Estate of Grant v. United States

3ln tbe Wniteb ~tates (!Court of jfeberal C!Claims'FI LED

No. 16-1660C

Pro Se SEP 2 9 2017

(Filed: September 29, 2017)

U.S. COURT OF

FEDERAL CLAIMS

) Keywords: Pro Se Complaint; RCFC

ESTATE OF MATTHEW GRANTet al, ) 12(b)(l); Motion to Dismiss; Equal Credit

) Oppmtunity Act; Pigford Litigation;

Plaintiffs, ) USDA; Statute of Limitations; 28 U.S.C.

) § 2501 ; Summary Judgment; RCFC 56.

v. )

)

THE UNITED STATES OF AMERICA, )

)

Defendant. )

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

Gary Grant, Tillery, NC, Pro Se. 1

Michael A. Rodriguez, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.

Department of Justice, for Defendant, with whom were Deborah A. Bynum, Assistant Director,

Robert E. Kirschman, Jr. , Director, and Chad A. Readier, Acting Assistant Attorney General. J

Carlos Alarcon, Attorney-Advisor, and Brandi A. Peters, Senior Counsel, U.S . Department of

Agriculture, Office of the General Counsel, Civil Rights, Labor and Employment Law Division,

Of Counsel.

OPINION AND ORDER

KAPLAN, Judge.

The plaintiffs in this case are the estates of two African American farmers, Matthew and

Florenza Grant. The complaint alleges that the Grants were victims of racial discrimination by

the U .S. Department of Agriculture (USDA) in the administration of its loan programs for

fa1mers. Specifically, the estates allege that in 1998, the Grants and the USDA entered into a

settlement agreement to compensate the Grants for discrimination they had suffered. But,

according to Plaintiffs, the government never paid them the compensation they were owed under

the agreement. Ultimately, Plaintiffs filed this suit alleging a breach of contract, along with a

number of other claims relating to their allegations of discrimination.

Before the Court is the government's motion to dismiss and for summary judgment. The

government's primary assertion is that there was no valid agreement between the Grants and the

United States entitling them to compensation for discrimination, and that as a result, it is entitled

1

Mr. Grant is the son of Matthew and Florenza Grant and the executor of their estates. See

Compl. at 3, Docket No. l ; see also Compl. Exs. 1, 7.

7017 1450 DODO 13 46 2519

to summary judgment on Plaintiffs' breach claim. Alternatively, it argues that, assuming the

existence of a valid agreement, the Court lacks jurisdiction over the breach claim because it is

barred by the statute of limitations. The government also asserts that Plaintiffs' other claims are

outside the Court's jurisdiction and must be dismissed. Plaintiffs have filed an opposition as well

as two identical motions for discovery.

For the reasons set forth below, the Court concludes that it lacks jurisdiction over all of

Plaintiffs' claims, and the government's motion to dismiss is therefore GRANTED. Plaintiffs'

motions for discovery are DENIED as moot. 2

BACKGROUND 3

I. The Grants' Resolution Agreement with the USDA

Matthew and Florenza Grant were African American farmers who owned farmland in

North Carolina. See Am. Comp!. ifif 1, 18-19, Docket No. 15. During the 1970s, the Grants

applied for and received loans from the Farmers Home Administration (FHA) to operate their

fann. See Def.'s Mot. to Dismiss & for Summ. J. (Def.'s Mot.) App. at 11, Docket No. 17. From

the 1970s through the early 1990s, the Grants had numerous interactions with the FHA in

relation to their loans, including exchanges related to loan servicing, repayment, and loan

restructuring. See id. at 11-12. The FHA denied most of the Grants' applications and requests

during that time. See id.

In 1995, Matthew Grant filed a claim of discrimination with the USDA's Farm Service

Agency (FSA), the successor agency to the FHA. In it, he alleged that the FHA and FSA had

engaged in racial discrimination in their processing of the Grants' loan applications and in

servicing and managing the Grants' existing loans. See Am. Comp!. ifif 1-3, 9; see also Def.'s

Mot. App. at 11-15. In 1997, the USDA's Office of Civil Rights issued a final agency decision

in which it determined that the FSA had discriminated against Matthew Grant in relation to the

farm loans provided to him and others for which he had applied. See Am. Comp!. if 2.

On March 2, 1998, Lloyd E. Wright, the director of the USDA's Office of Civil Rights,

and Matthew Grant executed a "Final Resolution Agreement" to settle Mr. Grant's claims

against the USDA. Am. Comp!. Ex. 4. In it, the parties agreed that the settlement "constitute[d] a

full, complete, and final settlement of all claims for relief for the years 1994 through 1998 raised

in Mr. Grant's December 6, 1995, discrimination complaint submitted to USDA." 4 Id. The

2

Along with their complaint, Plaintiffs filed a motion for leave to proceed in forma pauperis.

Docket No. 4. The Court GRANTS that motion for the sole purpose of dismissing the complaint.

3

The facts in this section are based on the documents attached to the parties' briefs as well as the

allegations in Plaintiffs' complaint and amended complaint, which the Court assumes to be true

for purposes of deciding the motion to dismiss.

