Labatte v. United States

In the Um'ted States Court of Federal Claims

No. 16-798C

(Filed: luly 28, 2017)

TIMOTHY LABATTE,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

\.../\._/\_/\_._/\_/\._/\_/\..,/\._,/\._/\_/\_/

Erl`ck Gregg Kaardal, Minneapolis, MN, for plaintiff

Malrhew Paul Roche, U.S. Department of Justice - Civil Division, Washington DC, Counsel for

defendant

OPINION

FUTEY, Sr. .ludge.

This case is before the Court on defendant’s motion to dismiss, filed on November 7,

2016, for lack of subject matter jurisdiction and failure to state a claim. On December 8, 2016

plaintiff filed a response and a cross motion for summary judgment Subsequently, on Decernber

14, 2016, defendant filed a motion to stay briefing on plaintiffs motion for summary judgment

ln its Order on December 20, 2016, this Court agreed it must first resolve jurisdictional issues.

Plaintiff, in his complaint filed on July 5, 2016, is seeking to recover over $200,000.00 in

monetary damages, contending the United States Department of Agriculture (“USDA”) breached

the Settlement Agreement and its duty of good faith and fair dealing, by preventing a witness

from testifying and further destroying the evidence of the claims process

Oral Argument Was held at the Court on .lune 19, 2017. This matter is now ripe for

disposition

FACTUAL BACKGROUND

In 1999, a putative class of Native-American farmers filed a lawsuit against the Secretary

of Agriculture, alleging that the USDA discriminated against them in the administration of farm

ioans and other benefits programs and failed to investigate their administrative discrimination

complaintsJ violating the Equal Credit Oppoitunity Act, 15 U.S.C. § 1691. The alleged

discriminatory acts occurred between January 1, 1981 and November 24, 1999. The U.S. District

Court for the District of Colurnbia certified a class and ultimateiy, the case Settied With a court

approved Settlement Agreement, dismissing the action on April 29, 2011. The Settlement

Agreement, inter alia, established several criteria for ciass membership:

a, Must be a Native Arnerican as defined in the Agreement under Section II.BB.

b. Must have farmed, ranched, or attempted to farm or ranch between January l,

1981 and Novernber 24, 1999.

e. Must have applied to USDA in that time period for participation in a farm

program.

d. A ciass member must have filed a discrimination complaint with USDA either

individually or through a representative

The Settlement Agreement also established a Non-Judicial Process of review for the

farmers’ claims. The terms of the Settlement Agreement provided for finality of the process:

The Claim Determinations, and any other determinations made under this Non-

Judicial Claims Process are final and are not reviewable by the Claims

Administrator, the Track A Neutral, the Track B Neutral, the {d]istrict {c]ouit, or

any other party or body, judicial or otherwise The Class Representatives and the

Class agree to forever and finally waive any right to seek review of the Claim

Determinations, and any other determinations made under this Non-Judicial

Claims Process (Revised Settlement Agreement (“SA”) at § IX.A.9, Keepseagle

v. Vilsack, No. l:99~cv-03119~EGS, (D.D.C. July 31, 2012), ECF No. 621-2.).

Also, the Settlement Agreement provided no role for the United States in the Non-

Judicial Claims process (SA § IX.A. l 0). The United States is defined as individually and

collectively, the Executive Branch of the United States, its agencies, instrumentalities agents,

officers, and employees (SA § lI.BBB).

Timothy LaBatte, a member of the Sisseton-Wahpeton Tribe, satisfied the criteria as a

plaintiff and became a party to a class action lawsuit which commenced in 2000. As a class

action piaintiff in Keepseagfe v. Vilsack, l\/Ir. LaBatte engaged in a Non-J udicial Claims Process

established through the subsequent Keepseagle Settlement Agreernent to recover monetary

damages pursuant to the Track B Neutral. Keepseagle v. Vilsack, No. l:99-cv-03119-EGS

(D.D.C. Apr. 29, 20l1).

