Parker v. United States

ORIGl~J.\L FILED

Jfn tbe Wniteb ~tates Qeourt of jfeberal Qelaitns MAR 24 2011

U.S. COURT OF

No. 16-264C FEDERAL CLAIMS

(Filed Under Seal: January 31, 2017)

(Reissued for Publication: March 24, 2017)*

*************************************

CARL PARK.ER, Individual and *

*

Administrator for the Estate of Gary L.

Parker, * RCFC 12(b)(l); RCFC 12(b)(6); Subject

* Matter Jurisdiction; Failure to State a

Plaintiff, * Claim Upon Which Relief Can Be Granted;

* Pigford Litigation; Section 741; Consent

v. * Decree; Equal Credit Opportunity Act;

* Contractual Takings; Unenacted

THE UNITED STATES, * Legislation; 2008 Farm Bill

*

Defendant. *

*************************************

Carl Parker, Ashburn, GA, pro se.

Daniel S. Herzfeld, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Judge

In this case, plaintiff Carl Parker, individually and as administrator for the estate of Gary

L. Parker, seeks damages related to (1) the purported failure of the Farm Service Agency

("FSA") of the United States Department of Agriculture ("USDA") to abide by the consent

decree in the Pigford class-action discrimination litigation and (2) ongoing discrimination by the

USDA. Defendant United States moves to dismiss the complaint for lack of subject matter

jurisdiction and, alternatively, for failure to state a claim upon which this court can grant relief.

For the reasons set forth below, the court grants defendant's motion to dismiss and denies Carl

Parker's motion for summary judgment as moot.

* The court provided the parties with an opportunity to suggest redactions to this ruling.

In a February 28, 2017 status report, defendant indicated that no redactions were necessary and

that it had been unsuccessful in attempting to communicate with Carl Parker regarding proposed

redactions. To date, Carl Parker has not suggested any redactions. Accordingly, the court

reissues this decision without redactions.

I. BACKGROUND

A. Pigford I Litigation

On August 28, 1997, three African-American farmers filed a putative class action against

the USDA to obtain redress for a long pattern of discrimination against African-American

farmers in its credit and benefit programs. 1 Pigford v. Glickman ("Pigford I"), 185 F.R.D. 82,

86-89 (D.D.C. 1999), affd, 206 F.3d 1212 (D.C. Cir. 2000). Although the USDA had a process

in place for resolving discrimination complaints, the system had been effectively nonexistent for

over a decade prior to initiation of the lawsuit, leaving many wronged farmers without relief. Id.

at 88. This systemic discrimination, which violated the Equal Credit Opportunity Act

("ECOA''), 15 U.S.C. §§ 1691-1691f (2012), led to a significant decline in the number of

African-American farmers throughout the United States. Pigford I, 185 F.R.D. at 87. An initial

class was certified on October 9, 1998. Id. at 90.

Prior to 2010, the statute oflimitations on alleged ECOA violations was two years.

15 U.S.C. § 169le(f) (2006); see Dodd-Frank Wall Street Reform and Consumer Protection Act,

Pub. L. No. 111-203, § 1085(7), 124 Stat. 2083, 2085 (2010)(increasing the statute oflimitations

on ECOA claims from two years to five years). On October 21, 1998, Congress enacted the

Agriculture, Rural Development, Food and Drug Administration, and Related Agencies

Appropriations Act of 1999, Pub. L. No. 105-277, div. A, sec. lOl(a), 112 Stat. 2681, 2681 to

2681-50 (1998). Section 741 of that Act ("Section 741") waived the statute oflimitations for

actions filed within two years of its passage-i.e., until October 21, 2000-if a complaint had

been filed with the USDA before July 1, 1997, alleging nonemployment discrimination between

January 1, 1981, and December 31, 1996. Id.§ 741, 112 Stat. at2681-30 to -31. Section 741

also permitted aggrieved farmers to obtain an administrative hearing on the record in lieu of

pursuing a judicial remedy. Id.

On January 5, 1999, a newly certified class in Pigford I was defined as:

All African American farmers who ( 1) farmed, or attempted to

farm, between January 1, 1981 and December 31, 1996; (2)

applied to the United States Department of Agriculture (USDA)

during that time period for participation in a federal farm credit or

benefit program and who believed that they were discriminated

against on the basis of race in USDA's response to that

application; and (3) filed a discrimination complaint on or before

July 1, 1997, regarding USDA's treatment of such farm credit or

benefit application.

1

The court derives the facts in this section from Carl Parker's complaint ("Comp!."), the

exhibits attached to the complaint ("Comp!. Ex."), the appendix to defendant's motion to dismiss

("Def.' s App."), the attachments to defendant's reply in support of its motion to dismiss ("Def.' s

Reply Attach."), filings in related litigation, and various judicial and administrative decisions.

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185 F.R.D. at 92. Following settlement negotiations, id. at 89-92, a consent decree was approved

as "fair, adequate, and reasonable" on April 14, 1999, id. at 86. 2 Its purpose was to ensure that

"in their dealings with USDA, all class members receive full and fair treatment that is the same

as the treatment accorded to similarly situated white persons." Def.'s App. A2. The estimated

value of the settlement at the time was $2.25 billion, constituting the "largest civil rights

settlement in the history of this country." Pigford I, 185 F.R.D. at 95.

Under the terms of the consent decree, class members could opt out of class treatment

within 120 days of entry of the consent decree. Def.' s App. A5. Otherwise, class members were

generally required to submit a claim package within 180 days of entry of the consent decree-i.e,

by October 12, 1999---<lemonstrating class membership and electing to proceed under one of two

tracks. Id. at AS-I 0. Class members missing this deadline who could demonstrate that their late

filing was due to "extraordinary circumstances beyond [their] control" were allowed to file late

petitions. In re Black Farmers Discrimination Litig. ("Pigford II"), 856 F. Supp. 2d I, 11

(D.D.C. 2011) (internal quotation marks omitted), appeal dismissed sub nom. Latham v. Vilsack,

Nos. 11-5326, 11-5334, 12-5019, 2012 WL 10236550 (D.C. Cir. July 25, 2012). Such relief was

extremely limited and did not extend to those who "had only recently learned" of the consent

decree; out of the 61,252 would-be class members who sought to file late claims, only 2,585

were allowed to do so. 3 Id. Including both timely submitted claims and late claims, over 22,700

claim packages were submitted by "individuals eligible to pursue relief under the terms of the

consent decree." Id.

The choice between the two tracks cmTied "enormous significance. Under Track A, the

class member [had) a fairly low burden of proof but his recovery [was] limited. Under Track B,

there [was] a higher burden of proof but the recovery [was] unlimited." 4 Pigford I, 185 F.R.D. at

96. Once made, the choice of which track to pursue was binding; in other words, dissatisfied

Track B claimants could not then proceed under Track A. Id. at 107.

Farmers proceeding under Track A were required to show racial discrimination under a

"substantial evidence" standard. Def.'s App. Al3; see also id. at A4 (defining "substantial

evidence"). Relief available to farmers choosing to proceed under Track A was limited to (1) a

2

The consent decree is reproduced in its entirety in defendant's appendix at pages Al to

A29. It can also be found on the docket of Pigford I at ECF No. 167.

3

The 61,252 figure does not include those who failed to submit a petition to file a late

claim by the deadline for doing so. Pigford II, 856 F. Supp. 2d at 11. There were as many as

25,000 of these "late-late" possible class members whose requests to file a late claim were not

considered. Id.

4

The overwhelming majority of claimants chose to proceed under Track A. Pigford v.

Veneman, 292 F.3d 918, 921 (D.C. Cir. 2002); Pigford II, 856 F Supp. 2d at 11. Only 170

claimants sought Track B relief. Pigford II, 856 F. Supp. 2d at 11. Overall, "approximately

16,000" claimants were successful in obtaining "direct payments, loan forgiveness, and tax

relief." Id.; see also id. at 17 (noting that the aggregate payout to successful claimants was over

$1 billion).

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one-time $50,000 cash payment, (2) discharge of all outstanding debts to the USDA that were

the "subject of the ECOA claim(s) resolved in the class member's favor by the adjudicator," (3)

an additional tax offset payment made directly to the Internal Revenue Service of twenty-five

percent of the sums expended for the one-time payout and debt relief, (4) termination of

foreclosure proceedings against real property "in connection with the ECOA claim(s) resolved in

the class member's favor by the adjudicator," and (5) injunctive relief including one-time priority

loan consideration and technical assistance. Id. at A14, A19-20; accord Pigford I, 185 F.R.D. at

97. An adjudicator's decision under Track A was not subject to "review in any court or before

any tribunal ... with respect to any claim that [was], or could have been decided by the

adjudicator." Def.'s App. A16; accord Pigford I, 185 F.R.D. at 97.

Farmers electing to proceed under Track B were provided a full-day evidentiary hearing

before an arbitrator, who would determine whether there had been racial discrimination under a

higher "preponderance of the evidence" standard. Def.'s App. Al8; accord Pigford I, 185 F.R.D.

at 97; see also Def.'s App. A4 (defining "preponderance of the evidence"). The same injunctive

relief that was available under Track A was also available under Track B, but under Track B, the

monetary damages were unlimited, encompassing debt relief, "actual damages" available under

the ECOA, and the additional tax offset payment. Pigford I, 185 F.R.D. at 97; Def.'s App. Al8.

Like an adjudicator's decision for Track A claimants, an arbitrator's decision for Track B

claimants was not subject to "review in any court or before any tribunal ... with respect to any

claim that [was], or could have been decided, by the arbitrator.'' Def.'s App. Al9; accord

Pigford I, 185 F.R.D. at 97.

Generally spealdng, debts incurred between January 1, 1981, and December 31, 1996,

that were "affected" by discrimination could be discharged under the consent decree. Pigford I,

185 F.R.D. at 97; Def.'s App. A14, A18; Comp!. Ex. A at 2. The date of discrimination and the

type ofloan were important findings. Comp!. Ex. A at 2. Loans issued under the same

program-such as the farm operating loan program or the farm ownership loan program-are

considered the same type. 5 Id. When a particular loan was found to have been affected by

discrimination, additional debt of the same type as the affected loan was also eligible for

discharge if (1) it was incurred at the same time as or later than the affected loan and (2) the

original application for the additional debt had been filed by December 31, 1996. Id. at 2-3.

Later rescheduling of a particular loan would not alter its inception date. Id. at 3; see also

Pigford v. Schafer, 536 F. Supp. 2d 1, 10-12 (D.D.C. 2008) (interpreting "incur" as the loan

origination date irrespective of any later rescheduling).