4

The settlement also resolved "any and all claims Mr. Grant may have [had] against USDA

based on facts occurring prior to the date of th[ e] agreement, except for those events between the

years 1972 and 1993 that were raised in Mr. Grant's December 6, 1995, discrimination

2

USDA agreed, among other things, to pay Matthew Grant $312,000 "as soon as practicable but

no later than 30 calend[a]r days after th[e] agreement [w]as ... signed by all parties, reviewed by

the Department of Justice (DOJ), and, ifDOJ approval [wa]s required, approved by DOJ." Id.

if I. It also agreed to "pay all of Mr. Grant's unpaid outstanding debt owed to FSA," and "forever

discharge and hold harmless [Mr. Grant] from liability for such debt." Id. if 2.

As noted, the settlement agreement was "subject to review by DOJ." Id. if 8. The parties

agreed that "[i]n the event that DOJ [did] not approve th[e] agreement, neither party [would be]

under any obligation to carry out the terms of the agreement and Mr. Grant [could] have

reinstated the complaint that [wa]s the subject of the agreement." Id.

In their complaint here, Plaintiffs allege that after the parties signed the agreement neither

the USDA nor DOJ informed them as to the status of any DOJ review. See Arn. Comp!. if 15.

But the record reveals that, at least as of the year 2000, the Grants understood that DOJ had

declined to approve the settlement agreement. See Def.'s Mot. App. at 15. In any event, the

government never paid Matthew Grant any money pursuant to the Resolution Agreement. Arn.

Comp!. if 7; see also id. ifif 15-16; Def.'s Mot. at 7.

Approximately a decade later, in 2008 and 2009, Gary Grant wrote to Presidents Bush

and Obama, respectively, regarding the USDA's failure to pay his father compensation under the

Resolution Agreement. Arn. Comp!. Ex. 8; Comp!. Ex. 7. In the letter to President Bush, dated

August 6, 2008, Mr. Grant wrote that "[t]he USDA did not live up to" the "1998 'Final

Resolution Agreement."' Comp!. Ex. 7. He also noted that as a result, his parents had joined a

lawsuit against the USDA. Id. Mr. Grant requested a meeting between the "USDA and the

Moore-Grant heirs to negotiate a final and just settlement in the discrimination matter." Id. On

March 14, 2009, Mr. Grant wrote to President Obama, asserting, among other things, that

"[b ]ecause of the government's failure to live up to the 'Final Settlement Agreement,' on

October 19, 2000, [his] parents became named plaintiffs in a class action lawsuit comprised

primarily of North Carolina women and African American farmers." Arn. Comp!. Ex. 8. He

sought President Obama's assistance in addressing the discrimination as well as debt issues

affecting his late parents' farm. Id.

Sometime later, Gary Grant contacted Congressman G.K. Butterfield. See Arn. Comp!.

Ex. 7. He asserted that his parents had entered into an agreement with the USDA but that the

USDA never "enforced" it. Id. On September 29, 2016, Congressman Butterfield wrote to then-

Secretary of Agriculture Tom Vilsack, inquiring about the USDA's agreement with Matthew

Grant. Id. On November 30, 2016, the USDA's Office of the General Counsel responded to

Congressman Butterfield. Comp!. Ex. 8. It asserted that "there never was a fully executed

agreement." Id. Rather, according to the USDA, "[a] tentative settlement agreement was entered

into between Mr. Grant and Mr. Lloyd Wright ... in or about March 1998," but it "required

complaint." Arn. Comp!. Ex. 4 if 6. As Mr. Wright explained, the settlement agreement only

covered discrimination occurring during the period of time which at that point was not barred by

the statute of limitations, but the parties agreed that Mr. Grant could pursue compensation for

discrimination occurring in previous years if Congress amended the applicable statute of

limitations. Arn. Comp!. Ex 5 ifif 5-6; see also Arn. Comp!. Ex. 4 iii! 6, 9.

3

approval by the U.S. Department of Justice." Id. "The DOJ," it continued, "declined to approve

the settlement, the settlement was thus void, and the Estate of Mr. Grant filed subsequent actions

in federal district court." Id. Finally, the USDA noted that it had "settled all complaints of

discrimination with the Estate of Matthew Grant through [its] attorney Stephon Bowens" in

2011. Id.

II. The Pigford Litigation

In the meantime, in 1997, the Pigford class action lawsuit was filed. The plaintiffs in

Pigford alleged that the USDA had violated the Equal Credit Opportunity Act (ECOA) in that it

had "willfully discriminated" against African American farmers "on the basis of their race when

it denied their applications for credit and/or benefit programs or delayed processing their

applications," and that "when [they] filed complaints ... with the USDA, the USDA failed

properly to investigate and resolve those complaints." Pigford v. Glickman, 18S F.R.D. 82, 86,

89 (D.D.C. 1999), affd, 206 F.3d 1212 (D.C. Cir. 2000). 5

The Pigford litigation resulted in a consent decree establishing a "two-track dispute

resolution mechanism" to provide class members with monetary compensation and other

equitable relief. See id. at 9S, 112-13. The district court "retain[ed] jurisdiction to enforce the

Consent Decree." See id. at 98; see also Pigford v. Glickman, 206 F.3d at 1216. On November 2,

201S, the district court "entered a wind-down stipulation and order terminating the stipulations of

the [Pigford] consent decree, with limited exceptions." Parker v. United States, 131 Fed. Cl. 1, 8

(2017).

