United States Court of Appeals for the Federal Circuit 

2007-5137 

RICK’S MUSHROOM SERVICE, INC., 

 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

Jonathan J. Bart, Wilentz, Goldman & Spitzer, P.A., of Philadelphia, Pennsylvania, 

argued for plaintiff-appellant. 

Joan M. Stentiford, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, argued for defendant-appellee. 

With her on the brief were, Jeanne F. Davidson, Director, and Steven J. Gillingham, 

Assistant Director. 

Appealed from: United States Court of Federal Claims 

Judge Christine O.C. Miller 
United States Court of Appeals for the Federal Circuit 

2007-5137 

RICK’S MUSHROOM SERVICE, INC., 

 Plaintiff-Appellant, 

v. 

UNITED STATES, 

 Defendant-Appellee. 

Appeal from the United States Court of Federal Claims in 06-CV-255, Judge Christine 

O. C. Miller. 

 __________________________ 

DECIDED: April 2, 2008 

 __________________________ 

Before RADER, LINN, and PROST, Circuit Judges. 

PROST, Circuit Judge. 

 This is an appeal from the United States Court of Federal Claims pertaining to a 

cost-share agreement between the government and Rick’s Mushrooms, Inc. (“Rick’s”) 

for implementing conservation practices in a facility for recycling of mushroom waste. 

Rick’s seeks indemnification from the government for costs incurred in defending and 

settling claims by a third party for violation of certain state and federal environmental 

laws. The Court of Federal Claims dismissed the action for lack of subject matter 

jurisdiction. For the reasons set forth below, we affirm. 
I 

 Mushroom farming is a major economic activity in Chester County, Pennsylvania. 

Historically, the organic by-product waste of mushroom farming, known as “spent 

mushroom substrate” (“SMS”), was dumped in nearby woods or streams, resulting in 

severe nitrogen pollution. Rick’s operates an SMS transfer facility, which processes 

SMS by leaching out the excess nitrogen and then recycling it as potting soil or other 

products. 

The Natural Resources Conservation Service (“NRCS”) was created by the 

Department of Agriculture Reorganization Act of 1994. The NRCS is specifically 

charged to cooperate with state and local soil and water conservation districts to carry 

out improvements under the Watershed Protection and Flood Prevention Act. As such, 

the NRCS has a cooperative arrangement with the Red-White Clay Creeks Watershed 

Protection Plan, which includes the region where Rick’s SMS transfer facility is located. 

The NRCS is also authorized to enter into cost-share agreements with landowners or 

land occupiers to carry out conservation plans approved by the local soil and water 

conservation districts. 

In 1996, M.A.Y. Farms, Inc. (“M.A.Y. Farms”), as a prospective purchaser of the 

property where Rick’s is now located, consulted with the Pennsylvania Department of 

Environmental Protection (“PDEP”) and the NRCS regarding what was necessary to 

operate an SMS transfer facility at that location. The NRCS required that the property 

be cleaned of existing SMS and that whoever operated the SMS transfer facility enter 

into a contract for construction of an environmentally sensitive SMS transfer facility. 

Thereafter, Custom Casings, Inc. (“Custom Casings”), the corporate predecessor to 

2007-5137 2
Rick’s, entered into a long-term lease with M.A.Y. Farms, the then owner of the 

property, and cleaned the property of existing SMS. 

On September 26, 1997, the NRCS, after consultation with the PDEP and the 

Chester County Conservation District (“CCCD”), entered into a “Long-Term Contract for 

NRCS Cost Share Programs” with Custom Casings. J.A. 113-16. Pursuant to the 

contract, NRCS designed and provided specifications for conservation practices to be 

implemented at the transfer facility, including a storage area, leaching field, wastewater 

impoundment and spray system. Custom Casings was to install the components and 

operate the facility. 

