# In the United States Court of Federal Claims

No. 12

- 645C (Filed: October 29 , 2013)

************************************** PRAIRIE COUNTY, MONTANA and * GREENLEE COUNTY, ARIZONA

, *

* Plaintiffs, *

*

v. *

* THE UNITED STATES, *

*

Defendant. *

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

Alan I. Saltman , Washington, DC, for plaintiff s

.

Sharon A. Snyder , United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

S WEENEY , Judge.

Plaintiffs Prairie County , Montana and Greenlee County , Arizona seek to recover monies that they claim are due to them under the Payment in Lieu of Taxes Act (“PILT”), 31 U.S.C. §§ 6901

- 6907 (200 0 ) . Greenlee County previously was unsuccessful in seeking payments under

the statute befor e the United States Court of Federal Claims (“Court of Federal Claims”) and the United States Court of Appeals for the Federal Circuit (“Federal Circuit”). Defe n dant moves to
dismiss this action based on the earlier decision of the Federal Circuit. In th is action, plaintiffs

argu e that a recent United States Supreme Court (“Supreme Court”) decision changed the law such that the previous decision of the Federal Circuit no longer remains controlling precedent

. Because the court rejects plaintiffs’ argument

, defendant’s motion is granted, and accordingly plaintiffs’ complaint is dismissed

.

I. BACKGROUND

A. The Payment in Lieu of Taxes Act

In 1964, Congress establish ed the Public Land Law Review Commission (“commission”) to “conduct a comprehensive review of the policies applicable to the use, management, and disposition of the Federal lands.” S. Rep. N o

. 94

- 1262, at 5 (1976). The commission returned its report four years later, recommending that the f ederal g overnment no longer continue the “historic policy of disposal” of public lands but should instead keep f ederal ownership of the Payment in Lieu of Taxes Act, 31

U.S.C. §§ 6901

- 6907; Accrual
Suspension; Contract P rograms Versus Benefits Programs; RCFC
12(b)(6)lands then held

. Id. at 6 (citing Public Land Law Review Commission, One Third of the

Nation ʼ s Land: A Report to the President and the C ongress by the Public Land Law Review

Commission (1970) 1 )

. The commission also suggested that, if its recommendation of maintaining the lands owned by the federal government was followed, then it was “ the obligation

of the United States to make certain t hat the burden of that policy is spread among all the people of the United States and is not borne only by those states and governments in whose area the

lands are located.” Id.

Agreeing with this recommendation, Congress enacted the PILT in 1976 “to c ompensate local governments for the loss of tax revenues resulting from the tax

- immune status of federal lands located in their jurisdictions, and for the cost of providing services related to those lands.”

Lawrence C ounty v

. Lead

- Deadwood Sch. Dist. No. 40

- 1 , 469 U.S. 256, 258 (1985). The Supreme Court explained that the PILT was intended to address a deficiency in the way that public lands were provided with governmental services :

Where these lands consisted of wilderness or park areas, they

attracted thousands of visitors each year. State governments might benefit from this federally inspired tourism through the collection of income or sales taxes, but these revenues would not accrue to local governments, who were often restricted to raising revenue

f rom property taxes. Yet it was the local governments that bore the brunt of the expenses associated with federal lands, such as law enforcement, road maintenance, and the provision of public health

services.

Id. at 262

- 63 (citing S. Rep . No. 94

- 1262 at 8

- 9).

Pursuant to the PILT, the United States Department of the Interior (“Interior” or “agency”) “shall make a payment for each fiscal year to each unit of general local government in which entitlement land is located as set forth in this chapter.” 31 U.S.C. §6902(a)(1). A “unit of general local government” includes counties and other municipalities that the Secretary of the Interior “determines to be the principal provider or providors of governmental services within the state[.]” Id. § 6901(2)(A). “Entitlement land” includes land owned by the United States in the National Park System and the National Forest System. Id. § 6901(1).