Both Matthew and Florenza Grant were included within the certified class in Pigford. See

Wise v. Glickman, 2S7 F. Supp. 2d 123, 129 (D.D.C. 2003). Matthew Grant, however, opted out

of the Pigford class. Am. Comp!. Ex. 4; see also Wise, 2S7 F. Supp. 2d at 129. Florenza Grant

did not. Wise, 2S7 F. Supp. 2d at 129. As the government points out, the current record does not

5

The lawsuit was filed after Congress passed legislation that tolled the statute of limitations for

actions under ECOA where claimants had filed complaints of discrimination with the USDA

during certain time periods, as long as such actions were filed by October 21, 2000. See

Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. lOS-

277, § 741(a), 112 Stat. 2681 (1998); see also Pigford, 18S F.R.D. at 88-89; Allen v. United

States, No. 03-92C, 200S WL 6112631, at *4 (Fed. Cl. May 10, 200S). This waiver of the statute

oflimitations was set out in§ 741 of the legislation. In§ 741(d), Congress gave the Court of

Federal Claims and the district courts "exclusive original jurisdiction" over "eligible" complaints

filed pursuant to§ 741, as well as over actions for review of USDA administrative

determinations where claimants chose to re-file their administrative complaints with the USDA

rather than filing suit. See Pub. L. lOS-277, § 741(d). The USDA regulations for these renewed

administrative proceedings are codified at 7 C.F.R. Part !Sf. See Benoit v. U.S. Dep't of Agric.,

S77 F. Supp. 2d 12, 17-18 (D.D.C. 2008), afrd, 608F.3d17 (D.C. Cir. 2010); see also

Administrative Civil Rights Adjudications Under Section 741, 63 Fed. Reg. 67,392-01 (Dec. 4,

1998) (codified at 7 CFR Part ! Sf).

4

reveal whether Ms. Grant ever pursued either relief track provided for in the Pigford consent

decree. See Def.'s Reply in Supp. of Mot. to Dismiss at 4 n.3, Docket No. 20.

III. The Grants' Previous Litigation

As Gary Grant referenced in his letters to Presidents Bush and Obama, in light of the

USDA's "failure to live up to" the Resolution Agreement, Matthew and Florenza Grant were

named as plaintiffs in another purported class action lawsuit that was filed against the Secretary

of Agriculture on October 19, 2000. This action, like Pigford, was filed in the district court for

the District of Columbia. Def.'s Mot. App. at l; see also Wise, 257 F. Supp. 2d at 126-27

(describing lawsuit as "another in a series of suits filed after Congress, responding to reports that

USDA dismantled its civil rights enforcement program in the early 1980s, extended the statute of

limitations ... for 'eligible complaints' of discrimination alleged to have taken place at USDA

between 1981and1996"). 6 In the complaint, the plaintiffs alleged that the USDA

"discriminate[d] against African-American and female family fatmers" and "maintained a

system whereby county administrators intentionally and pervasively discriminate[ d]" against

them "with regard to their participation in federal farm credit and non-credit benefit programs."

Def.'s Mot. App. at 2. Particularly with respect to the Grants, the complaint also alleged that "the

Grants and Mr. Wright executed the [1998] settlement agreement," but that "the U.S.

Department of Justice (DOJ) refused to sign" it. Id. at 15.

On March 17, 2009, the District of Columbia district court transferred the case to the

Eastern District of North Carolina. Order, Wise v. Vilsack, No. 00-2508 (D.D.C. Mar. 17, 2009),

ECF No. 51. On January 26, 2011, the North Carolina district court dismissed the complaint for

failure to state a claim. Order, Grantv. Vilsack, No. 5:10-CV-201-BO (E.D.N.C. Jan. 26, 2011),

ECF No. 85. Matthew Grant's estate then appealed the dismissal to the Court of Appeals for the

Fourth Circuit, Notice of Appeal, Grant v. Vilsack, No. 5:10-CV-201-BO (E.D.N.C. Feb. 26,

2011), ECF No. 87, but on September 6, 2011, the patiies settled the case in lieu of further

litigation, Def.'s Mot. App. at 37-38. Gary Grant, as executor of the estate, and the USDA

agreed that "the settlement ... [was] based upon partial debt forgiveness and the release of all

claims by the plaintiff against defendants." Def.'s Mot. App. at 37. Specifically, the parties

agreed that the "settlement resolve[d] all issues presented in this civil action and plaintiff Estate

of Matthew Grant releases the Secretary of the United States Department of Agriculture, the

USDA ... , and the United States from any civil or administrative claims arising before the date

of this settlement agreement, including but not limited to all discrimination claims raised in the

plaintiffs complaint." Id. at 38.

