# In the United States Court of Federal Claims

No. 20

- 66C Filed: May 13, 2020 NOT FOR PUBLICATION

LARRY LANDGRAF,

P laintiff ,

v.

UNITED STATES,

D efendant

. Keywords: Motion to Dismiss; Contract; Duty; Breach; Expectancy Damages ; Causation

Larry Landgraf

, pro se

.
Rafique O. Ander

son , Commercial Litigation Branch

, Civil Division

, U.S. Department of Justice, Washingto n, D.C. , fo r the defendant.

MEMORANDUM OPINION AND ORDER

HERTLING , Judge

The plaintiff, Larry Landgraf, a landowner on Texas’s Gulf Coast , sues the United States, acting through the Natural Resources Conservation Service (“the Service” or “NRCS” ). The Service moves to dismiss for lack of subject

- matter jurisdiction and for failure to state a claim upon which relief can be granted. The Court denies the Service’s motion to dismiss

, because the complaint i s not frivolous, d oes not sound in tort, s eeks monetary damages, and state s a claim by alleging conduct from which the C ourt could reasonably infer a breach of the terms of the alleged contract.

I. BACKGROUND

Through the former federal W etlands Reserve P rogram, the Servic e purchased conservation ease ments from private landowners and shared the cost of restoring the easement properties for use as wildlife habitat and for recreation

. 1 Mr. Landgraf alleges that

, in 2013, two

1 The Wetlands Reserve Program ran from 1985 to 2014

. Food Security Act of 1985, Pub. L. No. 99

- 198, Title XII, § 1237, 99 Stat. 1354 (1985), repealed by Agricultural Act of 2014, Pub. L. No. 113

– 79, § 2703(a), 128 Stat. 767 (2014). “ The easements generally allow federal officers and their contractors to enter the land and perform restoration work, and when the program was2

of his neighbors and he conveyed conservation easement s to the Service

. A repr esentative of the Service

, Mr. Landgraf alleges, signed a restoration plan specifying that the Service would

“ remove ” noxious brush fro m the easement propert ies

. In May 2017, the plaintiff alleges, the Service directed a contractor to uproot noxious brush on the properties and leave it in place. In the succeeding months t he contractor complied. In August 2017, Hurricane Harvey’s storm

- surge washed uprooted brush from a neighbor’s easement property onto Mr. Landgraf’s “private” property. Mr. Landgraf alleges that this uprooted brush from his neighbor’s property rendered two

- thirds of Mr. Landgraf’s property impassable and useless pending removal of the brush.

M r. Landgraf first sued in federal district court for negligence, which that court construed as a suit under the Federal Tort Claims Act, 28 U.S.C. § 1346

. 2 Following dismissal of his tort claims, Mr. Landgraf sued the United States in this C ourt for breach o f contract

. Mr. Landgraf alleges that a signed agreement into which he entered with the S ervice contains a promise to “remove” noxious brush from the easement propert ies

. Mr. Landgraf further alleges that

, by instructing its contractor to leave the brush on the easement propert ies after uprooting it , the Service breached its contract with Mr. Landgraf to remove the uprooted brush from the properties

. Had the Service not breached that commitment , Mr. Landgraf alleges, he would not have had his property damaged by brush from his neighbor’s property during the flooding

. Mr. Landgraf seeks removal of the brush from his property and dissolution of the Service’s easement to prevent “future violations

. ” He values this relief at $250,000

. He also seeks attorneys’ fees

repealed in 2014 the Conservation Service had easements on roughly 2.3 million acres of land. ” Telzrow v. United States , 127 Fed. Cl. 115, 117

– 18 (2016) (citations omitted).