To determine the amount of a payment directed by § 6902(a)(1) , the agency computes payment amounts for each unit of g eneral local government under two alternative formulas set
forth in the PILT , and then distributes the higher of the two amounts calculated. Id. § 6903(b)(1). The agency receives funding to make the payments directed by § 6902(a)(1)

t hrough congressional appropriations. During all times relevant to this litigation, the PILT provided : “Necessary amounts may be appropriated to the Secretary of the Interior to carry out this chapter. Amounts are available only as provided in appropriat ion laws.” 1 Id. § 6906. In

1 In 2008 and 2012, the PILT’s funding provision was amended to read:

For each of the fiscal years 2008 through 201 3

–

22006 and 2007, Congress appropriated less than the amount necessary to pay the full authorized payment amounts to every qualified unit of general local government. Consistent with the regulations, Interior proportionally reduced the authorized payment amounts to conform to the amount of funds actually appropriated.

B. Plaintiffs’ Allegations

P laintiffs are political subdivisions of their respective states that qualify as unit s of general local government as defined by the PILT and in which entitlement land is located

. Prairie County alleges that it was entitled to receive a payment of $261,987 for fiscal years 2006

and 2007 under the PILT formulas

, but that it only received a $173,061 payment, a difference of $81,500. Greenlee County alleges that it was entitled to receive a payment of $981,310 under

the PILT formula s for fiscal years 2006 and 2007, but that it only received a $645,927 payment, a difference of $335,383. Plaintiffs allege , in Count II of their complaint

, that they remain

entitled to the difference between what was due to them pursuant to the statutory formulas and the amount actually paid. Plaintiffs also seek , in Count I of the complaint, to certify a class of similarly situated units of general local governments that , like the two named plaintiffs, allegedly

did not receive all of the mon ies that were due to them under the PILT

.

C. Procedural Background

Plaintiffs filed their complaint on September 27, 2012. D efendant subsequently moved to dismiss the complaint for failure to state a claim up on which relief can be granted pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”).

In its motion, defendant relies primarily on the decision in Greenlee C ounty v. United

States , 487 F.3d 871 (Fed. Cir. 2007) , in which the Federal Circuit rejected Greenlee County’s prior suit for the recovery of the PILT shortfalls . Defendant argues that Greenlee County and the principle of issue preclusion prevent plaintiffs in this action from stating a cause of action that

wou ld allow the court to rule in plaintiffs’ favor. O ral argument is unnecessary

.

II. DISCUSSION

A. RCFC 12(b)(6) Motion to Dismiss

“A complaint must be dismissed under Rule 12(b)(6) when the facts asserted do not give rise to a legal remedy.” Indian Harbor Ins. Co. v. United States , 704 F.3d 949, 954 (Fed. Cir.

(1) each county or other eligible unit of local government shall be entitled to payment under this chapter; and

(2) sums shall be made available to the Secretary of the Interior for obligation or expenditure in accordance with this chapter.

31 U.S.C. § 6906 (2006)

, amended by Moving Ahead for Progress in the 21st Century Act, Pub.

L. No. 112

- 141, § 100111, 126 Stat

. 405, 906 (2012); Emergency Economic Stabilization Act of 2008, Pub. L. 110

- 343, § 601(c)(1), 122 Stat. 3765, 3911 (2008).

32013) (citing Lindsay v. United States , 295 F.3d 1252, 1257 (Fed. Cir. 2002)). “When considering an RCFC 12(b)(6) motion, the court “must determine ‘whether the claimant is

entitled to offer e vidence to support the claims,’ not whether the claimant will ultimately prevail.” Chapman Law Firm Co. v. Greenleaf Constr. Co. , 490 F.3d 934, 938 (Fed. Cir. 2007) (quoting Scheuer v. Rhodes , 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v Fitzgerald , 457 U.S. 800, 814

- 19 (1982)). “[T]he consequence of a ruling by the court . . . that plaintiff’s case does not fit within the scope of the [money

- mandating] source . . . is simply this: plaintiff loses on the merits for failing to state a c laim on which relief can be granted.” Jan’s Helicopter Serv. v. United States , 525 F.3d 1299, 1307 (Fed. Cir. 2008) (alteration in original);

see also RhinoCorps Co. v. United States , 87 Fed. Cl. 481, 492 (2009) (“A motion made under Rule 12(b)(6) challen ges the legal theory of the complaint, not the sufficiency of any evidence that might be adduced.”)

