## United States Court of Appeals for the Federal Circuit

04-5027,-5037

LION RAISINS, I NC., and LION BROS., Plaintiffs-Appellants,

v. UNITED STATES, Defendant-Appellee.

James A. Moody , of Washington, DC, argued for pl aintiffs-appellants. Of counsel on the brief was Brian C. Leighton , of Clovis, California. Cristina C. Ashworth , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Ju stice, of Washingt on, DC, argued for de fendant-appellee. With her on the brief were Peter D. Keisler , Assistant Attorney General, David M. Cohen , Director and Mark A. Melnick , Assistant Director. Appealed from: United States Court of Federal Claims Judge Nancy B. Firestone

## United States Court of Appeals for the Federal Circuit

04-5027, -5037 LION RAISINS, I NC., and LION BROS., Plaintiffs-Appellants,

v.

UNITED STATES, Defendant-Appellee.

___________________________ DECIDED: July 22, 2005

___________________________ Before BRYSON, LINN, and DYK, Circuit Judges

. DYK, Circuit Judge

. This is a consolidated appeal from two dec isions of the Court of Federal Claims, Lion Raisins, Inc. v. United States , 58 Fed. Cl. 391 (2003) (“ Lion I ” or “the reserve pool case”), and Lion Raisins, Inc. v. United States , 57 Fed. Cl. 435 (2003) (“ Lion II” or “the bins case”). In both cases, plaintiffs Li on Raisins, Inc. and Lion Brothers allege takings arising from actions undertaken by the Ra isin Administrative Committee (“RAC”), a marketing agency created pursuant to the Agri cultural Marketing Agreement Act of 1937, as amended , 7 U.S.C. § 601 et seq. (“AMAA” or “Act”). In each case, the Court of Federal Claims dismiss ed, holding that the non-appropr iated fund instrumentality (“NAFI”) doctrine barred the exercise of juri sdiction. We disagree, and hold that theCourt of Federal Claims has jurisdiction over takings claims against the United States based on the actions of the RAC, because t he RAC is an agent of the United States. We nonetheless affirm the dismi ssals. In the reserve pool case, we hold that the case must be dismissed because Lion has fail ed to allege a cognizable takings claim. With respect to the bins case, we hold t hat the takings claim may not be brought against the government because the st atute provides for an admin istrative remedy and for judicial review in district court. BACKGROUND
I At the heart of this case is the adm inistration of the AMAA. The AMAA was originally enacted during the Depression, wit h the objective of hel ping farmers obtain a fair value for their agricultural products. Pescosolido v. Block , 765 F.2d 827, 828 (9th Cir. 1985); 7 U.S.C. § 602 (2000). The Supr eme Court has upheld the constitutionality of the AMAA. United States v. Rock Royal Coop., Inc. , 307 U.S. 533 (1939). “The Act contemplates a cooperative venture among the Secretary, handlers, and producers the principal purposes of which are to raise the price of agricultural products and to establish an orderly system for marketing them.” Block v. Cmty. Nutrition Inst. , 467 U.S. 340, 346 (1984); see also Kyer v. United States , 369 F.2d 714, 716 (Ct. Cl. 1966), cert. denied , 387 U.S. 929 (1967). The Act operates through the implementation of Marketing Orders, designed “to prevent over-production of agr icultural products and excessive competition in marketing them, with price stabilization as the ultimate objective.” Parker v. Brown , 317 U.S. 341, 368 (1943). The Act delegates authority to the Secret ary of Agriculture (“the Secretary”)

04-5027,-5037 2to issue marketing orders, upon request of t he affected producers, regulating the sale and delivery of various commodities, including raisins, “in order to avoid unreasonable fluctuation in supplies and prices.” Kyer , 369 F.2d at 716-17; 7 U. S.C. §§ 608c, 602(4) (2000). Marketing orders must be appr oved by either two-thirds of the affected producers or by producers who market at least two-th irds of the volume of the commodity. 7 U.S.C. § 608c(9)(B). The AMAA restricts the marketing order s “to the smallest regional production areas . . . practicable.” 7 U.S.C. § 608c(11). The Raisin Marketing Order, codified at Part 989 of Titl e 7 of the Code of Federal Regulations, was originally promulgated in 1960. Its applic able regional production area is the State of California. 7 C.F.R. § 989.4 (2005). The statute authorizes the Secretary to delegat e the responsibility of implementing marketing orders to mark eting committees and to empower those committees to issue rules and regulations. 7 U.S.C. § 608c(7)(C)(i)-(iv). The RAC is the marketing committee charged with adminis tering the Raisin Marketing Order. 7 C.F.R. § 989.35 (a) & (b). The 47 members of the RAC come from the raisin production industry (with one public mem ber and one representative of the industry’s collective bargaining association), and are appointed by the Secretary after industry nomination. Lion I , 58 Fed. Cl. at 393; 7 C.F.R. § 989.26. The RAC employs its own staff. The RAC is funded by assessments paid by handlers; it receives no funding from Congress. Lion I , 58 Fed. Cl. at 393 (citing 7 C.F.R. § 989.79). In past cases, we have hel d that similar entitie s are non-appropriated funds instrumentalit ies, or NAFIs. See, e.g. , Kyer , 369 F.2d at 718-19. The Raisin

04-5027,-5037 3Marketing Order provides t hat members of the RAC are “subject to removal or suspension by the Secretary, in his discr etion, at any time. Every decision, determination, or other act of the committee shall be subject to t he continuing right of the Secretary to disapprove of the same at any time. Upon such disapproval, the disapproved action of the committee shall be deemed null and void.” 7 C.F.R. § 989.95 (2005). The Raisin Marketing Order divides those involved in the raisin industry into two categories—handlers and producers. The Raisin Marketing Order applies directly only to handlers. Under the Act, handlers are “pro cessors, associations of producers, and others engaged in the handling” of covered agricultural commodities. 7 U.S.C. § 608c(1). Handlers are bound by the market ing orders promulgated pursuant to the AMAA. Stark v. Wickard , 321 U.S. 288, 303 (1944). The government may obtain injunctive relief, civil penalties, and crim inal penalties against handlers who fail to comply with the regulatory provisions of a marketing order. 7 U.S.C. §§ 608a(5), 608a(6), 608c(14); see also United States v. Ruzicka , 329 U.S. 287 (1946). Although producers are not directly bound by the stat ute, 7 U.S.C. § 608c (13)(B), under the specific terms of the Raisin Marketing Order , all persons seeking to market California raisins out-of-state are deemed handler s and must comply with the Order. 1 The Raisin Marketing Order, like other fruit and vegetable orders established pursuant to the AMAA, seeks to stabilize produc er returns by limiting the quantity of raisins sold by handlers in the domestic co mpetitive market. 7 U.S.C. § 608c(6); see

1 The Raisin Marketing Order’s defin ition of handlers includes “any person who places, ships, or continues natural c ondition raisins in the current of commerce from within the area to any point outside thereof.” 7 C.F.R. § 989.15(b) (2005).

