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In the United States Court of Federal Claims 

No. 15-637C 

(Filed: October 18, 2017) 

FOR PUBLICATION 

************************************ 

 *

ST. BERNARD PARISH * Motion to Dismiss; RCFC 12(b)(1); 

GOVERNMENT, * Emergency Watershed Protection Program 

* 7 C.F.R §§ 624.1-624.11; Federal Grant 

Plaintiff, * and Cooperative Agreement Act 31 U.S.C. 

 v. * §§ 6301 et seq.; Anchorage v. United

 * States, 119 Fed. Cl. 709 (2015); Rick’s

 * Mushroom v. United States, 521 F.3d 1338 

THE UNITED STATES, * (Fed. Cir. 2008); Hurricane Katrina; 

 * Consideration; Cooperative Agreement;

 * Direct Benefit; Subject Matter Jurisdiction 

Defendant. * 

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William M. McGoey, St. Bernard Parish District Attorney’s Office, Civil Division, 

Chalmette, LA, for Plaintiff. 

Reta E. Bezak, Trial Attorney, Chad A. Readler, Acting Assistant Attorney 

General, Robert E Kirschman, Jr., Director, Kenneth M. Dintzer, Deputy Director, United 

States Department of Justice, Civil Division, Commercial Litigation Branch, Washington, 

DC, for Defendant. 

OPINION AND ORDER 

DAMICH, Senior Judge.

 On June 30, 2017, the United States (the “Government”), acting through the 

Natural Resources Conservation Service (“NRCS”), filed a motion to dismiss or, in the 

alternative, for summary judgment. On the same day, St. Bernard Parish (“the Parish”) 

filed a motion for partial summary judgment. In its complaint and motion, the Parish 

alleges that the Government breached an agreement with the Parish by not paying it all 

the money it was due for the removal of sediment in the Bayou Terre Aux Beoufs in the 

aftermath of Hurricane Katrina. The Government moves to dismiss this action for lack of 

jurisdiction because the agreement at issue is not a contract but rather a “Cooperative 

Agreement” or because the agreement lacked consideration on the part of the 

Government. Both motions are fully briefed and the matter is ripe for review. 

For the reasons discussed below, the Court GRANTS the Government’s motion 

to dismiss.
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I. Statement of Facts 

a. The Cooperative Agreement 

On April 17, 2009, NRCS and the Parish entered into a “Cooperative Agreement 

Locally Led Contracting,” Agreement Number 68-7217-09-0014. See generally A1-

A18.1 This agreement provided that under the provisions of the Emergency Watershed 

Protection (“EWP”) Program the “NRCS is authorized to assist the Sponsor in relieving 

hazards created by natural disasters that cause sudden impairment in a watershed” and 

stated that the parties “agree to install emergency watershed protection measures to 

relieve hazards and damages created by Hurricane Katrina.” A1.

The EWP Program authorizes the Secretary of Agriculture “to undertake such 

emergency measures for run-off retardation and soil-erosion prevention as may be needed 

to safeguard lives and property from floods . . . or any other natural element or force has 

caused a sudden impairment of that watershed.” 33 U.S.C. § 701b-1. The Secretary has 

since delegated his authority to the NRCS. 7 C.F.R. § 624.1. The EWP Program 

provides, “technical and financial assistance . . . to a qualified sponsor . . . when a Federal 

emergency is declared by the President or when a local emergency is declared by the 

NRCS State Conservationist.” 7 C.F.R. § 624.3. A qualified sponsor within the Program 

is “a State government or a State agency or a legal subdivision thereof, local unit of 

government, or any Native American tribe or tribal organization . . . .” 7 C.F.R. 624.4(g).

Under the agreement, removal work would be performed in sixteen watershed 

areas, among them the Bayou Terre Aux Beoufs, which is the subject of this lawsuit.2 

A1. The Cooperative Agreement also stated that the parties agreed that the “described 

work is to be constructed at an estimated cost not to exceed $4,318,509.05” for the 

sixteen watersheds. A1. The estimated cost to remove the debris in the Bayou Terre Aux 

Beoufs watershed was $3,562,180.00. A1. 

The Cooperative Agreement provided that the Parish was obligated, inter alia, to 

contract for the watershed improvements, pay the contractors, and take responsible 

measures necessary to dispose of any and all contractual disputes, claims, and litigation 

resulting from the projects listed in the cooperative agreement. A2-4. 

The NRCS agreed to “provide 100 percent ($4,318,509.05) of the actual costs of 

the emergency watershed protection measures.” A4 (emphasis in original). Actual costs 

consist of “contracts awarded to contractors” and the Parish must, in order to receive 

reimbursement, “provide records to support costs incurred.” A2. Upon receipt of Form 

SF-270 and required receipts, the NRCS would then pay the Parish. A5. The NRCS also 

 

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“A_” refers to pages of the appendix attached to the Government’s motion.