The parties were required to submit their claims packages by Deeember 27, 2011. T hese

packages were then evaluated by the Claims Administrator for timeliness and completeness All

timely and complete claims packages Were forwarded to the Track A or Track B Neutral in

accordance with the claimant’s election. Track A Neutral determined the elements of a claim by

substantial evidence (SA § IX.C. l). The Track B Neutral determined the elements of a claim by

preponderance of the evidence and through documentary evidence admissible under the Federal

Rules of Evidence. (SA § IX.D. 1). if either the Track A or B Neutral determined that the

claimant had not proven his or her claim, the Neutral denied the claim. The Settlement

Agreement provided that third party claims adjudication companies suggested by class counsel

and approved by the district court would serve as the “Track A Neutral,” and the “Track B

Neutral” and would make the determinations of whether the claimants had proven the elements

of their claims

Mr. LaBatte submitted his claim on Deeember 23, 201l, and choose the Track B Neutral

process Plaintiff submitted his information including a declaration from his attorney, Mr.

Kaardal, which recounted his attempts to obtain the information needed to prove l\/lr. LaBatte’s

claims, including a credible sworn statement based on personal knowledge by an individual who

is not a member of the Claimant’s family: (l) the identity of a similarly situated white farmer;

and (2) that the Claimant filed a discrimination complaint with the USDA. (SA § IX.D.2.a).

On April 27, 2012, the Claims Administrator sent Mr. LaBatte’s attorney, l\/Ir. Kaardal,

the notice required by Paragraph IX.B.6 of the Settlement Agreement. On May 23, 2012, Mr.

LaBatte submitted additional information, including a declaration from l\/lr. Kaardal which

recounted his attempts to obtain the information needed to prove Mr. LaBatte’s claims Mr.

LaBatte asserted that he “did an exhaustive search for witnesses to support his claim” and found

that many of those who could support his claim were deceased Ultimately, he located two

individuals who could testify through declarations, Tim Lake and Russel Hawkins. Mr.

LaBatte’s witnesses were his former Tribal Chair Russell Hawkins and another tribal member

Tim Lake. At the tirne l\/lr. LaBatte sought to obtain signed declarations from these individuals,

both were employees of the Bureau of indian Affairs (“BIA”), an agency of the United States

Department of the lnterior. Subsequently, allegedly both l\/Ir. Hawkins and l\/Ir. Lake informed

Mr. LaBatte that they would not sign draft declarations Mr. LaBatte attached the unsigned

declarations of l\/lr. Lake and l\/lr. Hawkins as an offer of proof when he submitted his claim.

(Compl. Ex. F, ECF No. 1-3). ln his own declaration, Mr. LaBatte identified white farmers

similarly situated who obtained loans from the government where LaBatte could not.

On October 30, 2012, the Claims Administrator informed Mr. LaBatte that a rfrack B

Neutral rendered a final determination that his claim was denied. 'l`he denial letter outlined two

reasons:

[R]uns afoul of the Settlement Agreement’s requirement that evidence on this

issue, and on the issue of whether you had filed a complaint of discrimination

with USDA, has been established, by a credible sworn statement based on

personal knowledge by an individual who is not a member of the Claimant’s

family.’ . .. Since Mr. Kaardals’ declaration makes clear that you obtained the

information in the declaration from the two federal officials named, the

Settlement Agreement’s requirement have not been met. Further the statements in

that declaration purporting to establish that white farmers received a benefit

(loans) that you were denied, lack the specificity necessary to establish that those

benefits were, in fact received by the white farmers

The letter concluded that “[t]his Decision is final. lt is not reviewable by the Claims

Administrator, the Tr'ack A Neutral, the 'l`racl< B Neutral, the [d]istrict [c]ourt or any other party

or body, judicial or otherwise.” (Compl. EX. G, ECF No. 1~5).