04-5027,-5037 4also John H. Vetne, Federal Mark eting Order Programs, in 1 Agricultural Law 75, 78 (John H. Davidson ed., 1981) (describing various marketing control methods permissible under the AMAA for fruit and veget able orders). The Raisin Marketing Order uses a reserve pool mechanism, author ized under 7 U.S.C. § 608c(6)(E), wherein the RAC can designate a portion of the yearly raisin crop as “free-tonnage” for sale without restrictions, and the surplus or “reserve-tonnage” is withheld for sale in secondary, non-commercial markets. 7 C.F.R. §§ 989.54(d), 989.65 (2005); see also Prune Bargaining Ass’n v. Butz , 444 F. Supp. 785, 788-89 (N.D. Cal. 1975) (discussing a comparable reserve pooling mechanism under the California prune order). In accordance with its authority to administer the Order, the RAC issues regulations regarding, inter alia , whether a reserve should be establis hed for the year; if so, the free and reserve percentages for each varietal type of raisin; and the procedures for governing management of the reserve raisins. See, e.g. , 7 C.F.R. §§ 989.54, 989.56(a), 989.56(e), 989.58, 989. 79, 989.80 (2005). “By r egulating the amount of raisins in this market, the RAC can, in effec t, regulate the price at which raisins are sold domestically.” Lion I , 58 Fed. Cl. at 394. Free-tonnage raisins may be disposed of by the handler in any marketing channel. Producers receive immediate payment from handlers, at the field market price, for the free-tonnage raisins. The mark et price for the free- tonnage raisins, or the field price, is not set by the RAC, but is determined through a private bargaining process carried out between producers’ and handlers’ bargaining associations. Producers are not paid immediately for reserve raisins. Reserve-tonnage raisins are held by handlers for the account of the reserve pool , which is operated by the RAC. Lion I , 58 Fed. Cl. at

04-5027,-5037 5394. Reserve raisins are sold, as authorized by the RAC, in non-competitive outlets, such as school lunch programs. Id. ; 7 C.F.R. §§ 989.65-67. T he statute provides for “the equitable distribution of the net return derived from the sale [of reserve pool raisins] among the persons beneficially in terested therein.” 7 U.S.C. § 608c(6)(E). The RAC is charged with selling the reserve raisins in a manner “intended to maxim[ize] producer returns and achieve maximum disposition of such raisins by the time reserve tonnage raisins from the subsequent crop year are ava ilable.” 7 C.F.R. § 989.67(d)(1). Since the mid-1990’s, the RAC has been using the reserve pool to support an industry export program that effectively bl ends down the cost of export ed California raisins thereby allowing handlers to be price-co mpetitive in export markets where prices are generally lower than the domestic market. Producers thus receive payment for their rais ins in two installments. At the time of sale, they receive the field market pr ice for free-tonnage raisin s. For the reservetonnage raisins, they receive a share of the reserve pool sales proceeds, net of costs. “Funds generated from reserve pool sales program s, net of costs, become the growers’ equity and are disbursed directly to each producer of record for that crop.” Raisin Administrative Committee, Analysis Report , 10 (2001). The reserve raisins are not warehoused in any central location, but rather stored by handlers on their own premises, and are releas ed for sale per the instructions of the RAC. The RAC provides handlers with RAC- owned bins, free of charge, for the storage of reserve raisins. If the RAC has insu fficient bins to handle the reserve-tonnage, handlers utilize their own bins. The regulat ions provide that “[h]andlers shall be compensated for receiving, storing, fumigati ng, handling, and inspection of . . . reserve

04-5027,-5037 6raisins . . . held by them for the account of the committee.” 7 C.F.R. § 989.66(f). The regulations are specific that handlers who use their own bins to store reserve raisins “shall be compensated for the use of such . . . bins. . . . The rate of compensation shall be . . . 20 cents per day, per bin, not to exceed a total of $10 per bin per year.” 7 C.F.R. § 989.401(c).
II Both of the cases before us were brought by Lion in response to alleged takings arising from the operation of this regulatory scheme. 2 In light of the procedural posture of the cases, we must assume the well-pl eaded facts of the operational complaints to be
true. Leider v. United States , 301 F.3d 1290, 1293 (Fed. Cir. 2002); Merrick v. United States , 846 F.2d 725, 726 (Fed. Cir. 1988) (citing Miree v. DeKalb County , 433 U.S. 25, 27 n.2 (1977)).
In Lion I , the reserve pool case, Lion, in it s capacity as a raisin producer and equity holder in the reserve pool, challenged the RAC’s use of reserve pool proceeds from the 1997 crop year to subsidize raisin export programs for the two subsequent years. 58 Fed. Cl. at 391. Lion’s or iginal complaint had alleged both a breach of contract claim and a takings claim. Lion then filed an amended complaint, which replaced the breach of contract claim with a claim that the “the United States ha[d] violated the Act of Congress [7 U.S.C. § 608c] and the Marketing Order” and thus was liable to Lion for money damages of “a su m in excess of $1 million dollars.” ( Lion I , First

2 Appellant, Lion Raisins, Inc., a pl aintiff in both the bins case and the reserve pool case, is both a producer and a handler. Lion Brothers, the second appellant, is only a raisin producer, and participated as a plaintiff only in the reserve pool case. For convenience we refer to both entities as “Lion”.