IV. This Action

A little over five years later, on December 19, 2016, Gary Grant filed suit here on behalf

of his parents' estates. See Docket No. 1. The estates named as defendants twenty-one

individuals including then-President Obama and then-Secretary Vilsack. Plaintiffs made a

variety of allegations, including that the USDA breached the 1998 Resolution Agreement. See id.

6

Because Florenza Grant did not opt out of the Pigford class, her claims in this second action

were precluded and ultimately dismissed. Wise, 257 F. Supp. 2d at 129.

5

Specifically, Plaintiffs alleged that the named defendants "collectively, negligently or

intentionally, and maliciously violated the 1998 USDA/Grant Resolution Agreement by refusing

to honor the contract with payment to the Grants." Id. if 48. Plaintiffs also included various

assertions of jurisdiction and alleged violations of constitutional and statutory provisions

including the Fourth, Eighth, and Fourteenth Amendments, ECOA, the Civil Rights Act of 1964,

North Carolina state statutes and its constitution, and the Freedom oflnformation Act (FOIA),

among others. See, e.g., id. ifif 6, 37-46. Plaintiffs sought $25,000,000 for breach of the

agreement, $75,000,000 for "nearly 20 years of continued discrimination," $25,000,000 in

punitive damages, and attorneys' fees. Id. if 65.

Along with their complaint, Plaintiffs included a motion for a temporary restraining order

with respect to the FOIA claims and a motion to use the court's electronic filing system. See

Order at 2-3 & n.2, Docket No. 5. On December 21, 2016, the Court denied both requests. Id. at

3 & n.2. On February 13, 2017, Plaintiffs filed a "motion for default judgment," alleging that the

individual named defendants had failed to respond in a timely manner pursuant to the Federal

Rules of Civil Procedure. See Mot. for Default J. at 1-2, Docket No. 8. On February 22, 2017,

the Court denied Plaintiffs' motion, noting that proceedings in this court are governed by the

Rules of the Court of Federal Claims (RCFC), and that pursuant to those rules, the government

had timely filed a request for an extension, which the Court had granted. Order at 1-2, Docket

No. 12. The Court also raised the issue of subject matter jurisdiction sua sponte and dismissed

Plaintiffs' claims against all defendants other than the United States for lack of subject matter

jurisdiction. Id. at 2.

On April 17, 2017, with the Court's leave, Plaintiffs filed an amended complaint. Docket

No. 15; see also Docket Nos. 13-14. Its title states: "Administrative Review Pursuant [to] 52.1

and Motion to Stay Action and Remand to Administrative Law Judge Pursuant [to] RCFC 52.2."

Docket No. 15. Plaintiffs name the United States as defendant, but also persist in naming former

Secretary Vilsack as an additional defendant. See id. The amended complaint appears to set out

an extensive background discussion of previous litigation against the USDA for discrimination,

including large portions of the court's decision in Parker v. United States, 131 Fed. CL 1 (2017),

verbatim. See id. at 3-9. It also restates many of the original complaint's allegations regarding

the Grants and the alleged breach of the 1998 Resolution Agreement. See id. at 9-14. Plaintiffs

also appear to have dropped the other causes of action set forth in their initial complaint,

replacing them in the amended complaint with new allegations of negligence, fraud, a violation

of § 741 of the 1999 omnibus legislation, breach of the implied duty of good faith and fair

dealing based upon the USDA's "repudiation of contract of the Pigford consent decree," and

violations of§ 14012 of the 2008 Farm Bill and the Due Process Clause of the Fifth Amendment.

Id. at 14-27. Plaintiffs request that the "matter be remanded back to the ALJ with the instructions

to have a formal hearing on the merits within 120 days of the court order," a stay while the

remand is pending, and $10,000,000 for "continued discrimination stemming from breach of

contract." Id. at 28.

On May 4, 2017, the government filed a motion to dismiss and for summary judgment.

Docket No. 17. Plaintiffs responded on June 5, 2017, and have also filed two identical motions

for discovery. Docket Nos. 16, 18-19.

6

DISCUSSION

I. Motions to Dismiss for Lack of Subject Matter Jurisdiction

In deciding a motion to dismiss for lack of subject matter jurisdiction, the court accepts as

true all undisputed facts in the pleadings and draws all reasonable inferences in favor of the

plaintiff. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). But the

court may "inquire into jurisdictional facts" outside of the pleadings to determine whether it has

jurisdiction. Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991).

It is well established that complaints that are filed by pro se plaintiffs are held to "less

stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519,

520 (1972). Nonetheless, even pro se plaintiffs must persuade the court that jurisdictional

requirements have been met. Bernard v. United States, 59 Fed. Cl. 497, 499, affd, 98 F. App'x

860 (Fed. Cir. 2004).

II. The Tucker Act

Pursuant to the Tucker Act, the United States Court of Federal Claims has jurisdiction to

"render judgment upon any claim against the United States founded either upon the Constitution,

or any Act of Congress or any regulation of an executive department, or upon any express or

implied contract with the United States, or for liquidated or unliquidated damages in cases not

sounding in tort." 28 U.S.C. § 149l(a) (2012). The Tucker Act serves as a waiver of sovereign

immunity and a jurisdictional grant, but it does not create a substantive cause of action. Jan's

Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008). A

plaintiff, therefore, must establish that "a separate source of substantive law ... creates the right

to money damages." Id. (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)

(en bane in relevant part)).

