## United States Court of Appeals for the Federal Circuit

04-5067

TEXAS PEANUT FARMERS, GEORGIA PEANUT FARMERS, ALABAMA PEANUT FARMER S, SOUTH CAROLINA PEANUT FARMERS, and FLORIDA PEANUT FARMERS Plaintiffs-Appellants,

v. UNITED STATES, Defendant-Appellee.

R. Daniel Boyce , Boyce & Isley, PLLC, of Rale igh, North Carolina, argued for plaintiffs-appellants. Jane W. Vanneman , Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Depa rtment of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were Peter D. Keisler , Assistant Attorney General and David M. Cohen , Director. Appealed from: United States Court of Federal Claims Judge Nancy B. Firestone

## United States Court of Appeals for the Federal Circuit

04-5067

TEXAS PEANUT FARMERS, GEORGIA PEANUT FARMERS, ALABAMA PEANUT FARMER S, SOUTH CAROLINA PEANUT FARMERS, and FLORID A PEANUT FARMERS, Plaintiffs-Appellants,

v. UNITED STATES, Defendant-Appellee.

__________ ________________ DECIDED: May 31, 2005

__________________________ Before MAYER, LOURIE, and BRYSON, Circuit Judges

. MAYER, Circuit Judge

. Appellants appeal the orders of the United States C ourt of Federal Claims dismissing their claims for breach of government-reinsured crop policy contracts for lack of subject matter jurisdiction, Te xas Peanut Farmers v. United States , 59 Fed. Cl. 70 (2003) (“Dismissal Order ”), and denying their motion to transfer to various federal district courts contained in their motion to reconsider, Texas Peanut Farmers v. United States , No. 03-445C (Fed. Cl. Mar. 2, 2004) (“Order Denying Reconsideration ”). Although we concur in the tria l court’s dismissal for lack of subject matter jurisdiction, we vacate the Dismissal Order and remand with instructions to transfer. The appeal of the court’s denial of the moti on to transfer is dismissed.Background Appellants are Texa s, Georgia, Alabam a, Florida, and So uth Carolina peanut farmers who insured their 2001-2002 peanut cr ops under Multiple Peril Crop Insuranc e (“MPCI”) policies. MPCI is issued by privat e insurers and reinsur ed by the Federal Crop Insurance Corporation (“FCIC” ) for covera ge of weather-related crop loss. The FCIC was created to regulate the cr op insurance industry and is a wholly-owned g o vernment corporation within the United States Departm ent of Agriculture (“USDA”). Under the Federal Cr op Insurance Act, 7 U.S.C. §§ 1501 et. seq , Congr ess directed that crop insurance be offered through pr ivate insurance provid ers and reinsured (and regulated) by the FCI C which, in turn, is regul ated by the USDA’s Risk Management Agency (“RMA”). Prior to 2002, MPCI coverage v a ri ed depending on whether lost crops were “quota” or “non-quota”; quot a peanuts were covered at $0.31 per pound, and non-quota peanuts were covered at $0.16 per pound. In May 2002, Congress passed the F a rm Security and Rural Inv e stment Act, Pub. L. 107-171, 116 Stat. 182, which repealed the peanut quota and caused all peanuts to bec ome non-quota with a per-pound-coverage rate of $0.1775. As a result, all of appe llants’ peanuts became insured at $0.1775 per pound. Appellants’ crops suffered weather-relat ed damage in 2002. Up on filing claim s for their losses, they were informed of th e insurance policy modification under whic h losses would be cover ed at $0. 1775 per pound. Appe llants sued the Un ited States in the Court of Federal Claims, alleging br each of contract and claiming as damages the difference between the $0.31 per-pound and $0.1775 per-pound-coverage r a tes. The court granted the gov ernment’s motion to dism iss for lack of jurisdiction under Rul e

