Lion Raisins, Inc. v. United States

Error: Bad annotation destination
United States Court of Appeals for the Federal Circuit

04-5027,-5037

LION RAISINS, INC., and LION BROS.,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee.

James A. Moody, of Washington, DC, argued for plaintiffs-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 Justice, of Washington, DC, argued for defendant-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, INC., 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 decisions 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 Lion Raisins, Inc. and Lion Brothers allege takings

arising from actions undertaken by the Raisin Administrative Committee (“RAC”), a

marketing agency created pursuant to the Agricultural 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 dismissed, holding that the non-appropriated fund instrumentality

(“NAFI”) doctrine barred the exercise of jurisdiction. We disagree, and hold that the
Court of Federal Claims has jurisdiction over takings claims against the United States

based on the actions of the RAC, because the RAC is an agent of the United States.

We nonetheless affirm the dismissals. In the reserve pool case, we hold that the

case must be dismissed because Lion has failed to allege a cognizable takings claim.

With respect to the bins case, we hold that the takings claim may not be brought against

the government because the statute provides for an administrative remedy and for

judicial review in district court.

BACKGROUND

I

At the heart of this case is the administration of the AMAA. The AMAA was

originally enacted during the Depression, with the objective of helping 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 Supreme 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 agricultural 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 Secretary of Agriculture (“the Secretary”)

04-5027,-5037 2
to issue marketing orders, upon request of the 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 approved by either two-thirds of the affected producers

or by producers who market at least two-thirds of the volume of the commodity. 7

U.S.C. § 608c(9)(B). The AMAA restricts the marketing orders “to the smallest regional

production areas . . . practicable.” 7 U.S.C. § 608c(11). The Raisin Marketing Order,

codified at Part 989 of Title 7 of the Code of Federal Regulations, was originally

promulgated in 1960. Its applicable regional production area is the State of California.

7 C.F.R. § 989.4 (2005).

The statute authorizes the Secretary to delegate the responsibility of

implementing marketing orders to marketing 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 administering 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 member 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 held that similar entities are non-appropriated

funds instrumentalities, or NAFIs. See, e.g., Kyer, 369 F.2d at 718-19. The Raisin

04-5027,-5037 3
Marketing Order provides that members of the RAC are “subject to removal or

suspension by the Secretary, in his discretion, at any time. Every decision,

determination, or other act of the committee shall be subject to the 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 “processors, associations of producers, and

others engaged in the handling” of covered agricultural commodities. 7 U.S.C. §

608c(1). Handlers are bound by the marketing orders promulgated pursuant to the

AMAA. Stark v. Wickard, 321 U.S. 288, 303 (1944). The government may obtain

injunctive relief, civil penalties, and criminal 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 statute, 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 handlers 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 producer returns by limiting the quantity of

raisins sold by handlers in the domestic competitive market. 7 U.S.C. § 608c(6); see

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

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also John H. Vetne, Federal Marketing 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 vegetable orders). The Raisin Marketing

Order uses a reserve pool mechanism, authorized 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 established 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 regulating the amount of

raisins in this market, the RAC can, in effect, 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 market 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

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394. 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. The statute provides for

“the equitable distribution of the net return derived from the sale [of reserve pool raisins]

among the persons beneficially interested 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 available.” 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 blends down the cost of exported California raisins thereby

allowing handlers to be price-competitive in export markets where prices are generally

lower than the domestic market.

Producers thus receive payment for their raisins in two installments. At the time

of sale, they receive the field market price for free-tonnage raisins. For the reserve-

tonnage raisins, they receive a share of the reserve pool sales proceeds, net of costs.

“Funds generated from reserve pool sales programs, 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 released 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 insufficient bins to handle the reserve-tonnage,

handlers utilize their own bins. The regulations provide that “[h]andlers shall be

compensated for receiving, storing, fumigating, handling, and inspection of . . . reserve

04-5027,-5037 6
raisins . . . 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-pleaded 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 its 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 original 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 sum in excess of $1 million dollars.” (Lion I, First

2
Appellant, Lion Raisins, Inc., a plaintiff 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 7
Am. Compl. at ¶ 21.) Subsequently, 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 just compensation because the RAC, by using the 1997

reserve pool proceeds to finance export programs in subsequent crop years, had

accomplished a taking of money from Lion’s distributive share of the 1997 reserve pool

equity. (Lion I, First Am. Compl. at ¶ 23.) In effect, 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 shipping the reserve raisins pursuant to the RAC’s

instructions, several thousand bins left Lion’s possession, and were not returned. Lion

II, 57 Fed. Cl. at 436. Lion argued that reimbursement for the missing bins was required

by the Bin Rental Agreement that had been executed between Lion and the RAC,

pursuant to the Raisin Marketing Order. Apparently in order to avoid the jurisdictional

bar presented by the NAFI doctrine 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 through 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..

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Additionally, Lion sought a refund of rental fees that Lion paid to the RAC for its use of

RAC-owned bins during the relevant crop year, 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 jurisdiction 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 waiver 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 greater 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 suits 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 NAFI, 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).

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 DISCUSSION

I

We first consider the issue of jurisdiction. 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 jurisdiction 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 claims against the United States. See Presault v.