2 The U.S. District Court for the Southern District of T exas dismissed Mr. Landgraf’s tort claim for lack of subject matter jurisdiction on two grounds. Landgraf v. Nat ional [sic] Res. Conservation Serv. , No. 18

- CV

- 61, Memorandum and Order, April 9, 2019 (S.D. Tex.) (“ Landgraf I” ) . First, that court held that the Service was not a juridical person and that Mr. Landgraf’s suit must name the United States as the defendant. Id. at 2

- 3. Second, the court concluded that the Federal Tort Claims Act’s waiver of sovereign immunity would not have applied to Mr. Landgraf’s suit had it been against the United States, because “the negligence asserted against the United States arises fro m conduct of a third party aided by an ‘act of God’.” Id. at 3

- 4. When Mr. Landgraf then filed suit against the United States in the Southern District of Texas, the court dismissed his claim for three reasons: (1) his failure to appeal the first dismiss al made the second suit improper; (2) the suit had already been dismissed as against the United States because the Service and the United States were the same entity; and (3) the alleged damage “was caused by a third party and/or ‘acts of God’.” Landgraf v. United States , No. 19

- CV

- 34, Memorandum and Order, Aug. 8, 2019 (S.D. Tex.) (“ Landgraf II” ) . The district court denied Mr. Landgraf’s motion to transfer his case to th is court on the grounds that the case had already been “closed.” Landgraf II , Order, Aug. 19, 2019 (S.D. Tex.).3

and “ any other amounts [for] which the United States of America may prove to be liable .” (Compl. at V. 2

- 3.)

The United States has moved to dismiss the complaint for lack of subject

- mat ter jurisdiction and failure to a state a claim under Rule s 12(b) (1) and 12(b)(6) of the Rules of the Court of Federal Claims (“RCFC”)

. 3 The motion has been fully briefed.

II. ALLEGED CONTRACT

Mr. Landgraf attached a document labeled “Contract A” to his respo nse to the Service’s motion to dismiss. The Court considers this document’s provisions as part of Mr. Landgraf’s factual allegations. When considering whether a complaint state s a claim pursuant to RCFC 12(b)(6), RCFC 12( d) prohibits th e C ourt ’s consideration of facts outside of the complaint. As an exception to this limit, the Court may consider documents that are “integral” to the plaintiff’s claim, such as the contract relied on in a claim for breach of contract. See Dimare Fresh, Inc. v. Uni ted States , 808 F.3d 1301, 1306 (Fed. Cir. 2015) (“ We may also look to ‘ matters incorporated by reference or integral to the claim, items subject to judicial notice, [and] matters of public record. ’ ” ) (quoting 5B Charles Alan Wright & Arthur R. Miller, Fed eral Practice and Procedure § 1357 (3d ed. 2004) ).

Like the “Contract A” alleged in the complaint, the document attached to Mr. Landgraf’s response brief is signed by Mr. Landgraf and a representative of the Service

, outlines the Service’s restoration plan, and addresses the removal of brush from the contract property

. Finding that the attachment matches the description of the contract alleged in the complaint, the Court considers th e attachment as the alleged contract between Mr. Landgraf and the Service and its provisions as part of Mr. Landgraf’s factual allegations

.

The three

- page document is titled “Preliminary [Wetland s Reserve Program] Restoration Plan.” (Pl.’s Appx. 1 at 1.) The name of a d istrict c onservationist for the Service an d Mr. Landgraf’s name appear printed at the top of the first page and in signed and dated signature blocks on the final page. Mr. Landgraf’s signature line is labeled “Certification of Participants.” Both signatures are dated April 23, 2013. ( Id. )

A box below the title labeled “Objective” provides that “[r] estoration practices will be implemented with intent of restoring vertical heterogeneity to a native monoculture stand of gulf cordgrass, using prescribed fire and brush mgmt., resulting in increased d iversity of habitat for the species of concern; Whooping Crane. (Grus Americana).” ( Id. )

The body of the document starts with the heading “Wildlife.” Indented below this heading is a page

- width box containing the bold, centered text “Tract: 564.” Below that box, and also indented from the “Wildlife” heading, appear seven sections, each titled with an activity or work ( e.g. , “Brush Management,” “Fence”). Each section contains a description followed by a

3 For the pro se plaintiff’s benefit, the Court notes that the Rules of the Court of Federal Claims, not the Federal Rules of Civil Procedure

, govern practice and procedure in this Court.4

table showing a “Planned Amount” in acres or feet for field “1” along with a year and a month (all specify September). Each table also contains blank spaces for an “Applied Amount” and a date.