 On July 26, 2001, Warren and John Reynolds, Rick’s neighbors, and the 

Wilmington Trust Company (“Reynolds”) filed suit against Rick’s in the United States 

District Court for the Eastern District of Pennsylvania, alleging that Rick’s operated the 

SMS transfer facility in violation of the Clean Water Act and the Pennsylvania Clean 

Streams Law, and that wastewater runoff from Rick’s was entering a stream and 

contaminating the Reynolds’s pond. In March 2004, the district court issued a 

permanent injunction requiring Rick’s to obtain PDEP permits as a wastewater and solid 

waste facility. Reynolds v. Rick’s Mushroom Serv. Inc., No. Civ.A. 01-3773, 2004 WL 

620164, at *9 (E.D. Pa. Mar. 29, 2004). The court found that the CCCD had developed 

a Mushroom Farm Environmental Management Plan (“MFEMP”), and that Rick’s failure 

2007-5137 3
to comply with some of the operational requirements of the MFEMP had caused the 

contamination on Reynolds’s property.1 Id. at *2-5. 

After the order by the district court, Rick’s agreed to settle the case for $950,000. 

Thereafter, the NRCS drafted a rehabilitation plan and a plan for a roof structure to help 

eliminate some of the problems with waste discharge. The NRCS did not indemnify 

Rick’s for its losses in the litigation and did not pay for the new roof structure. 

 On November 4, 2005, Rick’s submitted a claim under the Contract Disputes Act 

(“CDA”) to the contracting officer at the NRCS for $5 million in damages. J.A. 188-89. 

The claim alleged that the NRCS had breached its implied warranty of the 

specifications, and, as a consequence, Rick’s had incurred additional costs, including 

attorneys’ fees in defending the lawsuit brought by the Reynolds; the lost value of its 

contribution to the original design, its substantial design revisions, and the installation of 

the new roof structure; and its liability for environmental impact. J.A. 188-89. The 

NRCS contracting officer denied the claim, stating that because the contract was not a 

procurement contract for goods or services, but rather a cooperative agreement, the 

CDA was inapplicable. Id. at 138. 

 Rick’s then filed suit in the Court of Federal Claims alleging that the Reynolds 

lawsuit and settlement was due to defective specifications drafted by the NRCS and that 

the NRCS should be liable for the costs incurred in the lawsuit. Rick’s Mushroom Serv., 

Inc. v. United States, 76 Fed. Cl. 250, 254 (2007). Rick’s had three legal theories for 

 1

 Specifically, the court found that Rick’s did not have a groundwater 

monitoring system, did not keep adequate records of the quantity of SMS stored, did not 

measure accurately the volume of leachate on its property, and did not maintain rain 

gauges. Reynolds, 2004 WL 620164, at *2-5. 

2007-5137 4
recovery: Count I, equitable indemnification based on an implied-in-fact warranty arising 

under the Spearin doctrine;2 Count II, breach of contract; and Count III, professional 

negligence. Id. First, the court determined that Rick’s had satisfied the administrative 

exhaustion requirements, at least with respect to Count I, because Rick’s claim based 

on an implied-in-fact contract under the CDA had been submitted to the contracting 

officer for a final decision. Id. at 256. Nevertheless, the court held that it lacked 

jurisdiction over Rick’s professional negligence claim because it was a claim sounding in 

tort. Id. The court further held that, because the contract between Rick’s and the 

NRCS was a cooperative agreement and not a procurement contract, there was no 

basis for jurisdiction under the CDA for the breach of contract claim. Id. at 258. Finally, 

the court rejected the claim for equitable indemnification under the Spearin doctrine 

because it was precluded by the Anti-Deficiency Act. Id. at 261. The court, therefore, 

dismissed the case for lack of subject matter jurisdiction. Id. at 262. 

 On appeal, Rick’s argues that the Court of Federal Claims erred in dismissing its 

contract claims, in denying it due process, and in failing to transfer the professional 

negligence claim to the District Court for the Eastern District of Pennsylvania. We have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). 

II 

 Subject matter jurisdiction is a question of law, which we review de novo. Emery 

Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1078 (Fed. Cir. 2001). We 

review a denial of a request for additional discovery for abuse of discretion. Digeo, Inc. 

v. Audible, Inc., 505 F.3d 1362, 1370 (Fed. Cir. 2007); Forest Prods. N.W., Inc. v. 

