# 3ln tbe Wniteb**~tates** 

# (!Court ofjf 

# eberal C!Claims'FILED No. 16-1660C Pro Se 

## SEP 2 9

## 2017 (Filed: September 29, 2017) U.S

. COURT OF

ESTATE OF MATTHEW GRANTet al, Plaintiffs,

v
. THEUNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) )

### ~~~~~~~~~**~~ -)**  

### Gary Grant , Tillery, NC, Pro Se. 1 FEDERAL CLAIMS Keywords: Pro Se Complaint; RCFC 12(b)(l); Motion to Dismiss; Equal Credit OppmtunityAct; Pigford Litigation; USDA; Statute ofLimitations; 28 U

.S.C. § 2501 ; Summary Judgment; RCFC 56.



### MichaelA. Rodriguez, Trial Attorney, Commercial Litigation Branch, Civil Division, U

.S

. Department ofJustice, for Defendant, with whom were 

### DeborahA

. Bynum, Assistant Director, 

### Robert E. 

### Kirschman, Jr. , Director, and 

### ChadA. Readier , Acting Assistant Attorney General. J 

### CarlosAlarcon, Attorney-Advisor, and

### BrandiA

. Peters, Senior Counsel, U.S

. Department of Agriculture, Office ofthe General Counsel, Civil Rights, Labor and EmploymentLawDivision, OfCounsel.


### OPINION AND ORDER KAPLAN, Judge.
The plaintiffs in this case ar e the estates oftwo African American farmers, Matthew and FlorenzaGrant. The complaint alleges thatthe Grants were victims ofracial discrimination by the U

.S. Department ofAgriculture (USDA) inthe administration ofits loanprograms for fa1mers

. Specifically, the estates allege thatin 1998, the Grants and the USDA enteredinto a settlement agreement to compensate the Grants for discrimination they had suffered. But, according to Plaintiffs,the government never paidthem the compensationthey were owedunder the agreement. Ultimately, Plaintiff s filed this suit alleging a breach ofcontract, along with a number ofother claims relating to their allegations ofdiscrimination

. Beforethe Courtisthe government's motionto dismiss andfor summaryjudgment. The government'sprimary assertion is that there wasnovalid agreement betweenthe Grants andthe United States entitling them to compensation for discrimination, andthat as a result, itis entitled

1Mr. Grant is the son ofMatthew and Florenza Grant and the executor oftheir estates. See Compl. at 3, DocketNo. l ; see also Compl. Exs. 1, 7. 

### 7017 1450 DODO 1 346 2519to summaryjudgment on Plaintiffs' breach claim. Alternatively, it argues that, assuming the existence ofa valid agreement, the Court lacksjurisdiction over the breach claimbecause it is barred bythe statute oflimitations. The government also asserts that Plaintiffs' other claims are outside the Court'sjurisdiction and must be dismissed. Plaintiffs have filed an opposition as well as two identical motions for discovery.
Forthe reasons set forth below, the Court concludes that it lacksjurisdiction over all of Plaintiffs' claims, and the government's motion to dismiss is therefore 

### GRANTED. Plaintiffs' motions for discovery are 

### DENIED as moot.2


### BACKGROUND3


### I. The Grants' Resolution Agreementwith the USDA
Matthew and Florenza Grant were African Americanfarmers who owned farmland in North Carolina. See Am. Comp!. 

## ifif 1, 18-19, DocketNo. 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 withthe 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 ofthe Grants' applications and requests during thattime. See id.
In 1995, Matthew Grant filed a claim ofdiscrimination with the USDA's Farm Service Agency (FSA), the successor agency to the FHA. In it, he alleged thatthe FHA and FSAhad engaged inracial discrimination in their processing ofthe 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 ofCivil Rights issued a final agency decision in which it determined thatthe FSAhad discriminated against Matthew Grant in relation to the farm loans provided to him and others for whichhe had applied. See Am. Comp!. 