The “Brush Management” section provides, in relevant part:

Remove undesirable brush (Huisache, Mesquite, Chinese Tallow, or China Berry) by hydraulic shears or saw. Remove all Huisache, Chinese Tallow and China Berry. As well as all single stem Mesquite that is 8 inches in diameter or less and all Multi

- stem Mesquite. When using hydraulic shears or saw you will h ave to spray the stump with a mixture of Remedy and Diesel.

It provides a “Cost Rate” of $124.74 per acre and the table indicates 83.08 acres planned for 2014. ( Id. )

The “Fence” section provides:

Construct a 4 [

- ] strand barbed wire fence according to NRCS specifications at location shown on plan map. Standards and specifications will be provided to the producer before construction by an NRCS technician.

It provides a cost rate of $1.76 per foot

, and the table indicates 7,150 feet planned for 2015. ( Id. )

T he “Firebreak” section provides:

Establish a strip of bare land 15

- 20 feet wide for control of prescribed burn area and to be used as a safe area to light the fire. See Burn Map for location of fireguards. It provides a cost rate of $0.86 per foot

, and th e table indicates 12,460 feet planned for 2016. ( Id. )

The “Prescribed Burning” section provides:

Controlled burns will be conducted as needed to maintain vigor of grass cover, suppress the growth of undesirable species, remove any dead or decaying woody p lants and/or remove excessive thatch buildup. Burns will be conducted according to an NRCS approved prescribed burning management plan. Contact the NRCS office for assistance and a prescribed burn plan. [ T he Texas C ommission on E nvironmental Q uality] will have to approve the Burn Plan as well since Smooth Gulf Cordgrass is in the burn unit.

It provides a cost rate of $10.50 per acre

, and the table indicates 163.16 acres planned for 2016. ( Id. at 2)5

The “Upland Wildlife habitat Ma nagement” section provides:

The removal of invasive brush species, Huisache , Mesquite, China Berry and Chinese Tallow, as stated in the Brush Management write up, in the upland areas will make for a more open an d diverse habitat for the many upland and gro und nesting birds, like the bobwhite quail and mottled duck. It will also be of great benefit to the many migratory neo tropical birds and the endangered Whooping Crane. The management of this diverse habitat will also serve as an excellent buffer for th e wetlands that lie below the upland.

It provides no cost rate but indicates 83.08 acres planned for 2017. ( Id. )

The “Wetland Restoration” section provides:

The restoration of the wetlands on this property will be accomplished by removing the domestic liv estock, prescribed burns to control noxious weeds and brush management on species like Mesquite, Huisache, Chinese Tallow and China Berry to encourage vegetative species native to the wetland site to reestablish by natural regeneration.

It provides no cost rate but indicates 163.16 acres planned for 2014. ( Id. )

The “Wetland Wildlife Habitat Management” section provides:

The key to wetland wildlife habitat management will be through hydrology and vegetation. Once infrastructure to restore hydrology is impl emented, removal of domestic livestock, brush and noxious weed control, efforts are to be made to provide a wetland habitat, conducive for the endangered Whooping Crane, shore birds and other water loving birds, in a manner consistent with natural process. Once the hydrology and vegetation have recovered management, of this valuable ecosystem, can be carried out with prescribed burning as deemed necessary by NRCS personnel.

It provides no cost rate but indicates 80.08 acres planned for 2017. ( Id. )

III. DISCUSSION

A. Jurisdiction

The Service moves to dismiss the complaint for lack of subject

- matter jurisdiction

, arguing that Mr. Landgraf’s allegation of a contract is frivolous

, his claim sounds in tort

, and he only seeks nonmonetary relief , which this C ourt lacks the power to grant

.6

Mr. Landgraf is proceeding pro se , so his pleadings are entitled to a more liberal construction than the Court would give to pleadings prepared by a lawyer. See Haines v. Kerner

, 404 U.S. 519 (1972). Giving a pro se litigant’s pleadings a liberal interpretation and construction does not divest the pro se plaintiff of the responsibility o f demonstrat ing that he has satisfied the jurisdictional requirements that limit the types of claims the Court of Federal Claims
may entertain. See, e.g.