 2 See United States v. Spearin, 248 U.S. 132 (1918). 

2007-5137 5
United States, 453 F.3d 1355, 1359 (Fed. Cir. 2006). A decision by the Court of 

Federal Claims concerning whether to dismiss a claim or transfer it to another court is 

also reviewed for abuse of discretion. LeBlanc v. United States, 50 F.3d 1025, 1031 

(Fed. Cir. 1995). The underlying determination of whether the transferee court has 

jurisdiction over the claim is a question of law, which we review de novo. Acceptance 

Ins. Cos. v. United States, 503 F.3d 1328, 1332 (Fed. Cir. 2007). 

III 

A 

 Rick’s argues that the Court of Federal Claims erred in dismissing its claims for 

lack of subject matter jurisdiction. The jurisdictional reach of the Court of Federal 

Claims is set forth in the Tucker Act. The Tucker Act provides: 

(1) The United States Court of Federal Claims shall have 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. . . . 

(2) . . . The Court of Federal Claims shall have jurisdiction to render 

judgment upon any claim by or against, or dispute with, a contractor 

arising under section 10(a)(1) of the Contract Disputes Act of 1978, 

including a dispute concerning termination of a contract, rights in tangible 

or intangible property, compliance with cost accounting standards, and 

other nonmonetary disputes on which a decision of the contracting officer 

has been issued under section 6 of that Act. 

28 U.S.C. § 1491(a) (emphases added). The plain language of the Tucker Act excludes 

from the Court of Federal Claims jurisdiction claims sounding in tort. Id. § 1491(a)(1). A 

claim for professional negligence is a tort claim. GlobalNet Financial.Com, Inc. v. Frank 

Crystal & Co., 449 F.3d 377, 385 (2d Cir. 2006); GLF Constr. Corp. v. LAN/STV, 414 

F.3d 553, 555 (5th Cir. 2005); Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1348 (11th 

2007-5137 6
Cir. 2001); White v. Napoleon, 897 F.2d 103, 114 n.4 (3d Cir. 1990). Therefore, the 

Court of Federal Claims did not err in concluding that it lacked subject matter jurisdiction 

to hear the professional negligence claim of Count III. 

B 

In Count II of the complaint, Rick’s alleges that the government breached its 

contract with Rick’s by providing defective specifications. Based on that alleged breach, 

Rick’s seeks recovery for its direct costs in constructing the SMS transfer facility, 

clearing the property of accumulated SMS, making changes to the facility to prevent the 

overflow of pollutants, and ultimately in closing the facility. 

The government’s consent to suit under the Tucker Act does not extend to every 

contract. Kania v. United States, 650 F.2d 264, 268 (Ct. Cl. 1981); accord Sanders v. 

United States, 252 F.3d 1329, 1335 (Fed. Cir. 2001). The Tucker Act is merely a 

jurisdictional statute and does not create a substantive cause of action. United States v. 

Testan, 424 U.S. 392, 398 (1976). Therefore, the plaintiff must look beyond the Tucker 

Act to identify a substantive source of law that creates the right to recovery of money 

damages against the United States. United States v. Mitchell, 463 U.S. 206, 216 

(1983). 

Rick’s breach of contract claim arises from its cost-share agreement with the 

government; however, the cost-share agreement does not provide a substantive right to 

recover money-damages and Rick’s does not point to a money-mandating source of law 

to establish jurisdiction under 28 U.S.C. § 1491(a)(1) for its breach of contract claim. 

Instead, Rick’s attempts to rely on the CDA as the source of its substantive right to 

recover money damages and to establish jurisdiction under 28 U.S.C. § 1491(a)(2). 

2007-5137 7
The CDA, however, applies only to express or implied government contracts for 

procurement of goods or services. 41 U.S.C. § 602(a). In contrast, the cost-share 

agreement provided that Rick’s would construct and operate its SMS transfer facility in 

accordance with government specifications and in return Rick’s would be entitled to 

cost-share payments. The Court of Federal Claims went through a lengthy analysis 

explaining why the cost-share agreement is not a procurement contract. In particular, 

the court noted that the agreement did not provide for transfer of goods or services to 

the government, there was no evidence of a buyer-seller relationship, and the 

government did not receive a direct benefit from the operation of the SMA transfer 

facility. We find the court’s analysis to be sound. Thus, the CDA is inapplicable to the 

cost-share agreement and there is no basis for jurisdiction under 28 U.S.C. 

§ 1491(a)(2). 