.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim of relief that is plausible on it s face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2006)). “Deciding whether a complaint states a plausible claim for relief will . . . be a context

- specific task that requires the reviewing cour t to draw on its judicial experience and common sense.” Iqbal , 556 U.S. at 679. “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

miscond uct alleged.” Id. at 678 (citing Twombly , 550 U.S. at 556). Neither allegations “that are ‘merely consistent with’ a defendants liability,” nor “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” are suff icient. Id.

“The court assumes all well

- pled factual allegations are true and indulges in all

reasonable inferences in favor of the nonmovant.” Terry v. United States , 103 Fed. Cl. 645, 652 (2012) (citing United Pac. Ins. Co. v. United States , 464 F.3d 1325, 1327

- 28 (Fed. Cir. 2006)). The court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly , 550 U.S. at 555.

B. Greenlee Coun ty Remains Controlling Precedent

Defendant relies upon Greenlee County to argue that plaintiff cannot state a claim upon which relief can be granted. Because the court agrees that Greenlee County is controlling, a

fuller discussion of the Federal Circuit’s decision is warranted.

In 2004, Greenlee County filed suit a lleging that it did not receive the full amount of the

PILT monies to which the statutory formulas entitled it because Congress had not appropriated enough money to fully fund the program

. Greenlee C ounty , 487 F.3d at 874

- 75 . The Court of

Federal Claims granted the government’s motion to dismiss, and Greenlee County appealed. Id.

The Federal Circuit affirmed. It first noted that a line of cases going back as far as 1886

established that Congress’s failure to appropriate funds did not defeat a suit t o enforce an obligation set by statute. Id. at 877. The Federal Circuit explained that this proposition had been expressed at least as early as 1886

, whe n the Supreme Court held that the United States

A mbassador to Haiti could sue the government to recover his full $7

, 500 annual salary set by

4statute despite the fact that Congress had only appropriated $5

, 000 that year. Id. (citing United States v. Langston , 118 U.S. 389, 390 (1886)). In its Greenlee County decision, t he Federal

Circuit also fou nd persuasive the reasoning expressed in a United States Court of Claims ’

decision : “ ʻ I t has long been established that the mere failure of Congress to appropriate funds, without further words modifying or repealing, expressly or by clear implication, the substantive law, does not in and of itself defeat a Government obligation created by sta tute. ’ ” Id. (quoting N.Y. Airways, Inc. v. United States

, 369 F.2d 743, 748 (Ct. Cl. 1966) )

. A ccording to the Federal Circuit, in some instances a “failure [of Congress] to appropriate funds to meet statutory obligations prevents the account officers of the Government from making disbursements, but such rights [remain] enforceable in the Court of Claims.” Id. (quoting N.Y. Airways , 369 F.2d at 748) (alterations in original)

.

The Federal Circuit then turned its inquiry to whether the PILT fit into this template because “in some instances, the statute creating the right to compensation (or authorizing the government to contract) may restrict the government’s liability or limit its contractual authority to the amount appropriated by Congress .” Id. at 878. It concluded that the PILT was so limited

, focusing on the language of § 6906 that “ [a] mounts are available only as provided in appropriation laws.” Id. The court first noted that “the language ‘subject to the availability of appropriati ons’ is commonly used to restrict the government’s liability to the amounts appropriated by Congress for the purpose.” Id. It continued:

[W] e have stated that “ [a]lthough [a plaintiff] may have expected to receive full funding . . . based on past experiences, the subject

to

- availability

- of

- appropriations language . . . prevents [the plaintiff] from asserting that it was entitled to full funding as a matter of right. ” Thus it is undisputed that if PILT used the phrase

“ subject to the availability of appropriations, ” Greenlee County’s right to recover would be limited to the amount appropriated.