, Kelly v. Sec’y, U.S. Dep’t of Labor , 812 F.2d 1378, 1380 (Fed. Cir. 1987); Hale v. United States

, 143 Fed. Cl. 180, 184 (2019).

The Supreme Court has interpreted the Tucker Act

, 28 U.S.C. § 1491(a)

, to waive the United States’ sover eign immunity and to vest t h e C ourt of Federal Claims with jurisdiction over claims that are founded on an express or implied contract with the United States and do not sound in tort

. See United States v. Navajo Nation

, 556 U.S. 287, 289

- 90 (2009). Failu re by a plaintiff to “ establish the existence of an alleged contract with the government

, ” however, is a

“ failure to state a claim, rather than [a] lack of jurisdiction .” Engage Learning, Inc. v. Salazar

, 660 F.3d 1346, 1354 (Fed. Cir. 2011) . Plainly frivolous contract claims may be dismissed for lack of subject

- matter jurisdiction, although “ the Supreme Court has made clear that such jurisdictional dismissals for frivolousness must be ‘ confin[ed] ’ to cases ‘ that are very plain. ’ ” Lewis v. United States , 70 F.3d 597, 603

– 04 (Fed. Cir. 1995) (quoting Hart v. B.F. Keith Vaudeville Exch., 262 U.S. 271, 274 (1923)).

T his court lack s jurisdiction to decide tort claims merely “repackaged” as contract or
money

- mandating claims. See Brown v. United States

, 105 F.3d 621, 623

- 24 (Fed. Cir. 1997) ( reject ing

, inter alia

, fraud claims because fraud is a tort ); McCauley v. United States

, 38 F ed. Cl. 250, 26 4

- 69 (1997) ( reject ing a harassed employee’s claim that the E qual E mployment O pportunity C ommission discriminated against her and breached a duty to accommodate her arising either out of an alleged “special relationship

, ” a statute, or language in the agency’s right

to

- sue letter ); Cottrell v. United States

, 42 Fed. Cl. 144, 154 ( 1998 ) ( refus ing to allo w a plaintiff to “repackage jurisdictionally unsound [tort] claims into a more appealing package by wrapping [them] in a [military pay claim ] blanket”)

.

1. Contract with the United States

The complaint’s allegation of a contract with the United States is not plainly frivolous. Mr. Landgraf’s complaint alleges a breach of a specific document containing specific promissory language and signed by an authorized agent of the Service in the context of the plaintiff conveying an interest in his real property

. The co mplaint alleges t hese details along with a logical explanation of how the Service’s instructions to its contractor were facially inconsistent with the earlier contract and how that inconsistency was a factor in causing Mr. Landgraf’s property to fill with uprooted brush and become useless and impassable. Th e s e details are more than “bald assertions ” of a contract and do not support a jurisdictional dismissal of the complaint as frivolous

. C

f. Twp. of Saddle Brook v. United States , 104 Fed. Cl. 101, 1 10 (2012) (dismissing for lack of subject

- matter jurisdiction a complaint that alleged an implied

- in

- fact contract arising out of “numerous promises” by an agency to fix a flooding problem).7 2. Not Sounding in Tort

Mr. Landgraf’s claim does not necessarily s ound in tort. The Service a rgues that Mr. Landgraf’s claim should be rejected as one that squarely sounds in tort, has its essence lying in tort, or is simply a tort claim repackaged as breach of contract. The complaint focuses on the defendant’s failure to fulfill a specific promise

, namely, to “remove” uprooted brush from the easement properties, arising from a specific written, signed agreement that the plaintiff had with the Service

. Although t he pro se complaint uses some tort

- related words like “negligence” and “fiduciary duty

, ” t he paragraphs in which these terms appear assume the existence of a contract and are most fairly read as tautological statements that the United States , like private parties, has a duty to fulfill its contrac tual obligations