04-5027,-5037 7Am. Compl. at ¶ 21.) Subsequent ly, Lion voluntarily dismissed the first cause of action, leaving only the takings claim. Lion I , 58 Fed. Cl. at 393 n.1. The takings claim alleged that Lion was entitled to ju st compensation because the RAC, by using the 1997 reserve pool proceeds to finance export pr ograms in subsequent crop years, had accomplished a taking of money from Lion’s di stributive share of the 1997 reserve pool equity. ( Lion I , First Am. Compl. at ¶ 23.) In e ffect, Lion was claiming that the RAC charged a cost attributable to the 1998 and 1999 raisin crop to the 1997 crop and thereby improperly reduced the 1997 reserve pool. In Lion II , the bins case, Lion, as a handler, originally asserted a breach of contract claim, alleging that the RAC had failed to reimburse Lion for several thousand bins belonging to Lion that Lion had used to handle reserve raisins on behalf of the RAC. Evidently in the course of shippi ng the reserve raisins pursuant to the RAC’s instructions, several thousand bins left Li on’s possession, and were not returned. Lion II , 57 Fed. Cl. at 436. Lion ar gued that reimbursement for t he missing bins was required by the Bin Rental Agr eement that had been executed between Lion and the RAC, pursuant to the Raisin Marketi ng Order. Apparently in order to avoid the jurisdictional bar presented by the NAFI doctri ne that precludes the exercise of Tucker Act jurisdiction over contract claims against the United States based upon the contracting activities of NAFIs, Lion amended its complaint to allege a Fifth Amendment taking. Id. In its amended complaint, Lion alleged that several thousand of its storage bins had been taken without just compensation th rough the actions of the RAC. Id. Lion sought compensation from the United States, based on the cost of the missing bins, as well as a rental fee for the RAC’s use of Lion’ s bins during the period in question. Id.

.

04-5027,-5037 8Additionally, Lion sought a refund of rental fees that Lion paid to the RAC for its use of RAC-owned bins during the relevant crop y ear, arguing that such fees would never have been incurred if the RAC had properly returned Lion’s own bins. Id. at 437. In both the reserve pool case and the bins cases, the Court of Federal Claims held that the NAFI doctrine barred juri sdiction over Lion’s takings claims. Lion I , 58 Fed. Cl. at 397-98; Lion II , 57 Fed. Cl. at 437-39. Consistent with our predecessor court’s decision in Kyer , 369 F.2d at 718-19, both cases held that the RAC was a NAFI. Lion I , 58 Fed. Cl. at 395-96; Lion II , 57 Fed. Cl. at 437. Lion’s claims were rejected on the theory that the Tucker Act waiv er of sovereign immunity does not extend to takings claims based on the actions of NAFIs. Lion I , 58 Fed. Cl. at 397-98; Lion II , 57 Fed. Cl. at 437-39. As discussed in gr eater detail below, the Court of Federal Claims reasoned that the NAFI doctrine “applies to bar suit in [the Court of Federal Claims] . . . absent express action by Congress allowing su its for money damages against NAFIs.” Lion I , 58 Fed. Cl. at 396-97; see also Lion II , 57 Fed. Cl. at 437. In the reserve pool case, the Court of Federal Claims reasoned that “[s] ince the alleged taking involves funds collected and dispersed by the NAF I, the NAFI doctrine applies to bar suit in this court.” Lion I , 58 Fed. Cl. at 396. Lion timely appealed both decisions to this court, which were subsequently consolidated for purposes of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). See Core Concepts of Fla., Inc. v. United States , 327 F.3d 1331, 1334 (Fed. Cir. 2003).

04-5027,-5037 9DISCUSSION
I We first consider the issue of jurisd iction. We review without deference the dismissals of Lion’s complaints for lack of jurisdiction. AINS, Inc. v. United States , 365 F.3d 1333, 1336 (Fed. Cir. 2004); Core Concepts , 327 F.3d at 1334. The Tucker Act broadly provides jurisdicti on for “any claim against the United States founded . . . upon the Constitution.” 28 U.S.C. § 1491(a)(1) (2000). This includes on its face all takings cl aims against the United States. See Presault v. Interstate Commerce Comm’n , 494 U.S. 1, 11 (1990). As or iginally enacted, and today, the Tucker Act provides no exception to its general waiver of the United State’s sovereign immunity for claims “founded upon the Constitution.” “If a claim falls within the terms of the Tucker Act, t he United States has presumpt ively consented to suit.” United States v. Mitchell , 463 U.S. 206, 216 (1983). Ther e is no question that the United States, in general, incurs takings liabilit y for the acts of its agents. That is, a takings “claim against the United States” ma y be based on the acts of an agent of the United States. The Supreme Court has held that if agents of the feder al government accomplish takings of private property, “[t]he action of t he agent is the act of the government” and it is the federal governm ent that is liable for suit, not the agent. Yearsley v. W.A. Ross Constr. Co. , 309 U.S. 18, 21-22 (1940) (citation and quotation marks omitted). In Yearsley , a private company, carrying out a governm ent contract, built river dikes which destroyed privately-owned land. The pr operty owners brought suit against the company, and the Supreme Court found that “if what was done was within the

04-5027,-5037 10constitutional power of Congre ss, there is no liability on the part of the contractor for executing its will.” Id. at 20-21. Because the governm ent had “impliedly promised to pay [compensation for any taking] and has afforded a re medy for its recovery by a suit in the Court of Claims . . . there is no ground for hol ding its agent liable who is simply acting under the authority thus validly conferred.” Id. at 21-22. Rather , the suit must be brought against the United States. Thus, for example, when separate corporat e entities act for the United States, the United States is li able for their takings. See, e.g. , Russian Volunteer Fleet v. United States , 282 U.S. 481, 489 (1931) (U nited States bound to pay just compensation when Shipping Board Emergency Fleet Corporation, acting under legislative authority, requisitioned contracts for the c onstruction of two vessels); see also Loretto v. Teleprompter Manhattan CATV Corp. , 458 U.S. 419, 440-41 ( 1982) (holding state government liable for a physical taking, even though the activity in question was carried out by a private cable company); Casa de Cambio Comdiv S.A., de C.V. v. United States , 291 F.3d 1356, 1363 (Fed. Cir . 2002) (recognizing that the federal government may be held liable for takings that are consu mmated through its “alter ego or agent”). So too when state agencies act as agent s of the United St ates, the United States may incur takings liability. See Rose Acre Farms, Inc. v. United States , 373 F.3d 1177, 1196 (Fed. Cir. 2004) (holding t hat attribution of “state-i mposed restrictions to the federal government for purposes of the takings analysis . . . is proper . . . only if the state officials were acting as agents of the federal government or pursuant to federal authority”); B & G Enters. v. United States , 220 F.3d 1318, 1322 (Fed. Cir. 2000) (holding that the United States could be subject to suit in the Court of Federal Claims for