Id. (citation omitted) . The court concluded : “ W e see little functional diff erence between saying that amounts are ‘subject to the availability of app r opriations’ and saying that amounts are ‘available only as provided in appropriations laws,’ and we conclude that the language of § 6906 limits the government’s liability under PILT to the amount appropriated by Congress.” Id.

Importantly, the Federal Circuit ’s decision in Greenlee County also characterized the program authorized by the PILT as a benefits program and not as establishing a contract between units of general local g overnment and the United States. “PILT . . . involves a benefit program not a contract, and ‘there is great room’ in benefits programs to find the government’s liability limited to the amount appropriated.” Id. at 879 (citing Star

- Glo Assocs.

, LP v. United States

, 414 F.3d 1349, 1355 (Fed. Cir. 2005)). Therefore, the court concluded “that the government’s liability for PILT payments was limited to the amounts appropriated by Congress.” Id. at 880.

Plaintiffs recognize this precedent. Nonethe less, they argue that the Supreme Court’s

decision in Salazar v. Ramah Navajo Chapter , 132 S. Ct. 2181 (2012)

, changed the law

5sufficiently such that the Federal Circuit’s prior Greenlee County decision is no longer controlling. 2 Plaintiff s contend :

Ramah holds that once Congress has appropriated sufficient legally unrestricted funds to pay an obligation to the plaintiff out of an appropriation account from which others are to be paid, the government cannot back out of its promise to pay the plaintiff upon the exhaustion of funds in that account. This is true even if the government’s obligation to pay is subject to the availability of appropriations.

Pl s .’ Resp. 5 (footnotes and citations omitted). Under Ramah , plaintiffs argue, the PILT must be

r ead as an obligation to pay the full amount set by the statutory formulas, even if the amount appropriated has been exhausted.

Plaintiffs mis read Ramah , a decision which involved breach of contract, not a benefits

program. The decision in Ramah

, concerned a suit by Indian tribes arising under the Indian Self

Determination Act (“ISDA”), 25 U.S.C. §§ 450f

- 450n (1988 & Supp. II)

. 132 S. Ct. at 2186. Specifically, the issue before the Supreme Court in Ramah was whether the ISDA requires the

Secretar y of the Interior to contract to pay the “contract support costs” related to each self

determination contract. Id. The ISDA “directs the Secretary of the Interior, ‘upon the request of any Indian tribe . . . to enter into a self

- determination contract

. . . to plan, conduct, and administer’ health, education, economic, and social programs that the Secretary otherwise would

had administered.” Id. (quoting 25 U.S.C. § 450f(a)(1)) (emphasis added). “Congress included a

model contract in ISDA and directed that each tribal self

- determination contract ‘shall . . . contain or incorporate it by reference.’” Id. at 2187 (quoting 25 U.S.C. § 450 l ) (emphasis added). The model contract provided for by the ISDA specifies that “ʻ [s]ubject to the

avail ability of appropriations , the Secretary shall make available to the Contractor the total amount specified in the annual funding agreement ’ between the Secretary and the tribe.” Id. (quoting 25 U.S.C. § 4 50 l (c)) (emphasis added).

In Ramah , the Supreme Court explained that b etween fiscal years 1994 and 2001, “appropriations covered only between 77% and 92% of tribes’ aggregate contract support costs. . . . Lacking funds to pay each contractor in full, the Secretary paid tribes’ contract support costs on a uniform, pro rata basis.” Id. Several Indian tribes sued for breach of contract for the unpaid

sums. Id. at 2188. Relying on its earlier decision in Cherokee Nation of Oklahoma v. Leavitt

, 543 U.S. 631 (2005), t he Supreme Court held that the tribes could recover despite the language in the contract making payment “[s]ubject to the availability of appropriations” because the “Government cannot back out of its contractual promise to pay each Tribe’s full contract support

2 Plaintiffs also rely on the Supreme Court’s decision in Arctic Slope Native Ass ’n v. Sebelius , 133 S. Ct. 22 (2012), for the same proposition. The Supreme Court’s decision in Arctic Slope was a memorandum opinion that vacated the judgment of the Federal Circuit dismissing an Indian tribe’s suit for contract support costs under the ISDA in light of Ramah

, and remanded for further proceedings. Id. Arctic Slope provides no independent chang e in the law.