## if 2.
On March 2, 1998, Lloyd E. Wright, the director ofthe USDA's Office ofCivil 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 ofall claims for relieffor the years 1994 through 1998 raised inMr. 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. DocketNo. 4. The Court 

### GRANTS that motion for the sole purpose ofdismissing the complaint.

3 The facts in this section are based onthe documents attachedto the parties' briefs as well as the allegations in Plaintiffs' complaint and amended complaint, which the Court assumes to be true for purposes ofdeciding the motionto 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 ofth[e] agreement, except for those events between the years 1972 and 1993 that were raised in Mr. Grant's December 6, 1995, discrimination

2USDA agreed, among other things, to payMatthew Grant $312,000 "as soon as practicable but no later than 30 calend[a]r days after th[e] agreement [w]as

... signedby all parties, reviewed by the Department ofJustice (DOJ), and, ifDOJ approval [wa]s required, approved by DOJ." Id. 

## if I. It also agreed to "pay all ofMr. 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 "subjectto review by DOJ." Id. 

## if 8. Theparties agreed that "[i]nthe eventthat DOJ [did] not approve th[e] agreement, neitherparty [would be] under any obligationto carry out the terms ofthe agreement and Mr. Grant [could] have reinstated the complaintthat [wa]s the subject ofthe agreement." Id.
In their complainthere, Plaintiffs allege that after the parties signed the agreement neither the USDA nor DOJ informed them as to the status ofany DOJ review. See Arn. Comp!. 

## if 15. Butthe record reveals that, at least as ofthe 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 pursuantto 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 compensationunder the Resolution Agreement. Arn. Comp!. Ex. 8; Comp!. Ex. 7. Inthe letter to PresidentBush, 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 notedthat as a result, his parents hadjoined a lawsuit against the USDA. Id. Mr. Grant requested a meeting betweenthe "USDA and the Moore-Grantheirs to negotiate a final andjust settlement inthe discrimination matter." Id. On March 14, 2009, Mr. Grant wrote to President Obama, asserting, among otherthings, that "[b]ecause ofthe government's failure to live up to the 'Final SettlementAgreement,' on October 19, 2000, [his] parents became namedplaintiffs in a class action lawsuit comprised primarily ofNorth Carolinawomen 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 thathis parents had entered into an agreement withthe USDA butthat the USDA never "enforced" it. Id. On September 29, 2016, Congressman Butterfield wrote to thenSecretary ofAgriculture Tom Vilsack, inquiring aboutthe USDA's agreement with Matthew Grant. Id. OnNovember 30, 2016, the USDA's Office ofthe 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 betweenMr. Grant andMr. 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 oftime which at thatpoint was not barredby the statute oflimitations, butthe parties agreed that Mr. Grant could pursue compensation for discrimination occurring inprevious years ifCongress amended the applicable statute of limitations. Arn. Comp!. Ex 5

## ifif 5-6; see also Arn. Comp!. Ex. 4 

## iii! 6, 9.

3approval bythe U.S. Department ofJustice." Id. "The DOJ," it continued, "declined to approve the settlement, the settlement was thus void, and the Estate ofMr. Grant filed subsequent actions in federal district court." Id. Finally, the USDA noted that ithad "settled all complaints of discrimination with the Estate ofMatthew 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 USDAhad violated the Equal Credit Opportunity Act (ECOA) in that it had "willfully discriminated" against African American farmers "onthe basis oftheir race when it denied their applications for credit and/or benefitprograms 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]jurisdictionto enforce the Consent Decree." See id. at 98; see also Pigford v. Glickman, 206 F.3d at 1216. OnNovember 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 ofthe 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 currentrecord does not

5 The lawsuit was filed after Congress passed legislation that tolled the statute oflimitations for actions under ECOA where claimants had filed complaints ofdiscrimination 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. lOS277, § 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 ofthe statute oflimitations was set out in§ 741 ofthe legislation. In§ 741(d), Congress gave the Court of Federal Claims and the district courts "exclusive originaljurisdiction" over "eligible" complaints filed pursuant to§ 741, as well as over actions for review ofUSDA 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 USDAregulations for these renewed administrative proceedings are codified at 7 C.F.R. Part !Sf. See Benoitv. U.S. Dep't ofAgric., 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).