04-5027,-5037 11an alleged regulatory taking effect ed by the state of California only if California could be considered “an agent of t he federal government”); Hendler v. United States , 952 F.2d 1364, 1378 (Fed. Cir. 1991) (recognizing that common law agency is a test for determining when takings accomplished by ot hers are attributable to the federal government). In sum, the fact that the federal government acts through an agent in accomplishing a taking of private property “does not absolve it from the responsibility, and the consequences, of its actions.” Toews v. United States , 376 F.3d 1371, 1381-82 (Fed. Cir. 2004) (quoting Preseault v. United States , 100 F.3d 1525, 1551 (Fed. Cir. 1996) (en banc) (plurality opinion)). “[T] he United States, havin g by its agents, proceeding under the authority of an act of [C]ongress, taken the property of the claimant for public use, are under an obligati on, imposed by the [C]onstitution, to make compensation.” United States v. Great Falls Mfg. Co. , 112 U.S. 645, 656 (1884). There is also no question that NAFIs are agents of the Un ited States. The Supreme Court has repeatedly recognized t hat NAFIs are “arms of the government” deemed “essential for the performance of governmental functions.” Standard Oil Co. v. Johnson , 316 U.S. 481, 485 (1942); United States v. Hopkins , 427 U.S. 123, 124 (1976); Army & Air Force Exch. Serv. v. Sheehan , 456 U.S. 728, 733 (1982). 3
In Kyer , our predecessor court held t hat the now defunct Grape Crush Administrative Committee, established pur suant to a marketing order under the

3 For purposes of the Federal Tort Claims Act, NAFIs have also been held to be agencies of the federal government and thus able to s ubject the United States to liability for their actions. See, e.g. , United States v. Holcombe , 277 F.2d 143, 146 (4th Cir. 1960) (holding that Officers’ Mess at a naval base, a NAFI, was “an agency [and it is] difficult to escape the conclusion that t he Federal Tort Claims Act encompasses it . . . [in] the absence of any rest riction in the statute”); see also Bozeman v. United States ,

04-5027,-5037 12authority of the AMAA, was a NA FI and that the court had no jurisdiction over claims for breach of the Committee’s contra cts, but in so holding, t he court recognized that the Committee was “an agency of the United States, established and controlled by the Secretary of Agriculture pursuant to authority vested in him by the Agricultural Marketing Agreement Act of 1937. ” 369 F.2d at 715-16. 4 Indeed, the government in Kyer “affirm[ed] the Committee’s status as an agency of the Unit ed State[s].” Id. at 717. Similarly, in oral argument in this case, the government confirm ed that the RAC was an agent of the United States. It would thus appear clear that takings claims based on the actions of NAFIs are “claims against the United States founded . . . upon the Constitution.” As the Supreme Court recognized in Preseault , the “proper inquiry” in any challenge to the exercise of Tucker Act jurisdiction is “whether Congress ha[s] withdrawn the Tucker Act grant of jurisdiction . . . to hear a suit . . . founded . . . upon the Constitution.” 494 U.S. at 11-12 (quoting Reg’l Rail Reorganization Act Cases , 419 U.S. 102, 126 (1974)) (emphasis in original) (internal quotations and alterations omitted). The government points to no language in the Tucker Act, or elsewhere, t hat reflects the requisite “unambiguous intention” to withdraw takings jurisdiction over claims against the United States based upon the actions of its agents. Id. at 12.

780 F.2d 198 (2d Cir. 1985) (holding that United States liablity for negligent acts of NAFI employee was barred by Feres doctrine and not discussing any other jurisdictional bar). 4 The Kyer court rejected the argument that 7 U.S.C. § 612c, which provides for a general appropriati on from the Treasury to the Se cretary of Agriculture to fund administrative expenses of the Secretary incurred under the AMAA, constituted a source of appropriated funds available to the marketing committee sufficient to undermine the committee’s NAFI status. 369 F. 2d at 718-19. Lion’s attempt to revive this already failed argument here is unavailing. The RAC is a NAFI.

04-5027,-5037 13The government, however, urges, and the C ourt of Federal Claims held, that NAFIs are different from ot her agents of the federal gov ernment, and that the Tucker Act provides no jurisdiction over takings claims against the United States based on actions by NAFIs. We disagree. A virtually identical contention was rejected by us in the context of a closely related jurisdic tional provision of the Tucker Act, granting jurisdiction over “any claim against the Unit ed States founded . . . upon . . . any Act of Congress.” 28 U.S.C. § 1491(a)(1). In El-Sheikh v. United States , 177 F.3d 1321 (Fed. Cir. 1999), a Fair Labor Standards Act suit was brought by a NAFI employee against the United States. The government argued that the NAFI doctrine applied to bar jurisdiction in the Court of Federal Claims. We dis agreed, and held that there was no express NAFI limitation to the Tucker Act’s gr ant of jurisdiction for “any claim against the United States founded . . . upon . . . any Act of Congress” and that the Tucker Act encompassed the NAFI employee’s FLSA claim, because “[f]o r purposes of the [FLSA], [the NAFI] employer is ‘the government of the United States” and the FLSA was an “Act of Congress”. Id. at 1323. 5

5 To be sure, the Tucker Act grant of jurisdiction, and the corresponding waiver of sovereign immunity, is inapplicabl e if the money-mandating provision does not make the United States liable for the actions of NAFIs. Compare El-Sheikh , 177 F.3d 1321, 1325 (Fed. Cir. 1999) (FLSA makes United States liable for acts of NAFIs) with Taylor v. United States , 303 F.3d 1357, 1361 (Fed. Cir. 2002) (United States not liable to provide benefits to NAFI employees under the Separation Pay Act in light of the statutory command that any aw ard of “separation pay shall be paid by an agency out of any funds or appropriations available for sa laries and expenses of such agency”) (citing 5 U.S.C. § 5597 note) and Interdent Corp. v. United States , 488 F.2d 1011 (Ct. Cl. 1973) (holding that 28 U.S.C. § 1498(a), creating Unit ed States liability for patent infringement, does not make Unit ed States liable for infringing activities of a NAFI). Here we have determined that the Takings Cl ause imposes liability on the United States for acts of NAFIs.

