Greenlee County, Ariz. v. U.S.

• Decision Date: 14 May 2007
• Docket Number: No. 2006-5053.,2006-5053.
• Citation: 487 F.3d 871
• Parties: GREENLEE COUNTY, ARIZONA, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

487 F.3d 871

GREENLEE COUNTY, ARIZONA, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 2006-5053.

United States Court of Appeals, Federal Circuit.

May 14, 2007.

Alan I. Saltman, Saltman & Stevens, P.C., of Washington, DC, argued for plaintiff-appellant. With him on the brief was Ruth G. Tiger. Of counsel on the brief were Barry P. Caplan and John A. Schwimmer, Sussman Shank LLP, of Portland, OR.

Robert J. Lundman, Attorney, Environment & Natural Resources Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Sue Ellen Wooldridge, Assistant Attorney General, and Kathryn E. Kovacs and Kelle S. Acock, Attorneys. Of counsel on the brief was Kristina Clark, Office of the Solicitor, United States Department of the Interior, of Washington, DC.

Before MAYER, LOURIE, and DYK, Circuit Judges.

DYK, Circuit Judge.

Appellant Greenlee County, Arizona ("Greenlee County") appeals from a decision of the United States Court of Federal Claims dismissing its suit against the appellee United States ("government" or "United States") for failure to state a claim. We affirm.

BACKGROUND

I

The Payment in Lieu of Taxes Act ("PILT"), 31 U.S.C. § 6901 et seq., was enacted to "compensate[ ] 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 these lands." Lawrence County v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 258, 105 S.Ct. 695, 83 L.Ed.2d 635 (1985). Under PILT, "the Secretary of the Interior is required to make annual payments to each unit of general local government in which entitlement land is located." Id. (internal quotation marks omitted); see also 31 U.S.C. § 6902. Entitlement lands include, inter alia, land that is part of the National Forest System. 31 U.S.C. § 6901(1)(A). A "unit of general local government" is defined as a local government unit "that the Secretary of the Interior, in his discretion, determines to be the principal provider . . . of governmental services within the State" in the area of the entitlement land. 31 U.S.C. § 6901(2)(A). The amount of payment a unit of local government is entitled to under § 6902 is calculated based on the number of acres of entitlement land within its jurisdiction¹ but limited to an amount determined by a formula based on its population. See 31 U.S.C. § 6903.

Section 6906, the focus of the dispute in this case, provides that "[n]ecessary amounts may be appropriated to the Secretary of the Interior to carry out this chapter. Amounts are available only as provided in appropriation laws." Under the current Department of the Interior regulation, "[i]f Congress appropriates insufficient monies to provide full payment to each local government during any fiscal year, the Department will reduce proportionally all payments in that fiscal year." 43 C.F.R. § 44.51(b) (2006). The question in this case is whether the government's liability is capped by the amount appropriated by Congress.

II

The Secretary of the Interior has determined that Greenlee County, located in eastern Arizona, is a "unit of local general government." Since the United States Forest Service owns over half of the land in the county, Greenlee County is eligible for payments under PILT and received $2,634,667 from the Department of Interior from 1998 through 2004. However, during this period, Greenlee County did not receive the full payment provided for by the statutory formula because the Department of the Interior found that Congress did not appropriate sufficient funds to fully fund payments in the full amount of the formula.

In August 2004, Greenlee County filed a suit against the United States in the Court of Federal Claims seeking $2,225,036 in unpaid amounts it was allegedly due under PILT from fiscal years 1998 through 2004 (i.e., the difference between what it received from the Department of the Interior and the full amount to which it would have been entitled under the statutory formula). Greenlee County also sought certification of a class comprising over 1900 allegedly similarly situated units of local government.

The government moved to dismiss Greenlee County's complaint for lack of subject matter jurisdiction under Rule 12(b)(1) of the Court of Federal Claims ("RCFC") and for failure to state a claim upon which relief can be granted under RCFC 12(b)(6). On November 3, 2005, the Court of Federal Claims granted the government's motion to dismiss "for failure to state a claim." Greenlee County, Arizona v. United States, 68 Fed.Cl. 482, 483 (Fed.Cl.2005). The Court of Federal Claims concluded that under § 6906 the government's obligation was "expressly conditioned on [the] availability of appropriations." Id. at 486. It reasoned that the language "necessary amounts may be appropriated" in § 6906, like the phrases "available only as provided in appropriation laws" and "subject to the availability of appropriations," "does not require that the amounts be appropriated." Id. at 485-86. The Court of Federal Claims also concluded that "[p]laintiff's request that we certify a class of counties in similar circumstances as Greenlee County is moot." Id. at 483.