On November 26, 20l2, l\/lr. LaBatte sent a letter to the Departments of Agriculture

asserting that the Government instructed his witnesses not to sign their declarations in support of

his claim and alleged that the Gover'nment violated its duty of good faith and fair dealing. He

requested that he be awarded the full value of his claim under Track B Neutral, however, he did

not allege that any specific provision of the Settlement Agreement had been violated The

Government did not respond

On July 10, 2013, following denial of his settlement claim, Mr. LaBatte filed a motion to

intervene and leave to file a complaint for intervention in the district court’s Keepseagle case.

See Mot., Statement of Mat. Facts, Points and Authorities and Cert. of Serv., Keepseag[e v.

Vz`[sack, No. l:99-cv-03119-EGS at 3 (D.D.C. July. 10, 2013), ECF No. 635.M1*.LaBatte

asserted breach of the Scttlement Agreement’s implied covenant of good faith and fair dealing,

violations of due process and the First Arnendment by preventing his alleged witnesses from

signing declarations on his behalf. Thc district court denied the motion. in its decision, the

district court outlined the background information noting the details of the settlement process

and analyzing the Settlement Agreement. The district court determined that l\/lr. LaBatte “. ..

[Djoes not explain how the court’s limited jurisdiction “to supervise the distribution of the Fund”

conveys the ability to hear his claim that the government played an undue role “in the Non-

Judicial Claims Process” See Memorandum Order, Keepseagfe v. Vilsuck, No. 1:99-cv-03ll9-

EGS at 11~12 (D.D.C. luly. 14, 2014), ECF No. 692. Nor does he explain how exercising this

jurisdiction would not contradict the Agreement’s specific withholding of jurisdiction to review

‘°Claim Determinations” or “any other determination made under this Non-Judicial Claims

Process.” Id. The court held that the claims were not factually interdependent and further

explained that “[tjhe underlying claim that formed the basis for this case ~ regarding

discriminatory treatment by the Departrnent of Agriculture ~ has nothing to do with Mr.

LaBatte’s claims that the government prevented individuals from signing declarations.” The

court also established that Mr. LaBatte was seeking review of the Track B Neutral’s final

determination of his claim, which is expressly prohibited by the Settlement Agrecment. Icr’. at 10. .

'l`he court rejected Mr. LaBattte’s assertion that the Governrnent’s actions rendered the process

so infirm that there effectively was no process, noting that he had followed the Track B process

and he had his claim denied. Id.

Mr. LaBatte appealed the district court’s decision The U.S. Court of Appeals for the

D.C. Circuit affirmed the district court’s finding that it did not possess ancillary jurisdiction over

Mr. LaBatte’s breach claim. See Keepseaglc v. Vilsack, 815 F.3d 28 at 35 (D.C. Cir. l\/lar. 4,

2016). Further, the court held that the Settlemcnt Agreenient’s enforcement clause provided the

district court only with jurisdiction to enforce the distribution of the funds Id. The court noted

that “LaBatte’s argument fails to account for the Agrcement’s strong finality language declaring

all claim determinations final and unreviewable.” Id.

Subsequently, on July 5, 2016, l\/lr. LaBattc filed his complaint with this Court asserting

the'Government'breached the Settlemcnt Agreement and the implied duty of good faith and fair

dealing by directing Mr. Hawkins and l\/Ir. Lake not to sign their declarations, failing to respond

to his notice within 45 days and denying to process his claim under the Track B process without

Government interference, which allegedly resulted in the loss of monetary damages Plaintiff

seeks a declaratory judgment against the United States for breach of the Settlement Agreemcnt,

and asks the Court to award his rl`rack B claim in the amount of $202,700.52.

Defendant argues that this Court does not possess jurisdiction to entertain any of Mr.

LaBatte’s claims since they seek to reopen the rl`rack B Neutral’s final decision denying his

claim. This, according to the defendant, will be against the finality provision of the Settlemcnt

Agreement. Defendant further argues that the Court does not possess jurisdiction to entertain l\/lr.