6costs.” Ramah , 132 S. C t. at 2191. The Supreme Court ’s decision in Ramah turned on the contractual relationship between the parties :

Our conclusion in Cherokee Nation followed directly from well

established principles of Government contracting law. When a Government contractor is one of several persons to be paid out of a larger appropriation sufficient in itself to pay the contractor, it has long been the rule that t he Government is responsible to the contractor for the full amount due under the contract, even if the agency exhausts the appropriation in service of other permissible

ends. That is so “even if an agency’s total lump

- sum appropriation

is insufficient to a pay all the contracts the agency has made.” In such cases, “[t]he United States are as much bound by their

contracts as are individuals.”

Id. at 2189 (citations omitted)

. Indeed, it repeatedly emphasized that its decision was “[c]consistent with lon gstanding principles of Government contracting law . . . .” I d. at 2186;

see also id. at 2189 (“This principle safeguards both the expectations of Government contractors and the long

- term fiscal interests of the United States.”); id. at 2192 (rejecting th e dissent’s argument as “inconsistent with ordinary principles of Government contracting law”).

Plaintiffs , in contrast, rely not on an explicit contract between themselves and defendant, but instead seek payments under the PILT, a program the Federal Circuit has determined is a benefits program. See Greenlee C ounty , 487 F.3d at 879. Thus

, Ramah is inapposite.

Plaintiffs attempt to minimize the difference s between a contractually based program and a benefits program by arguing that the predictability of payment under the PILT is “critical.” Pls.’ Resp. 6. The Federal Circuit did not find the “predictability of payment” a reason to depart from the distinction between a contract and a benefits program and neither will this court.

Indee d, t he difference between a benefits program and a contrac tually based program is significant , if not determinative , a point p laintiffs recognize:

It would be equally wrong to do as defendant suggests and apply one rule where an obligation is created “subject to the availability of appropriations ” by contract (particularly one to perform work done formerly by the federal government) as in Ramah and Arctic Slope and another rule where, as here, an obligation is created “subject to the availability of ap propriations” by statute intended to provide local governments an adequate and predictable level of payment for services that they (not the federal government) provide with respect to federal lands located within their borders.

Id. at 8. T his is the prec ise distinction made by the Federal Circuit in Greenlee County and Star

Glo Associates

. Unquestionably, t he Court of Federal Claims “ is bound to follow Federal Circuit precedent unless ‘the circuit’s precedent is expressly overruled by statute or by a

sub sequent Supreme Court decision.’” Red River Coal Co. v. United States

, 105 Fed. Cl. 602,

7610 (2012) (quoting Strickland v. United States , 423 F.3d 1335, 1338 n.3 (Fed. Cir. 2005)) ; see also Coltec Indus , Inc. v. United States , 454 F.3d 1340, 1353 (Fed. Cir. 2006) (“There can be no question that the Court of Federal Claims is required to follow the precedent of the Supreme Court, our court, and our predecessor court, the Court of Claims”)

. A “trial judge, believing that [prior precedents of a circuit cou rt] contravene a Supreme Court precedent . . . may do no more than criticize those opinions, urging en banc review.” Strickland , 423 F.3d at 1338 n.3. The

court sees no basis to criticize Greenlee County and thus follows th at decision. Additionally , the

court sees no reason why making a distinction between a contractually based remedy and a benefit program would be , as plaintiffs argue, a “wrong” distinction. Binding precedent holds the distinction between a contractually based program and qualifying fo r participation in a benefits program as not equivalent. Greenlee County , 487 F.3d at 879 (citing Star

- Glo Assocs.

, 414 F.3d at 1355). Consequ ently , the “distinction” which defines the parties’ relationship to the government is not merely a distinction o f form. Rather, the distinction is determinative of the

claim s a party may bring against the government for money damages.