A dissatisfied claimant under either Track A or Track B could ask the court-appointed

monitor to direct the adjudicator or arbitrator to "reexamine a claim where the Monitor

determines that a clear and manifest error has occurred in the screening, adjudication, or

arbitration of the claim .... " Def.'s App. A21; accord Pigford I, 185 F.R.D. at 97, 107-08. No

other appeals were available to claimants. Pigford I, 185 F.R.D. at 97, 107-08; Def.'s App. A16,

5

The farm operating and farm ownership loan programs are two separate programs

among the various agricultural credit programs overseen by the FSA. Comp!. Ex. A at 2; see

also 7 U.S.C. § 6932(b) (2012).

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Al 9. Additionally, the USDA had no right to appeal decisions of either adjudicators or

arbitrators. Pigford I, 185 F.R.D. at 108. The court-appointed monitor was also available to

provide assistance in the event the consent decree was alleged to have been violated. Id. at 98.

The United States District Court for the District of Columbia ("DC district court")

retained jurisdiction to enforce the consent decree. 6 Pigford I, 185 F.R.D. at 98; Def.'s App.

A22, A27; see also Pigford, 206 F.3d at 1218-19 (discussing the DC district court's powers to

enforce the decree through contempt proceedings or modification of the consent decree); Def.'s

App. Al3 (outlining steps that must be taken prior to seeking a court order). A July 14, 2000

stipulation and order clarified the review process "by establishing a framework for deadlines by

which all Petitions would have to be submitted to the Monitor." Pigford v. Glickman, Nos. 97-

1978, 98-1693, 2000 WL 34292618, at *l (D.D.C. Nov. 8, 2000). Claimants were given 120

days to seek monitor review of an adverse decision on Track A or Track B claims. Id. at *1 n.1.

Although some flexibility regarding the deadline was provided, those who did not meet the

deadline were ultimately denied further review by the monitor. Pigford v. Johanns, 416 F.3d 12,

14-15 (D.C. Cir. 2005).

On November 2, 2015, the DC district court entered a wind-down stipulation and order

te1minating the stipulations of the consent decree, with limited exceptions. Def.'s App. A30-37.

The exceptions relevant to this case are those providing that (1) paragraph 9(a)(iii)(A) of the

consent decree is still valid, and (2) the DC district court retains jurisdiction to enforce the wind-

down stipulation and order and the remaining provisions of the consent decree. Id. at A32, A36.

Paragraph 9(a)(iii)(A) of the consent decree provides that:

USDA shall discharge all of the class member's outstanding debt

to USDA that was incurred under, or affected by, the program(s)

that was/were the subject of the ECOA claim(s) resolved in the

class member's favor by the adjudicator. The discharge of such

outstanding debt shall not adversely affect the claimant's eligibility

for future participation in any USDA loan or loan servicing

program.

Id. at Al4. In other words, the USDA was not relieved of its obligation to discharge affected

debt or its obligation to ensure that such discharge did not negatively impact farmers applying

for loans in the future.

B. Pigford II Litigation

In 2008, Congress "resurrected the claims of those who had unsuccessfully petitioned the

Arbitrator for permission to submit late claim packages" following "extensive hearings on the

Pigford [IJ case and the consent decree." Pigford II, 856 F. Supp. 2d at 11. The Food,

Conservation, and Energy Act of 2008 ("2008 Farm Bill") recognized that "all pending claims

and class actions brought against the Department of Agriculture ... based on racial, ethnic, or

6

To date, there have been nearly 2,000 docket entries in the case since the consent

decree was approved.

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gender discrimination in farm program participation should be resolved in an expeditious and

just manner," and provided relief in the DC district court for would-be Pigford claimants who

had previously submitted a late-filing request and had "not previously obtained a determination

on the merits of a Pigford claim .... " Pub. L. No. 110-246, §§ 14011-14012, 122 Stat. 1651,

2209-12. 7 Section 14012 of the 2008 Farm Bill ("Section 14012") was designed to allow "a full

determination on the merits for each Pigford claim previously denied that determination" based

on a late-filed request. Id. § 14012(d), 122 Stat. at 2210. Such previously denied Pigford I

claimants ("Pigford II claimants") were given two years from the 2008 Farm Bill's enactment-

i.e., until June 18, 2010-to file a claim in the DC district court. Id.§ 14012(b), (k), 122 Stat. at

2210, 2212. Section 14012 also prohibited foreclosures on property related to a Pigford claim

while such claim was pending. Id.§ 14012(h), 122 Stat. at 2211-12. Approximately 40,000

people filed complaints in the DC district court pursuant to Section 14012 between May 2008

and June 2010. Pigford II, 856 F. Supp. 2d at 13. Congress ultimately capped Pigford II

damages at $1.25 billion in the aggregate. Claims Resolution Act of2010, Pub. L. No. 111-291,

§ 20l(b), 124 Stat. 3064, 3070.

On October 27, 2011, the DC district court certified the Pigford II class and approved a

proposed settlement agreement as "fair, adequate, and reasonable." 8 Pigford II, 856 F. Supp. 2d

at 22, 27. An appeal of the class certification was dismissed. Latham, 2012 WL 10236550. The

DC district court approved the distribution of settlement funds on August 23, 2013. In re Black

Farmers Discrimination Litig., No. 08-mc-0511, 2013 WL 4507951 (D.D.C. Aug. 23, 2013).

C. Carl Parker's Farm Loans

Carl Parker, who identifies himself as an African-American farmer, has resided in

Ashburn, Georgia his entire life. Comp!. ii l; Comp!. Ex.Bat 33; Comp!. Ex.Cat 33; Def.'s

App. A57, Al04, A212. He farmed peanuts, soybeans, corn, wheat, and cotton. Def.'s App.

A64, A69. On April 24, 1984, Carl Parker received a supervised farm operating loan of $89,000

from the Worth County Farmers Home Administration ("FmHA") office of the USDA. 9 Def. 's

7

Congress initially enacted the 2008 Faim Bill on May 22, 2008. See Food,

Conservation, and Energy Act of2008, Pub. L. No. 110-234, 122 Stat. 923 (repealed 2008). On

June 18, 2008, Congress enacted another version of the 2008 Farm Bill, see Pub. L. No. 110-246,

122 Stat. at 1651, in which it repealed the initial statute, see id.§ 4, 122 Stat. at 1664. Sections

14011and14012 are identical in both versions of the 2008 Farm Bill. Compare Pub. L. No.

110-234, § 14011-14012, 122 Stat. 923, 1447-50, with Pub. L. No.110-246, §§ 14011-14012,

122 Stat. 1651, 2209-12. Both parties refer and/or cite to the repealed version of the 2008 Farm

Bill in their filings. See Comp!. ii 9; Def.'s Mot. to Dismiss 17. Because the pertinent provisions

are identical, the court treats such references/citations as being to the later-enacted version of the

statute.

8

The settlement agreement included provisions for paying awards, due to the limited

amount of funds that Congress had appropriated for that purpose. Pigford II, 856 F. Supp. 2d at

23.

9

Farm operating loans may be used to "pay annual farm operating and family living

-6-

App. A64, A96. Forty percent of the loan proceeds were released upon funding, which

represented reimbursement for operating expenses that Carl Parker had charged to his credit

card, machinery repair, and family living expenses. Id. at Al 18. As a supervised loan, farm

purchases made with the remaining loan proceeds were subject to FmHA approval. Id. at A65,

A108-09, Al 18; accord 7 C.F.R. §§ 761.51, 761.54. Delays in waiting for such approval led to

(1) problems with planting and (2) delayed and lower crop yields. Def.'s App. A67-68, Al 18.

Meanwhile, white farmers who were in worse financial situations than Carl Parker received

unsupervised loans from the USDA. Def.'s App. A116-17, A141.

In addition to his April 24, 1984 loan, Carl Parker also received a farm operating loan on

March 29, 1985, two farm operating loans on February 28, 1986, and a farm ownership loan on

February 26, 1986. IO Id. at A42, A64, A96. The 1985 loan was alleged to be supervised, id. at

A68, Al 08, but USDA records indicate that the loan was unsupervised because all loan proceeds

were distributed at closing, id. at A128. Both the 1984 and 1985 loans were eventually paid back

in full. Id. at A42, A96-97. The original principal amounts and interest rates of the two 1986

operating loans were (1) $53,136.84 at 7.25 percent and (2) $91,786.87 at 7.259 percent. Id. at

A47, A50. The record is unclear regarding the original principal amount of the 1986 ownership

loan. Id. at A64. All of the 1986 loans were made at "limited resource" interest rates, id. at A96-

97, A 123, but Carl Parker claims he was never made aware of this fact until approximately two

decades later. Id. at A104; Comp!. Ex.Bat 33. A limited resource interest rate "is an interest

rate normally below the [USDA's] regular interest rate, which is available to applicants unable to

develop a feasible plan at regular rates" while requesting loans or loan servicing. 7 C.F.R. §

761.2. According to Carl Parker, the FmHA also failed to provide appropriate loan services in

that he was not given technical assistance in completing the applications, nor was he informed of

the "plethora" of alternative loan programs for which he was potentially qualified. Def. 's App.

A65-66.

Carl Parker's applications for farm operating loans of$93,000 in 1987, 1988, and 1989

were denied on March 6, 1987, May 4, 1988, and April 28, 1989, respectively, due to concerns

about repayment ability and cash flow. Id. at A64, A96, Al 19, Al28-29. Carl Parker attributes

his cash flow problems during those years to circumstances beyond his control, such as drought

conditions that impacted his crops. Id. at Al03; Comp!. Ex.Bat 32. Although he attempted to

rent more land during that time, he was unsuccessful. Comp!. Ex.Bat 32; Def.'s App. A103,

A130. In addition, he submitted farm and home plans each year to be reworked by the FmHA

county supervisor, but to no avail. Comp!. Ex.Bat 32; Def.'s App. A103, A131. Throughout

his interactions with the FmHA staff, Carl Parker was left with the impression that they had

already determined that they would deny his loan applications. Comp!. Ex.Bat 32; Def. 's App.

A103, A130.

expenses .... " 7 C.F.R. § 764.252(c) (2016); see 7 C.F.R. § 764.251 (listing uses for farm

operating loans).

IO Farm ownership loans may be used to acquire, enlarge, or make a down payment on a

farm; make qualified capital improvements to a farm; to promote soil and water conservation and

protection; and for certain financing activities. 7 C.F.R. § 764.151.

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On May 24, 1989, Carl Parker rescheduled his outstanding USDA loans. Def.'s App.