On appeal, Rick’s argues that the Court of Federal Claims overlooked the fact 

that its breach of contract claim was based, in part, on an implied-in-fact contract. A 

claim to a breach of an implied-in-fact contract with the government fails for similar 

reasons. Rick’s does not point to a money-mandating provision that establishes 

jurisdiction for an implied-in-fact contract under 28 U.S.C. § 1491(a)(1), and Rick’s 

cannot establish jurisdiction under 28 U.S.C. § 1491(a)(2) because Rick’s has not 

alleged an implied-in-fact contract for procurement of goods or services which would 

come within the CDA. Moreover, this court may only find an implied-in-fact contract 

when there is no express contract. Trauma Serv. Group v. United States, 104 F.3d 

1321, 1326 (Fed. Cir. 1997). Here, Rick’s and the government entered into an express 

contract. 

2007-5137 8
In sum, Rick’s cannot establish Tucker Act jurisdiction under either 28 U.S.C. 

§ 1491(a)(1) or (2). Accordingly, the Court of Federal Claims did not err in holding that 

it lacked subject matter jurisdiction over Rick’s breach of contract claim. 

C 

In Count I, Rick’s seeks equitable indemnification based on breach of an impliedin-fact warranty by the government arising under the Spearin doctrine. Rick’s 

acknowledges that there is no express provision in the cost-share agreement providing 

for indemnification by the government for third party claims. Nevertheless, Rick’s 

argues that the government is liable to Rick’s for the costs incurred in defending the 

lawsuit against Reynolds because the government, in providing detailed design 

specifications for the SMS transfer facility in the cost-share agreement, gave Rick’s an 

implied warranty that the transfer facility would be adequate and that the government 

would be liable for the consequences of any defects. For the Court of Federal Claims to 

have jurisdiction over the implied warranty claim, the court must necessarily have 

jurisdiction over the cost-share agreement on which the implied warranty is founded. 

For the reasons discussed above, however, we find that the cost-share agreement does 

not provide Tucker Act jurisdiction. 

In addition, we find that Rick’s Spearin warranty claim fails for another reason. 

The Spearin doctrine provides that if a government contract contains detailed design 

specifications, as opposed to performance specifications, the government gives an 

implied warranty that if the specifications are followed an acceptable result will be 

produced. Stuyvesant Dredging Co. v. United States, 834 F.2d 1576, 1582 (Fed. Cir. 

2007-5137 9
1987).3

 “When the government provides a contractor with defective specifications, the 

government is deemed to have breached the implied warranty that satisfactory contract 

performance will result from adherence to the specifications, and the contractor is 

entitled to recover all of the costs proximately flowing form the breach.” Essex Electro 

Eng’rs, Inc. v. Danzig, 224 F.3d 1283, 1289 (Fed. Cir. 2000). 

Spearin was a construction contractor, who entered into a fixed price contract 

with the government to build a dry dock according to plans and specifications prepared 

by the government. Spearin, 248 U.S. at 133. The plans contained a provision 

requiring relocation of a section of sewer. Id. at 133-34. After relocation of the sewer, a 

storm caused build up in internal pressure in the relocated sewer section and flooding of 

the dry dock excavation site. Id. at 134. The Court held that the provision requiring 

relocation of the sewer created an implied warranty by the government that if the 

specifications were complied with, the sewer would be adequate. Id. at 137. Because 

the sewer was inadequate, the Court held that the government had breached its implied 

warranty. Id. at 138. The doctrine has been applied, as in Spearin, to construction 

contracts with the government, White v. Edsall Constr. Co., Inc., 296 F.3d 1081, 1086 

(Fed. Cir. 2002); Poorvu v. United States, 420 F.2d 993, 999 (Ct. Cl. 1970); Luria Bros. 

& Co. v. United States, 369 F.2d 701, 708 (Ct. Cl. 1966), as well as to other contracts 

for procurement of goods or services by the government. Essex Electro, 224 F.3d at 

1289-90; USA Petroleum Corp. v. United States, 821 F.2d 622, 624 (Fed. Cir. 1987); 

 3

 “Design specifications explicitly state how the contract is to be performed 

and permit no deviations. Performance specifications, on the other hand, specify the 

results to be obtained, and leave it to the contractor to determine how to achieve those 

results.” Stuyvesant Dredging, 834 F. 2d at 1582. 