III. Plaintiffs' Breach Claim

Because federal courts are not courts of general jurisdiction, they must always satisfy

themselves of their subject matter jurisdiction over a case as a "threshold" matter. Fanning,

Phillips, Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998); see also Rick's Mushroom Serv.,

Inc. v. United States, 521 F.3d 1338, 1346 (Fed. Cir. 2008) (noting that a court may raise subject

matter jurisdiction sua sponte at any time). As discussed below, the statute of limitations

applicable to actions in this court is jurisdictional in nature. Therefore, although the

government's first argument is that it is entitled to summary judgment with respect to Plaintiffs'

breach claim, its alternative argument that the Court lacks subject matter jurisdiction over the

claim because it is barred by the statute of limitations must be addressed first.

The statute oflimitations for actions in this court states that"[ e]very claim of which the

United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon

is filed within six years after such claim first accrues." 28 U.S.C. § 2501. This statute of

limitations is jurisdictional. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-34

(2008); San Carlos Apache Tribe v. United States, 639 F.3d 1346, 1349-50 (Fed. Cir. 2011). "A

cause of action cognizable in a Tucker Act suit accrues as soon as all events have occurred that

are necessary to enable the plaintiff to bring suit, i.e., when 'all events have occurred to fix the

7

Government's alleged liability, entitling the claimant to demand payment and sue here for his

money."' Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (quoting Nager Elec.

Co. v. United States, 166 Ct. Cl. 234, 240 (1966)). A cause of action for breach of contract

accrues when the breach occurs. Alder Terrace, Inc. v. United States, 161F.3d1372, 1377 (Fed.

Cir. 1998).

Plaintiffs' complaint was filed December 19, 2016. Docket No. 1. As a consequence, the

Court lacks subject matter jurisdiction over Plaintiffs' breach claim if it accrued prior to

December 19, 2010. See 28 U.S.C. § 2501. Plaintiffs, however, do not allege when the breach

occurred. Nor do they identify any specific theory of breach. But, it is undisputed that by

October 2000, DOJ had declined to approve the Resolution Agreement, and as a result, the

USDA was not going to pay Matthew Grant. See Def.'s Mot. App. at 15; see also Comp!. Ex. 7;

Am. Comp!. Ex. 8. Thus, on October 19, 2000, Matthew and Florenza Grant filed suit against the

Secretary of the USDA, alleging that "the Grants and Mr. Wright executed the [1998] settlement

agreement," but that "the U.S. Department of Justice (DOJ) refused to sign" it. Def. 's Mot. App.

at 15. Plaintiffs have since described that lawsuit as resulting from "the government's failure to

live up to the" Resolution Agreement. Am. Comp!. Ex. 8; see also Comp!. Ex. 7. Any breach,

therefore, occurred prior to October 2000. Accordingly, this suit was filed more than sixteen

years after any alleged breach took place and more than ten years after the statute oflimitations

for that breach expired.

Plaintiffs bear the burden of demonstrating the Court's jurisdiction by a preponderance of

the evidence. M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir.

2010) (citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)).

For the reasons set foith above, they have not met this burden. Accordingly, Plaintiffs' breach

claim must be dismissed. RCFC 12(h)(3). 7

Finally, the Court notes that, even ifthe statute of limitations was not a bar, the

government would be entitled to summary judgment as to Plaintiffs' breach of contract claim. 8

7Plaintiffs' amended complaint also contains allusions to a breach of the covenant of good faith

and fair dealing implied in the 1998 Resolution Agreement and, seemingly, the Pigford consent

decree. See Am. Comp!. at 9, 24. There are no factual allegations to support this cause of action.

To the extent that the claim relates to the government's failure to pay the Grants pursuant to the

Resolution Agreement, it is likewise barred by the statute oflimitations.

8

The standards for granting summary judgment are well established. Summary judgment may be

granted where there is no genuine issue of material fact and the movant is entitled to judgment as

a matter of law. RCFC 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact

is material ifit "might affect the outcome of the suit under the governing law." Anderson, 477

U.S. at 248. An issue is genuine if it "may reasonably be resolved in favor of either party." Id. at

250. "The moving party bears the burden of establishing the absence of any genuine issue of

material fact," and all significant doubts regarding factual issues must be resolved in favor of the

party opposing summary judgment. Mingus Constructors, Inc. v. United States, 812 F.2d 1387,

1390 (Fed. Cir. 1987). But, "the party opposing summary judgment must show an evidentiary

conflict on the record; mere denials or conclusory statements are not sufficient." Id. at 1390-91.

"[E]ntry of summary judgment is appropriate against a [party] 'who fails to make a showing

8

To prevail on a breach of contract claim, a party must establish: 1) a valid contract between the

parties; 2) an obligation or duty arising out of the contract; 3) a breach of that duty; and

4) damages caused by the breach. San Carlos Irrigation & Drainage Dist. v. United States, 877

F.2d 957, 959 (Fed. Cir. 1989). The government argues that it is undisputed that DOJ did not in

fact approve the agreement, that as a result no valid contract exists, and, accordingly, that it is

entitled to judgment as a matter of law. Def.' s Mot. at 5. The Court agrees.