A42, A96. Upon rescheduling, the principal amounts of his operating loans were $60,746.69 and

$110,693.08, both at 6.5 percent interest over fifteen years. Id. at A42, A46, A49. The principal

amount of Carl Parker's ownership loan upon rescheduling was $168, 164.01.'1 Id. at A42.

However, he was not given any other assistance by the USDA. Id. at Al 03-04, A13 l; Compl.

Ex.Bat 32-33. Furthermore, he received no help when his home was damaged by fire in 1989.

Compl. Ex.Bat 33; Def.'s App. Al04. Instead, the UDSA applied the insurance proceeds to his

outstanding loan balance. Id. As a result, Carl Parker resorted to private funding through Gold

Kist Financing to keep his farm operational until 1991. 12 Compl. Ex.Bat 33; Def.'s App. Al04,

Al3 l. He experienced further adversity in 1990 when his daughter, then four years old,

sustained third-degree bums in another fire and was confined to a hospital in Augusta, Georgia-

204 miles away from home-for six months. Compl. Ex.Bat 33; Def.'s App. Al04. In 1990,

the FmHA offered Carl Parker "an opportunity to buy out his USDA loans at a net recovery

value" after he was unable to reschedule his loans "due to [his] inability to project a positive cash

flow," and he lost his appeal of that decision. Def. 's App. A96.

A January 1992 bankruptcy filing (which was dismissed in 1994) forced him out of the

farming business in 1993. Id. at A69, A96; see also In re Parker Bros., a P'ship, No. 92-10055

(Bankr. M.D. Ga.) (filed by Gary and Carl Parker). In February 1998, Carl Parker filed a second

bankruptcy petition to stop the USDA from foreclosing on his property. Compl. Ex.Bat 33;

Def.'s App. Al04; see also In re Parker Bros., a P'ship, No. 98-10013 (Bankr. M.D. Ga.) (filed

by Gary and Carl Parker). Melvin Bishop, president of the Black Farmers and Agriculturalists

Association ("BF AA"), made several telephone calls to the USDA offices in Atlanta and

Washington, DC on his behalf, and was successful in halting the foreclosure. Compl. Ex. B at

33; Def.'s App. A104.

D. Gary Parker's Farm Loans

Gary Parker is Carl Parker's older brother. Compare Def.'s App. Al50, with id. at A57.

Like his brother, Gary Parker also self-identified as an African-American farmer, id. at Al 50,

lived in Ashburn, Georgia his entire life, id. at Al61, and farmed com, peanuts, cotton, soybeans,

and wheat in that community, id. at Al53, Al61. He also raised cattle. Id. at Al53. Gary

Parker's history with the USDA is very similar to that of his brother.

In July 1985, Gary Parker received a farm loan of$155,000 from the Worth County

FmHA office. 13 Id. In February 1986, Gary Parker received a farm ownership loan and two

11

The record before the court does not reflect the interest rate or the term of the

ownership loan as rescheduled.

12

USDA regulations make an applicant ineligible for funding if sufficient outside credit

is available to meet all of the applicant's needs. Def.'s App. A13 l.

13

The record refers to Gary Parker's 1985 loan as an "ownership" loan, Def.'s App.

Al53, but its description of having been made "to assist with Mr. Parker's operating expenses of

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farm operating loans. Id. at A41, A153. The ownership loan was for $155,000, and the

operating loans were for $98,370 and $66,492.16. 14 Id. at A41. According to Gary Parker, all of

his loans were supervised. Id. at A156. When crops were sold, checks were made payable to

both himself and the FmHA. Id. After taking these checks to the FmHA office, Gary Parker was

given a check for only the amount of capital he could justify needing rather than funds

independent of FmHA supervision. Id. Meanwhile, similarly situated white farmers received

unsupervised loans. Id. at A159.

Gary Parker also applied for farm loans between 1987 and 1992, but those applications

were continuously denied due to purported concerns about cash flow and ability to repay. Id. at

A153. He lost appeals of those denials. Comp!. Ex.Cat 22. In 1987, like his brother, he tried

to rent more land but was unsuccessful. Id. In later years, he was not given assistance in

completing loan applications, Def.'s App. A153, but was simply told to hire someone to help

him, id. at A154, and that he was "wasting the government's time" in applying for loans, id. at

Al56, because there was "no way [the FmHA was] going to let [him] keep borrowing [FmHA's]

money ... ," Comp!. Ex. C 22. Like his brother, Gary Parker was led to believe that FmHA

officials had already made up their minds to deny his loan applications because he was told he

did not qualify before he had even applied. Id.; Def.'s App. A156-57.

Local USDA officials referred to Gary Parker as a "problem debtor." Def. 's App. A201.

In addition, FmHA officials treated him the same way they treated his brother by refusing to

inform him of alternative loan programs for which he may have been eligible. Comp!. Ex. C at

22-23; Def.'s App. A156-57. Instead of receiving assistance, he was pressured to sell equipment

or rent his peanut quota to the son of an FmHA official. Comp!. Ex. Cat 22-23. Gary Parker

believed these actions were undertaken because FmHA officials wanted their family members to

acquire his land and livestock. Id. at 23.

Gary Parker's inability to obtain loans, as well as the delay he experienced in receiving

loans that were approved, affected his crop performance and resulted in lower yields. Def.' s

App. A159. Like his brother, Gary Parker resorted to private funding through Gold Kist

Financing to keep his farm operational. Comp!. Ex. Cat 23. Unlike his brother, however, he did

not receive loan rescheduling. Def. 's App. A41. He applied for Preservation Loan Servicing in

1991, but was denied. Id. at A200. Gary Parker was eventually forced out of the farming

business after declaring bankruptcy in January 1992. Def.'s App. A162; Comp!. Ex.Cat 23; see

also In re Parker Bros., No. 92-10055.

In February 1998, Gary Parker filed a second bankruptcy to stop the USDA from

foreclosing on his property. Comp!. Ex.Cat 23; see also In re Parker Bros., No. 98-10013.

However, it took several phone calls on his behalf by BFAA president Melvin Bishop to stop the

foreclosure sale from occurring. Comp!. Ex. C at 23.

his farm operations," id., suggests that it was actually an operating loan. Regardless, the

distinction is irrelevant to resolving the issues currently before the court.

14

The record before the court does not reflect the interest rates or terms of these loans.

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E. Seeking Relief Under the Pigford I Consent Decree

Carl Parker and Gary Parker both timely submitted claim packages to the Pigford I claims

facilitator on October 12, 1999. Def.'s App. A56, A149. Each had lodged prior discrimination

complaints against the USDA-at a USDA listening session in Tallahassee, Florida and a

meeting in Albany, Georgia-that went unresolved. Id. at A63, Al 74. Each elected Track A

treatment. 15 Id. at A58, Al51. Their claim packages were supplemented on December 29, 1999,

and January 18, 2000, respectively. Id. at A55, Al48. On May 5, 2000, class counsel

discovered that the claims facilitator had incorrectly deemed the Parkers' filings as untimely. Id.

at A54, Al 4 7. As a result, Carl Parker and Gary Parker each filed late claim affidavits on

August 24, 2000, and August 21, 2000, respectively, to demonstrate why their "late" filings were

beyond their control. Id. at A52-53, A145-46. Carl Parker was assigned claim number 22105,

id. at A57, and Gary Parker was assigned claim number 22079, id. at Al50.

Carl Parker's entire claim was denied by the adjudicator on June 16, 2004, for "fail[ure]

to provide substantial evidence of discrimination" because a similarly situated white farmer was

also denied an operating loan at the same time as Carl Parker. Id. at A95-99. Gary Parker's

claim was similarly denied in its entirety by the adjudicator on July I, 2004, for "fail[ure] to

establish by substantial evidence that he was the subject of discrimination" regarding his loans,

loan restrictions, loan denials, and lack of assistance. Id. at A199-203. In denying Gary Parker's

claim, the adjudicator noted Gary Parker's "precarious" financial situation and observed that

white farmers were also subject to loan supervision. Id. at A201.

Pursuant to the consent decree, Carl Parker timely petitioned for monitor review of the

adjudicator's decision on September 11, 2004. Id. atA102; Comp!. Ex.Bat 31. See generally

Def. 's App. AI00-05. He sent a follow-up letter to the monitor on September 26, 2006. Comp!.

Ex. B at 32-34. The record before the court does not include a similar petition for monitor

review filed by Gary Parker. However, like his brother, he too sent a letter to the monitor on

September 26, 2006. Comp!. Ex. C at 22-24. Gary Parker also sent a separate letter to class

counsel that same day referencing prior communications regarding the USDA's collection

efforts. Id. at 20. The record before the court does not include any responses to either of Gary

Parker's September 26, 2006 letters.

On August 31, 2007, the monitor directed reexamination of a portion of Carl Parker's

claim. Def.'s App. A106. See generally id. at A106-38. The monitor found a "clear and

manifest e1rnr" regarding Carl Parker's claim that restrictive conditions were placed on his 1984

farm operating loan because the adjudicator relied on "mistaken assumptions of fact about [Carl

Parker's] financial situation in 1984" and an improper comparison. Id. at Al 14-18. With respect

to the latter finding, the monitor explained that pursuant to the consent decree, the issue was not

whether the FmHA's restrictions were proper under the regulations then in effect, but whether

such restrictions were less favorable to Carl Parker than a similarly situated white farmer. Id. At

15

Gary Parker's original submission did not indicate a class preference, but his claim

form was later updated to select the Track A option. Def. 's App. Al 43-44, A15 l. Carl Parker

later claimed that Gary Parker had intended to seek Class B treatment. See, e.g., Comp!. ~ 7;

Pl.'s Resp. 7.

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the same time, the monitor found no "clear and manifest error" regarding Carl Parker's claims

regarding late loan funding from 1984 through 1986, restrictive loan conditions in 1985, and

denial of operating loans from 1987 through 1989. Id. at A132. Accordingly, the monitor

declined to order reexamination of those claims. Id.

On June 13, 2008, the adjudicator found in Carl Parker's favor regarding supervision of

the 1984 operating loan (the only claim before the adjudicator upon reexamination). Id. at Al 39-

42. The adjudicator explained that Carl Parker's financial situation was not so poor, compared to

a similarly situated white farmer who received an unsupervised loan in 1984, that disparate

treatment was justified. Id. at Al 41. Accordingly, Carl Parker was awarded a one-time $50,000

cash payment, debt relief for any farm operating loan debt incurred between January 1, 1984, and

December 31, 1996, and injunctive and tax relief pursuant to the consent decree. Id. at Al41-42.