2 The others include: Bayou La Loutre, River Bend Canal, South Lake Canal, 

Little River Bend Canal, Serpas Canal, River Queen Canal, Creely Canal, C. Hebert 

Canal, Pirate Canal, Jacob Canal, Jeanfreau Canal, Creedmore Canal, Mascot Ditch, 

Willie Smith Canal, and Reunion Canal.
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agreed that it would “provide the prepared drawings, designs and specifications of the 

emergency watershed protection measures.” A5. 

b. St. Bernard Parish Contracts With Omni. 

In March 2010, the Parish and Omni Pinnacle, LLC (“Omni”) entered into a 

contract in which Omni was to remove the sediment in the Bayou Terre Aux Beoufs. See 

generally A21-289. Under this contract, the Parish agreed to pay Omni $4,290,300.00 

for the debris removal. A22. Although under the terms of the Cooperative Agreement, 

the NRCS would reimburse the Parish for the approved expenses incurred by the Parish 

for the watershed improvements made by Omni under the contract the NRCS was not a 

party to this contract. A22. 

The contract between Omni and the Parish stated that the work to be performed 

by Omni would be paid on a stated price per cubic yard basis. The original Omni 

contract estimated that 119,580 cubic yards of sediment would be removed. A38. 

However, after Omni completed its pre-construction survey, the quantity of sediment was 

reduced by 59 percent, to only 49,888.69 cubic yards. A296. 

Omni completed the Bayou Terre Aux Beoufs removal project in September 2010 

and submitted an invoice to the Parish in the amount of $4,746,469.65. A292. In April 

2011, this amount was reduced to $4,642,580.58. A309. 

c. The Final Contract Amount 

On January 5, 2011, Vicki Supler, an NRCS Grants and Agreements Specialist 

and NRCS’s designated liaison for the Cooperative Agreement, contacted All South 

Consulting Engineers (“All South”), a company that the Parish contracted to manage and 

inspect the Bayou Terre Aux Beoufs project. A346. Ms. Supler noted that “the 

contractor completed the final ‘as-built’ surveys which showed that 49,888.69 [cubic 

yards] of sediment had been excavated.” A295. Ms. Supler then explained that 

consistent with the contract specifications, “the only quantity the NRCS will allow 

payment for is the 49,888.69 [cubic yards].” A295. 

Since the final quantity of removed sediment represented a 59 percent decrease in 

the original estimate, the NRCS applied a 59 percent increase in the bid price per cubic 

yard. A296. After making this calculation, the NRCS determined that the “allowable 

costs the NRCS will make reimbursable to the parish for the works of improvement on 

this project” was $2,849,305.60. A296.

All South also reviewed Omni’s invoice and noted certain concerns, especially 

with the legality of Omni and the Parish agreeing to continue with the project after 

discovering the quantity discrepancies (the 59 percent reduction in sediment removal), 

and how Omni’s invoiced price included a markup of 10 percent for profit and 15 percent 

for overhead. A298. However, All South recommended payment to Omni in the amount 

of $1,758,548.94. A301. The Parish authorized the payment to Omni in that amount and 
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then sought reimbursement from NRCS. A303. On July 13, 2011, NRCS approved the 

reimbursement to the Parish and the payment was processed through the Department of 

Treasury.3 A320. 

On January 17, 2014, Omni and the Parish entered into a change order that 

adjusted the contract price to $3,243,996.37. A335. Subsequently, the Parish stated that 

under the change order and Louisiana law, it was obligated to pay the full amount of the 

revised contract. A344. Therefore, the Parish authorized payment of $1,463,447.43, 

which equaled the remaining balance owed to Omni minus $22,000.00 in liquidated 

damages.4

 A344, 347. On April 16, 2014, the Parish filed for reimbursement from 

NRCS for that amount. A344. 

In May 2014, the NRCS asked the Parish for additional information. A360-70. 

Specifically, NRCS requested documentation of, inter alia, the revised unit prices, the 

claim that the actual time of the project did not change, the necessity of additional 

excavation, and calculations used to devise the new pricing. A360-61. 

In August 2014, the Parish responded and maintained that it did not need to 

provide further documentation, because the requisite documents were already provided. 

A371. After reviewing the Parish receipts, on September 29, 2014, NRCS authorized 

payment to the Parish in the amount of $1,107,581.22, which reduced the claim by 

$355,898.52. A378. The Parish did not provide anything further to the NRCS and this 

suit followed. 