04-5027,-5037 14Even apart from El-Sheikh , we reject the government ’s contention that the Tucker Act’s jurisdictional grant does not ext end to claims against the United States for takings effected by NAFIs. First, the government relies on a series of decisions of this court holding that jurisdiction under the Tucker Act is limited by the so-called NAFI doctrine. But, the authority on which the governm ent relies does not support t he proposition that the United States is exempt under the Tucker Act for takings claims. The origins of the NA FI doctrine lie in Standard Oil . There, the Court ruled that the Army “post-exchanges” qualified for a federal government exemption from a California state tax. 316 U.S. at 484-85. The Court noted t hat the “post exchanges as now operated are arms of the government deemed by it essent ial for the performance of governmental functions,” but that the “government assu mes none of the financial obligations of the exchange.” Id. at 485. “Relying on the Court’s observation in [ Standard Oil] that the ‘Government assumes none of the financial obligations’ of military post exchanges, . . . the Court of Claims, in a series of decisions, . . . held that it could not entertain contract claims against nonappropriated fund in strumentalities.” Sheehan , 456 U.S. at 734 n.4. See,
e.g. , Kyer , 369 F.2d at 718; G.L. Christian & Assocs. v. United States , 312 F.2d 418, 424-25 (Ct. Cl. 1963); Borden v. United States , 116 F. Supp. 873, 877 (Ct. Cl. 1953). In 1970, Congress amended the Tucker Act, and granted jurisdiction over contract claims against the United States for contra ct claims brought against the armed forces exchanges. See generally McDonald’s Corp. v. United States , 926 F.2d 1126, 1129-31 (Fed. Cir. 1991) (discussing the 1970 amendment s and their legislative history).

04-5027,-5037 15Following the decisions of our predecesso r court, we have repeatedly held that the Tucker Act confers no jurisdiction over claims based on contracts made by NAFIs other than those contempl ated in the 1970 amendments. 6 All of these cases apply “[t]he general rule . . . that the Court of Federal Claims lacks jurisdiction to grant judgment against the United St ates on a claim against a NAFI because the United States has not assumed the financial obligati ons of those entities by appropriating funds to them.” El Sheikh , 177 F. 3d at 1324 (citing Hopkins , 427 U.S. at 127); see Lee v. United States , 124 F.3d 1291, 1294 (Fed. Cir. 1997). See, e.g. , AINS , 365 F.3d at 1334 (no Tucker Act jurisdiction over breach of contract claim with respect to the United States Mint); Furash & Co. v. United States , 252 F.3d 1336, 1340 (Fed. Cir. 2001) (no Tucker Act jurisdiction over contract dis pute with the Federal Housing Finance Board); Core Concepts , 327 F.3d at 1335 (same with respect to Federal Prison Industries). The Supreme Court recognized the NAFI doctrine, and its applicability to the contracts context, in Hopkins , stating that “[t]he nonappropr iated-fund status of the exchanges places them in a position whereby the Federal Government, absent special legislation, does not assume the obligations of those exchanges in the manner that contracts entered into by appr opriated fund agencies are assum ed.” 427 U.S. at 127.

6 28 U.S.C. § 1491(a)(1) now reads, in its entirety: The United States Court of Federal Cla ims shall have jurisdiction to render judgment upon any claim against the Un ited States founded either upon the Constitution, or any Act of Congre ss or any regulation of an executive department, or upon any express or im plied contract with the United States, or for liquidated or unliquidat ed damages in cases not sounding in tort. For the purpose of this paragr aph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges , or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contra ct with the United States.

04-5027,-5037 16Even if the NAFI doctrine ex tends beyond the contract cont ext, the government has not called our attention to any holding in the long line of NAFI cases that suggests that the NAFI doctrine extends to takings. Second, the government cont ends that even if the deci ded cases do not directly preclude takings jurisdiction, the reasoning of those cases applies equally to takings claims. We again disagree. The contract cases rest directly on the language of the Tucker Act. The language of the Tucker Act prov ides, with respect to contract claims, that the jurisdiction of the Court of Federal Claims exists over any “claim against the United States founded . . . upon any express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1). The theory of the NAFI cases is that NAFIs are separate entities (although they are agents of the United States). Su ch separate entities may make contracts that bind the entities themselves, but the Tucker Act does not authorize suits against those entities. It authorizes suits only agains t the United States, and then only based on contracts “with the United States”. A contract made by a separate entity is a contract with the United States, binding on the United St ates, only if the separate entity has the authority to obligate appr opriated funds, or, as stated in Kyer , if “that contract [is] one which, in t he contemplation of Congress, c ould obligate public monies.” 369 F.2d at 718. NAFI s are not recipients of appropr iated funds, and thus cannot contractually obligate the Un ited States. This reasoning is reflected both in the Supreme Court cases and our cases. As originally set forth in Standard Oil , the “government assumes none of t he financial obligations of the exchange.” 316 U.S. at 485. And, “since the Government had assu med no liability for the entity’s financial obligations it could not be said to have c onsented to a suit designed to vindicate such

04-5027,-5037 17obligations.” Hopkins , 427 U.S. at 125; see also AINS , 365 F.3d at 1337 (citing Borden , 116 F. Supp. at 873; Pulaski Cab Co. v. United States , 157 F. Supp. 955 (1958); Kyer , 369 F.2d at 714). This reas oning simply has no application to takings claims, where the United States does have the responsib ility for the actions of its agents. Finally, the government contends that the language of the 1970 amendments to the Tucker Act shows that the Tucker Act does not extend to takings claims against the United States based on actions by NAFIs. Again we cannot agree. Contrary to the government’s argum ent, the text and history of the 1970 amendments do not in any way suggest that Congress intended to limit Tucker Act jurisdiction with respect to NAFIs outside the contracts context. In 1970, Congress amended the Tucker Act to “afford contractors a federal forum in which to sue NAFIs” by providing for jurisdiction over contract claims against the armed forces exchanges. Hopkins , 427 U.S. at 126. The am endments were explicitly and narrowly targeted to provide jurisdiction only over contract clai ms of “a specific category of military organizations funded by resale activities which rendered them solvent and therefore able to support an adverse judgment wit hout risk to the general treasury.” McDonald’s Corp. , 926 F.2d at 1132. The stat ute was amended in order to eliminate what had been perceived as an “inequitable loophole.” Hopkins , 427 U.S. at 126. As amended, the Tucker Act included an additional sentence stati ng: “For the purpos e of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administ ration shall be considered an express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1). At the same time that