The USDA finance office finished implementing Carl Parker's debt relief on December 10,

2008. Id. at A38-40; see also id. at A42 (showing Carl Parker's USDA loan balances as of June

13, 2016).

F. Subsequent Attempts to Obtain Assistance

1. Loan Servicing

Gary Parker died in December 2010, and Carl Parker became the administrator of his

estate. Comp!. Ex.Cat 14. In April 2011, Carl Parker requested primary loan servicing, but was

denied on the grounds that he had already received that service. Comp!. Ex. B at 11. On

September 13, 2011, Carl Parker received a thirty-day notice concerning the availability of loan

servicing. Id. at 11, 13-14. He timely submitted an application for loan servicing in person at

the FSA office in Sylvester, Georgia on October 12, 2011. 16 Id. at 11; Comp!. Ex. Cat 34. His

application packet was transferred to the FSA office in Dawson, Georgia the following day.

Comp!. Ex.Bat 11; Comp!. Ex.Cat 34. However, on October 31, 2011, the FSA notified Carl

Parker, via several notices, that it intended to accelerate the loans held by him both individually

and as administrator of his brother's estate and start foreclosure proceedings. Comp!. Ex. B at

11, 15-17, 19-21, 23-25; Comp!. Ex.Cat 5-7, 25-30. Carl Parker received these notices on

November 2, 2011. Comp!. Ex.Bat 22, 26. Thereafter, Carl Parker filed a request for

reconsideration of the acceleration, and requested copies of all the paperwork he had submitted.

Id. at 12.

2. USDA Office of Civil Rights

Carl Parker filed a discrimination complaint with the USDA Office of Civil Rights

("OCR") on December 28, 2011. Id. at 30; Comp!. Ex.Cat 19. The discrimination complaint

was received by the USDA Office of Adjudication on January 9, 2012, and assigned complaint

16

In 1994, agricultural credit programs of the FmHA were assigned to a new agency, the

FSA. Department of Agriculture Reorganization Act of 1994, Pub. L. No. 103-354, § 226(b)(3),

108 Stat. 3178, 3214 (codified as amended at 7 U.S.C. § 6932(b)(3)). Among its many

responsibilities, the FSA manages the farm ownership and farm operating loan programs. 7

U.S.C. § 6932(b).

-11-

number 12-5699. Comp!. Ex.Bat 8. On January 20, 2012, the USDA requested additional

information. Id. at 8-10. In response, Carl Parker provided a letter on February 26, 2012,

outlining the problems he had encountered in attempting to apply for loan servicing. Id. at 11-

12. He explained that he had been told that he did not qualify for loan servicing only to be sent

an application package shortly thereafter, that he had submitted an application for loan servicing

but the files were nowhere to be found, that the local FSA office seemed intent on foreclosing on

his property, and that there were others who had witnessed his long-time mistreatment but were

unwilling to come forward because these would-be witnesses were told by FSA personnel that

they would have a "good chance" to buy his property at a foreclosure sale. Id. The case was

accepted for processing on March 16, 2012. Id. at 29.

The OCR's acceptance of the complaint triggered a moratorium on loan acceleration and

foreclosure proceedings against the subject properties. Comp!. Ex.Cat 18; accord 7 U.S.C.

§ 198la(b)(l) (2012). An investigator was assigned to the case on or about April 20, 2012.

Comp!. Ex. B at 7. Carl Parker also filed a discrimination complaint with the OCR in his

capacity as administrator of his brother's estate sometime prior to July 11, 2013, prompting the

FSA to temporarily transfer the loan files to its office in Moultrie, Georgia. Comp!. Ex. C at 16-

17. He spoke with a representative of the OCR on November 13, 2013, regarding the complaint

he filed as administrator of his brother's estate. Comp!. Ex.Bat 29. On December 23, 2013, the

two complaints filed by Carl Parker-individually and as administrator-were joined under

complaint number 12-5699 because they were both based on the same facts and circumstances.

Id. The case was closed on June 4, 2014, with a finding of no discrimination. Comp!. Ex.Cat

11. On September 25, 2014, the moratorium on loan acceleration and foreclosure proceedings

ended, and the loan files were transferred back to the FSA office in Dawson, Georgia. Id. at 12.

3. Reconsideration of Adverse Loan Decisions

Meanwhile, on September 5, 2014, an adverse decision was rendered regarding the debts

owed by the estate of Gary Parker. 17 Id. at 8. Carl Parker asked for reconsideration of that

decision on October 3, 2014. Id. On October 7, 2014, Carl Parker asked for reconsideration of

an adverse loan decision reached in his individual case, 18 stressing that he was unable to pay the

farm loans in prior years due to reasons beyond his control. Comp!. Ex. B at 6. The two

reconsideration requests were consolidated, and a reconsideration meeting was held on October

20, 2014. Id. at 27; Comp!. Ex.Cat 10. Reconsideration was denied in both cases. Comp!. Ex.

Bat 27; Comp!. Ex.Cat 10. During the October 20, 2014 meeting, Carl Parker was given

documentation from the Code of Federal Regulations and FSA Handbook 3-FLP used to

determine his ineligibility for the assistance sought. Comp!. Ex.Bat 27; Comp!. Ex.Cat 10.

One of the reasons given for the estate's ineligibility was that it was not a legal entity. Comp!.

Ex.Cat 14. Carl Parker asked for an application to assume the estate's loans, but was told the

time frame had expired for doing so. Id. He then requested information about assuming loans,

but reported never receiving it. Id. On November 12, 2014, Carl Parker reiterated his request for

17

The record before the court does not reflect what relief had been sought.

18

The record before the court does not reflect what relief had been sought.

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an application to assume his deceased brother's loans, explaining that preventing him from doing

so because of a time limit would be unfair in his situation. Id. Believing that the October 20,

2014 denial of reconsideration was erroneous, id. at 10; Comp!. Ex.Bat 27, Carl Parker

requested mediation on November 18, 2014, Comp!. Ex.Bat 28; Comp!. Ex.Cat 13. The

record before the court does not reflect the results of the November 18, 2014 mediation request.

4. USDA Office of Administrative Law Judges (February 2016)

On February 25, 2016, Carl Parker filed a complaint with the USDA Office of

Administrative Law Judges ("OALJ") alleging ongoing racial discrimination and requesting an

expedited hearing before an administrative law judge ("ALJ"), a temporary restraining order, and

a preliminary injunction. Def.'s App. A217-20. He cited Section 741 in support of his argument

that he was entitled to a "hearing on the record" before an ALJ, and noted that such a hearing

never occurred. Id. at A217-18. Carl Parker also claimed that, as a prevailing Track A claimant,

the FSA's failure to forgive his farm ownership loan and subsequent foreclosure efforts violated

the Pigford I consent decree. Id. at A2 l 9. In addition, Carl Parker argued that tennination of the

foreclosure moratorium-which was in place while his complaint was pending with the OCR-is

permissible only after a hearing before an ALJ or judicial review, and that the OCR "failed to

answer the complaints" he filed. Id. Carl Parker noted that his brother was also denied relief

under the Pigford I consent decree and that although he petitioned the monitor for reexamination,

the monitor never considered his request. Id. Carl Parker further noted that in the past, the

USDA and the Pigford I monitor had lost pertinent records. Id. Finally, Carl Parker asked that

an ALI order a complete review of the administrative record. Id. at A220.

An ALJ considered Carl Parker's complaint and explained, in a March 21, 2016 order,

that there was no jurisdiction to grant Carl Parker's request for a hearing because (1) Section 741

imposed an October 21, 2000 deadline for requesting that the USDA review previously

unresolved discrimination complaints that were originally filed before July 1, 1997, and (2) there

was no evidence that Gary Parker had ever filed a complaint with the USDA pursuant to Section

741. 19 Id. at A221-23. The ALJ therefore dismissed the petition for a hearing and forwarded the

matter to the OCR "for resolution pursuant to prevailing regulations." Id. at A223.

5. U.S. District Court Proceedings

On February 29, 2016, Carl Parker filed suit in the United States District Court for the

Middle District of Georgia ("Georgia district court") alleging (1) breach of the Pigford I consent

decree based on the USDA's reinstatement of his farm ownership loan despite his status as a

prevailing Track A claimant, failure to provide a hearing for his brother's estate, and violation of

Section 741; (2) numerous civil rights violations, including conspiracy, arising from racial

discrimination; and (3) violations of Section 14012 by virtue of the USDA's having set a March

1, 2016 foreclosure sale date. Id. at A208-16. He sought an injunction against the sale of

19

As described above, see supra Part LE, Gary Parker sought judicial relief via the

Pigford I litigation instead of filing a complaint with the USDA under Section 741. See

generally Def. 's App. A149-62 (containing the claim package Gary Parker submitted to the

Pigford I claims facilitator).

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property and $8 million in damages. Id. at A215. On June 27, 2016, he filed an amended

complaint seeking a formal hearing before an ALJ, reinstatement of the foreclosure moratorium,

forgiveness of his farm ownership loan, and removal of any liens against his property. Def.' s

App. A224-30.

In a brieffiled on September 30, 2016, Carl Parker argued that he was entitled to a formal

hearing before an ALJ on his civil rights complaints under 7 C.F.R. § 15f.9 and Section 14012.

Pl.'s Brief2-5, Parker v. U.S. Dep't of Agric., No. 1:16-cv-00051 (M.D. Ga.), ECF No. 21. He

also asserted that he was improperly denied a hearing under 7 C.F .R. § 766.358, that his not

receiving preferential treatment in future loan applications was a further breach of the Pigford I

consent decree, and that the adverse denial of a loan was still within the statute of limitations. Id.

at 5-7. The Georgia district court divided Carl Parker's claims into two groups: (1) claims based

on alleged violations of the Pigford I consent decree and (2) claims based on ongoing racial

discrimination, i.e., that "the USDA chose to violate the Pigford [IJ consent decree because he is

black .... " Order 3-4, Parker v. U.S. Dep't of Agric., No. 1: l 6-cv-00051 (M.D. Ga. Oct. 6,

2016), ECF No. 23. The Georgia district court transferred the first set of claims to the DC

district court, noting that only the DC district court has jurisdiction to adjudicate alleged

violations of the Pigford I consent decree and no court has jurisdiction to "act as an appellate

court for administrative rulings related to Pigford [IJ claims." Id. at 5. It also transferred the

second set of claims to the DC district court in the interest of judicial economy. Id. at 5-7. After

the transfer, Carl Parker voluntarily dismissed his suit. Notice, Parker v. U.S. Dep't of Agric.,

No. 1:16-cv-01999 (D.D.C. Jan. 3, 2017), ECF No. 34.