II. Standard of Review Under RCFC 12(b)(1) and RCFC 12(b)(6) 

Subject matter jurisdiction is a threshold requirement that must be determined for 

a court to hear the case. RCFC 12(b)(1). See also Dow Jones & Co. v. Ablaise Ltd., 606 

F.3d 1338, 1348 (Fed. Cir. 2010). When considering a motion to dismiss, the Court 

considers the facts alleged in the complaint to be true. Reynolds v. Army & Air Force 

Exch. Serv., 846 F2d 746, 747 (Fed. Cir. 1988). However, the plaintiff bears the burden 

of establishing subject matter jurisdiction by preponderant evidence. Taylor v. United 

States, 303 F.3d 1357, 1359 (Fed. Cir. 2002). If the court finds that at any time it lacks 

subject matter jurisdiction, it must dismiss the action. RCFC 12(h)(3). Also, if a plaintiff 

fails to state a claim upon which relief can be granted, under RCFC 12(b)(6), the 

complaint must be dismissed. Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 

2002) (stating that a complaint must be dismissed “when the facts asserted by the 

claimant do not entitle him to a legal remedy.”).

 

3 As the payment was processed, a deduction of $284,111.77 was made to offset 

an unrelated debt owed by the Parish to the Environmental Protection Agency. A389. 

4 The project was finished 22 days after the deadline specified by the contract 

between Omni and the Parish. A345. The contract stated that every additional day 

would result in $1,000 in liquidated damages. A24. 
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III. Discussion 

a. The Cooperative Agreement Does Not Contemplate Money Damages. 

Pursuant to the Tucker Act, the Court of Federal Claims possesses jurisdiction 

over express or implied contracts with the United States, 28 U.S.C. § 1491(a)(1), but the 

Tucker Act does not establish a substantive right enforceable against the United States for 

monetary damages. United States v. Mitchell, 445 U.S. 535, 538 (1980) (“[t]he Tucker 

Act is ‘only a jurisdictional statute; it does not create any substantive right enforceable 

against the United States for money damages.’”) (internal citations omitted). Therefore, 

the plaintiff must provide a separate source of law, which may come “from either a 

money-mandating constitutional provision, statute, or regulation, or an express or implied 

contract with the United States.” Anchorage v. United States, 119 Fed. Cl. 709, 713 

(2015). Stated another way, “when a breach of contract claim is brought in the Court of 

Federal Claims under the Tucker Act, the plaintiff comes armed with the presumption 

that money damages are available, so that normally no further inquiry is required.” 

Holmes v. United States, 657 F.3d 1303, 1314 (Fed. Cir. 2011). However, this 

presumption may be rebutted. Anchorage, 119 Fed. Cl. at 713. 

Here, the Parish is arguing that the agreement is an express contract with the 

NRCS and, therefore, money damages are implied in the agreement per Holmes. Pl.s’ 

Resp. at 8-11. Consequently, under the motion to dismiss standard, this Court must 

presume that this express contract carries with it a presumption of money damages (and 

thus Tucker Act jurisdiction). The Government must show that the agreement somehow 

rebuts this presumption. 

The Government contends that the agreement with the Parish should be 

considered a cooperative agreement under the Federal Grant and Cooperative Agreement 

Act (“FGCAA”). Def.’s Mot. to Dismiss at 17. The Government argues based on the 

precedent set forth in Rick’s Mushroom Serv. v. United States, 76 Fed. Cl. 250 (2007), 

aff’d, 521 F.3d 1338 (Fed. Cir. 2008), cooperative agreements, unlike procurement 

contracts, are not presumed to provide money damages. 

According to 31 U.S.C. § 6305, cooperative agreements are to be used when, “the 

principal purpose of the relationship is to transfer a thing of value to the . . . local 

government . . . to carry out a public purpose of support or stimulation . . . instead of 

acquiring (by purchase, lease, or barter) property or services for the direct benefit or use 

of the United States Government.” The Government maintains that this description fits 

the current situation perfectly: that the “purpose of the Cooperative Agreement in this 

case was not for NRCS to purchase or lease anything from the Parish,” but rather that, 

“the agreement stated that NRCS was ‘authorized to assist the Parish’ pursuant to the 

EWP program.” Def. Mot. to Dismiss at 17 (citing A1). Namely, that the NRCS would 

provide financial and other assistance to the Parish to repair damage from Hurricane 

Katrina. Furthermore, the Government notes that the regulations of the EWP Program 

specifically provide that the administration of program assistance is to be handled 

through cooperative agreements. 7 C.F.R. § 624.2. 
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 In this case, the Court is persuaded that the agreement at issue is considered a 

cooperative agreement and, therefore, the Parish lacks jurisdiction in this Court. The 

Cooperative Agreement provided that the Parish would pay the contractors as per its 

contract for the watershed improvements in accordance with the NRCS specifications and 

in return the Parish would be entitled to the “actual cost” reimbursement of the project 

subject to NRCS approval. This agreement does not “acquir[e] (by purchase, lease, or 

barter) property or services for the direct benefit or use of the United States 

Government.” 31 U.S.C. § 6305. Since the Court construes the agreement between the 

NRCS and the Parish as a cooperative agreement, damages cannot be implied; therefore, 

the agreement is not money-mandating, unless the Parish can point to a specific provision 

mandating a monetary recovery. 