### 4reveal whether Ms. Grant ever pursued either relieftrackprovided for in the Pigford consent decree. See Def.'s Reply in Supp. ofMot. to Dismiss at4 n.3, DocketNo. 20.


### III. The Grants' Previous Litigation
As Gary Grantreferenced inhis letters to Presidents Bush and Obama, in light ofthe 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 ofAgriculture on October 19, 2000. This action, like Pigford, was filed inthe district court for the District ofColumbia. Def.'s Mot. App. at l; see also Wise, 257 F. Supp. 2d at 126-27 (describing lawsuit as "another in a series ofsuits filed after Congress, responding to reports that USDA dismantled its civil rights enforcementprogram in the early 1980s, extended the statute of limitations

... for 'eligible complaints' ofdiscrimination alleged to have takenplace at USDA between 1981and1996").6 Inthe complaint, the plaintiffs alleged that the USDA "discriminate[ d] against African-American and female family fatmers" and "maintained a system whereby county administrators intentionally andpervasively discriminate[d]" against them "withregard to their participationin federal farm credit and non-creditbenefitprograms." Def.'s Mot. App. at 2. Particularly withrespect to the Grants, the complaint also alleged that "the Grants and Mr. Wright executed the [1998] settlement agreement," butthat "the U.S. Department ofJustice (DOJ) refused to sign" it. Id. at 15.
On March 17, 2009, the District ofColumbia district courttransferred the case to the Eastern District ofNorth Carolina. Order, Wise v. Vilsack, No. 00-2508 (D.D.C. Mar. 17, 2009), ECFNo. 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 ofAppeals for the Fourth Circuit, Notice ofAppeal, Grant v. Vilsack, No. 5:10-CV-201-BO (E.D.N.C. Feb. 26, 2011), ECFNo. 87, but on September 6, 2011, the patiies settled the case in lieu offurther litigation, Def.'s Mot. App. at 37-38. Gary Grant, as executor ofthe estate, and the USDA agreed that "the settlement

... [was] based uponpartial debt forgiveness and the release ofall claims bythe plaintiffagainst defendants." Def.'s Mot. App. at 37. Specifically, the parties agreed thatthe "settlement resolve[d] all issues presented inthis civil action and plaintiffEstate ofMatthew Grantreleases the Secretary ofthe United States Department ofAgriculture, the USDA

... , and the United States from any civil or administrative claims arising before the date ofthis settlement agreement, including but not limitedto all discrimination claims raised inthe plaintiffs complaint." Id. at 38.


### IV. This Action
A little over five years later, on December 19, 2016, Gary Grant filed suit here onbehalf ofhis parents' estates. See DocketNo. 1. The estates named as defendants twenty-one individuals including then-President Obama and then-Secretary Vilsack. Plaintiffs made a variety ofallegations, including that the USDA breached the 1998 Resolution Agreement. See id.

6 Because Florenza Grant did not opt out ofthe Pigford class, her claims inthis second action were precluded and ultimately dismissed. Wise, 257 F. Supp. 2d at 129.

5Specifically, Plaintiffs allegedthat the named defendants "collectively, negligently or intentionally, and maliciously violated the 1998 USDA/Grant Resolution Agreementby refusing to honor the contract withpaymentto the Grants." Id. 

