

soundness of the insurance operations" of the agency. 7 U.S.C. § 1508@)(1). To the

extent plaintiff intended to invoke §§ 523(a)(2) and (b)(7) of the FCIA, codified at 7

U.S.C. §§ 1523(a) and (b), these subsections provide in pertinent part:

(2) PRIVATE COVERAGE—Under this section, the [FCIC] shall not conduct

any pilot program that provides insurance protection against a risk if

such protection is generally available from private companies.

(b) LIVESTOCK PILOT PROGRAMS

(5) RELATION TO OTHER LIMITATIONS—Any policy or plan of insurance

under this subsection may be prepared without regard to the limitation

of this subchapter.

(7) PRIVATE INSURANCE—NoO action may be undertaken with respect to a

risk under this subsection if the [FCIC] determines that insurance

protection for livestock producers against the risk is generally available

from private companies.

Id. §§ 1523(a)(2), (b)(5), (b)(7) (emphasis added).

Neither § 1523(a)(2) nor § 1523(b)(7) specifically govern FCIC's approval of the

July 2020 LRP modifications. Because LRP is a livestock pilot program, it falls within

§ 1523(b), and subsection (b)(5) provides that "[a]ny policy or plans of insurance"

offered under a livestock pilot program may be prepared "without regard to

limitations" of Title 7, Ch. 86, Subchapter I of the United States Code (i.e., 7 U.S.C.

§§ 1501-1524). Id. § 1523(b)(). Thus, the provisions of § 1523(b)(5) render the

provisions of § 1523(a)(2) inapplicable to the FCIC's LRP pilot program. Moreover,

nothing in § 1523(b)(7) specifically prescribes a course of action for an FCIC employee

to follow. See Berkovitz, 486 U.S. at 536. Subsection (b)(7) is inherently discretionary,

expressly giving the FCIC discretion to determine whether a given livestock risk—

such as those addressed by the July 2020 changes—is already insured by private

companies.

In sum, because § 1523(b)(7) gives FCIC discretion to determine the

availability of private insurance, it necessarily involves judgment and choice,

defeating plaintiff's attempt to remove the decision from the discretionary function

exception. See e.g., Elder, 312 F.3d at 1176-77; Hardscrabble Ranch, LLC, 840 F.3d

at 1222; Berkovitz, 486 U.S. at 536. In making the determination to increase LRP

pilot program subsidies and deferred premium due dates, the FCIC was well within

the discretion it has been provided under § 1528(a)(1), which provides:

(1) AUTHORITY—Except as otherwise provided in this section, the [FCIC]

may, at the sole discretion of the [FCIC], conduct a pilot program

submitted to and approved by the Board under section 1508(h) of this

title, or that is developed under subsection (b) ... of this title, to evaluate

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whether a proposal or new risk management tool tested by the pilot

program is suitable for the marketplace and addresses the needs of

producers of agricultural commodities.

7TUS.C. § 1523(a)(_) (emphasis added).

ii. Agency Guidelines Invoked by Plaintiff

Plaintiff further claims the challenged conduct violated agency guidelines

contained in a document titled "General Guidelines, Considerations, and Criteria for

Feasibility of Insurance Product Development" (the "Guidelines"). [Doc. 15 at 15-18,

|] 39-44]. The introductory section of the Guidelines provides in pertinent part:

This document provides general information that may be helpful to private

entities who are interested in developing crop insurance products for either

crops or livestock. ... The [FCIA], Code of Federal Regulations (CFR), and

Board Procedures cited at the end of this document are the official documents

that provide the requirements for ultimately submitting a privately developed

product and must be followed for any insurance products submitted to the

[FCIC].