LaBatte’s claim that the Governrnent breached the Settlemcnt Agreement by failing to respond to

his notice of violation within 45 days, because the Settlemcnt Agreement expressly grants

enforcement authority exclusively with the district court. Finally, defendant argues that the

complaint should be dismissed for failure to state a claim, since the Governrnent acted

consistently with the terms of the Settlemcnt Agreement by its employees having no role in the

Non-Judicial Process

JURISDICTION

lt is well settled that the United States, as sovereign, cannot be sued without its consentl

See United States v. Sherwood, 312 U.S. 584, 586 (l941). Consent must occur through an

unequivocal, express waiver of sovereign immunity fd. The Tucker Act furnishes the requisite

express waiver and grants the United States Court of Federal Claims subject matter jurisdiction

where a claim rests upon at least one of the following: the Constitution; any Act of Congress;

any regulation of an executive department; any express or implied contract with the United

States; or liquidated or unliquidated damages in cases not sounding in tort. See 28 U.S.C. §

1491(3).

The Tucker Act, however, does not create any substantive right for monetary damages

To invoke the jurisdiction of the United States Court of Federal Claims, a complaint must

identify and plead an independent contractual relationship, constitutional provision, federal

statute, and/or executive agency regulation that provides a substantive right to money damages

See Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004) ("Jurisdiction under the Tucker

Act requires the litigant to identify a substantive right for money damages against the United

States separate from the Tucker Act.").

ln deciding a motion to dismiss, the court is "obligated to assume all factual allegations to

be true and to draw all reasonable inferences in plaintiffs favor." Henke v, United States, 60 F.3d

795, 797 (Fed. Cir. 1995). Plaintiff, as the non-moving party, however, bears the burden of

establishing jurisdiction by a preponderance of the evidence See Reynolds v. Army & Az`r Force

Exch, Serv,, 846 F.2d 746, 748 (Fed. Cir. 1988). "Once the [trialj court‘s subject matter

jurisdiction [is] put in question it lis] incumbent upon [plaintiff] to come forward with evidence

establishing the court's jurisdiction.").

Furthermore, in Hall v. United States, 69 Fed. Cl. 51 (2005), the court addressed the

standard of review on motions to dismiss A challenge to the "court's general power to

adjudicate in specific areas of substantive law . . . is properly raised by a [Rulej 12(b)(l)

motion." Polmer v. United States, 168 F.3d l3l0, 1313 (Fed. Cir. 1999); see also Ffsher v.

United States, 402 F.3d 1 167, 1173 (Fed. Cir. 2005) ("lf the court's conclusion is that the source

as alleged and pleaded is not money-mandating, the court shall so declare, and shall dismiss the

cause for lack ofjurisdiction, a Rule l2(b)(l) dismissal ~ the absence of a money-mandating

source being fatal to the court's jurisdiction under the Tucker Act."); see also RCFC 12(b)(l).

The United States Court of F ederal Claims has jurisdiction to review claims over the

breach of settlement agreements with the United States See Koscrrsky v. Merit Sys. Pro:.‘. Bd.,

296 F.3d 1331, 1336 (Fed. Cir. 2002) ("Disputes involving settlement agreements are governed

by contract principles."', see also Greco v. Deportment of Army, 852 F.2d 558, 560 (Fed. Cir.

1988) "lt is axiomatic that a settlement agreement is a contract."). ln Srovall, this Court

highlighted its reasoning reflected in the extensive body of cases, that “[A]ny agreement can be a

contract within the meaning of the Tucker Act, provided that it meets the requirements for a

contract with the Government, specifically: mutual intent to contract including an offer and

acceptance, consideration, and a Government representative who had actual authority to bind the

Government, And the decisional law leaves no doubt that settlement agreements generally fall

within this definition.” See Stovall v. United States, 71 Fed. Cl. 696, 698 (2006); Hall v. United

States, 69 Fed. Cl. 51, 55 (2005). Accordingly, absent some other bar, the Court has jurisdiction

to adjudicate breach of contract claims

This contract liability enforceable under the Tucker Act consent to suit, however, does

not apply to “every agreement, understanding, or compact which can semantically be stated in

terms of offer and acceptance or meeting of minds.” Stovo'lf, 71 Fed. Cl. at 698.