6. USDA Office of Administrative Law Judges (August 2016)

The record before the court does not reflect any further efforts by Carl Parker to appeal

the March 21, 2016 dismissal of his February 25, 2016 OALJ complaint. However, Carl Parker

filed another complaint with the OALJ on August 24, 2016, requesting an expedited formal

hearing, temporary restraining order, and preliminary injunction. Def.'s Reply Attach. 1at1-5.

This new complaint was identical to the February 25, 2016 OALJ complaint, except that it was

submitted on Carl Parker's behalf by a representative, and included a reference to a decision by

the United States Court of Appeals for the District of Columbia Circuit that explained the court's

authority to enforce the Pigford I consent decree. Compare id., with Def.'s App. A217-20.

The USDA responded to the complaint on September 15, 2016. Def.'s Reply Attach. 2 at

1-3. The USDA emphasized that there was no statutory basis for a hearing before the OALJ,

noting that the time period for filing a Section 741 hearing request had expired and that the

Parkers' discrimination claims from 1981to1997 were adjudicated under the Pigford I class-

action settlement. Id. at 1-2. The complaint was dismissed with prejudice six days later because

the ALJ had "no authority to grant the relief requested" for the reasons stated in the agency's

response. In re Parker, No. 16-0153, 2016 WL 6235789, at *l (U.S.D.A. Sept. 21, 2016).

7. Current Action

Carl Parker filed the instant action on his own behalf and as administrator of the estate of

Gary Parker, proceeding prose, on February 25, 2016, Comp!. 1, the same day he filed his first

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complaint with the OALJ, Def.'s App. A217. In his complaint, Carl Parker asserts claims for

breach of the Pigford I consent decree, Comp!. '1['1[ 4-8, takings without just compensation in

violation of the Fifth Amendment to the United States Constitution ("Constitution"), id. '1f 9,

violations of Section 14012, id. '1['1[ 9-10, violations of the "Pigford Remedies Act of2007," id.

'1[11, and violations of the Contract Disputes Act of 1978 ("CDA"), 41 U.S.C. §§ 7101-7109

(2012), id. '1['1[ 12-13. He seeks $8 million in damages. Id. at 6.

Carl Parker submitted a motion for partial summary judgment on March 21, 2016, and it

was filed by leave of court the following day. Order, Mar. 22, 2016. Except for the first and last

°

sentence, the motion for partial summary judgment mirrored the complaint. 2 Compare Pl. 's

Mot. for Partial Summ. J. 1-6, with Comp!. 1-6. The court stayed briefing on that motion,

explaining that the motion would not be entertained until after defendant responded to the

complaint. Order, Mar. 22, 2016.

On July 22, 2016, defendant filed a motion to dismiss the complaint for lack of subject

matter jurisdiction pursuant to Rule 12(b)(l) of the Rules of the United States Court of Federal

Claims ("RCFC") and, alternatively, for failure to state a claim upon which this court can grant

relief pursuant to RCFC 12(b)(6). Def.'s Mot. to Dismiss 2. Defendant argues that this court

lacks jurisdiction due to the statute of limitations. Id. Defendant also contends that (1) neither

the 2008 Farm Bill nor the "Pigford Remedies Act" confers jurisdiction over Carl Parker's

claims to this court, and (2) neither the Parkers' loans nor the Pigford I consent decree are within

the scope of the CDA. Id. Further, defendant asserts that Carl Parker has failed to state a

plausible claim for relief based on either a breach-of-contract or a takings theory. Id.

In response, Carl Parker avers that violations of the Pigford I consent decree are

reviewable, raises a fraud claim concerning Gary Parker's purported election to pursue Track A

treatment instead of Track B treatment, and cites several cases for the proposition that there is a

right to a hearing pursuant to Section 14012. Pl.'s Resp. 7. Carl Parker claims that he is "not

asking for a review of the decision of the adjudicator or the arbitrator," but rather a "review of

the monitor's decision to deny [Gary Parker's] request for review." Id. at 9. He also requests

that, in the interest of judicial economy, the court order the OALJ to hold a formal hearing and

stay proceedings in this case until such a hearing takes place. 21 Id. at 13. In its reply, defendant

emphasizes that none of the arguments Carl Parker raises establish this court's jurisdiction over

his claims, and that Carl Parker has not pied any plausible claims for relief. Def.'s Reply 1.

Defendant also observes that, instead of appealing the OALJ's dismissal of his Febrnary 25,

2016 complaint, Carl Parker filed another petition with the OALJ for a hearing. Id. at 5 n.2. See

generally Def.'s Reply Attach. l; supra Part I.F.6.

20

In addition, Carl Parker attached a timeline of events leading up to the instant action to

his motion for partial summary judgment. See Pl.'s Mot. for Partial Summ. J. Ex. A at 1-4.

21

One month prior, Carl Parker moved this court to order the OALJ to hold a formal

hearing. See generally Pis.' Mot. to Review Admin. R. The court denied the motion because

jurisdiction over the Parkers' claims is a prerequisite for it to order any sort of relief. Order,

Aug. 23, 2016.

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Defendant's motion to dismiss is fully briefed. The court considers oral argument

unnecessary.

II. DISCUSSION

A. Standards of Review

1. RCFC 12(b)(l)

In determining whether subject matter jurisdiction exists, the court "must accept as true

all undisputed facts asserted in the plaintiffs complaint and draw all reasonable inferences in

favor of the plaintiff." Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir.

2011 ). With respect to a motion to dismiss for lack of subject matter jurisdiction pursuant to

RCFC l 2(b)(1 ), the plaintiff bears the burden of proving, by a preponderance of evidence, that

the court possesses subject matter jurisdiction. Id. The court is not limited to the pleadings in

considering subject matter jurisdiction. Banks v. United States, 741F.3d1268, 1277 (Fed. Cir.

2014); Pucciariello v. United States, 116 Fed. Cl. 390, 400 (2014). While prose pleadings are

"held to less stringent standards than formal pleadings drafted by lawyers" and are "to be

liberally construed," Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal quotation

marks omitted), the "leniency afforded to a pro se litigant with respect to mere formalities does

not relieve the burden to meet jurisdictional requirements," Minehan v. United States, 75 Fed.

Cl. 249, 253 (2007). If the court finds that it lacks subject matter jurisdiction over a claim,

RCFC 12(h)(3) requires the court to dismiss that claim.

2. RCFC 12(b)(6)

A claim that survives a jurisdictional challenge remains subject to dismissal under RCFC

12(b)(6) ifit does not provide a basis for the court to grant relief. Lindsay v. United States, 295

F.3d 1252, 1257 (Fed. Cir. 2002) ("A motion to dismiss ... for failure to state a claim upon

which relief can be granted is appropriate when the facts asserted by the claimant do not entitle

him to a legal remedy."). To survive an RCFC 12(b)(6) motion to dismiss, a plaintiff must

include in its complaint "enough facts to state a claim to relief that is plausible on its face"

sufficient for the defendant to have "fair notice" of the claim and the "grounds upon which it

rests." Bell At!. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007) (internal quotation marks

omitted). In other words, a plaintiff must "plead[] factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v.

Igbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). In ruling on such a motion,

the court must "accept as true all of the factual allegations contained in the complaint" and any

attachments thereto. Erickson, 551 U.S. at 94 (citing Twombly, 550 U.S. at 555-56); accord

RCFC 10(c) ("A copy of a written instrument that is an exhibit to a pleading is part of the

pleading for all purposes."); Rocky Mountain Helium, LLC v. United States, 841F.3d1320,

1325 (Fed. Cir. 2016) (applying RCFC lO(c) and emphasizing that "a court 'must consider the

complaint in its entirety, ... in particular, documents incorporated into the complaint by

reference, and matters of which a court may take judicial notice'" (quoting Tellabs, Inc. v.

Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007))).

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The issue at this stage oflitigation is not the sufficiency of the United States' potential

defenses or the likelihood of Carl Parker's eventual success on the merits of his claim, but

simply whether Carl Parker has alleged specific facts describing a plausible claim for relief. See

Chapman Law Firm Co. v. Greenleaf Constr. Co., 490 F.3d 934, 938 (Fed. Cir. 2007) ("The

court must determine 'whether the claimant is entitled to offer evidence to support the claims,'

not whether the claimant will ultimately prevail." (quoting Scheuer v. Rhodes, 416 U.S. 232, 236

(1974))). As a prose litigant, Carl Parker is afforded leniency in drafting his complaint. See

Matthews v. United States, 750 F.3d 1320, 1322 (Fed. Cir. 2014).

B. Subject Matter Jurisdiction

Whether the court possesses jurisdiction to decide the merits of a case is a "threshold

matter." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). Subject matter

jurisdiction cannot be waived or forfeited because it "involves a court's power to hear a case."

United States v. Cotton, 535 U.S. 625, 630 (2002), guoted in Arbaugh v. Y&H Corp., 546 U.S.

500, 514 (2006). "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction

is power to declare the law, and when it ceases to exist, the only function remaining to the court

is that of announcing the fact and dismissing the cause." Ex parte McCardle, 74 U.S. (7 Wall)

506, 514 (1868). Therefore, it is "an inflexible matter that must be considered before proceeding

to evaluate the merits of a case." Matthews v. United States, 72 Fed. CL 274, 278 (2006); accord

K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1004-05 (Fed. Cir. 2015). Either party,

or the court sua sponte, may challenge the court's subject matter jurisdiction at any time.

Arbaugh, 546 U.S. at 506.

The ability of the United States Court of Federal Claims ("Court of Federal Claims") to

entertain suits against the United States is limited. "The United States, as sovereign, is immune

from suit save as it consents to be sued." United States v. Sherwood, 312 U.S. 584, 586 (1941 ).

The waiver of immunity "may not be inferred, but must be unequivocally expressed." United

States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003). Further, "[w]hen waiver

legislation contains a statute of limitations, the limitations provision constitutes a condition on

the waiver of sovereign immunity." Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands,

461 U.S. 273, 287 (1983).

The Tucker Act, the principal statute governing the jurisdiction of this court, waives

sovereign immunity for claims against the United States, not sounding in tort, that are founded

upon the Constitution, a federal statute or regulation, or an express or implied contract with the

United States. 28 U.S.C. § 1491(a)(l) (2012); White Mountain, 537 U.S. at 472. However, the

Tucker Act is merely a jurisdictional statute and "does not create any substantive right

enforceable against the United States for money damages." United States v. Testan, 424 U.S.