. To be sure, Mr. Landgraf’s claim raises difficult issues of foreseeability and causation not unlike those considered in tort claims. Mr. Landgraf seeks expectancy damages , which “make a

non

- breaching party whole by providing the benefits expected to be received had the breach not occurred

. ” Third Bank v. United States , 518 F.3d 1368, 1374 (Fed. Cir. 2008)

. Recovery of expectancy damages against the United States requires foreseeability at the time of the contract, causation, and reasona ble certainty as to the measure of damages

. Id. As long as the evaluation of Mr. Landgraf’s alleged damages is limited by the scope of the promises the Service made to Mr. Landgraf in the alleged contract, these issues may be considered as issues of contract

- law expectancy damages witho ut resort to generally applicable tort

- law duties as a basis for the Service’s liability

. S ee S GS

- 92

- X003 v . United States , 85 Fed. Cl. 678, 711 (2009) ( holding that the United States breached a contractual duty to a confidential informant but requiring the confidential informant to prove that her kidnapping and ensuing damages resulted from the breach) ; see al so Telzrow v. United States , 127 Fed. Cl. 115, 124

- 25

, (2016) (construing a pro se complaint arising out of the Wetland s Reserve Program as a complaint for breach of the parties’

cost

- sharing agreement).

3. Money Damages

The Court construes Mr. Landgraf’s prayer as a request for money damages. Along with its prayer for specific performance and dissolution of the Service’s eas ement, relief this Court is not authorized to provide, the complaint expressed th e relief sought by the plaintiff as a sum certain dollar amount and asked for “ any other amounts [for] which the United States of America may prove to be liable .” (Compl . at V. 2

- 3 (emphasis added). ) It is true that this Court lacks jurisdiction to awar d equitable relief such as that sought by the complaint, and the Court will disregard those claims. I t is unlikely , however, that Mr. Landgraf would have included a total dollar amount and a reference to “any other amounts” if he were not seeking money damages as an alternative to the equitable remedies the complaint requests. The Court finds the complaint susceptible to a construction that the plaintiff is seeking m onetary damages for the alleged breach of contract.

B. Failure to State a Claim

The Service alternatively argues that Mr. Landgraf’s claim must be dismissed under RCFC 12(b)(6) for failure to state a claim upon which relief can be granted. T he Service argues8

that it ca nnot be held liable for the damages caused by an a ct of G od l ike Hurricane Harvey without having explicitly assume d such liability in the contract

. Additionally, the Service argues that it could not have breached the alleged contract with Mr. L andgraf because nothing in the contract as alleged by Mr. Landgraf would have created a duty to remove from Mr. Landgraf’s property brush that originated on a neighbor’s property. The Service’s argument does not directly address what the Court understand s to be Mr. Landgraf’s theory of recovery, which is that the Service, as part of the removal process, had a contractual duty to burn or otherwise dispose of the uprooted brush on the neighbor’s property before the brush could be deposited on Mr. Landgraf’s property.

The Court finds that Mr. Landgraf’s complaint states a narrow claim for removal of the brush from his property but does not state a claim for damage caused by the brush originating from his neighbor’s property

. The Court declines to address the Service’s act

- of

- God defense at the motion

- to

- dismiss stage.

For a claim to avoid dismissal, it must be “ plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) . To test a claim’s plausibility, the Court sets aside the complaint’s legal conclusions and focuses on the facts the complaint alleges, accepting them as true. See id ; Am. Bankers Ass'n v. United States , 932 F.3d 1375, 1380 (Fed. Cir. 2019) . If these facts, when accepted as true, allow the court reasonably to infer “ that the defendant is liable for the misconduct alleged ,” the claim is plausible. Iqbal , 556 U.S. at 678. “Plausible” means more than “possible ; ” plausibility requires more than facts that are “merely consistent with” a defendant’s liability. Id. Nevertheless, i n considering a motion to dismiss under RCFC 12( b )(6)

, “the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes , 416 U.S. 232, 236 (1974)

. The Court “must presume that the facts ar e as alleged in the complaint and make all reasonable inferences in favor of the plaintiff.” Cary v. United States