04-5067 212(b)(1) of the Rules of the Court of Feder al Claims, holding that 7 U.S.C. §§ 1508(j) and 1506(d) placed exclusive jurisdiction in t he federal district courts. Dismissal Order , 59 Fed. Cl. at 73, 74 n.1. The court also denied appellants’ subseque nt motion to transfer to the district courts contained in its motion to reconsider the order of dismissal. Order Denying Reconsideration , slip op. at 2. Appellant s appeal both orders. Discussion We review the Court of Federal Claims’s dismissal f o r lack of jurisdiction de

novo . Frazer v. Unit ed States , 288 F.3d 1347, 1351 (Fed. Cir. 2002). Appellants challenge t he Dismiss al Order , arguing that because t hey did not name the FCIC as a defendant, sections 1508(j) and 1506(d) do not apply; and the Court of Federal Claims has concurrent jurisdiction with the distri c t courts under the T u cker Act, 28 U.S.C. § 1491(a)(1), and Little Tucker Act, 28 U.S.C. § 1346. They challenge the denial of their motion to transfer on the grounds that the c ourt improperly determined that under Rule 59(b) their motion was untimely and transfer was not required in the interest of justice.
I. Appe llants initia lly st at e that the Court of Federal Claims has jurisdiction because they named the United States , the RMA and its Secretar y, and the USDA and its Secretary as defendants, not the FCIC. Appellants assert that in enacting the Farm Security and Rural Investment Act, it wa s Congress, not the FCIC, whic h breached the MPCI. This theory does not bear scrutiny. It is settled that this court “look[s] to the true nature of the action in determining the exist ence or not of jurisdiction.” Nat’l Ctr. for Mfg

. Sciences v. United States , 114 F.3d 196, 199 (Fed. Cir. 1997) (quoting Katz v. Cisneros , 16 F.3d 1204, 1207 (Fed. Cir . 1994)). An inspection of the contract and

04-5067 3appellants’ pleadings reveals th e true nature of this ac tion: a suit against the FCIC for breach of the MPCI. Essentially, the appell ants argue that the amou nt of insurance was reduced after the crop year had begun, in violat ion of section 4 of the MPCI. The MPCI itself plainly states that appellants are the cont racting parties and the FCIC is the reinsurer. The clause states: “T his insura nce policy is reinsured by the Federal Crop Insurance Corporation (FCIC) . . . . Al l provisions of the policy and rights and responsibilities of the parties are specifically subject to [the Federal Crop Insurance Act].” Appellants’ strategic dec ision not to name the FCIC as a defendant is merely an attempt to avoid the strictures of t he MPCI and sections 1508(j) and 1506(d). 1 We similarly reject appellants’ argument that the Tucker Act endows the Court of Federal Claims with jurisdiction concurrent with the federal district courts. They argu e that: (1) their contracts with the government provide f o r laws uits to be filed in federal district courts but do not prohibit fili ng in the Court of Federal Claims; 2 (2) the Tucker

1 Furthermore, appellants are unable to avoid section 1508(j) because their suit named the Secretary of Agri culture. Section 1508(j) spec ifically requ ires that suit s against the Secretary under the Federal Crop Insurance Act be brought in dis t rict court.

2 The relevant MPCI cl auses state: (a) You may not bring legal action agai nst us unless y ou have c o mplied with all of the policy provisions. (b) If you do take legal action against us , you must do so withi n 12 months of the date of denial of the claim. Suit mu st be brought in acc o rdance with the provisions of 7 U.S.C. § 1508(j)

. (c) Your right to recover damages (compensat ory, punitive, or ot her), attorney’s fees, or other charges is limited or ex cluded by this contract or by Federal Regulations. (emphasis added).

04-5067 4Act 3 provides jurisdiction in the Court of Feder al Claims over their contract claim against the United States; therefor e (3) the Tucker Act allows concurrent jurisdiction. Appellants further cite the Little Tucker Act 4 because o f its explicit grant of concurrent jurisdiction in certain instances. Appellants’ assertions are unavailing. Congress may withdraw any grant of Tucker Act jurisdiction. See Ruckelshaus v. Monsanto Co. , 467 U.S. 986, 1016-17 (1984); Wilson v. United States , No. 04-5051, 2005 WL 91349 0 (Fed. Cir. Apr. 21, 2005) (affirming the Court of Federal Clai ms’s holding that 42 U.S.C. § 405(g)’s directive that claims arising under the Medic a re Act “shall be brought in the district court of the United States” constitu ted a Congres sional withdrawal of T u cker Act jurisdiction); Massie v. United Stat es , 166 F.3d 1184, 11 88 (Fed. Cir. 19 99) (“[A] contract will n o t fall within the purview of the Tucker Act if Congress has placed jurisdiction over it elsewhere.”). Because appellant s are suing the FCIC for breach, sections 1508(j) and 1506(d), by whic h Congress has granted dis t rict c ourts exc l usiv e jurisdiction over claims against the FCIC, gov ern. Section 1508(j) spec ifically governs claims for indemnity by producers of covered crops, and pr ovides in relevant part: (j) Claims for losses. (1) In general. Under rules pre scribed by the [Federal Crop Insurance] Corporation, the Cor poration may provide for adjustment