392, 298 (1976). Instead, the substantive right must appear in another source oflaw, such as a

"money-mandating constitutional provision, statute or regulation that has been violated, or an

express or implied contract with the United States." Loveladies Harbor. Inc. v. United States, 27

F.3d 1545, 1554 (Fed. Cir. 1994) (en bane).

In addition, to fall within the court's jurisdiction, any claim against the United States filed

in the Court of Federal Claims must be "filed within six years after such claim first accrues." 28

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U.S.C. § 2501. A cause of action accrues "when all the events which fix the government's

alleged liability have occurred and the plaintiff was or should have been aware of their

existence." Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir.

1988), quoted in San Carlos Apache Tribe v. United States, 639 F.3d 1346, 1350 (Fed. Cir.

2011). The limitations period set forth in 28 U.S.C. § 2501 is an "absolute" limit on the ability

of the Court of Federal Claims to exercise jurisdiction and reach the merits of a claim. John R.

Sand & Gravel Co. v. United States, 552 U.S. 130, 133-35 (2008).

c. 28 u.s.c. § 1500

The Court of Federal Claims similarly does not possess jurisdiction to hear claims that

are pending in another court. 28 U.S.C. § 1500; United States v. Tohono O'Odham Nation, 563

U.S. 307, 311 (2011); Brandt v. United States, 710 F.3d 1369, 1374 (Fed. Cir. 2013); Res. Invs.,

Inc. v. United States, 114 Fed. CL 639, 647 (2014). Whether this statutory bar to jurisdiction

applies is measured at the time the complaint is filed. Brandt, 710 F.3d at 1379-80; Res. Invs.,

114 Fed. CL at 647; Vero Tech. Support, Inc. v. United States, 94 Fed. CL 784, 790 (2010).

To determine whether [28 U.S.C.] § 1500 applies, a court must

make two inquiries: (1) whether there is an earlier-filed "suit or

process" pending in another court, and, if so, (2) whether the

claims asserted in the earlier-filed case are "for or in respect to" the

same claim(s) asserted in the later-filed Court of Federal Claims

action. If the answer to either of these questions is negative, then

the Court of Federal Claims retains jurisdiction.

Brandt, 710 F.3d at 1374. Two actions are "for or in respect to the same claim ... if they are

based on substantially the same operative facts, regardless of the relief sought in each suit."

Tohono, 563 U.S. at 317.

Whether 28 U.S.C. § 1500 operates to bar this court from exercising jurisdiction in this

case was not raised by the parties, but the court has the responsibility to examine all pertinent

issues relevant to subject matter jurisdiction because "[ c]ourts have an independent obligation to

determine whether subject-matter jurisdiction exists, even when no party challenges it." Hertz

Com. v. Friend, 559 U.S. 77, 94 (2010); accord Gonzalez v. Thaler, 132 S. Ct. 641, 658 (2012)

("When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua

sponte issues that the parties have disclaimed or have not presented."). In other words, a court

may examine the issue of subject-matter jurisdiction "on its own initiative" at any point in a case.

Arbaugh, 546 U.S. at 506; see also Jeun v. United States, 128 Fed. CL 203, 209-10 (2016)

(collecting cases). Although§ 1500 divests this court of jurisdiction when there is another action

pending elsewhere based on the same operative facts, it does not prevent the exercise of

jurisdiction in this case.

Carl Parker was involved in three actions in addition to the instant case: the Pigford I

class action, the federal district court suit that was transferred from the Georgia district court to

the DC district court, and the original proceedings before the OALJ. All three actions are based,

at least in part, on "substantially the same operative facts," Tohono, 563 U.S. at 317, as the

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instant case. This action was filed on February 25, 2016.

First, the Pigford I case was dismissed with prejudice when the consent decree was

approved, and the subsequent appeal concluded on March 31, 2000. Pigford, 206 F.3d at 1214.

Thus, Pigford I was not pending when Carl Parker filed suit in this court. Second, Carl Parker's

federal district court suit was originally filed in the Georgia district court on February 29, 2016.

Thus, the federal district court case was filed four days after this suit was filed. Finally, the

February 2016 OALJ complaint was filed on the same day as the instant action. 22 However, the

OALJ is not a "court." See 5 U.S.C. § 551(1) (2012) (distinguishing between a federal agency

and federal courts); 28 U.S.C. § 610 (listing courts whose administrative functions are overseen

by the Administrative Office of the United States Courts); 28 U.S.C. § 1631 (allowing courts to

transfer civil actions to another court to cure jurisdictional defects, defining courts by reference

to 28 U.S.C. § 610, and including a "petition for review of administrative action" in the

definition of an appeal filed in court); see also Donovan v. Diplomat Envelope Coro., 587 F.

Supp. 1417, 1422 (E.D.N.Y. 1984) (noting that the administrative law judge was not a "court"

for collateral estoppel purposes).

Therefore, since none of the relevant cases was "pending" in another court at the time the

complaint in the instant case was filed, 28 U.S.C. § 1500 does not prevent this court from

exercising subject matter jurisdiction.

22

Under 28 U.S.C. § 1500, the Court of Federal Claims cannot exercise jurisdiction over

claims filed "simultaneously" in district court. Griffin v. United States, 590 F.3d 1291, 1293

(Fed. Cir. 2009); Taylor v. United States, 128 Fed. Cl. 635, 639-41 (2016). However, the

"language and structure" of§ 1500 suggest that, to the extent possible, courts make "a factual

determination of the order in which two claims are filed." United Keetoowah Band of Cherokee

Indians in Okla. v. United States, 86 Fed. Cl. 183, 189 (2009); accord Kaw Nation of Okla. v.

United States, 103 Fed. Cl. 613, 634 (2012) (explaining that "the statutory language of section

1500 does not allow a court to disregard the respective timing of the complaints"). "No binding

case law addresses the jurisdictional effect of the time of filing on complaints filed on the same

day in the Court of Federal Claims and federal district court." United Keetoowah Band, 86 Fed.

CL at 89. Thus, the Court of Federal Claims is "divided among two camps. The majority view

recognizes as dispositive the sequence of the two complaints' filings. The minority view ...

adopts a per se rule that a district court complaint filed the same day is pending regardless of

time of filing." Id. at 190; accord Res. Invs., 114 Fed. CL at 643 n.3. Nevertheless, when

evidence is lacking regarding which complaint was filed first on a particular day, the Court of

Federal Claims has generally held that the district court case was pending for purposes of§ 1500.

See, e.g., Coeur d'Alene Tribe v. United States, 102 Fed. CL 17, 26 (2011); Lan-Dale Co. v.

United States, 85 Fed. CL 431, 434-35 (2009). Here, Carl Parker mailed his complaints to the

Court of Federal Claims and the OALJ, and both complaints were filed on the same day.

However, because another requirement of§ 1500 was not satisfied, see infra, the order in which

the two complaints were filed is ultimately irrelevant.

-19-

D. Breach-of-Contract Claim

1. This Court Lacks Jurisdiction to Consider Carl Parker's Claim for Breach of the

Pigford I Consent Decree

When Carl Parker paitially succeeded on his Track A claim pursuant to the Pigford I

consent decree, he was awarded $50,000, tax relief, injunctive relief, and forgiveness of his

outstanding farm operating loans. However, his farm ownership loan was not forgiven. Carl

Parker strenuously asserts that the USDA's failure to forgive his farm ownership loan is a breach

of the Pigford I consent decree because he was a prevailing claimant thereunder. He also asserts

that the USDA's failure to provide Gary Parker with an administrative hearing is a breach of the

Pigford I consent decree. Defendant avers that the Court of Federal Claims lacks jurisdiction to

entertain claims concerning breach of the Pigford I consent decree because of the six-year

limitations period specified in 28 U.S.C. § 2501.

Carl Parker is co1Tect in his assertion that settlement agreements, including those

embodied in a consent decree, constitute contracts "within the meaning of the Tucker Act."

VanDesande v. United States, 673 F.3d 1342, 1351 (Fed. Cir. 2012) (internal quotation marks

omitted); accord Holmes v. United States, 657 F.3d 1303, 1312-15 (Fed. Cir. 2011) (holding that

a claim for breach of a settlement agreement that contemplates money dainages, or can fairly be

interpreted as such, is a claim within the Court of Federal Claims' jurisdiction); Pucciariello, 116

Fed. Cl. at 402 (emphasizing that "a suit seeking money dainages for the alleged breach of a

settlement agreement with the government falls within [the Court of Federal Claims']

jurisdiction"); Hall v. United States, 69 Fed. Cl. 51 (2005) ("The United States Court of Federal

Claims has jurisdiction over the breach of settlement agreements with the United States."); see

also Pigford v. Vilsack, 961 F. Supp. 2d 82, 87 (D.D.C. 2013) (construing consent decrees as

contracts for enforcement purposes). However, defendant is also correct regarding the six-year

statute of limitations. It is well-established that a cause of action accrues "when all the events

which fix the government's alleged liability have occurred and the plaintiff was or should have

been aware of their existence." Hopland Band, 855 F.2d at 1577. In a breach-of-contract case,

the "cause of action accrues when the breach occurs." Holmes, 657 F.3d at 1317 (internal

quotation marks omitted).

To the extent that the USDA's failure to forgive Carl Parker's farm ownership loan was a

breach of the Pigford I consent decree, such cause of action arose on August 31, 2007, when the

monitor granted reexamination of Carl Parker's claim regarding the restrictive conditions placed

on his 1984 farm operating loan and denied reexamination of his remaining claims. At that

point, Carl Parker was (or should have been) fully aware that he would not receive forgiveness of

his farm ownership loan, regardless of the disposition of the reexainination decision concerning

his farm operating loan. The six-year statute oflimitations imposed by 28 U.S.C. § 2501 for

Carl Parker's claims for breach of the Pigford I consent decree thus expired on August 31, 2013.

Therefore, this comt lacks jurisdiction to entertain those claims because the complaint was not

filed until February 25, 2016.

-20-

To the extent that either Gary Parker's assignment to Track A or denial of relief was a

breach of the Pigford I consent decree, such cause of action arose on July 1, 2004, when his

claim was denied by the adjudicator. 23 At that point, Gary Parker was aware that he would

receive no relief on his Track A claim. Furthermore, Carl Parker has failed to provide sufficient

evidence that Gary Parker timely petitioned the monitor for reexamination. To the extent that

Gary Parker's September 26, 2006 letters to the monitor and to class counsel constitute a petition

for reexamination, such petition was untimely. 24 The six-year limitations period imposed by 28

U.S.C. § 2501 for Gary Parker's claims for breach of the Pigford I consent decree thus expired

on July 1, 2010. Therefore, this court lacks jurisdiction to entertain those claims because the

complaint was not filed until February 25, 2016.