Plaintiffs additionally argue that units of general local government are not receiving “gratuitous benefits

, ” but are providing public health, safety, and infrastructure services with respect to federal lands . However, they do not assert that any program or contract, explicit or implicit, other than the program created by the PILT

, entitles them to these funds. At most

, plaintif fs hint that these services constitute an implied

- in

- fact contract. To establish the existence of an implied

- in

- fact contract, plaintiffs must demonstrate the same elements required to establish the existence of an express contract : mutuality of intent, consideration, unambiguous offer and acceptance, and authority on the part of the government’s representative to bind the

government. Hanlin v. United States , 316 F.3d 1325, 1328 (Fed. Cir. 2003). However, p laintiffs

failed to allege any of these requirements, except perhaps consideration , have been met in this

cas e . Consequently, because plaintiffs have not alleged the existence of an implied

- in

- fact contract in their complaint, the court need not decide whether the provision o f ser vices to federal

lands has created one

.

Plaintiffs finally argue that in Bristol Bay Area Health Corp. v. United States , 110 Fed. Cl. 251 (2013), the Court of Federal Claims rejected the argument that the holding of Ramah applies only to the United States ’ contractual obligations. Plaintiffs are mistaken. Indeed, plaintiffs’ selectively quote from that decision to support their argument: “[T]he Supreme Court in its decision in [ Ramah ] confirmed the full funding mandate, opining that the [ISDA]

‘mandates that the Secretary shall pay the full amount of contract support costs incurred by tribes in performing their contracts.’” Id. at 264 (quoting Ramah , 132 S. Ct. at 2186). But, plaintiffs disregard the language immediately following that which they quote :

The Supreme Court recognized the model contract and its reference to the [annual funding agreements] as a basis for the full amount of [contract support costs], and found that, “the Government’s contractual promise to pay each tribal contractor the

‘f

ull amount of funds to which the contractor [was] entitled,’ was therefore binding.”

Id. (citations omitted). Thus

, it is plain that the Bristol Bay court acknowledg ed that the

8contractual relationship between the tribes and the United States in Ramah w as fundamental to the Supreme Court’s decision

. The court’s conclusion here

– that plaintiffs participate in a benefits program and are not in privity with the United States

– is not therefore inconsistent with

the court’s reasoning in Bristol Bay

. Thus, plaintiffs’ complaint fails to state a claim for relief.

Accordingly, the court dismisses Count II of plaintiffs’ complaint pursuant to RCFC 12(b)(6) for failure to state a claim upon which relief can be granted.

C. Plaintiff Greenlee County Is Preclud ed From R elitigating the PILT Payment

Deficiencies

“A fundamental precept of common

- law adjudication . . . is that a ‘right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . can n ot be disputed in a subsequent suit between the same parties or their privies.’” Montana v. United

States , 440 U.S. 147, 153 (1979). The doctrines of res judicata and issue preclusion, also called collateral estoppel, are “central to the purpose for whic h civil courts have been established, the conclusive resolution of disputes within their jurisdictions.” Id. “Under res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of

action.” Id. The doctrine of issue preclusion “serves, in certain circumstances, ‘to bar the revisiting of “issues” that have already been fully litigated.’” Levi Strauss & Co. v. Abercrombie & Fitch Trading Co. , 719 F.3d 1367, 1371 (Fed. Cir. 2013) (quoting Jet, Inc. v. Sewage Aeration Sys. , 223 F.3d 1360, 1366 (Fed. Cir. 2000)). A party asserting issue preclusion must establish

four elements : “ (1) identity of the issues in a prior proceeding; (2) the issues were actually litigated; (3) the determination of the issues was necessary to the resulting judgment; and (4) the party defending against preclusion had a full and fair opportunity to litigate the issues.” Id. (citing Jet, Inc. , 223 F.3d at 1366).