PLAINTIFF’S WAIVER

lt has been a longstanding policy that parties to the contract can limit the scope of judicial

review by contracting their rights away. The United States Court of Appeals for the Federal

Circuit held that forum selection was enforceable, although subject to judicial scrutiny for

fundamental fairness See Monsaro Co. v. McFarlz`ng, 302 F.3d 1295 (Fed. Cir. 2002)', Minesen

Co. v. McHugh, 671 F.3d 1332 (Fed. Cir. 2012). Such a [forum selection] clause is enforceable

unless the party challenging it clearly demonstrates that is invalid or that enforcement would be

unreasonable and unjust See Burger King Corp. v. Rudzewr'cz, 471 U.S. 462, 472 n. 14 (l985).

l\/lr. LaBatte does not contend that the forum clause is unreasonable or fraudulent, nor does he

suggest, like l\/lcFarling in Monsato, although unsupported by any law, that his voluntary failure

to read the forum selection clause entitles him to exemption

Parties often decide to waive certain rights in the contracts and forgo judicial review. The

courts upheld such contracts as proper. Long v. U. S. Postal Serv_, 229 Fed. App’x. 919 (Fed.

Cir. 2007)', 14 Perm Ploza LLC v. Pyetr, 556 U.S. 247 (2009).

“The Supreme Court and this Court have long held that the government, if not otherwise

prohibited by statute, can enforce a voluntary contractual waiver with the same force as private

party, notwithstanding superior bargaining power.” See Minesen, 671 F.3d at 1339 (citing T own

ofNewton v. Rumery, 480 U.S. 386, 392494 (1987); Lynch v. UnitedSrotes, 292 U.S. 571, 579

(1934).

Furthermore, it has been well established that a party who signs an agreement is bound by

its terms, unless he was fraudulently induced and not read it or was fraudulently misled as to its

lO

content or significance See Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998).

l\/loreover, in Rumery, the court explained that parties are often forced to make difficult choices

which effectively forego statutory or constitutional rights Rumery, 480 U.S. at 393. Paities can

be held to such obligations of contract they entered knowingly and voluntarily Io’.

ln this case, it took the parties a significant effort and several years of litigation to

negotiate and come to the terms of the Settlemcnt Agreement. Thus, on April 28, 2011, the

district court approved the parties’ Settlemcnt Agreement, where it stated that “[t]he court has

heard and considered all submissions in connection with the proposed Settlemcnt and the files

and records herein, including the Objections submitted . .” lmportantly, the court emphasized

that the “[S]ettlement resulted from vigorous arm’s-length negotiations which undertaken in

good faith by counsel with significant experience litigating civil right class actions” 'l`he court

found the Settlemcnt Agreement was “fair, reasonable and adequate.” See Order On Pls.’ l\/lot.

for Final Approval of Settlemcnt, lvlot. for Approval of Class Rep. Service Awards, and Mot. for

an Award of Att’ys’ Fees and Expenses, Keepseagle v. Vilsack, No. 1:99-cv-03119-EGS at 3

(D.D.C. Apr. 28, 201 1), ECF No. 606. Subsequently, on April 29, 2011, the district court ruled

in its Final Order and ludgement by entering and incorporating its order from April 28, 2011 and

dismissing the action with prejudice See Final Order and Judgrnent, Keepseagle v. Vilsack, No.