If in a purported contract the parties agree that the compact is subject to the approval of

another person, that provision is a condition precedent to the validity of the agreement, and the

contract is only tentative and not binding absent that approval. Cutler-Hammer, Inc. v. United

States, 194 Ct. Cl. 788, 794 (1971) (stating that a provision subjecting an agreement to the

approval of another "is alone sufficient to negate the existence of a contract until the approval is

granted"); see also Wells v. United States, 199 Ct. Cl. 324, 337 (1972) (observing that "[w]here

action with reference to the contract to be executed between the parties is subject to approval by

another and that approval is not subsequently given, no binding contract exists on which the

United States may be required to respond in damages as for a breach" (quotation omitted));

Momoe v. United States, 35 Ct. Cl. 199, 205 (1900); Darragh v. United States, 33 Ct. Cl. 377,

391 (1898) (concluding that a provision subjecting the purported contract to approval of the

Quartermaster General was "a condition precedent to the legal effect of the agreement," and that

the "alleged agreement had no vitality as a contract until approved").

Here, as noted above, the Resolution Agreement was "subject to review by DOJ." Am.

Comp!. Ex. 4. As a result, the agreement was only tentative, and not binding upon the parties,

absent that approval. See Cutler-Hammer, Inc., 194 Ct. Cl. at 794. Further, it is undisputed that

DOJ declined to approve the Resolution Agreement. Comp!. Ex. 8 (letter from USDA stating

that "DOJ declined to approve the settlement [and] the settlement was thus void"); see also

Def.'s Mot. App. at 15; Comp!. Ex. 7; Am. Comp!. Ex. 8. Accordingly, the Resolution

Agreement became a "nullity" with no binding legal effect. See Darragh, 33 Ct. Cl. at 391. There

was thus no valid agreement between the parties and the government would be entitled to

judgment as a matter oflaw, even ifthe Court had subject matter jurisdiction.

IV. Plaintiffs' Other Claims

The government argues that the estates' remaining claims are not within the Court's

subject matter jurisdiction and must be dismissed. See Def.'s Mot. at 10-12. As described above,

in their original complaint, Plaintiffs alleged violations ofECOA, FOIA, Article I of the

Constitution, the Fourth, Eighth, and Fomieenth Amendments to the Constitution, the Civil

Rights Act of 1964, 42 U.S.C. § 1985, the North Carolina state constitution and bill ofrights, a

North Carolina state statute, the Clayton Act, and unidentified provisions of the Code of Federal

Regulations. The Grants' amended complaint does not appear to include the majority of these

claims, but appears to replace them with new causes of action for negligence, fraud, violations of

sufficient to establish the existence of an essential element to [its] case, and on which [it] will

bear the burden of proof at trial.'" Zafer Taahhut Insaat ve Ticaret A.S. v. United States, 833

F.3d 1356, 1362-63 (Fed. Cir. 2016) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986)) (third and fourth alterations in original).

9

the Fifth Amendment's Due Process clause, breach of the covenant of good faith and fair

dealing, and a claim under§ 14012 of the 2008 Fatm Bill. Because the allegations in the

amended complaint are somewhat difficult to follow, and in light of the estates' pro se status, the

Court will address subject matter jurisdiction with respect to all of the claims set forth in both the

original and amended complaints.

First, actions pursuant to ECOA "may be brought in the appropriate United States district

court without regard to the ainount in controversy, or in any other court of competent

jurisdiction." 15 U.S.C. § 169le(f). But "[i]t is ... well settled that this Court does not have

subject-matter jurisdiction to consider [a] plaintiffs claims brought pursuant to the ECOA."

Davis v. United States, 123 Fed. Cl. 235, 241 (2015) (citing, among others, Hall v. United States,

69 Fed. Cl. 51, 55-56 (2005)), affd, 642 F. App'x 982 (Fed. Cir. 2016). To the extent Plaintiffs

are instead asserting jurisdiction under ECOA pursuant to§ 741(d) of the 1999 appropriations

act, Plaintiffs' complaint was not filed prior to October 21, 2000, nor does it seek judicial review

of an administrative complaint refiled with the USDA pursuant to§ 74l(b) prior to October 21,

2000. See Pub. L. 105-277 § 741. 9 Accordingly, the Court does not have jurisdiction over any

claims Plaintiffs are asserting under ECOA, and they must be dismissed.

With respect to disputes under FOIA, only the district courts have subject matter

jurisdiction; the Court of Federal Claims does not have subject matter jurisdiction over alleged

violations of its provisions. 5 U.S.C. § 552(a)(4)(B); Frazier v. United States, 683 F. App'x 938,

940 (Fed. Cir. 2017). Plaintiffs' claims under FOIA, therefore, must also be dismissed.

As to Plaintiffs' constitutional allegations, the estates do not identify which section of

Article I the government has allegedly violated. Comp!. if 6(f). Article I of the Constitution

generally sets out the composition and powers of the United States Congress. See generally. U.S.