3 The Tucker Act sets forth a number of prerequis i tes for Court of Federal Claims juri sdiction, including t hat the action be a claim agai nst the United States, that the claim is founded either upon the Consti tution, or any act of Congress or any regulation of an exec utive depar tment, or upon any express or implied contract with the United Stat es, and that the damages claim not sound in tort. 28 U.S.C. § 1491(a)(1) (2000).

4 The Little Tucker Act provides for concurrent jurisdic tion between the district courts and the Court of Federal Claims when the claim is not for monetary damages in excess of $10,000. 28 U.S.C. § 1346(a)(2) (2000).

04-5067 5and paym ent of claims for losses. The rules presc r ibed by the Corporation shall estab lis h standards to ensure that all claims for losses are adjusted, to the extent practicable, in a uniform and timely manner. (2) Denial of claims. (A) In general. Subject to subparagr aph (B), if a claim for indemnity is denied by the Corporation or an approv ed provider, an action on the claim may be brought against the Corporation or Secretary only in the United States district court for the district in which the insured farm is located. (B) Statute of lim itations. A su it o n the c l aim may be brought not later than 1 year after the date on which final not i ce of denial of the claim is pr ovided to the claimant

. (3) Indemnification. The Cor poration shall provide approved insurance providers with indemnif ication, including costs and reasonable attorney fees incurred by the approved insuranc e provider, due to errors or omissions on the part of the C o rporation. 7 U.S.C. § 1508(j) (2000) (emphasis added). And, whil e not explicitly cited in the MPCI polic ies, section 1506(d), which outli nes the general powers of the F C IC, also applies: (d) Suit. The [Federal Crop Insuranc e] Corporation, subject to the provisions of [7 U.S.C. § 1508( j)], may sue and be sued in it s corporate name, . . . . The district courts of the United States, . . . shall have exclusive original jurisdiction, without regard to the amount in controversy, of all suits brought by or against the Corporation. . . . Any suit agains t the Corporation shall be brou ght in the Dist r ict of Columbia, or in the district wherein the plaintiff resides or is engaged in business

. 7 U.S.C. § 1506(d) (2000) (emphasis added). The plain meaning of these two section s is that Congress granted district courts exclusive jurisdiction over claims against the

04-5067 6FCIC. Thus, the Court of Federal Claim s did not err in concluding that it lacke d jurisdiction. 5 Although we concur in the trial court’ s jurisdictiona l holding, the question that remains is whether the trial c ourt should have, in the interest of justice, transferred this case. We believe transfer is warranted. T he transfer statute prov ides that “[w]henever a civil action is filed in a court . . . and that co urt finds that there is a want of jurisdiction, the court shall, if it is in t he interest of justice, transfer su ch action . . . to any other such court in which the action .

. . could have been brought at the time it was filed[.]” 28 U.S.C. § 1 631 (2000). “A comp elling reason for tran sfer is that the [appellant], whose case if transferred is fo r statute of limitat ions purposes deemed by section 1631 to have been filed in the transferor court

. . . will be time-barred if his case is dismiss e d and thus has to be filed anew in the right court.” Phillips v. Seiter , 173 F.3d 609, 610 (7th Cir. 1995) (citations omitt ed). That is the case her e. It is conceivable that, absent transfer, applic able statutes of limitations may bar appellants from adjudicating otherwise legitimate claims. 6 And while the trial court could have ordered transfer

5 This holding is not c ontrary to the decisio n of the Eleventh Circuit in Williams F a rms of Ho mestead, Inc. v. Ra in and Ha il Insurance Services, Inc. , 121 F.3d 630 (11th Cir. 1997). In that case, the Eleventh Cir cuit held that sections 1506 and 1508, whic h require that suits against the FC IC or the Secretary be brought only in district court, do not bar suits against privat e insur e rs in state court. The court’s decision in that case is not in c o n s istent with our ho ldin g here that a suit that is properly characterized as an action against the FCIC for breach of contract must be brought in district court, and that those statutory restrictions can not be avoided by naming the United States as defendant ev en though the action is pr operly one against the FCIC.