, 552 F.3d , 1373, 1376 (Fed. Cir. 2009)

. To state a claim, Mr. Landgraf must allege conduc t by the Service that the Court can reasonably infer breached the Service’s contractual dut ies to Mr. Landgraf. The signed WRP Restoration Plan document is the contract the complaint alleges, so the Court may review the Plan document’s provisions as part of Mr. Landgraf’s allegations. A t least one provision explicitly provides for the removal of “any dead or decaying woody plants

. ” Mr. Landgraf may be able to recover the limited cost of removing the brush pursuant to that provision

. No provision of the alleged contract creates a duty to Mr. Landgraf to remove brush on a neighbor’s land , thus Mr. Landgraf cannot recover damages for breach of his contract with the Service based on the value his property wou ld have had if the Service had fulfilled its contract with his neighbor.

1. Duty to Remove Brush on Mr. Landgraf’s Property

Certain provisions of the alleged contract allow the court to infer that the contract creates a duty to remove brush located on Mr. Landgraf’s property. The first words of the body of the

contract
, under the heading “Brush Management

, ” are “[r]emove undesirable brush.” The contract’s “Upland Wildlife Habitat Management” section refers back to thi s brush management, noting that it will “make for a more open and diverse habitat” (emphasis added) for certain birds.9

The description of the brush management work , however, suggests that “brush management ” may only contemplate the removal of brush growing on Mr. Landgraf’s property. The contract specifies “hydraulic shears,” “saw,” or chemicals as brush management methods

. The use of shears and saws for removal assumes brush that is attached to the land. The use of chemicals for removal assumes brush th at is alive and thereby susceptible to elimination by herbicides

.

The “ Prescribed Burning ” section of the alleged contract may create a broader duty to remove brush than the “Brush Management” section

. It provides for controlled burns “as needed to mainta in [the] vigor of grass cover, suppress the growth of undesirable species, remove any dead or decaying woody plants and/or remove excessive thatch buildup.” Moreover, the alleged contract planned for almost 163.16 acres of prescribed burning, which is nea rly double the 83.08 acres planned for in the brush

- management section. By providing for the removal of “any dead

or decaying woody plants,” this provision of the alleged contract may create a duty to remove the described brush on Mr. Landgraf’s property

, whether or not the brush originated on that property, including brush that flooding deposited there

, such as the brush that first grew on a neighbor’s property and was uprooted by the Service

.

If Mr. Landgraf can establish that the alleged contract’s “ P re scribed B urning ” provision
creates a contractual duty to remove brush from his property that did not originally grow on his property , he may be able to recover the limited cost of removing this brush

.

2. No Duty to Remove Brush on Neighbor’s Property

No provision of the alleged contract creates a duty to Mr. Landgraf to remove brush on a neighbor’s property

. Various features of the alleged contract indicate that it s alleged commitments refer only to a single property and not to Mr. Landgraf and his ne ighbors’ properties collectively

. The contract’s heading refers to a single trac t number . The descriptions of work in the contract consistently refer to the

— singular

— " property.” The tables indicating planned amounts of work refer only to a single area, labeled field “1.” 4 Indeed, t he header on the first page and the signature blocks on the last page contain Mr. Landgraf’s name, address, and signature but do not contain the name s, addresses, or signature s of neighboring landowners. Accordingly, the cou rt cannot reasonably infer that the terms of the alleged contract refer to

— or create a duty to remove brush from

— any property other than Mr. Landgraf’s.