Const. Art. I. To the extent Plaintiffs are attempting to assert a violation of Article I's Contract

Clause, the Court lacks jurisdiction over the same. El v. United States, 122 Fed. CL 707, 709

(2015) (citing, among others, McNeil v. United States, 78 Fed. Cl. 211, 225 (2007), affd, 293 F.

App'x 758 (Fed. Cir. 2008)). The Contract Clause prohibits the states from "impairing the

Obligation of Contracts" and is not a money-mandating provision as to the federal government.

Plaintiffs do not identify any money-mandating provision in Article I as the basis for their claim

and the Court must dismiss it for lack of jurisdiction. See Carpenter v. United States, 118 Fed.

Cl. 712, 712-13 (2014) (finding that plaintiffs allegations of illegal confinement in violation of,

among other things, Article I, did not assert a violation of a money-mandating constitutional

provision).

Additionally, the Comi lacks jurisdiction over claims under the Fourth Amendment, the

Fifth Amendment's Due Process Clause, and the Eighth and Fourteenth Amendments because

these provisions are not money-mandating. Trafny v. United States, 503 F.3d 1339, 1340 (Fed.

Cir. 2007) (Eighth Amendment); Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997)

(Fourth Amendment); Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997) (Fifth

9 In fact, Plaintiffs elected to proceed pursuant to§ 741in1997 by joining the Pigford litigation

in district court, after which Matthew Grant opted-out and negotiated the 1998 Resolution

Agreement.

10

Amendment Due Process Clause); LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995)

(Due Process and Equal Protection Clauses of Fourteenth Amendment). The Court must dismiss

these claims as well.

The Court also has no jurisdiction over the estates' claim under the Civil Rights Act of

1964. Caravetta v. United States, 122 F. App'x 992, 993 (Fed. Cir. 2004) ("With respect to ...

the Civil Rights Act of 1964, it has long been held that the Court of Federal Claims lacks

jurisdiction over such claims."); see also Pleasant-Bey v. United States, 99 Fed. CL 363, 368

(2011 ). Nor does it have jurisdiction over actions under 42 U.S.C. § 1985, as jurisdiction over

actions pursuant to that section lies exclusively with the district courts. 28 U.S.C. § 1343(a); see

also Willis v. United States, 96 Fed. CL 467, 470 (2011). Similarly, claims under the Clayton Act

are outside the Court's jurisdiction because they are committed to the district courts. See Hufford

v. United States, 87 Fed. Cl. 696, 703 (2009); see also 15 U.S.C. §§ 4, 18a(f). These claims are

therefore dismissed.

As to Plaintiffs' state law claims, this Court cannot adjudicate claims founded upon state

law and must also dismiss Plaintiffs' claims pursuant to North Carolina's constitution and its

statutes. See Souders v. S.C. Pub. Serv. Auth., 497 F.3d 1303, 1307 (Fed. Cir. 2007); see also 28

U.S.C. § 1491.

With respect to Plaintiffs' claims of negligence and fraud, those claims sound in tort, and

the Court of Federal Claims lacks jurisdiction over torts. Keene Com. v. United States, 508 U.S.

200, 214 (1993); Brown, 105 F.3d at 623 (fraud); O'Connorv. United States, 355 F. App'x 412,

413 (Fed. Cir. 2009) (per curiam) (negligence); see also Rick's Mushroom Serv., Inc., 521 F.3d

at 1343. These claims also, therefore, must be dismissed.

Plaintiffs' claim under the Farm Bill of2008 is difficult to understand. The estates

mention the statute in their amended complaint, but do not make any specific allegations based

upon it. See Am. Comp!. at 8 (describing history of§ 14012); id. at 22-23 (quoting section). In

Plaintiffs' briefin response to the government's motion, however, Plaintiffs assert that§ 14012

of the 2008 Farm Bill is the basis for their request for remand to an administrative law judge.

Pet'rs' Obj. to Resp't's Mot. to Dismiss (Pis.' Resp.) at 6, Docket No. 19.

Regardless of the claim Plaintiffs are attempting to assert pursuant to § 14012, the Court

lacks jurisdiction over it. Section 14012 of the 2008 Farm Bill, also known as the Food,

Conservation and Energy Act of2008, authorized Pigford claimants who were late in filing for

compensation under the consent decree, and were thus unable to obtain relief pursuant to it, to

institute new proceedings to determine the merits of their claims. Food, Conservation, and

Energy Act of2008, Pub. L. No. 110-246, 122 Stat. 1651 (2008). But Congress gave exclusive

jurisdiction over such claims to the district court for the District of Columbia. Id. Therefore, to

the extent Plaintiffs are attempting to pursue relief pursuant to § 14012, it is outside the Court's

jurisdiction and must be dismissed. 10

IOThe Court also notes that relief under§ 14012 is available only to Pigford claimants; Matthew

Grant ultimately chose to opt out of that class.