2. Assuming Jurisdiction, Carl Parker Fails to State a Plausible Claim for Relief

Alternatively, to the extent that jurisdiction to consider Carl Parker's claims based on

breach of the Pigford I consent decree is proper in this court, Carl Parker fails to state a plausible

claim upon which this court can grant relief. To prove a breach of contract, a plaintiff must

establish "(1) a valid contract between the parties; (2) an obligation or duty arising from that

contract; (3) a breach of that duty; and (4) damages caused by the breach." Century Exp!. New

Orleans, LLC v. United States, 110 Fed. Cl. 148, 163 (2013) (citing San Carlos Irr. & Drainage

Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989)). Once a breach of contract is

established, the burden shifts to the defendant to plead and prove affirmative defenses that

excuse performance. Shell Oil Co. v. United States, 751F.3d1282, 1297 (Fed. Cir. 2014).

Carl Parker asserts that both he and his brother participated in the Pigford I claim process.

In other words, he alleges that both he and his brother were parties to the consent decree, i.e.,

that there was a valid contract. Carl Parker also asserts that the USDA was required to forgive

all of his farm loans and to provide Gary Parker a hearing. In other words, he alleges that the

USDA was subject to a contractual duty. Further, Carl Parker contends that the USDA did not

forgive his farm ownership loan and has not provided the estate of Gary Parker a hearing. In

other words, he alleges breach of contractual duties. Finally, Carl Parker argues that the USDA

has sought to enforce the now-overdue loans through acceleration and foreclosure. In other

words, he alleges damages caused by the USDA's breach of its contractual duties.

Although Carl Parker received forgiveness of his farm operating loans, he did not prevail

on his claim concerning his farm ownership loan. Under the terms of the consent decree, debt

forgiveness was available only for loans "incurred under or affected by the program that formed

the basis of the [successful] claim." Pigford I, 185 F.R.D. at 108; accord Def.'s App. A14

(providing for loan forgiveness for debt that was "subject of the ECOA claim(s) resolved in the

23

Carl Parker states in the complaint that "Pigford Class Membership was denied" Gary

Parker. Comp!. if 7. The court construes such "denial" as a denial of relief. Carl Parker later

averred that Gary Parker was improperly given Track A treatment. Therefore, the court also

construes that alleged "denial" of Pigford I "class membership" as a denial of Track B treatment.

24

Gary Parker's deadline to petition the monitor for reexamination was October 29,

2004, 120 days after his Track A claim was denied.

-21-

class member's favor"). Farm operating loans are distinct from farm ownership loans. Comp!.

Ex. A at 2; 7 C.F.R. § 761.2 (defining terms). Compare 7 C.F.R. pt. 764 subpt. D (describing the

farm ownership loan program), with id. subpt. G (describing the farm operating loan program).

Therefore, under the facts as alleged in the complaint, the USDA met its obligation to forgive

Carl Parker's farm operating loans, and had no duty to forgive Carl Parker's farm ownership

loan. Because the USDA had no duty to forgive Carl Parker's farm ownership loan, its failure to

forgive the loan cannot constitute a breach of the Pigford I consent decree. Similarly, the USDA

had no duty to forgive Gary Parker's farm loans because he was not a successful claimant, thus

its failure to do so cannot constitute a breach of the Pigford I consent decree.

Furthermore, the USDA did not breach the Pigford I consent decree by failing to provide

Gary Parker a hearing. Like his brother, Gary Parker elected Track A treatment and received a

denial of his claim. 25 While Track B claimants were provided a "one day mini-trial," Track A

claimants were not entitled to any sort of hearing. Pigford I, 185 F.R.D. at 97 (comparing the

process, burden of proof, and relief available for Track A and Track B claimants). Therefore,

under the facts as alleged, the USDA had no duty to provide Gary Parker a hearing under the

consent decree.

3. Summary

In sum, the court lacks jurisdiction to entertain Carl Parker's claims based on breach of

the Pigford I consent decree. To the extent that jurisdiction in this court is proper, Carl Parker

has failed to state a plausible claim upon which this court can grant relief.

E. Takings Claim

In his complaint, Carl Parker also alleges a contractual takings claim. The Fifth

Amendment to the Constitution prohibits the govermnent from taking private property for public

use "without just compensation." The Court of Federal Claims possesses jurisdiction to entertain

Fifth Amendment takings claims. Jan's Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1309

(Fed. Cir. 2008) ("It is undisputed that the Takings Clause of the Fifth Amendment is a money-

mandating source [oflaw] for purposes of Tucker Act jurisdiction."). Furthermore, "contract

rights can be the subject of a takings action." Palmyra Pac. Seafoods, LLC v. United States, 561

F.3d 1361, 1365 (Fed. Cir. 2009). Therefore, the court has jurisdiction to consider contractual

takings claims.

25

In his September 26, 2006 letter to the monitor following denial of his Track A claim,

which the court construes as a petition for reexamination of his claim, see supra Part II.D .1, Gary

Parker made no mention of improper class assignment, only that he was "shocked" that the

adjudicator had determined that he did not "establish[] through substantial evidence that [he] was

discriminated against," Comp!. Ex. C at 22. Thus, to the extent that the USDA had a duty to

ensure that Gary Parker was placed in Track Bin lieu of Track A, any claim that the USDA

breached that duty would be waived.

-22-

To prevail on a takings claim, a plaintiff must "identify[] a valid property interest" under

the Fifth Amendment and show a "governmental action [that] amounted to a compensable taking

of that property interest." Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1212-13

(Fed. Cir. 2005); accord Hearts Bluff Game Ranch, Inc. v. United States, 669 F.3d 1326, 1329

(Fed. Cir. 2012). In a contractual takings case, a plaintiff must demonstrate that the government

"altered [the plaintiffs] contractual rights in a way that affect[ed the plaintiffs] underlying

property rights" or "stepped into the shoes of a contracting party so as to appropriate that party's

contract rights .... " Palmyra Pac. Seafoods, 561 F.3d at 1369. Even government action that is

"targeted" at a particular plaintiff does not constitute a taking that necessitates compensation if

such action does not appropriate a "protectable property interest." Id. at 1370.

In this case, Carl Parker appears to allege that both his and Gary Parker's contractual

rights as Pigford I claimants and as mortgagees have been usurped by the USDA due to the

USDA's failure to forgive their farm loans. The court assumes, without deciding, that the

Parkers' contractual rights as claimants and mortgagees have been effectively taken by the

USDA. As explained above, see supra Part II.DJ, the decision not to forgive Carl Parker's farm

ownership loan was made on August 31, 2007, and the decision not to forgive Gary Parker's

farm loans was made on July 1, 2004. Since "a claim alleging a Fifth Amendment taking

accrues when the act that constitutes the taking occurs," Ingrum v. United States, 560 F.3d 1311,

1314 (Fed. Cir. 2009), both claims are well beyond the six-year limitations period set forth in 28

U.S.C. § 2501.

Moreover, even ifthe court possessed jurisdiction to consider his takings claims, Carl

Parker has failed to establish a plausible claim for relief. To prevail on a takings claim under the

Tucker Act, a plaintiff must concede the legitimacy of the government action that effected the

taking. Hearts Bluff, 669 F.3d at 1332 (citing Tabb Lakes, Ltd. v. United States, 10 F.3d 796,

802 (Fed. Cir. 1993)); Rith Energy, Inc. v. United States, 270 F.3d 1347, 1352 (Fed. Cir. 2001)

("[I]n a takings case we assume that the underlying governmental action was lawful, and we

decide only whether the governmental action in question constituted a taking for which

compensation must be paid."); accord Reg'] Rail Reorg. Act Cases, 419 U.S. 102, 126-27 & n.16

(1974) ("[T]he Government action must be authorized. 'The taking of private property by an

officer of the United States for public use, without being authorized, expressly or by necessary

implication, to do some act of Congress, is not the act of the government,' and hence recovery is

not available in the [Court of Federal Claims]." (quoting Hooe v. United States, 218 U.S. 322,

336 (1910))). Carl Parker does not make such a concession, but rather alleges that the USDA

violated the Pigford I consent decree by failing to forgive his and Gary Parker's outstanding farm

loans. See, e.g., Davis v. United States, 123 Fed. Cl. 235, 243 (2015) (differentiating between

"an uncompensated taking and an unlawful government action," explaining that each gives rise

to a separate cause of action, and finding that the plaintiff failed to state a plausible takings claim

because he had alleged improper government conduct (internal quotation marks omitted)), aff d

per curiam, 642 F. App'x. 982 (Fed. Cir. 2016) (unpublished decision).

In sum, the court lacks jurisdiction to entertain Carl Parker's claims based on a takings

theory. To the extent that jurisdiction in this court is proper, Carl Parker has failed to state a

plausible claim upon which this court can grant relief.

-23-

F. Statutory Claims

The court next addresses Carl Parker's statutory claims. "A statute or regulation is

money-mandating for jurisdictional purposes if it can fairly be interpreted as mandating

compensation for damages sustained as a result of the breach of the duties it imposes." Ferreiro

v. United States, 501 F.3d 1349, 1352 (Fed. Cir. 2007) (internal quotation marks omitted). Such

a determination is made pursuant to a two-part test:

First, the court determines whether any substantive law imposes

specific obligations on the Government. If that condition is met,

then the court proceeds to the second inquiry, "whether the

relevant source of substantive law can be fairly interpreted as

mandating compensation for damages sustained as a result of the

breach of the duties the governing law imposes."

Samish Indian Nation v. United States, 657 F.3d 1330, 1335 (Fed. Cir. 2011) (quoting United

States v. Navajo Nation, 556 U.S. 287, 290-91 (2009)). In other words, "to satisfy the

jurisdictional requirements of the Tucker Act, the plaintiff must point to an independent,

substantive source oflaw that mandates payment from the United States for the injury suffered."

Johnson v. United States, 105 Fed. Cl. 85, 91 (2012); accord Samish Indian Nation, 657 F.3d at

1335-36 ("The Court of Federal Claims has jurisdiction ifthe substantive law at issue is

'reasonably amenable to the reading that it mandates a right of recovery in damages.'" (quoting

White Mountain, 537 U.S. at 466)).