04-5027,-5037 18Congress amended the Tucker Act, it also amended the Supplemental Appropriation Act, to require that the exchange “making the contract shall reimburse the Government for the amount paid by the Government.” Ac t of July 23, 1970, P ub. L. No. 91-350, 84 Stat. 449, codified at 31 U.S.C. § 1304(c) (2000). The legislative history focuses on “post exchange types of operations,” McDonald’s Corp. , 926 F.2d at 1132-33, or “peripheral military institutions, such as officers’ clubs, post exchanges and ships’ stores , which are considered by the courts to be instrumentalities of the United States and yet are not supported by appropriated funds,” id. at 1130 (citations omitted) . The legislative history further reveals that an earlier, broader, version of the amendment extending the Tucker Act’s waiver of sovereign immunity to suits against all NAFI s was similarly limited to the contracting
context. Id. at 1129 (noting that the original ve rsion of the Senate bill would have enacted “a waiver for all implied or express contracts with all NAFIs”). The waiver was narrowed to the military exchanges in order to ensure that any Unit ed States liability under the amendments would be limited to c ontracts made by NAFIs for which the federal government exercised “procurement c ontrol” and which were financially solvent, and thus able to reimburse the Treas ury for any adverse judgments. Id. at 1130-31. Neither the text of the 1970 amendments, nor the legisl ative history, indicates that the amendments were intended to addre ss anything beyond the limited question of which NAFIs would be able to subject t he United States to suit based upon their contracting behavior. In summary, we see no basis in the text of the Tucker Act itself; the legislative history of the 1970 amendm ents; or in the decisions of t he Supreme Court or this court,

04-5027,-5037 19for limiting the scope of the jurisd ictional grant over claims “against the United States . . . founded upon the Constituti on” to exclude takings claims against the United States based on actions by NAFIs. 7 “If there is a taking, the claim is ‘founded upon the Constitution’ and within the jurisdiction of t he Court of Claims to hear and determine.” United States v. Causby , 328 U.S. 256, 267 (1946). The RA C is an agent of the United States, and the United States may properly be sued in the C ourt of Federal Claims for any takings that are allegedly cons ummated by the acts of its agent. 8
II Even though the Court of Feder al Claims dismissed both cases on jurisdictional grounds, we may consider whether the ca ses may be appropriately dismissed on any other legal grounds. As we have noted, “[a] n appellate court may affirm the [trial] court on a ground not selected by the [tr ial] judge so long as the record fairly supports such an alternative disposition of the issue.” Banner v. United States , 238 F.3d 1348, 1355 (Fed. Cir. 2001) (internal quotati on marks and citations omitted); see also U.S. Philips Corp. v. Sears Roebuck & Co. , 55 F.3d 592, 597 (Fed. Cir. 1995). While this matter

7 Contrary to the government’s argum ent, there is nothing in the language of 28 U.S.C. § 2517(a) (2000) (“[ E]very final judgment render ed by the United States Court of Federal Claims agains t the United States shall be paid out of any general appropriation therefor”) to suggest that the Un ited States will not pay just compensation when held liable for a taking of public property by a NAFI. See, e.g. , Hurley v. Kincaid , 285 U.S. 95, 103-04 (1932); United States v. Lynah , 188 U.S. 445, 465-66 (1903); Great Falls Mfg. Co. v. Att’y Gen. , 124 U.S. 581, 599 (1888); 8 In light of our conclusion that the RAC is an agent of t he United States, we need not consider whether the Secretary’s involvement in oversight of the RAC’s activities is sufficient to implicate direct takings liability for the federal government. See, e.g. , Casa de Cambio , 291 F.3d at 1361; see also Johanns v. Livestock Mktg. Assoc. , 125 S.Ct. 2055 (2005), slip op. at 12 (May 23, 2005) (holding that advertising carried out by the Livestock Marketing A ssociation, an entity similar in form and function to the RAC, is government speech in part because of the Secretary of Agriculture’s oversight role over the challenged program).

04-5027,-5037 20was on appeal we directed the parties to s ubmit supplemental briefs. Although the Court of Federal Claims was not barred from reviewing these claims due to the NAFI doctrine, we conclude that the dismissa l of these actions should nonetheless be sustained. With respect to both the reserve pool cl aim and the bins claim, the essence of the claims being asserted is that the RAC has either violated its statutory and regulatory obligations (in the reserve pool case) or failed to comply with its regulatory and contractual obligations (in the bins case). We conclude that these claims are not properly presented as takings challenges in the Court of Federal Claims, and instead must be pursued in the designated admin istrative and judicial fora. We consider first the reserve pool issue. Here Lion asserts a claim as a producer with an interest in the 1997 reserve pool proceeds. Lion, both in the Court of Federal Claims and in this Court, has made cl ear that it does not challenge the overall operation of the regulat ory scheme, including the requirem ent that growers contribute raisins to the reserve pool. (First Am. Compl. of Lion I , at ¶ 23; Br. of Appellant at 14; see also Appellant Supp’l Br. at 5 (“Neither case seeks a modification or exemption from the Raisin Order, nor a ruling that one of its provisions is unlawful.”)) In its amended complaint, Lion alleged a fi rst cause of action, charging a “Violation of an Act of Congress and Regulati ons Issued by the Secr etary of USDA.” The allegations of illegal agency action were incorporated wholesale into the takings claim (the second cause of action). Lion I , 58 Fed. Cl. at 393 n.1. Lion urged that the RAC’s decision to use the 1997 reserve pool proceeds to fund the export program in

04-5027,-5037 21subsequent crop years constituted a taking because it was unlawful. 9 Even after Lion voluntarily dismissed its first cause of ac tion which alleged a “Violation of an Act of Congress and Regulations Issued by the Secretary of USDA,” it continued to describe the “gist of the First Amended Complaint” (t hat is, the remaining takings claim) as a claim that “Plaintiffs were entitled to their equitable share of the 1997 reserve pool equity, as required by the Agricultural Mark eting Agreement Act of 1937 (7 U.S.C. § 601 et seq. and the Raisin Marketing Order (7 C.F.R. § 989.1 et seq. ))” and emphasized that it continued to rely on the “s pecific factual allegations c ontained in paragraph 21 of the first cause of action of the FAC (First Amended Complaint),” i.e., the allegations of illegality. 10 (Pl. Opp. to Def. Motion to Dismiss Pl. First Am. Comp. at 2.)