 This holding is consistent with Anchorage v. United States. First, unlike the 

contracts at issue in Anchorage, the agreement between the Government and the Parish is 

labeled “Cooperative Agreement.” A1. Second, there is no claim here, as there was in 

Anchorage, that the agency did not follow its own specific process for entering into a 

cooperative agreement. Anchorage, 119 Fed. Cl. at 714. Third—and most important—

the Anchorage contracts provided for a payment by the municipality of Anchorage to the 

government agency in exchange for the agency’s “specialized technical expertise and 

input” and for a direct benefit for the government, namely, a service fee, enhancement of 

access to a nearby military base and areas and facilities for its use. Anchorage, 119 Fed. 

Cl. at 713-15. As this Court concluded in Anchorage, the agreements in that case went 

“well beyond transferring ‘a thing of value’ to a local government” and “the value that 

the Government was to receive [went] well beyond mere incidental benefit.” Anchorage, 

Fed. Cl. at 713. 

 In addition, the Court notes that the Parish has not pointed to any specific 

provision in the agreement contemplating money damages for breach by the NRCS. To 

the contrary, the agreement provides that the Parish shall “hold and save NRCS free from 

any and all claims or action whatsoever resulting from the obligations undertaken by the 

Sponsor under this agreement or resulting from the work provided in this agreement.” 

A4. In essence, the agreement language expressly bars exactly what the Parish is 

attempting to do in this action. 

b. The Cooperative Agreement Does Not Provide A Direct Benefit to the 

Government.

To establish an enforceable contract with the Government, the Parish must 

demonstrate: a mutual intent to contract, an exchange of consideration, lack of ambiguity 

in offer and acceptance, and actual authority on the part of the government representative 

to bind the government in contract. City of El Centro v. United States, 922 F.2d 816, 820 

(Fed. Cir. 1990). “In the context of government contracts . . . consideration must render a 

benefit to the government, and not merely a detriment to the contractor.” Metzger, 

Shadyac & Schwarz v. United States, 12 Cl. Ct. 602, 605 (1987) (citations omitted). 
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Here, because the NRCS did not receive a direct benefit, the agreement is not an 

enforceable contract in this Court. Per the agreement, the Parish would carry out the 

necessary debris removal by contracting it out, and the NRCS would reimburse it for the 

actual costs. According to the Parish, the benefit flowing to the Government was the 

restoration of a natural resource and a reduction in the amount of emergency funds that 

the Government would spend in future flooding emergencies. Pl.’s Reply at 2-3. But this 

is not the kind of direct benefit that one sees in Anchorage, one that would support the 

finding of an exchange between the Parish and the Government. In Anchorage, in 

addition to money, the city received the expertise of a government agency, and the 

government received direct, tangible benefits—a service fee, a road, and facilities. Here, 

the Government receives a generalized benefit, a cleared waterway that would reduce the 

damage from future flooding. In Anchorage the government got a new and better port, 

but this would not have been enough to find an express contract. This kind of 

generalized benefit is the hallmark of a money grant from the government to a locality for 

a worthy project that would have an incidental benefit to the government. Furthermore, 

pursuing the Parish’s argument to its logical conclusion, every cooperative agreement 

would become a contract since cooperative agreements often result in the government 

paying for some kind of beneficial improvement. The crucial distinction is between an 

incidental and a direct benefit. 

The entire purpose of a cooperative agreement is to transfer a thing of value to the 

local government from the executive agency. 31 U.S.C. § 6305. This is exactly what the 

agreement did, it transferred money from the NRCS to the Parish for sediment removal. 

While debris removal is a worthy project, it cannot be construed as providing 

consideration (i.e.: a direct benefit) to the government in this context. 

IV. Conclusion 

For all the reasons stated above, the Court concludes that the agreement between 

the Parish and NRCS is a Cooperative Agreement. Accordingly, the Court holds that the 

agreement cannot be fairly interpreted as contemplating money damages, thus precluding 

the Court’s jurisdiction under the Tucker Act. In addition, even if this Court construed 

the agreement to contemplate money damages, no direct benefit flowed to the 

Government, thus failing to establish the consideration necessary to form an enforceable 

contract against the NRCS. As this Court lacks jurisdiction, the summary judgment 

motions need not be addressed. 

Therefore, the Court GRANTS the government’s motion to dismiss for lack of 

jurisdiction. The Clerk is directed to enter judgment accordingly. 

IT IS SO ORDERED.

s/ Edward J. Damich___ 

 EDWARD J. DAMICH 

 Senior Judge