Greenlee County timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

DISCUSSION

I

At the outset, we consider the government's claim that the Court of Federal Claims lacked jurisdiction because PILT is not "money-mandating." See DaimlerChrysler Corp. v. Cuno, ___ U.S. ___, 126 S.Ct. 1854, 1860, 164 L.Ed.2d 589 (2006). The Tucker Act both confers jurisdiction on the Court of Federal Claims and waives the sovereign immunity of the United States for claims for money damages founded on, inter alia, acts of Congress. See United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003); Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir.2005) (en banc in relevant part). However, "[t]he Tucker Act itself does not create a substantive cause of action; in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages." Fisher, 402 F.3d at 1172; see also White Mountain, 537 U.S. at 472, 123 S.Ct. 1126.

The government appears to argue that whether a statute is money-mandating for purposes of Tucker Act jurisdiction depends on whether the plaintiff on the merits can make out a claim under the statute, and that the Court of Federal Claims lacked jurisdiction here because the court properly concluded that Greenlee County was not entitled to recover under the statute. This jurisdictional argument is foreclosed by the Supreme Court's decision in White Mountain and by our decision in Fisher interpreting White Mountain.

In White Mountain, the Court explained that "a statute creates a right capable of grounding a claim within the waiver of sovereign immunity if, but only if, it can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained" and is "reasonably amenable to the reading that it mandates a right of recovery in damages." White Mountain, 537 U.S. at 472-73, 123 S.Ct. 1126 (emphases added and internal quotation marks omitted). Clearly, determining whether a statute "can fairly be interpreted" to require the payment of damages or is "reasonably amenable" to a reading that mandates damages does not require a determination that the plaintiff has a claim on the merits. In fact, White Mountain itself resolved the jurisdictional issue by concluding that a 1960 statute created a fiduciary trust relationship that made "the Government . . . subject to duties as a trustee and liable in damages for breach." White Mountain, 537 U.S. at 474, 123 S.Ct. 1126. The Court then remanded the case to the Court of Federal Claims to determine on the merits whether a breach occurred that would entitle the plaintiff to damages because the "existence of this general fiduciary relationship does not mean that any and every claim . . . necessarily states a proper claim for breach of the trust[,] a claim which must be fully tried in the Court of Federal Claims," White Mountain Apache Tribe v. United States, 249 F.3d 1364, 1383 (Fed.Cir.2001) (internal quotation marks omitted), aff'd 537 U.S. at 479, 123 S.Ct. 1126. Thus, the Supreme Court clearly viewed the merits of a plaintiff's case—i.e., whether the plaintiff could make out a cause of action for damages based on a breach of the fiduciary relationship—as a separate inquiry from the jurisdictional question of whether a money-mandating source exists.

In support of its position, the government points to our discussion in Fisher of a "single step" that "determines both the question of whether the statute provides the predicate for [the court's] jurisdiction, and lays to rest for purposes of the case before it the question of whether the statute on its merits provides a money-mandating remedy," 402 F.3d at 1173. However, Fisher considered three different grounds on which the government might file a motion to dismiss in a Tucker Act case: (1) lack of subject matter jurisdiction due to the lack of a money-mandating source; (2) failure to state a claim upon which relief can be granted due to lack of a money-mandating source; and (3) failure to state a claim upon which relief can be granted because the plaintiff is ultimately not entitled to recover money damages under the statute. 402 F.3d at 1172-73. Fisher held that the first two grounds are resolved by a "single step" at the outset of the case and "the determination that the source is money-mandating shall be determinative both as to the question of the court's jurisdiction and thereafter as to the question of whether, on the merits, plaintiff has a money-mandating source on which to base his cause of action." 402 F.3d at 1172-73. However, we...