9 Lion also claimed that the change in the reserve pool benefit constituted a physical taking of the raisins themselves. ( Lion I , First Am. Compl. at ¶ 23.) Of course, once the raisins were transferred to the RAC, Lion no longer had a prop erty interest in the raisins themselves, but onl y in its share of the reserve pool proceeds as defined by the regulations. 7 C.F.R. § 989.66(h). 10 Paragraph 21 of the First Amended Co mplaint, which is incorporated by reference into the takings claim, reads, in its entirety: Title 7 C.F.R. § 989.66(h) specifically states t hat the net proceeds of reserve raisins sold into the various permissible markets must be distributed by the committee to t he respective producers or their successor in interest thereto “on the basis of the volume of their respective contribution to the reserve tonnage of such varietal type.” An Act of Congress, 7 U.S.C. § 608c(6)(E) st ates that when the Secretary establishes reserve pools the Secretar y must provide “for the equitable distribution of the net return deriv ed from the sale thereof among the persons beneficially interested therein.” Neither the regul ation nor the statute permits the RAC or USDA to allow the net proceeds to be used except to benefit the 1997 reserve pool equity holders such as Plaintiffs

. The United States has violated the Act of Congress and the Marketing Order and thus is liable to the Plaintiffs in an amount according to proof, but a sum in excess of $1 million dollars not only to Plaintiffs as reserve equity holders, but as assignees or successors in interest to other producer’s reserve equity

.

04-5027,-5037 22We have made clear that a claim premised on a regulatory violation does not state a claim for a taking. In Rith Energy, Inc. v. United States , 247 F.3d 1355 (Fed. Cir. 2001) (“ Rith I ”), we took care to distinguish betw een the valid exercise of the Court of Federal Claim’s jurisdiction over a takings claim when the claim was that “property was taken regardless of whether the agency acted consis tently with its statutory and regulatory mandate” and t he bar to such jurisdiction when “the plaintiff claims it is entitled to prevail because the agency acted in violation of statute or regulation.” Id. at 1366 (emphases in original). “[ T]o the extent that the plaint iff claims it is entitled to prevail because the agency acted in violat ion of statute or regula tion, [our decisions do] not give the plaintiff a right to litigate that issue in a takings action rather than in the congressionally mandated administr ative review proceeding.” Id. (distinguishing Del-Rio Drilling Programs Inc. v. United States , 146 F.3d 1358 (Fed. Cir. 1998)) (emphasis in original). In our decision denying Rith’s petition fo r rehearing, we clarified that “in a takings case we assume that the underly ing governmental action was lawful.” Rith Energy, Inc. v. United States , 270 F.3d 1347, 1352 (Fed. Cir. 2001) (“ Rith II ”). Because Lion’s takings claim was premised on the allegat ions that the RAC violated the statute and regulations, the Court of Federal Cla ims properly dismissed the complaint. We note that this is not a case in which the plaintiffs claim to have a contractual right in the maintenance of a particular ca lculation of net pr oceeds. If the party asserting the taking has contracted with the f ederal government, the contract itself may be a cognizable property interest that, if abr ogated by legislation or regulatory action, may form the basis of a takings claim. See, e.g. , Chancellor Manor v. United States , ( Lion I , First Am. Compl. at ¶ 21.) (emphasis added).

04-5027,-5037 23331 F.3d 891, 903 (Fed. Cir. 2003); Cienega Gardens v. United States , 331 F.3d 1319, 1330 (Fed. Cir. 2003). Here, however, Lion claims no contractual right to any specific compensation for its raisins. Indeed, Li on has formally abandoned a contract claim that was asserted in the original version of its complaint. 11
III We now turn to the bins case, which is a sserted by Lion only in its capacity as a handler. To the extent that, as with the reserv e claim, Lion is asserting that a taking has occurred because the RAC has violated the regulati ons, Lion has failed to state a claim. But the complaint also appears to allege that Lion owned bins; that Lion transferred bins to the RAC; and that a ta king occurred because the RAC appropriated the bins to its own use. To the extent that Lion contends that the United States has used the bins without payment, or retained t he bins, the administrative and judicial review procedures available under 7 U.S.C. § 608c(15)(A) provide a remedy to recover the value of the rights alleged to be taken. Section 608c(15) provides an administrat ive remedy to handlers wishing to challenge marketing orders under the AMAA; requires that the Secretary grant a

11 Under the Supreme Court’s decision in Stark , and its progeny, Lion was entitled to judicial review under the Admini strative Procedure Act (“APA”) as to whether the RAC violated the law by using a portion of the 1997 reserve pool to fund the export program for years other t han 1997. 321 U.S. at 309-10; Alto Dairy v. Veneman , 336 F.3d 560, 563-64 (7th Cir. 2003); United Dairymen v. Veneman , 279 F.3d 1160, 1165 (9th Cir. 2002). Of course, no APA review is av ailable in the Court of Federal Claims. See Crocker v. United States , 125 F.3d 1475, 1476 (Fed. Cir. 1997) (holding that the Court of Federal Claims lacked general feder al question jurisdiction to review the propriety of agency action under the Administrative Procedur e Act, 5 U.S.C. §§ 701-706 (2000) and noting that the “Tucker Act does not create jurisdicti on in the Court of Federal Claims for a party contesting the proprie ty of a taking”) (citations omitted).

04-5027,-5037 24hearing and make a ruling on petitions brought by handlers; and vests t he district courts with jurisdiction to review the Secretary’s decision. It states: (A) Any handler subject to an order ma y file a written petition with the Secretary of Agriculture, stating that any such or der or any provision of any such order or any obligation imposed in connection therewith is not in accordance with law and praying for a modification thereof or to be exempted therefrom. He s hall thereupon be given an opportunity for a hearing upon such petition . . . . After such hearing, the Secretary shall make a ruling upon the prayer of such petition which shall be final, if in accordance with law. (B) The District Courts of the United States . . . are vested with jurisdiction in equity to review such ruling . . . . If the court determines that such ruling is not in accordance with law, it shall remand such proceedings to the Secretary with directions eit her (1) to make such ruling as the court shall determine to be in accordanc e with law, or (2) to take such further proceedings as, in its opinion, the law requires.

