ST. BERNARD PARISH GOVERNMENT, Plaintiff-Appellant
UNITED STATES, Defendant-Appellee
from the United States Court of Federal Claims in No.
1:15-cv-00637-EJD, Senior Judge Edward J. Damich.
William Martin McGoey, Civil Division, St. Bernard Parish
District Attorney's Office, Chalmette, LA, argued for
Emma Bezak, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for defendant-appellee. Also represented by Kenneth Dintzer,
Robert Edward Kirschman, Jr., Joseph H. Hunt.
Lourie, Bryson, and Wallach, Circuit Judges.
BRYSON, CIRCUIT JUDGE.
Bernard Parish in Louisiana ("St. Bernard") has
appealed from an order of the Court of Federal Claims
dismissing its breach of contract claim for lack of
jurisdiction. We affirm.
April 17, 2009, the U.S. Department of Agriculture's
Natural Resources Conservation Service ("NRCS")
entered into a "Cooperative Agreement" with St.
Bernard under the authority of the Federal Grant and
Cooperative Agreement Act ("FGCAA"), 31 U.S.C.
§§ 6301-08. The agreement provided that, under the
provisions of the Emergency Watershed Protection
("EWP") Program, the NRCS was "authorized to
assist [St. Bernard] in relieving hazards created by natural
disasters that cause a sudden impairment of a
agreement provided for certain debris and sediment removal
work to be performed in 16 watershed areas, among them the
Bayou Terre Aux Boeufs in southeast Louisiana. For the 16
watershed areas, the estimated cost of the work was $4, 318,
Cooperative Agreement stated that St. Bernard would arrange
for a contractor to perform the work, pay the contractor,
provide technical services, be responsible for all
administrative expenses, and take responsibility for and
necessary action to deal with any and all contractual and
administrative issues. The NRCS agreed to "provide 100
percent ($4, 318, 509.05) of the actual costs of the
emergency watershed protection measures," and to
"[m]ake payment to the [Parish] covering NRCS's
share of the cost, upon receipt and approval [of St.
Bernard's formal request for reimbursement] with
March 2010, St. Bernard entered into a contract with Omni
Pinnacle, LLC ("Omni") in which Omni agreed to
remove the sediment in Bayou Terre Aux Boeufs for $4, 290,
300.00. St. Bernard contracted with All South Consulting
Engineers ("All South") to manage and inspect the
Bayou Terre Aux Boeufs project.
price of the contract was predicated on the removal of an
estimated 119, 580 cubic yards of sediment. After Omni
completed its pre-construction survey, it revised the
estimated amount of sediment to be removed downward by
approximately 59 percent.
September 2010, Omni completed the Bayou Terre Aux Boeufs
project. Despite having removed only 49, 888.69 cubic yards
of sediment, Omni submitted an invoice to St. Bernard for $4,
642, 580.58. In light of the 59 percent decrease in the
amount of sediment to be removed, the NRCS determined that it
would reimburse St. Bernard only in the amount of $2, 849,
South reviewed Omni's invoice and, after noting certain
concerns and price markups, recommended that St. Bernard pay
Omni $1, 758, 548.94. On July 13, 2011, St. Bernard paid that
amount to Omni, and the NRCS reimbursed St. Bernard in full
for that payment, after an adjustment for an unrelated debt
owed by St. Bernard to the Environmental Protection Agency.
Bernard and Omni continued to dispute the amount remaining to
be paid to Omni. Then, on January 17, 2014, Omni and St.
Bernard executed a change order that adjusted the contract
price from $4, 642, 580.58 to $3, 243, 996.37. St. Bernard
paid Omni $1, 463, 447.43, which equaled the remaining
contractual amount due minus liquidated damages owed by Omni
because of project delays.
Bernard then sought reimbursement from the NRCS for that
amount. The NRCS responded by requesting additional
information regarding the invoiced work. St. Bernard provided
some of the requested information in a letter dated August
26, 2014. Subsequently, on September 29, 2014, the NRCS
reimbursed St. Bernard in the amount of $1, 107, 581.22,
which was $355, 866.21 less than St. Bernard claims it is
In a letter dated February 23, 2015, the NRCS explained that
it had withheld the remainder of the requested funds because
it had not received "the actual documentation that went
into the calculation to determine the adjusted cubic yard
rate." The letter stated, "We are simply requesting
clear, specific, organized documentation of the actual
documents that All South relied on in order to determine the
rates to be charged and a specific accounting of the figures
used to determine the amount due and owing." The letter
concluded, "Until such time as the NRCS receives the
supporting documentation relied on by All South in their
cubic yard rate calculations . . . the NRCS cannot address
the acceptability of the increased rates to substantiate
payment of more than what has already been reimbursed."
Bernard took the position that it had "submitted
sufficient back-up and supporting documentation to be
reimbursed the full amount it requested," Complaint
¶ 34, and on June 19, 2015, St. Bernard filed this
action in the Court of Federal Claims to recover the
remaining sum from the government.
the Court of Federal Claims' jurisdiction under the
Tucker Act, 28 U.S.C. § 1491(a)(1), St. Bernard alleged
that the government had breached the Cooperative Agreement by
not reimbursing it for all the funds it had paid in
connection with the Bayou Terre Aux Boeufs project. The
government filed a motion to dismiss for lack of subject
matter jurisdiction, arguing that the Cooperative Agreement
was not a contract, but rather a "Cooperative
Agreement" that did not create an enforceable obligation
on the part of the federal government.
Court of Federal Claims granted the government's motion
to dismiss for two reasons. First, the court found that an
implied right to damages does not arise from a cooperative
agreement such as the one in this case. St. Bernard Par.
Gov't v. United States, 134 Fed.Cl. 730, 734-36
(2017). Second, the court found that the Cooperative
Agreement between St. Bernard and the NRCS was not an
enforceable contract, because the government received no
consideration in the form of a direct benefit to the United
States. Id. at 735-76.
appeal to this court, St. Bernard argues that the trial court
erroneously concluded that the agreement between St. Bernard
and the NRCS was not a binding contract enforceable in money
damages against the United States in the Court of Federal
Claims. We do not reach that issue, because we conclude that
Congress has barred claims such as St. Bernard's from
being adjudicated in the Court of Federal Claims, and instead
has provided for such claims to be addressed first in