[[d. at 89 (emphasis added)]. Because the Guidelines are clearly advisory in nature,

addressed to private parties, and do not bind FCIC employees, they do not constitute

a "specific and mandatory" directive. See Elder, 312 F.8d at 1176-77; see also

Hardscrabble Ranch, LLC, 840 F.3d at 1220 (quoting Berkovitz, 486 U.S. at 536) (“if

a regulation or policy ‘specifically prescribes a course of action for an employee to

follow,’ there would be no discretion for the employee: he would have no choice but to

follow the directive, so the discretionary function exception would not apply.").

Consequently, plaintiff fails to satisfy the first prong of the Berkovitz test.

2. Berkovitz Second Prong

Even if plaintiff could satisfy the first prong, the FCIC's decision to increase

subsidies and extend premium due dates for the LRP pilot program reflects precisely

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the type of policy-based judgment Congress intended to insulate from judicial review.

Plaintiff does not respond to the government's showing that these program

modifications involve multiple policy considerations. See [Doc. 11 at 10-11]. Such

judgments inherently implicate economic, social and political factors, which are

exactly the type of discretionary determinations the exception shields. See e.g.,

Berkovitz, 486 U.S. at 536-37; Varig Airlines, 467 U.S. at 814; Duke Dep't of Agric.,

131 F.3d 1407, 1411 (10th Cir. 1997). The court accordingly finds the discretionary

function exception applies to plaintiffs FTCA claims, entitling the United States to

dismissal under Rule 12(b)(1).

C. PLAINTIFF FAILS TO ESTABLISH AN APPROPRIATE PRIVATE PARTY

ANALOGUE TO SUPPORT HIS NEGLIGENCE CLAIM.

A claim asserted under the FTCA is actionable only if it satisfies the following

six elements:

[T]he claim must be [1] against the United States, [2] for money

damages, ... [3] for injury or loss of property, or personal injury or death

[4] caused by the negligent or wrongful act or omission of any employee

of the Government [5] while acting within the scope of his office or

employment, [6] under circumstances where the United States, if a

private person, would be liable to the claimant in accordance with the

law of the place where the act or omission occurred.

Brownback v. King, 592 U.S. 209, 217 (2019) (quoting 28 U.S.C. § 13846(b)(1)). Thus,

the United States cannot be liable unless state law recognizes comparable private

liability. See 28 U.S.C. § 1846(b)(1).8 Failure to identify an appropriate private-party

3 See also United States v. Olson, 546 U.S. 48, 46 (2005) (explaining that the FTCA waives the

federal government's sovereign immunity only where local law would make a private person liable in

tort, not where local law would make a state or municipal entity liable, even where uniquely

governmental functions are at issue); Hill v. SmithKline Beecham Corp., 393 F.8d 1111, 1117 (0th

Cir. 2004) (citation omitted) (recognizing that "the United States is seldom situated identically to

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analogue deprives the court of jurisdiction to hear those claims. See Pappas v. United

States, 617 Fed. Appx. 879, 883 (10th Cir. 2015) (unpublished) (citing Miller v. United

States, 710 F.2d 656, 662 (10th Cir. 1988)) (explaining that the party asserting

jurisdiction "bears the burden of proof to establish that the court possesses subject

matter jurisdiction based upon analogous Oklahoma private liability.").

Plaintiff asserts the FCIC is liable under the general elements of Oklahoma

negligence law. [Doc. 15 at 21-26, 79 56-70]. He argues that "the FCIC operated

within the same economic space" as him, "effectively competing in the same market"

and because FCIC entered the same commercial space, "it owed a duty of care not to

distort the CME Feeder Cattle Index market or cause foreseeable damage that

harmed [p]laintiff." [[d. at 22-23, 9 60, 64]. The United States responsively contends

the FCIC owed plaintiff no duty of care. [Doc. 16 at 7].

Whether a duty exists is a threshold legal question for the court. McGehee v.

Forest Oil Corp., 908 F.3d 619, 624-25 (10th Cir. 2018) (applying Oklahoma law).