1:99-cv~03119-EGS at 2 (D.D.C. Apr. 29, 2011)-, ECF No. 607.

lt does not appear from the record that at any time plaintiff requested exclusion from the

Settlemcnt Class,l which would allow him an ability to prosecute his case free of the constraints

l The following persons timely and validly requested exclusion from the Settlemcnt Class; lames Byron

Powel Sr., Betty Flannery, Gr'egary 'l`oscano and Collen A. Faith. According to the district court’s Ordcr on

Plaintiff's Motion for Final Approval of Settlemcnt, Motion for Approval of Class Representative Service Awards,

and Motion for an Award of Attorneys’ Fees and Expenses, these individuals were excluded from that Class, and

were not bound by the Order and Settlemcnt Agreement.

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of the Settlemcnt Agreement. 'l"he Settlemcnt Agreement is binding, and plaintiff did not raise

any question as to the interpretation of the Agreement’s provision Neither did l\/lr. LaBatte

dispute the plain language interpretation of this contract provision nor did he dispute that he

knowingly and voluntarily agreed to the finality of the Track B l\leutral decisions l\/lr. lraBatte

was not compelled or coerced into signing the contract

During the Or‘al ArgumentJ this Court asked plaintiff’s counsel l\/lr. Kaardal a question.

The Court: Did plaintiff know that the settlement agreement expressly provided that the

determinations made by the claim administrators were not reviewable by any court and

were final? Tr. 21: 18"~21.

Mr. Kaardal: Yes, that was part of the agreement Tr. 21: 21-23.

The Court: Okay. So he was aware of that. Tr. 21: 24.

l\/lr. Kaardal: Yeah, he understood it was very important Tr. 21: 25; 22:1.

lt is clear that Mr. llabatte understood and agreed to the Settlemcnt Agreement to abide

by a decision to be handed down by a Track 13 Neutral. Subsequently, plaintiff accepted the

terms, which included that claims determinations by the Neutrals were final and non-reviewable

by any court lt is also clear, as determined by the Track B Neutral arbiter, that because “the

information in the declaration [is] from the two federal officials named, the Settlemcnt

Agreement’s requirements have not been met.” (Compl, Ex. G, ECF No. 1). As a competent

party, by signing the Settlemcnt Agr'eement and choosing to pursue a Non-.ludicial Claims

Process, unlike the plaintiffs in Srovoll and Hall, l\/lr. LaBatte had contracted out his right to a

judicial review.

Plaintiff argues that there is no provision in the Settlemcnt Agreement that the parties

waived Tucker Act jurisdiction The mere absence of that provision, however, does not refute the

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fact that all parties to the Settlement Agreement agreed that claims determinations by the

Neutrals were final and non-reviewable by any court Regardless, it was within the ambit of the

clear language of the Settlemcnt Agreement provision for the final settlement of such disputes by

the agreed~upon Non~l udicial review process

FINALITY

The parties in the Keepseogfe Settlemcnt Agreement agreed that “[tjhe Claim

Determinations, and any other determinations made under this Non»l udicial Claims Process are

final and are not reviewable by the Claims Administrator, the Track A Neutral, the Track B

Neutral, the [djistrict [cjourt, or any other party or body, judicial or otherwise.” (SA § lX.A.9). lt

further states that °‘[t]he Class Representatives and the Class agree to forever and finally waive

any right to seek review of the Claim Determinations, and any other determinations made under

this Non~.ludicial Claims Process.” Id. Moreover, the Settlemcnt Agreernent defines a “claim

determination” as “the binding and final result of a Track A or a Tr'ack B adjudication” that

“represents whether a Class member is eligible to receive an award as a result of the Non-

Judicial Claims Process, and if so, the amount of the award.” (SA §§ ll.C, lX.A.9).

The F ederal Circuit has a longstanding practice of enforcing finality clauses in settlement

agreements See Ford~Cli'j?on v. Dep ’l of Vererans Ajj"oirs, 661 F.3d 655, 660 (Fed. Cir. 2011)

(holding settlement agreements for res judicata principles, have the same effect as a final

judgment on the merits); Pandw'l Corp v. HellermonnTj/ron Corp., 451 F.3d 819, 827 (Fed, Cir.