2007-5137 10
Ordnance Research, Inc. v. United States, 609 F.2d 462, 481 (Ct. Cl. 1979); R.E.D.M. 

Corp. v. United States, 428 F.2d 1304, 1308-10 (Ct. Cl. 1970). 

 Even if we were to find that the Spearin doctrine is applicable outside the 

procurement contract context, that the cost-share agreement contained design 

specifications as opposed to performance specifications, and that a defect in those 

specifications was the proximate cause of the lawsuit brought by Reynolds, we still 

could not find that Rick’s is entitled to recover the costs of defending and settling the 

lawsuit. Such a finding is foreclosed by the Supreme Court’s holding in Hercules, Inc. v. 

United States, 516 U.S. 417 (1996). 

Hercules was a chemical manufacturer who manufactured Agent Orange for the 

government and sought to recover from the government costs incurred in defending and 

settling lawsuits brought by Vietnam veterans alleging health problems caused by 

exposure to Agent Orange. Id. at 419-20. The Court held that Hercules could not 

recover on an implied warranty under Spearin because such a warranty does not 

extend as far as third-party claims. Id. at 424-25. The Court further held that it could 

not find an implied-in-fact agreement by the government to indemnify for losses to third 

parties because the Anti-Deficiency Act (“ADA”) would bar such an open-ended 

indemnification agreement. Id. at 426-28. 

The ADA provides: 

An officer or employee of the United States Government . . . may not-- 

(A) make or authorize an expenditure or obligation exceeding an 

amount available in an appropriation or fund for the expenditure or 

obligation; 

(B) involve [the] government in a contract or obligation for the payment 

of money before an appropriation is made unless authorized by 

law . . . . 

2007-5137 11
31 U.S.C. § 1341(a)(1) (emphases added). Under the ADA, procurement agencies or 

employees are prohibited from “entering into a contract for future payment of money in 

advance of, or in excess of, an existing appropriation.” Hercules, 516 U.S. at 427. This 

limitation on authority is equally applicable to implied-in-fact contracts as to express 

contracts. Id. at 428. Because the contracting officer would have no authority under the 

ADA to enter into an indemnity agreement without an appropriation, we cannot find an 

implied-in-fact warranty by the government to indemnify Rick’s for its litigation costs in 

defending against third party claims. As recognized by the Court of Federal Claims, 

because the contracting officer had no authority to enter into an open-ended indemnity 

agreement, there could be no mutual intent to contract, a prerequisite for an implied-infact contract. Contrary to arguments advanced by Rick’s, such an implied 

indemnification term would indeed be “open-ended” since the amount of the 

government’s obligation to third parties would not have been known at the time the 

parties entered into the cost-share agreement. Furthermore, we find no basis to 

conclude, as Rick’s urges, that the holding of Hercules with respect to application of the 

ADA was limited to design specifications. Accordingly, the Court of Federal Claims did 

not err in dismissing Rick’s implied warranty claim for lack of subject matter jurisdiction.4

 4

 Rick’s contends that Lopez v. A.C. & S., Inc., 858 F.2d 712 (Fed. Cir. 

1988), holds that the ADA does not shield the government from liability under a Spearin

implied warranty because there is a standing appropriation to pay court judgments. 

However, discussion of the ADA in Lopez was not necessary to the decision in that 

case. The court’s holding that there was no Tucker Act jurisdiction ultimately rested on 

its determination that the alleged warranty was implied-in-law and not implied-in-fact 

and, thus, the court did not reach whether an implied warranty would be illegal under 

the ADA. Id. at 716-17. Moreover, to the extent that the Federal Circuit’s analysis in 

Lopez is in any way inconsistent with the Supreme Court’s analysis in Hercules, the 

Supreme Court has effectively overruled Lopez. 

2007-5137 12
D 

On appeal, Rick’s also asserts that it was deprived of due process on two 

accounts. First, Rick’s avers that it was denied due process because the government 

first presented its argument with respect to the ADA during supplemental briefing. 

However, any party may challenge, or the court may raise sua sponte, subject matter 

jurisdiction at any time. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006); Folden v. 

United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004); Fanning, Phillips & Molnar v. 