Under Oklahoma law, a duty arises only ifthe defendant "knew or should have known

of some danger harm" such that a reasonably prudent person would view the conduct

as unreasonably dangerous." Id. at 628 (quoting Lowery v. Echostar Satellite Corp.,

2007 OK 38, 4 15, 160 P.8d 959, 965). Foreseeability alone does not establish duty;

the risk must place the plaintiff within the "zone of risk" created by the defendant's

conduct. Id. at 626.

Plaintiff has not shown that the FCIC's actions placed him within that zone.

private parties," and explaining the "like circumstances' inquiry requires only that the United States

be analogized to a similarly situated private party").

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The FCIC increased subsidies and extended premium due dates for participants in

the LRP pilot program. Plaintiff was neither a purchaser nor a potential purchaser

of LRP insurance, nor otherwise associated with the program. He was an unknown

market maker on the CME Feeder Cattle Index, and nothing in the complaint

indicates that FCIC knew of his existence or trading activities. More importantly,

plaintiff identifies no Oklahoma precedent imposing liability on a private insurer or

analogous entity for adjusting program subsidies or payment terms in a manner that

indirectly affects a third party’s market activity. Without such precedent, plaintiff

cannot satisfy the FTCA’srequirement that the United States be liable "in accordance

with the law of the place where the act or omission occurred." 28 U.S.C. § 13846(b)(1).

Because the alleged risks did not render FCIC's conduct unreasonably dangerous to

plaintiff, no duty of care existed. Without such a duty, plaintiff cannot establish a

private-party analogue, and the United States is entitled to Rule 12(b)(1) dismissal

of his first cause of action.

D. PLAINTIFF'S NEGLIGENCE PER SE CLAIM FAILS AS A MATTER OF LAW.

In Oklahoma, a negligence per se claim requires satisfaction of three elements:

(1) the injury must have been caused by the violation; (2) the injury must be of a type

intended to be prevented by the statute; and (8) the injured party must be a member

of the class intended to be protected by the statute." MeGee v. El Patio, LLC, 2023

OK 14, 7 9, 524 P.38d 1283, 1286. Plaintiff relies on 71 Okla. Stat. ("O.S.") § 1-501,

titled "General Fraud," as the analogous state law duty that supports his claim for

negligence per se. [Doc. 15 at 29-30, § 81]. Section 1-501 makes it "unlawful for a

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person, in connection with the offer, sale, or purchase of a security, directly or

indirectly:

1. To employ a device, scheme or artifice to defraud;

2. To make an untrue statement of a material fact or to omit to state a

material fact necessary in order to make the statement made, in light

of the circumstances under which it is made, not misleading; or

3. To engage in an act, practice, or course of business that operates or

would operate as a fraud or deceit upon another person."

71 OS. § 1-501 (emphasis added).

The United States correctly states that the FCIC's challenged decision cannot

be independently tortuous under § 1-501. [Doc. 16 at 9]. The term "security" in § 1-

501 is defined at 71 O.S. § 1-102(82) and does not include an insurance policy such as

those issued under the LRP pilot program. Even if § 1-501 were applicable, plaintiff

alleges no facts showing that the FCIC engaged in a fraudulent scheme, made a

material misrepresentation or omission, or otherwise acted deceitfully. See Id. § 1-

501(1)-(8). Nor has plaintiff identified any Oklahoma case law recognizing negligence

per se liability based on actions comparable to the FCIC's administration of a subsidy

program. Because negligence per se requires a qualifying statutory duty, a violation

of that duty, and causation, plaintiffs claim fails on multiple elements. Absent an

analogous state-law duty, the FTCA provides no waiver of sovereign immunity, and

the United States is entitled to Rule 12(b)(1) dismissal of plaintiff's second cause of

action.

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IV. CONCLUSION

WHEREFORE, the United States’ motion to dismiss [Doc. 11] is hereby

GRANTED.

ITIS SO ORDERED on this 20th day of August, 2025.

JASON A. ROBERTSON

UNITED STATES MAGISTRATE JUDGE

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