1. "Pigford Remedies Act of 2007" Claim

First, Carl Parker points to the "Pigford Remedies Act of2007" as an alternative means

for recovery based on the same facts and circumstances as his breach-of-contract and takings

claims. However, as defendant observes, although many of its provisions were contained in the

2008 Farm Bill, the Pigford Claims Remedy Act of2007 never became law. See S. 1989, 1 lOth

Cong. (2007); H.R. 3073, I 10th Cong. (2007); S. 515, 1 lOth Cong. (2007); H.R. 899, llOth

Cong. (2007). While the legislative history ofunenacted bills can be helpful in understanding

subsequently enacted statutes with similar language, Bailey v. United States, 52 Fed. CL 105,

112 (2002), unenacted legislation cannot serve as a money-mandating "Act of Congress"

sufficient to confer Tucker Act jurisdiction to the Court of Federal Claims, see 28 U.S.C.

§ 1491(a)(l). See also Hughs v. Shinseki, 408 F. App'x 367, 369 (Fed. Cir. 2011) (unpublished

per curiam decision) (declining to treat an unenacted bill as a law). Therefore, Carl Parker

cannot use the Pigford Claims Remedy Act of 2007 as a jurisdictional basis on which to advance

claims in this court.

2. Section 14012 Claim

Carl Parker also points to Section 14012 of the 2008 Farm Bill as an alternative means

for recovery based on the same facts and circumstances as his breach-of-contract, takings, and

Pigford Claims Remedy Act of 2007 claims. He emphasizes that Congress intended Section

14012 to be "liberally construed," Pub. L. No. 110-246, § 14012(d), 122 Stat. at 2210, to effect

-24-

its purpose of providing a "full determination on the merits for each Pigford claim," id. He also

properly observes that Section 14012 precludes acceleration or foreclosure regarding farm loans

related to a Pigford claim. Id.§ 14012(h), 122 Stat. at 2211-12. Carl Parker avers that the

USDA's efforts to collect on his unforgiven farm ownership loan, collect on his brother's loans

without a full hearing on the merits, and foreclose on property he owns both individually and as

administrator of his brother's estate are in direct violation of Section 14012.

It is well established that statutes must be read in their entirety and enforced according to

their terms if the statutory language is plain, which may become apparent only in context of the

overall statutory scheme. King v. Burwell, 135 S. Ct. 2480, 2489 (2015). By invoking Section

14012, Carl Parker fails to recognize that subsection (b) clearly specifies that any action filed

pursuant to Section 14012 must be brought in the DC district court. Pub. L. No. 110-246, §

14012(b), 122 Stat. at 2210; Pigford II, 856 F. Supp. 2d at 11; see also In re Black Farmers

Discrimination Litig., 29 F. Supp. 3d 1, 5 (D.D.C. 2014) (explaining the DC district court's

authority to oversee the Pigford II consent decree). Therefore, under the plain language of the

statute, the Court of Federal Claims is without jurisdiction to consider claims arising under

Section 14012.

Moreover, even if this court possessed jurisdiction to consider Carl Parker's Section

14012 claims, he has failed to state a plausible claim upon which this co mi can grant relief.

Section 14012-which paved the way for the Pigford II settlement in the same way that Section

741 paved the way for the Pigford I settlement, Pigford II, 856 F. Supp. 2d at 8-9, 11-12---0nly

applied to those individuals "who ha[d] not previously obtained a determination on the merits of

a Pigford claim." Id. at 11; Pub. L. No. 110-246, § 14012(b), 122 Stat. at 2210. While they

disagreed with the results, Carl Parker and Gary Parker each received a determination on the

merits of his Pigford I discrimination claim. Section 14012 is thus of no use to the Parkers. It

applies only to Pigford II claimants; it does not provide a second bite at the apple to Pigford I

claimants who were unhappy with the results.

In sum, the court lacks jurisdiction to entertain Carl Parker's claims based on the

USDA's alleged violation of Section 14012. To the extent that jurisdiction in this court is

proper, Carl Parker has failed to state a plausible claim upon which this court can grant relief.

3. CDAClaim

In addition to alleging that the USDA breached the Pigford I consent decree, Carl Parker

generally alleges a violation of the CDA. The CDA is a "money-mandating source oflaw

sufficient to confer jurisdiction in [the Court of Federal Claims] under the Tucker Act." Kellogg

Brown & Root Servs., Inc. v. United States, 115 Fed. Cl. 168, 171 (2014); accord 28 U.S.C. §

1491(a)(2) (providing jurisdiction in the Court of Federal Claims to hear disputes arising under

the CDA). The CDA, however, "applies only to express or implied government contracts for

procurement of goods or services." Rick's Mushroom Serv., Inc. v. United States, 521 F.3d

1338, 1343-44 (Fed. Cir. 2008); accord 41 U.S.C. § 7102(a). In other words, nonprocurement

contracts fall outside of this court's CDAjurisdiction. Procurement encompasses "all stages of

the process of acquiring property or services." 41 U.S.C. § 111; see also Res. Conservation Grp.,

LLC v. United States, 597 F.3d 1238, 1244 (Fed. Cir. 2010) (applying the definition of

-25-

"procurement" in 41 U.S.C. § 403(2), the predecessor to 41U.S.C.§111, to the Tucker Act). It

involves the "acquisition by purchase, lease or barter, of property or services for the direct

benefit or use of the Federal Government." Wesleyan Co. v. Harvey, 454 F.3d 1375, 1378 (Fed.

Cir. 2006) (internal quotation marks omitted).

Besides the consent decree, the only contracts relevant to this case are the Parkers' farm

loans and associated mortgages. This court has previously found that, in providing a loan

commitment, the government "was neither procuring services nor receiving any direct benefit,"

even ifthe government were to receive reimbursement for "the loan, as well as the associated

interest and fees." Solaria Corp. v. United States, 123 Fed. CL 105, 121 (2015). Here, the

USDA did not procure services, nor did it receive a direct benefit in providing farm loans to Carl

and Gary Parker. Even if the USDA were to have foreclosed on the subject properties, it would

not have received a benefit or procured property because proceeds from the foreclosure sale to a

third-party buyer would simply be applied to the outstanding loan balances.

In sum, the Parkers' farm loans and associated mortgages are not procurement contracts.

Therefore, the court lacks jurisdiction to consider Carl Parker's CDA claim.

G. Discrimination and Other Claims

Finally, Carl Parker alleges that the USDA failed to respond to his complaints of ongoing

discrimination. However, to the extent that the USDA's treatment of the Parkers constitutes

ongoing discrimination in violation of civil rights statutes, harassment, conspiracy, fraud, or

breach of fiduciary duty or negligence (by virtue of the USDA's constantly losing the Parkers'

files and paperwork), those claims must be pursued in district court because they are outside the

reach of this court's limited Tucker Act jurisdiction.

First, only federal district courts possess jurisdiction to entertain claims under the

relevant civil rights statutes. Marlin v. United States, 63 Fed. CL 475, 476 (2005). The Court of

Federal Claims is not a district court. Ledford v. United States, 297 F.3d 1378, 1382 (Fed. Cir.

2002); see also Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553, 563 (2017) (distinguishing

between the "Court of Federal Claims" and "federal district courts"). Second, claims of

harassment, conspiracy, fraud, breach of fiduciary duty, and negligence sound in tort. See

Lawrence Battelle, Inc. v. United States, 117 Fed. Cl. 579, 585 (2014) (fraud, discrimination, and

negligence); Sellers v. United States, 110 Fed. CL 62, 68 (2013) (negligence); Cox v. United

States, 105 Fed. Cl. 213, 218 (2012) (harassment, fraud, and breach of fiduciary duty); Phang v.

United States, 87 Fed. Cl. 321, 325 (2009) (fraud); Gant v. United States, 63 Fed. Cl. 311, 316

(2004) (conspiracy, fraud, and negligence). This court lacks jurisdiction to entertain claims

sounding in tort. 28 U.S.C. § 1491(a)(l); see also U.S. Marine, Inc. v. United States, 722 F.3d

1360, 1365-66 (Fed. Cir. 2013) (noting that under the Federal Tort Claims Act, 28 U.S.C. §§

1346(b)(1 ), 2671-2680, jurisdiction over tort claims against the United States lies exclusively in

federal district courts).

The only exception to that rule is for a tort claim that "stems from a breach of contract"

claim. Awad v. United States, 301F.3d1367, 1372 (Fed. Cir. 2002). In such a case, "the cause

of action is ultimately one arising in contract, and thus is properly within the exclusive

-26-

jurisdiction of the Court of Federal Claims." Id.; accord Olin Jones Sand Co. v. United States,

225 Ct. Cl. 741, 745 (1980) ("Where ... a claim is based on breach of contract it is properly

within the jurisdiction ofthis court even though it also alleges that defendant engaged in tortious

conduct in breaching the contract."). In Demodulation, Inc. v. United States, 103 Fed. Cl. 794,

813-14 (2012), this court observed that if it dismissed the counts alleging breach of contract, it

would also "necessarily" dismiss the tortious claims arising out of those purported contracts. In

other words, tortious breach-of-contract claims cannot survive if the underlying contractual

claims are dismissed. See, e.g., Nesselrode v. United States, 127 Fed. Cl. 421, 430 (2016)

(dismissing a fraud claim based on a breach of contract for lack of subject matter jurisdiction

when the plaintiff failed to state a plausible breach-of-contract claim). As explained above, there

is no breach-of-contract claim properly before this court. Therefore, there is no contractual basis

for Carl Parker's tort claims.

In sum, the court lacks jurisdiction to consider Carl Parker's civil rights and tort claims.

III. CONCLUSION

The court has considered all arguments of the parties. To the extent not discussed herein,

the court finds them unpersuasive or without merit.

The Court of Federal Claims lacks jurisdiction to consider Carl Parker's claims for

breach of the Pigford I consent decree, takings, violation of the "Pigford Remedies Act of 2007,"

violation of Section 14012, ongoing discrimination, harassment, conspiracy, fraud, breach of

fiduciary duty, and negligence. To the extent that the comts are unable to provide relief for Carl

Parker, he must seek redress from the political branches of government. See Res. Invs., 114 Fed.

Cl. at 655.

In sum, the court GRANTS defendant's motion to dismiss the complaint for lack of

subject matter jurisdiction. The court also DENIES AS MOOT defendant's motion to dismiss

the complaint for failure to state a claim upon which this court can grant relief. Further, the court

DENIES AS MOOT Carl Parker's motion for partial summary judgment.

The court has filed this ruling under seal. The parties shall confer to determine agreed-to

proposed redactions. Then, by no later than Tuesday, February 28, 2017, the parties shall file

a joint status report indicating their agreement with the proposed redactions, attaching a copy of

those pages of the court's ruling containing proposed redactions, with all proposed

redactions clearly indicated.

No costs. The clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.