West, 160 F.3d 717, 720 (Fed. Cir. 1998). Thus, Rick’s was not denied due process 

even though the government did not raise the issue of the ADA until the supplemental 

briefing stage. 

Second, Rick’s argues that it was denied due process because the court did not 

permit discovery on allocation exhaustion after the ADA issue was raised. Rick’s relies 

on the testimony of Peter Vanderstappen of the NRCS, who stated that between 

$500,000 and $700,000 was obligated each year to the Red-White Clay Creeks project. 

Rick’s contends that there is no evidence that the money allocated to the project was 

exhausted and thus there should still be funds available to pay Rick’s claim. However, 

Rick’s misunderstands the import of the ADA. The ADA prohibits commitment of funds 

in advance of, or in excess of, an existing appropriation. Here, there was no 

appropriation for indemnification of third party claims. Therefore, additional discovery 

on whether or not certain government funds have been exhausted would have no 

impact on the court’s determination of whether or not it had jurisdiction over Rick’s 

implied-in-fact warranty claim. Hence, we find no abuse of discretion by the Court of 

Federal Claims in disallowing discovery on allocation exhaustion. 

2007-5137 13
E 

Finally, Rick’s argues that the Court of Federal Claims abused its discretion in 

dismissing Rick’s professional negligence claim, rather than transferring it to the district 

court. According to Rick’s, 28 U.S.C. § 1631 mandates that the Court of Federal Claims 

shall transfer a claim over which it lacks jurisdiction to the court where the claim could 

have been brought. In this case, Rick’s contends, the District Court for the Eastern 

District of Pennsylvania would have jurisdiction over its professional negligence claim 

under the Federal Tort Claims Act. 

28 U.S.C. § 1631 provides: 

Whenever a civil action is filed in a court . . . and that court finds that there 

is a want of jurisdiction, the court shall, if it is in the interest of justice, 

transfer such action . . . to any other such court in which the 

action . . . could have been brought at the time it was filed . . . . 

The plain language of the statute requires that the transferee court have 

jurisdiction over the claim. We agree with the government, however, that here the 

district court lacks jurisdiction over the professional negligence claim. 

The Federal Tort Claims Act provides that an action shall not be initiated in a 

district court unless the claimant has “first presented the claim to the appropriate 

Federal agency and his claim shall have been finally denied by the agency in 

writing . . . .” 28 U.S.C. § 2675(a); see Dancy v. United States, 668 F.2d 1224, 1227 

(Ct. Cl. 1982). The claim that was submitted to the contracting officer was a claim 

based on the CDA for breach of an implied warranty of specifications. Even if the claim 

were a proper CDA claim, the denial of the claim by the contracting officer served only 

to establish jurisdiction in the Court of Federal Claims. It did not establish jurisdiction in 

the district court for a professional negligence claim. Rick’s never presented a written 

2007-5137 14
2007-5137 15

professional negligence claim for money damages to the U.S. Department of 

Agriculture. Therefore, Rick’s did not satisfy the exhaustion requirements set forth in 28 

U.S.C. § 2675(a) in order to establish jurisdiction in the district court.5

 As such, the 

Court of Federal Claims did not err in not transferring the professional negligence claim 

to the district court. We find no abuse of discretion by the Court of Federal Claims in its 

dismissal of the professional negligence claim. 

IV 

For the foregoing reasons, we affirm the Court of Federal Claim’s dismissal of 

Rick’s claims for lack of subject matter jurisdiction. 

AFFIRMED

 5

 The government also argues that Rick’s failed to satisfy the exhaustion 

requirements set forth in the Department of Agriculture Reorganization Act. The Act 

provides that a final determination of the National Appeals Division is reviewable in 

district court, 7 U.S.C. § 6999, but that the appellant must first “exhaust all 

administrative appeal procedures established by the Secretary.” Id. § 6912(e). As 

noted by the Court of Federal Claims, however, the regulations limit those appeals to 

challenges to “technical determinations and program decisions made by NRCS.” 7 

C.F.R. § 614.1. Because Rick’s professional negligence claim does not relate to a 

technical determination or program decision, it does not appear to be within the ambit of 

the National Appeals Division. Thus, we disagree that Rick’s was required to satisfy the 

exhaustion requirements set forth in § 6912(e).