7 U.S.C. § 608c(15) (emphases added).
In Ruzicka , the Supreme Court observed that Congress, in this provision, “explicitly gave to an aggrieved handler an appr opriate opportunity for the correction of errors or abuses by the agency” and held t hat any challenges to a marketing order could only be raised using the special statutor y procedure provided by section 608c(15). 329 U.S. at 292-93. As the Court explained: Congress has provided a special proc edure for ascertaining whether such an order is or is not in accordance wit h law. . . . And so Congress has provided that the remedy in the first instance must be sought from the Secretary of Agriculture. It is on the basis of his ruling, and of the elucidation that he would pr esumably give to his ruling, that resort may be had to the courts. Id. at 294. Although Lion asserts that the statute concerns only court challenges to the legality of the marketing order, in fact, the se ction explicitly provides for challenges to “any obligation imposed in c onnection” with “any such order .” The marketing order obligates handlers to store reserve t onnage raisins “separate and apart from other

04-5027,-5037 25raisins” and specifically refers to the use of “boxes and bins ” for such storage. 7 C.F.R. §§ 989.66(b)(2) & 989.401(c). The RAC is obligated to compensate handlers for expenses incurred in “receiving, storing, fu migating, handling, and inspection of . . . reserve raisins . . . held by them for t he account of the commi ttee.” 7 C.F.R. § 989.66(f). Lion alleges that it has not been compensated for the RAC’s appropriation of its bins that occurred as a result of Lion’ s handling of reserve raisins. During oral argument, counsel for the United States a cknowledged that Lion ha s an administrative remedy and may file a section 608c(15)(A) petition seeking redress for the RAC’s alleged actions. 12 Lion contends that the congressionally mandated administrat ive and judicial review procedures do not pr ovide an adequate remedy because they do not provide for a monetary remedy. The statute vests district courts with juri sdiction in equity to review the administrative decisions of the Secretary under § 608c(15). The case law demonstrates that monetary relie f, in the form of equitable restitution, may be awarded in the course of judicial review of section 608c(15)(A) proceedings. See Borden, Inc. v. Butz , 544 F.2d 312, 319 (7th Cir. 1976) (award ing restitution to handler for overpayments); Fairmont Foods Co. v Hardin , 442 F.2d 762, 773 (D.C. Cir. 1971) (same); see also Saulsbury Orchards and Almond Pr ocessing, Inc. v. Yeutter , 917 F.2d 1190, 1195 (9th Cir. 1990) (holding that “the di strict court, upon proper application can

12 Court: “You say, speaking with t he authority of the Secretary of Agriculture, that the Secret ary reads this statute broadly enough to encompass claims of the sort involved in the bin case?” Counsel: “Yes, and the Secretary is currently reviewing such a case.”

04-5027,-5037 26shape relief to protect the handler’s rights in case any challenge to the marketing order is ultimately substantiated”) (citation omitted). 13 In short, as acknowledged by the gover nment, Lion may challenge the RAC’s actions with respect to the missing bins in the congressionally mandated review proceedings, and these proceedings are able to provide the full range of relief sought by Lion in the form of equitable restitution for the missing bins and any unjust enrichment on the part of the RAC resulting from its use of the bins without payment. Lion may not seek compensation in the Court of Federal Claims under the guise of a takings claim for what is essentially a challenge to invalid agency action. We have repeatedly held that Tucker Act revi ew of takings claims is precluded where Congress has provided “a specific and comprehensive scheme for administrative and judicial review.” Vereda, Ltda. v. United States , 271 F.3d 1367, 1375 (Fed. Cir. 2001) (quoting St. Vincent’s Med. Ct r. v. United States , 32 F.3d 548, 550 (Fed. Cir. 1994)); see also United States v. Fausto , 484 U.S. 439, 453-54 (1 988) (holding that Civil Service Reform Act had a “comprehensiv e and integrated review scheme” for personnel matters that repealed by implication the judicial interpretation of the Back Pay Act which had previously served as a basis of Tucker Act jurisdiction); Tex. Peanut Farmers v. United States , 409 F.3d 1370 (Fed. Cir. 2005) (n o Tucker Act jurisdiction over claim for breach of crop insurance c ontract, as Congress has granted district courts exclusive jurisdiction over claims against the Federal Crop Insurance Corporation

13 Lion relies on In re Jet Farms, Inc. , 50 Ag. Dec. 1373 (1991) in asserting that monetary relief is not available in sect ion 608(c)15 cases, but that case stands for the proposition that monet ary relief is only available in t he form of equitable restitution, and that “[t]here is no authorizati on . . . for consequential damages.” Id. at 1416.

04-5027,-5037 27in 7 U.S.C. §§ 1508(j) & 1506(d)); Telecare Corp. v. Leavitt , 409 F.3d 1345, 1348 (Fed. Cir. 2005) (noting our holding in Wilson v. United States , 405 F.3d 1002 (Fed. Cir. 2005), that Tucker Act jurisdiction over cl aims for Medicare benefits is withdrawn through “the specialized administrative and judici al review process” for such claims provided in the Social Security Act); see also Massie v. United States , 166 F.3d 1184, 1188 (Fed. Cir. 1999) (“[A] contract will not fall within the purview of the Tucker Act if Congress has placed jurisdiction over it elsewhere.”). For example, in Vereda , we concluded that the availability of complete administrative review by the DEA and subsequent judicial review in district court of the merits of a seizure and forfeiture of property in a drug forfeiture case under 21 U.S.C. § 881 precluded the exercise of jurisdiction in the Court of Federal Claims over the alleged taking. 271 F.3d at 1375. We noted that the availability of alternative review mechanisms for the challenged forfeiture, bot h administratively and before a district court, “evinces Congress’ intent to preempt any Tucker Act jurisdiction over a money claim that challenges the propriety of an in rem administrative forfeiture of property seized under 21 U.S.C. § 881.” Id. So here, the Court of F ederal Claims is barred from exercising jurisdiction over the bins case gi ven the availability of alternative review mechanisms for the challenged actions. In summary, we affirm the Court of Federal Claims’ dismissals of the two cases, albeit on different grounds. The reserve pool ca se is properly dismissed for failure to state a Fifth Amendment takings claim. The bins case is properly dismissed for lack of jurisdiction given the availability of an alte rnative administrative and judicial review procedure.

04-5027,-5037 28CONCLUSION For the foregoing reasons, the Court of Federal Claims’ dismissals of Lion’s actions are AFFIRMED

. COSTS No costs.

04-5027,-5037 29