11

Finally, Plaintiffs' allegations with respect to the Code of Federal Regulations are

similarly unclear. The estates alleged in their original complaint a violation of "7 CFRs

prohibiting discrimination in USDA farm programs," but did not identify which specific

provisions were violated or otherwise identify a money-mandating regulation promulgated by the

USDA. See Comp!. at 17. In their amended complaint, Plaintiffs appear to allege violations of

the USDA's anti-discrimination policy set out in 7 C.F.R. Part 15d and the§ 741 administrative

procedures contained in Part 15f, but still fail to identify which specific provision or provisions

the USDA allegedly violated or how it did so. See Am. Comp!. at 9, 18-20. In fact, the amended

complaint's references to federal regulations appear more as a background discussion of the

history of the Pigford litigation than an allegation of wrongdoing by the USDA with respect to

Plaintiffs. See id.

In any event, to the extent Plaintiffs are attempting to assert a claim based upon the

§ 741(b) procedures contained in 7 C.F.R. Part 15f, the Court lacks jurisdiction over the same.

Section 741 only provides this court with jurisdiction to review a USDA administrative decision

ifthe underlying claim was refiled with the USDA before October 21, 2000, and the complaint in

this court was filed within 180 days of the USDA's subsequent decision. Pub. L. 105-277

§§ 741(b), (d); see also 7 C.F.R. §§ 15f.5(c), 15f.26. Here, Plaintiffs have failed to plead or

identify an administrative complaint refiled with the USDA prior to October 21, 2000, nor have

they alleged a decision issued on that claim within the 180 days prior to filing suit here. Plaintiffs

have thus not demonstrated that the Comt has jurisdiction under§ 741(d). See M. Maropakis

Carpentry, Inc., 609 F.3d at 1327 (stating that plaintiffs bear the burden of demonstrating

jurisdiction).

As to 7 C.F.R. Part 15d, that part sets out the USDA's general anti-discrimination policy.

7 C.F.R. § 15d.1. Plaintiffs do not point to any provision as money-mandating or even identify

the specific provision the USDA allegedly violated. This is insufficient for Plaintiffs to meet

their burden of demonstrating subject matter jurisdiction. But in any event, even if Plaintiffs had

identified a money-mandating provision that the USDA allegedly violated, the Court would still

lack jurisdiction over such a claim because Plaintiffs' discrimination claims are barred by the

statute of limitations.

As noted above, "[e]very claim of which the United States Court of Federal Claims has

jurisdiction shall be barred unless the petition thereon is filed within six years after such claim

first accrues." 28 U.S.C. § 2501. Plaintiffs allege throughout their original and amended

complaints that the USDA discriminated against Matthew and Florenza Grant with respect to

loans for their farm. See Am. Comp!. at 9. But both Matthew and Florenza Grant had passed

away by 2001. Comp!. Ex. 6. Plaintiffs do not allege any instances of discrimination in violation

of the USDA's policy after 2001. See generally, Am. Comp!. Thus, to the extent Plaintiffs'

allegations of discrimination are assertions that the USDA violated its anti-discrimination policy

in Part 15d, those instances took place no later than 2001. Accordingly, even ifthe Court could

have jurisdiction over a discrimination claim under part 15d, Plaintiffs' allegations of

discrimination occurred well more than six years prior to the filing of the complaint in 2016 and

are thus barred by the statute of limitations and must be dismissed.

12

Accordingly, for these reasons, all of Plaintiffs' claims are DISMISSED without

prejudice for lack of subject matter jurisdiction. 11

V. Plaintiffs' Motion for Remand

Plaintiffs' amended complaint contains a request that the case be remanded to an

administrative law judge, pursuant to RCFC 52.2. Am. Comp!. at 1. The estates appear to base

this request on their allegation that the government "failed to live up to the bargain," presumably

the Resolution Agreement, and that as a result Plaintiffs "should be reinstated into [Pigford]

track b status and ... have a hearing before the ALI for actual damages." Am. Compl. at 15.

They also assert that their request is pursuant to "section 14012 of the Food Energy and

Conservation Act of2008." Pls.' Resp. at 6. As noted above, however,§ 14012 of that act

revived certain potential Pigford litigants' claims, including the opportunity to pursue

administrative relief before the USDA, but placed exclusive jurisdiction over any claims under

that section in the district court for the District of Columbia. Pub. L. No. 110-246.

In any event, RCFC 52.2 provides that "[i]n any case within its jurisdiction, the court, on

motion or on its own, may order the remand of appropriate matters to an administrative or

executive body or official." RCFC 52.2(a) (emphasis added). Here, the Court lacks jurisdiction

over the entirety of Plaintiffs' complaint. Therefore, because the Court does not have

jurisdiction, it cannot remand Plaintiffs' claims, and Plaintiffs' motion is DENIED.

CONCLUSION

Based on the foregoing, the government's motion to dismiss is GRANTED and

Plaintiffs' claims are DISMISSED without prejudice for lack of subject matter jurisdiction.

Because the Court lacks subject matter jurisdiction, Plaintiffs' motions for discovery are

DENIED as moot. The Clerk is directed to enter judgment accordingly. Each side shall bear its

own costs.

IT IS SO ORDERED.

ELAINED. KAPLAN

Judge

11

Because the Court does not have jurisdiction over Plaintiffs' complaint, Plaintiffs' motions for

discovery are DENIED as moot.

13