2006) (citing U.S. v. Armour & Co., 402 U.S. 673, 681_82 (1971) (enforcing settlement

agreement’s finality clause in a patent case). lt has also upheld settlement clauses requiring the

parties to submit to final and unappealable arbitrationl fn re Depr. ofEnergy Strz`pper Welf

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Exemplion Lifigation, 846 F.2d 756, '/'58 (Fed. Cir. 1988). Additionally, it has held finality

clauses related to litigation at the Board of Patent Appeals and Interferences (BPAI) were

enforceable Goodsell v. Shea, 651 F.2d 765, 767 (C.C.P.A. 1981) (enforcing the parties private

agreement not to appeal a BPAI decision); cf. Utl‘er v. Hiragcz, 845 F.2d 993, 997 (Fed. Cir.

l988) (indieating the court would enforce the parties’ agreement not to appeal an arbitrator’s fact

findings incorporated into a BPIA decision).

The Supreme Court has indicated its support for enforcing finality clauses as well. See

U.S. v. Arm.our & Co., 402 U.S. 673, 681-82 (1971) (holding finality clause in consent decree

waives the right to litigate the issues); W.R. Grace amd Co. v. Local Union 759, 461 U.S. 757,

764-65 (1983) (enforcing collective bargaining agreement providing contract disputes must be

decided by final and unappealable arbitration).

l\/Ir. LaBatte’s arguments before this Court are similar to the ones he litigated in the

district court and which decision he later appealed The district court closely examined the terms

of the settlement agreement and reconciled provision to supervise the distribution of the Fund

and ensure that Debt Relief and more specific provision of the court from reviewing any “Claim

Determinations, and any other determinations made under the Non-J udicial Claims process,”

Memorandum Order, Keepseagle v. Vilsack, No. l :99-cv-03l19-EGS at 9, 12 (D.D.C. July 14,

2014), ECF No. 692 (quoting SA § IX.A.9), and held that “the Agreement may easily be read to

foreclose judicial reviews of certain decisions as to who is entitled to receive an award, while

permitting judicial supervision over distribution of the Fund. .. after those decisions have been

made,” l'a’. l\/lore importantly, the Court of Appeals for the District of Columbia Circuit affirmed

the district court’s holding and noted that “LaBatte’s argument fails to account for the

14

Agreement’s strong finality language declaring all claim determinations final and unreviewable.”

See Keepseagie v. Viisack, 815 F.3d 28 at 34 (D.C. Cir. Mar. 4, 2016).

lt is not necessary, therefore, to continue deliberating concerning other allegations in this

matter. lf the Court lacks jurisdiction it must dismiss the action Mailhews v. United States, 72

Fed. Cl. 274, 278 (2006), reconsideration denied by 73 Fed. Cl. 524 (2006); Miiler v. United

Siaies, 67 Fed. Cl. 195 (2005); see also RCFC 12(h)(3).

CONCLUSION

The Settlemcnt Agreement states that, “[d]eterminations made under this Non-Judicial

Claims Process and any other determinations are final and are not reviewable by the Claims

Administrator, the Track A Neutral, the Track B Neutral, the [d]istrict [c}ourt, or any other party

or body, judicial or otherwise.” (SA § IX.A.9). l\/lr. LaBatte knowingly and voluntarily waived his

right to judicial review, and there was a clear intent of the parties agreeing to the finality of the Track

B Neutral result.

For the above stated reasons, defendant’s motion to dismiss for lack of subject matter

jurisdiction is GRANTED and plaintiffs complaint is hereby DISMISSED. The Clerk is directed to

enterjudgment accordinglyl No Costs.

IT IS SO ORDERED.

,ég _

)BoHDAN A. FUFFEY

Senior Judge

l5