T h e alleged contract’s specificity to Mr. Landgraf’s property means that the possibility that the Service could have prevented any damage to Mr. Landgraf’s property by remov ing the brush from a neighbor’s property soon after it was uprooted cannot be the basis for the Service’s contractual liability to Mr. Landgraf. The Service’s liability to Mr. Land graf for breach of
contract is limited by its contractual duties to Mr. Landgraf , including the duty to remove brush

4 Mr. Landgraf did not allege the total acreage of his property, leaving the Court unable to determine whether the acreage of planned work indicated in the alleged contract’s tables exceeds the total area of Mr. Landgraf’s property and thus potentially refers to neighboring properties.10

on his property, irrespective of its origin

. On the other hand, t he Service’s contract with Mr. Landgraf created no duty to remove brush f rom the neighbor’s property such that the plaintiff can collect consequential damages for the Service’s failure to remove such brush before it ended up on Mr. Landgraf’s property

.
In sum, t he Service could not have breached a duty to Mr. Landgraf that it did not have

, even if it breached a nearly identical duty it had to Mr. Landgraf’s neighbor. The breach

- of

contract claim that the complaint alleges cannot extend to, and Mr. Landgraf therefore cannot

recover, damages based on the value his property woul d have if the Service had fulfilled its contract with a neighbor.

3. Act of God Defense

The Service argues that an affirmative defense clearly implicated by the complaint may be raised in a motion to dismiss. The complaint alleges that Hurricane Harvey’s sto rm surge was a factor in moving the uprooted brush from a neighboring property onto Mr. Landgraf’s property. In another case, this court has limited the United States’ liability for flooding caused by Hurricane Harvey, deeming flooding caused by the storm an act of God. See In re Downstream Addicks and Barker (Texas) Flood Control Reservoirs , No. 17

- 9002, 2020 WL 808686, at *9 (Fed. Cl. Feb. 18, 2020). In this case, however, facts pleaded in and arguments cited by the district court in the plaintiff’s to rt case, of which this Court takes judicial notice, suggest that the flooding at issue was neither exceptionally severe nor unforeseeable. Mr. Landgraf’s district court complaint allege d that over 5 4 years two floods more severe than the one caused by Hur ricane Harvey had caused only minimal damage to his property. Mr. Landgraf also alleges that flooding was foreseeable, suggesting that the Service should have accounted for hurricane season when deciding not to remove the brush. Indeed, the Court cannot help but notice that the uprooted brush was left on property the Service formally designates as wet lands. The relative severity and foreseeability of Hurricane Harvey

- related flooding that supported an act

- of

- God defense in another case are not implicated clearly enough in this case to cut off liability as a matter of law without some development of the facts.

* * *

For the purpose of deciding the Service’s motion to dismiss, t he “ P rescribed B urning ” provision of the alleged contract provides a s ufficient basis for the C ourt reasonably to infer that the Service ha d a contractual duty to remove brush from Mr. Landgraf’s property

. Mr. Landgraf’s allegations as to the current impassable state of his property and the Service’s abandonment of its remo val efforts provide a reasonabl e basis from which to infer a breach of that duty. Mr. Landgraf’s complaint, when read together with the alleged contract, satisf ies the plausibility standard of Iqbal and states a claim upon which relief can be granted. An y relief

,11

however , will be limited only to the cost of the brush removal , because the removal of the brush is all the alleged contract require s

. 5

IV. CONCLUSION

The Court DENIES the defendant’s motion to dismiss under RCFC 12(b)(1) and 12(b)(6). The defendant will file its answer to the complaint on or before May 27, 2020, as required by RCFC 12(a)(4)(A)(i). The Court directs the parties to submit on or before May 27, 2020, concurrently with the defendant’s answer, a jointly proposed schedule for discovery

. Discovery will be limited to the following issues: (1) whether the “ Prescribed B urn ing ” provision of the Preliminary WRP Restoration Plan document created a contractual duty for the defendant to remove uprooted brush originating on his neighbor’s property from Mr. Landgraf’s property ; (2) whether the flooding that deposited the brush on the pla i ntiff’s property was foreseeable when the alleged c ontract was executed ; and (3) other affirmative defenses the defendant intends to assert in its answer t o the complaint

.

It is so ORDERED

. s/ Richard A. Hertling Richard A. Hertling Judge

5 The C ourt will not prejudge the appropriate amount of damages. Nevertheless, to offer the parties a sense of proportion, the Court notes that the plaintiff’s dismissed tort claim estimated the cost of brush removal to be $5,800 ( see Mot. Dismiss Appx. at 49).