Plaintiffs contend that issue preclusion “does not apply because . . . there has been a significant change in the law” and they seek recovery for different years than were litigated in the prior case. Pls.’ Resp. 8. To the contrary, a ll four factors are met in this proceeding for plaintiff Greenlee County

. T he issues are the same as the issues in Greenlee County because both suits were filed by units of general local government seeking payment for the difference

between the amounts they should have received under PILT and what they were actually paid. Compare Greenlee C ounty , 487 F.3d at 874, with Compl. ¶¶ 48

- 56. In addition , the issue in this

case w as actually litigated in and the determination was necessary to the Federal Circuit’s

decision in Greenlee County . Indeed, the issue of whether defendant was liable for any PILT

shortfall was the only issue presented and decided in Greenlee County . Finally, o ne of the plaintiffs in this case, Greenlee County, was the same plaintiff in the Greenlee County case and

t herefore had the opportunity to litigate this issue.

Plaintiffs are correct that issue preclusion “ is subject to exceptions when the

circumstances dictate.” Bingaman v. Dep’t of the Treasury , 127 F.3d 1431, 1437 (Fed. Cir. 1997) (citing Montana , 440 U.S. at 162). In particular, “[c]ourts have crafted an exception to the collateral estoppel principle when there has been a change in the applicable law between the time of the original decision and the subsequent litigation in which collateral esto ppel is invoked.” Id. Plaintiffs argue that this exception applies here because Ramah worked a change in the

9applicable law. However, as explained above, the court concludes that there has been no change

to the precedential force of Greenlee County , and accordingly this exception does not apply.

Plaintiffs also contend that issue preclusion does not apply because the controversy now before the court concerns different paymen t years. Plaintiffs argument lacks merit

. Issu e preclusion applies because the factual and legal underpinnings are identical. As the Supreme Court explained in Montana v. United States : “Because the factual and legal context in which the issues of this case arise has not materially altered since [the prior decision], normal rules of preclusion should operate to relieve the parties of “redundant litigation [over] the identical question of the statute’s application . . . .” 440 U.S. at 162; see also Jet, Inc.

, 223 F.3d at 1366 (“[T]he ‘identity of issues’ analysis requires inquiry into the actual facts found and presented in the earlier litigation.”).

Because all four factors are met w ith respect to plaintiff Greenlee County and because the

court has found that Ramah has not worked a change in the law such that this action falls within an exception to the doctrine of issue preclusion, plaintiff Greenlee County must be dismissed

from thi s case. Moreover, the court need not consider whether plaintiff Prairie County and the rest of the purported class of units of general local government are barred by issue preclusion stemming from the Greenlee County decision. Such an analysis would focus on whether the

non

- parties to the prior decision were nonetheless privy to or represented in the prior proceeding. See generally Taylor v. Sturgell , 553 U.S. 880, 892

- 895 (2008) (discussing when a non

- party to a prior judgment may still be bound by res j udicata or issue preclusion). The parties have provided no background or argument speaking to this point and thus the court need not decide if issue preclusion applies to any party other than Greenlee County. However, even if Prairie County

and the membe rs of the purported class were not privy to or represented in Greenlee County

, their claims must still be dismissed for failure to state a claim based on the controlling precedent

of that decision.

D

. Plaintiffs’ Request for Class Action C ertification I s Dismissed as Moot

In Greenlee County , the Federal Circuit affirmed the decision of the Court of Federal Claims finding the issue of class certification moot because the cause of action under PILT had

been dismissed. 487 F.3d at 880

- 81. The Federal Ci rcuit noted that it had “ repeatedly found on appeal that issues related to class certification were moot in light of [its] resolution against the plaintiff of a motion to dismiss or for summary judgment” and saw “no reason to apply a

different rule when it is the Court of Federal Claims that finds the issue moot.” Id. at 880.

Count I of the complaint seeks only to certify a class of similarly situated units of general local government. Having dismissed Count II of the complaint, the only claim upon which relief could be granted for any individual plaintiff, the court also dismisses Count I, plaintiffs’ request to certify a class

, as moot.

10III. CONCLUSION

For the reasons set forth above, the court GRANTS defendant’s motion to dismiss and

DISMISSE S plaintiff s ’ complaint for failure to state a claim upon which relief can be granted

. The clerk is directed to enter judgment accordingly. No costs.

IT IS SO ORDERED.

s/ Margaret M. Sweeney

______________ MARGARET M. SWEENEY Judge

11