## if 48. Plaintiffs also included various assertions of jurisdiction and alleged violations ofconstitutional and statutory provisions including the Fourth, Eighth, and FourteenthAmendments, 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 ofthe agreement, $75,000,000 for "nearly 20 years ofcontinued 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, DocketNo. 5. OnDecember 21, 2016, the Court denied bothrequests. Id. at 3 & n.2. On February 13, 2017, Plaintiffs filed a "motion for defaultjudgment," alleging that the individual named defendants had failed to respond in a timely mannerpursuantto the Federal Rules ofCivil Procedure. See Mot. for Default J. at 1-2, DocketNo. 8. On February 22, 2017, the Court denied Plaintiffs' motion, noting that proceedings inthis court are governed by the Rules ofthe Court ofFederal Claims (RCFC), and that pursuantto those rules, the government had timely filed a request for an extension, whichthe Court had granted. Order at 1-2, Docket No. 12. The Court also raised the issue ofsubject matter jurisdiction sua sponte and dismissed Plaintiffs' claims against all defendants other than the United States for lack ofsubject matter jurisdiction. Id. at 2.
OnApril 17, 2017, with the Court's leave, Plaintiffs filed an amended complaint. Docket No. 15; see also DocketNos. 13-14. Its title states: "Administrative Review Pursuant [to] 52.1 and Motionto Stay Action and Remand to Administrative Law Judge Pursuant [to] RCFC 52.2." DocketNo. 15. Plaintiffs name the United States as defendant, but also persist innaming former Secretary Vilsack as an additional defendant. See id. The amended complaint appears to setout an extensive background discussion ofprevious litigation against the USDA for discrimination, including large portions ofthe court's decision in Parker v. United States, 131 Fed. CL 1 (2017), verbatim. See id. at 3-9. It also restates many ofthe original complaint's allegations regarding the Grants and the alleged breach ofthe 1998 Resolution Agreement. See id. at 9-14. Plaintiffs also appear to have dropped the other causes ofaction set forth intheir initial complaint, replacing them inthe amended complaint with new allegations ofnegligence, fraud, a violation of § 741 ofthe 1999 omnibus legislation, breach ofthe implied duty ofgood faith and fair dealing baseduponthe USDA's "repudiation ofcontract ofthe Pigford consent decree," and violations of§ 14012 ofthe 2008 Farm Bill and the Due Process Clause ofthe Fifth Amendment. Id. at 14-27. Plaintiffs request that the "matterbe remanded backto the ALJ with the instructions to have a formal hearing onthe merits within 120 days ofthe court order," a stay while the remand is pending, and $10,000,000 for "continued discrimination stemming from breach of contract." Id. at 28.
OnMay 4, 2017, the government filed a motion to dismiss and for summaryjudgment. DocketNo. 17. Plaintiffs responded on June 5, 2017, and have also filed two identical motions for discovery. DocketNos. 16, 18-19.

6

### DISCUSSION
I. Motions to Dismiss for Lack ofSubject Matter Jurisdiction
In deciding a motion to dismiss for lack ofsubject matterjurisdiction, the court accepts as true all undisputed facts inthe pleadings and draws all reasonable inferences in favor ofthe plaintiff. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). Butthe court may "inquire intojurisdictional facts" outside ofthe pleadings to determine whether it has jurisdiction. Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991). Itis well established that complaints that are filed by pro seplaintiffs are heldto "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Nonetheless, evenpro se plaintiffs must persuade the court thatjurisdictional requirements have beenmet. 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 ofFederal Claims hasjurisdiction to "renderjudgment upon any claim againstthe United States founded either upon the Constitution, or any Act ofCongress or anyregulation ofan executive department, orupon any express or implied contract withthe United States, orfor liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 149l(a) (2012). The Tucker Act serves as a waiver ofsovereign immunity and ajurisdictional grant, but it does not create a substantive cause ofaction. 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 ofsubstantive 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 ofgeneraljurisdiction, they must always satisfy themselves oftheir subject matterjurisdiction 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 matterjurisdiction sua sponte at any time). As discussed below, the statute oflimitations applicable to actions inthis court isjurisdictional in nature. Therefore, although the government's first argument is that it is entitled to summaryjudgmentwithrespect to Plaintiffs' breach claim, its alternative argument thatthe Court lacks subject matterjurisdiction over the claimbecause it is barred bythe statute oflimitations mustbe addressed first.
The statute oflimitations for actions in this court states that"[e]very claim ofwhich the United States Court ofFederal Claims hasjurisdiction shall be barred unless the petitionthereon is filed within six years after such claim first accrues." 28 U.S.C. § 2501. This statute of limitations isjurisdictional. 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 ofaction cognizable in a Tucker Act suit accrues as soon as all events have occurred that are necessary to enable the plaintiffto bring suit, i.e., when 'all events have occurred to fix the