6 The gov ernment made repeated requests fo r extens io ns of time for filin g responses in this action. As a result, appell ants delay ed filing pa ralle l actions in district court. After appellants filed their district court actions, the government challenged thos e suits on statute of limitati ons grounds. Transfer will p r esumably avoid that inequitab l e result.

04-5067 7without being asked to do so by either party, see id. , 173 F.3d at 610, the record shows that appellants’ counsel verba lly requested that the court consider transfer during a July 25, 2003, teleconference. 7 That fact, combined with t he statutory requirement that transfer be considered to cu re jurisdictional defects, raises the question of why the court did not in the first instance address the issue in the Dismissal Order . The circumstances of this case and j u stice requir e transfer, the record does not show that transfer would unduly burden the judicial sy stem, and the government cannot logically show that it will be ha rmed by transfer. Therefore, we vacate the Dismissal Order fo r the court’s failure to c onsider transfer, and we remand to the trial court with instructions to transfer to the various federal dist rict courts where venue wou l d be proper.
II. Appellants also argue that t he trial court’s denial of it s motion to transfer to the various federal district courts was contrary to the interest of justi c e. The c o urt found appellants’ transfer motion, whic h was cont ai ned in their January 5, 2004, motion to reconsider, untimely and transfer not required by justice. Our disposition of the
Dismissa l Order above moots thi s motion. And, bec ause appellants never timely filed an amended notice of appeal of the Order Denying Reconsideration , that order is not properly before us.

7 The Ninth and Second Circuits have hel d that a trial court must consider transfer as an alternative to dism issal for wa nt of jurisdiction in cas e s in which transfer is authorized by section 1631, even in the abs ence of a request for transfer by the plaintiff. See Cruz-Aguilera v. Immigrat ion & Naturaliz ation Serv. , 245 F.3d 1070, 1074 (9th Cir. 2001); Paul v. Immigration & Naturalization Serv. , 348 F.3d 43, 46 (2d Cir. 2003). We do not hav e to decide whether to fo llow that line of aut hor ity because in this case, such a request was made, albeit not wit h the degree of formality normally required for motions submitted to the court. See R. C t. Fed. Cl. 7.

04-5067 8Under Fed. R. App. P. 4( a)(4)(B)(ii), “[a] party int ending to challenge an order dispos ing of any moti on listed in Rule 4(a)(4 )(A) .

. . must file a notice of appeal, or an amended notice of appeal . . . within the tim e prescribed by this Rule measur ed from the entry of the order disposing of the last s u ch remaining motion” (emphasis added). Motions lis ted in F ed. R. App. P. 4(a)(4 )(A) include “to alter or amend the judgment under Rule 59; .

. . for a new trial under Rule 59; or .

. . for relief under Rule 60 if the motion is filed no later than 10 days after the judgment is enter ed.” Here, the Order Denying Reconsideration dispos ed of appellants’ motion to reconsider on March 2, 2004. Appellants had sixty days from entry of the Order Denying Recons ider ation to file an amended notice of appeal of that order. See 28 U. S.C. § 2107 (2000); Fed. R. App. P. 4(a)(1)(B) (requiring a notice of appeal f o r ca ses in which the Unit ed Stat es is a party be filed wit hin 60 day s after the order appeal ed from is entered). “The courts have uniformly held that the taking of an appeal wi thin the pr escribed time is mandatory and jurisdiction al.” Unit ed States v. Robinson , 361 U.S. 220, 229 (1960) ; Sofarelli Assocs. , Inc. v. United States , 716 F.2d 1395, 1396-97 (Fed. Cir. 1983). Conclusion Accordingly, the dismissal order of the Cour t of Federal Claims dismissing the
case is vacated and the case is remanded with instructions to transfer. Appeal of the order denying reconsideration is dismissed. COSTS
No costs.

VACATED AND REMANDED WITH INSTRUCT IONS TO TRANSFER

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