### 7Government's alleged liability, entitling the claimantto demand payment and sue here for his money."' Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (quotingNager Elec. Co. v. United States, 166 Ct. Cl. 234, 240 (1966)). A cause ofaction for breach ofcontract accrues when the breach occurs. Alder Terrace, Inc. v. United States, 161F.3d1372, 1377 (Fed. Cir. 1998).
Plaintiffs' complaint was filed December 19, 2016. DocketNo. 1. As a consequence, the Court lacks subject matterjurisdiction over Plaintiffs' breach claim ifit accrued priorto December 19, 2010. See 28 U.S.C. § 2501. Plaintiffs, however, do not allege whenthe breach occurred. Nor do they identify any specific theory ofbreach. But, it is undisputed thatby 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 ofthe USDA, alleging that "the Grants and Mr. Wright executed the [1998] settlement agreement," butthat "the U.S. Department ofJustice (DOJ) refused to sign" it. Def.'sMot. 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. Anybreach, 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 ofdemonstrating the Court'sjurisdiction 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)). Forthe reasons set foith above, they have not met this burden. Accordingly, Plaintiffs' breach claimmustbe dismissed. RCFC 12(h)(3).7 Finally, the Courtnotes that, even ifthe statute oflimitations was not a bar, the government wouldbe entitled to summaryjudgment as to Plaintiffs' breach ofcontract claim. 8

7 Plaintiffs' amended complaint also contains allusions to a breach ofthe covenant ofgood faith and fair dealing implied inthe 1998 Resolution Agreement and, seemingly, the Pigford consent decree. See Am. Comp!. at 9, 24. There are no factual allegations to supportthis cause ofaction. To the extentthat 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 summaryjudgment are well established. Summaryjudgmentmay be granted where there is no genuine issue ofmaterial fact and the movant is entitled tojudgment as a matter oflaw. RCFC 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is material ifit "might affect the outcome ofthe suitunder the governing law." Anderson, 477 U.S. at 248. An issue is genuine ifit "mayreasonably be resolved in favor ofeitherparty." Id. at 250. "The movingparty bears the burden ofestablishing the absence ofany genuine issue of material fact," and all significant doubts regarding factual issues must be resolved in favor ofthe party opposing summaryjudgment. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). But, "the party opposing summaryjudgment must show an evidentiary conflict on the record; mere denials or conclusory statements are not sufficient." Id. at 1390-91. "[E]ntry ofsummaryjudgment is appropriate against a [party] 'who fails to make a showing

8To prevail on a breach ofcontract claim, a party must establish: 1) a valid contract betweenthe parties; 2) an obligation or duty arising out ofthe contract; 3) a breach ofthat duty; and 4) damages caused bythe 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 tojudgment as a matter oflaw. Def.'s Mot. at 5. The Court agrees. Ifin a purported contract the parties agree that the compact is subject to the approval of another person, that provision is a conditionprecedentto the validity ofthe 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 ofanother "is alone sufficient to negate the existence ofa contract until the approval is granted"); see also Wells v. United States, 199 Ct. Cl. 324, 337 (1972) (observing that "[w]here action withreference to the contract to be executed between the parties is subjectto 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 ofthe Quartermaster General was "a condition precedentto the legal effect ofthe agreement," and that the "alleged agreement had no vitality as a contract until approved"). Here, as noted above, the Resolution Agreement was "subjectto 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 betweenthe parties and the government would be entitled to judgment as a matter oflaw, even ifthe Court had subject matterjurisdiction.


### IV. Plaintiffs' Other Claims
The government argues that the estates' remaining claims are not within the Court's subject matterjurisdiction and mustbe dismissed. See Def.'s Mot. at 10-12. As described above, in their original complaint, Plaintiffs alleged violations ofECOA, FOIA, Article I ofthe Constitution, the Fourth, Eighth, and FomieenthAmendments 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 ClaytonAct, and unidentified provisions ofthe Code ofFederal Regulations. The Grants' amended complaint does not appear to include the majority ofthese claims, but appears to replace them with newcauses ofaction for negligence, fraud, violations of

sufficient to establish the existence ofan essential element to [its] case, and onwhich [it] will bear the burden ofproofat 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).



### 9the FifthAmendment's Due Process clause, breach ofthe covenant ofgood faith and fair dealing, and a claimunder§ 14012 ofthe 2008 Fatm Bill. Because the allegations in the amended complaint are somewhat difficult to follow, and in light ofthe estates' pro se status, the Court will address subject matterjurisdictionwithrespect to all ofthe claims set forth in boththe original and amended complaints. First, actions pursuantto ECOA "maybe brought in the appropriate United States district court without regard to the ainount in controversy, or in any other court ofcompetent jurisdiction." 15 U.S.C. § 169le(f). But "[i]t is

... well settled that this Court does not have subject-matterjurisdictionto consider [a] plaintiffs claims broughtpursuant 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 assertingjurisdictionunder ECOA pursuant to§ 741(d) ofthe 1999 appropriations act, Plaintiffs' complaint was not filed priorto October 21, 2000, nor does it seekjudicial review ofan administrative complaint refiled withthe USDA pursuant to§ 74l(b) prior to October 21, 2000. See Pub. 

### L. 105-277 § 741. 9 Accordingly, the Court does not havejurisdiction over any claims Plaintiffs are asserting underECOA, and they mustbe dismissed.
Withrespect to disputes under FOIA, only the district courts have subject matter jurisdiction; the Court ofFederal Claims does not have subject matterjurisdiction over alleged violations ofits 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 ofthe Constitution generally sets out the composition and powers ofthe United States Congress. See generally. U.S. Const. Art. I. To the extent Plaintiffs are attempting to assert a violation ofArticle I's Contract Clause, the Court lacksjurisdiction overthe 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 ofContracts" 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 ofillegal confinement in violation of, among otherthings, Article I, did not assert a violation ofa money-mandating constitutional provision). Additionally, the Comi lacksjurisdiction over claims under the FourthAmendment, 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); Brownv. 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 byjoining the Pigford litigation indistrict court, after whichMatthew 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 ofFourteenth Amendment). The Court must dismiss these claims as well.
The Court also has nojurisdiction over the estates' claim under the Civil Rights Act of 1964. Caravettav. United States, 122 F. App'x 992, 993 (Fed. Cir. 2004) ("Withrespect to

... the Civil Rights Act of 1964, it has long been held that the Court ofFederal Claims lacks jurisdiction over such claims."); see also Pleasant-Bey v. United States, 99 Fed. CL 363, 368 (2011). Nor does it havejurisdiction over actions under 42 U.S.C. § 

### 1985, asjurisdiction 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'sjurisdictionbecause they are committedto 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 ofnegligence and fraud, those claims sound intort, and the Court ofFederal Claims lacksjurisdiction 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, mustbe 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 ofthe 2008 Farm Bill is the basis for their request for remand to an administrative lawjudge. Pet'rs' Obj. to Resp't's Mot. to Dismiss (Pis.' Resp.) at 6, DocketNo. 19. Regardless ofthe claim Plaintiffs are attempting to assert pursuant to § 14012, the Court lacksjurisdiction over it. Section 14012 ofthe 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 obtainreliefpursuant to it, to institute newproceedings to determine the merits oftheir 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 ofColumbia. Id. Therefore, to the extent Plaintiffs are attempting to pursue reliefpursuant to § 14012, it is outside the Court's jurisdiction and mustbe dismissed. 10

IO 

### The Court also notes that reliefunder§ 14012 is available only to Pigford claimants; Matthew Grant ultimately chose to opt out ofthat class.



### 11Finally, Plaintiffs' allegations with respect to the Code ofFederal Regulations are similarlyunclear. 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-mandatingregulation promulgated by the USDA. See Comp!. at 17. Intheir 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 orhowit 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 ofthe history ofthe Pigford litigation than an allegation ofwrongdoing bythe USDA withrespect to Plaintiffs. See id.
In any event, to the extent Plaintiffs are attempting to assert a claim based uponthe § 741(b) procedures contained in 7 C.F.R. Part 15f, the Court lacksjurisdiction over the same. Section 741 only provides this court withjurisdiction 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 ofthe 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 onthat claim within the 180 days prior to filing suit here. Plaintiffs have thus not demonstrated that the Comthasjurisdictionunder§ 741(d). See M. Maropakis Carpentry, Inc., 609 F.3d at 1327 (stating that plaintiffs bearthe burden ofdemonstrating 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 notpoint 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 ofdemonstrating subject matterjurisdiction. But in any event, even ifPlaintiffs had identified a money-mandating provisionthat the USDA allegedly violated, the Court would still lackjurisdiction over such a claim because Plaintiffs' discrimination claims are barred bythe statute oflimitations.
As noted above, "[e]very claim ofwhichthe United States Court ofFederal 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 bothMatthew and Florenza Grant had passed away by 2001. Comp!. Ex. 6. Plaintiffs do not allege any instances ofdiscrimination in violation ofthe USDA's policy after 2001. See generally, Am. Comp!. Thus, to the extent Plaintiffs' allegations ofdiscrimination are assertions that the USDAviolated its anti-discrimination policy in Part 15d, those instances took place no later than 2001. Accordingly, even ifthe Court could havejurisdiction over a discrimination claim under part 15d, Plaintiffs' allegations of discrimination occurred well more than six years priorto the filing ofthe complaint in2016 and are thus barred bythe statute oflimitations and mustbe dismissed.

12Accordingly, for these reasons, all ofPlaintiffs' claims are 

### DISMISSED without prejudice for lack ofsubject matterjurisdiction. 11


### V. Plaintiffs' Motion for Remand
Plaintiffs' amended complaint contains a request that the case be remanded to an administrative lawjudge, pursuantto RCFC 52.2. Am. Comp!. at 1. The estates appear to base this request ontheir allegation that the government "failed to live up to the bargain," presumably the Resolution Agreement, and that as a result Plaintiffs "shouldbe reinstated into [Pigford] trackb status and

... have a hearing before the ALIfor actual damages." Am. Com pl. at 15. They also assert that their request is pursuant to "section 14012 ofthe Food Energy and Conservation Act of2008." Pls.' Resp. at 6. As noted above, however,§ 14012 ofthat act revived certainpotential Pigford litigants' claims, includingthe opportunity to pursue administrative reliefbefore the USDA, butplaced exclusivejurisdiction over any claims under that section inthe district court for the District ofColumbia. 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 orderthe remand ofappropriate matters to an administrative or executive body or official." RCFC 52.2(a) (emphasis added). Here, the Court lacksjurisdiction overthe entirety ofPlaintiffs' complaint. Therefore, because the Court does not have jurisdiction, it cannotremand Plaintiffs' claims, and Plaintiffs' motionis 

### DENIED.
CONCLUSION
Based on the foregoing, the government's motionto dismiss is 

### GRANTED and Plaintiffs' claims are 

### DISMISSED without prejudice for lack ofsubject matterjurisdiction. Because the Court lacks subject matterjurisdiction, Plaintiffs' motions for discovery are 

### DENIED as moot. The Clerk is directed to enterjudgment accordingly. Each side shall bear its own costs.


### IT IS SO ORDERED.

ELAINED. KAPLAN Judge

11 Because the Court does not havejurisdiction overPlaintiffs' complaint, Plaintiffs' motions for discovery are 

### DENIED as moot.

13