Interstate Commerce Comm’n, 494 U.S. 1, 11 (1990). As originally 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, the United States has presumptively consented to suit.”

United States v. Mitchell, 463 U.S. 206, 216 (1983). There is no question that the

United States, in general, incurs takings liability for the acts of its agents. That is, a

takings “claim against the United States” may be based on the acts of an agent of the

United States.

The Supreme Court has held that if agents of the federal government accomplish

takings of private property, “[t]he action of the agent is the act of the government” and it

is the federal government 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 government contract, built river dikes which

destroyed privately-owned land. The property owners brought suit against the

company, and the Supreme Court found that “if what was done was within the

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constitutional power of Congress, there is no liability on the part of the contractor for

executing its will.” Id. at 20-21. Because the government had “impliedly promised to pay

[compensation for any taking] and has afforded a remedy for its recovery by a suit in the

Court of Claims . . . there is no ground for holding 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 corporate entities act for the United States,

the United States is liable for their takings. See, e.g., Russian Volunteer Fleet v. United

States, 282 U.S. 481, 489 (1931) (United States bound to pay just compensation when

Shipping Board Emergency Fleet Corporation, acting under legislative authority,

requisitioned contracts for the construction 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 consummated through its “alter ego or agent”).

So too when state agencies act as agents of the United States, the United

States may incur takings liability. See Rose Acre Farms, Inc. v. United States, 373 F.3d

1177, 1196 (Fed. Cir. 2004) (holding that attribution of “state-imposed 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

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an alleged regulatory taking effected by the state of California only if California could be

considered “an agent of the 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 others 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, having 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 obligation, 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 United States. The

Supreme Court has repeatedly recognized that 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 that the now defunct Grape Crush

Administrative Committee, established pursuant 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 subject 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 the Federal Tort Claims Act encompasses it . . .
[in] the absence of any restriction in the statute”); see also Bozeman v. United States,

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authority of the AMAA, was a NAFI and that the court had no jurisdiction over claims for

breach of the Committee’s contracts, but in so holding, the 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 United State[s].” Id. at 717.

Similarly, in oral argument in this case, the government confirmed 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, that 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 appropriation from the Treasury to the Secretary 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.

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 The government, however, urges, and the Court of Federal Claims held, that

NAFIs are different from other agents of the federal government, 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 jurisdictional provision of the Tucker Act, granting

jurisdiction over “any claim against the United 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 disagreed, and held that there was no express NAFI

limitation to the Tucker Act’s grant 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]or 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 inapplicable 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 award of “separation pay shall be paid by an agency out of
any funds or appropriations available for salaries 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 United States liability for patent
infringement, does not make United States liable for infringing activities of a NAFI).
Here we have determined that the Takings Clause imposes liability on the United States
for acts of NAFIs.

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 Even apart from El-Sheikh, we reject the government’s contention that the

Tucker Act’s jurisdictional grant does not extend 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 government relies does not support the proposition that the

United States is exempt under the Tucker Act for takings claims.

The origins of the NAFI 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 that the “post exchanges as

now operated are arms of the government deemed by it essential for the performance of

governmental functions,” but that the “government assumes 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 instrumentalities.” 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 contract 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 amendments and their legislative history).

04-5027,-5037 15
 Following the decisions of our predecessor court, we have repeatedly held that

the Tucker Act confers no jurisdiction over claims based on contracts made by NAFIs

other than those contemplated 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 States on a claim against a NAFI because the United

States has not assumed the financial obligations 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 dispute 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 nonappropriated-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 appropriated fund agencies are assumed.” 427 U.S. at 127.

6
28 U.S.C. § 1491(a)(1) now reads, in its entirety:
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon
the Constitution, or any Act of Congress or any regulation of an executive
department, or upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases not sounding in
tort. For the purpose 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 Administration shall be considered an
express or implied contract with the United States.

04-5027,-5037 16
Even if the NAFI doctrine extends beyond the contract context, 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 contends that even if the decided 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 provides, 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). Such 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 against 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 States, only if the separate

entity has the authority to obligate appropriated funds, or, as stated in Kyer, if “that

contract [is] one which, in the contemplation of Congress, could obligate public monies.”

369 F.2d at 718. NAFIs are not recipients of appropriated funds, and thus cannot

contractually obligate the United 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 the financial obligations of the exchange.” 316 U.S. at

485. And, “since the Government had assumed no liability for the entity’s financial

obligations it could not be said to have consented to a suit designed to vindicate such

04-5027,-5037 17
obligations.” 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 reasoning simply has no application to takings claims, where

the United States does have the responsibility 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 argument, 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 amendments were explicitly and narrowly targeted to

provide jurisdiction only over contract claims of “a specific category of military

organizations funded by resale activities which rendered them solvent and therefore

able to support an adverse judgment without risk to the general treasury.” McDonald’s

Corp., 926 F.2d at 1132. The statute 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 stating: “For the purpose 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 Administration 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 18
Congress 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.” Act of July 23, 1970, Pub. 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 NAFIs was similarly limited to the contracting

context. Id. at 1129 (noting that the original version 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 United States liability

under the amendments would be limited to contracts made by NAFIs for which the

federal government exercised “procurement control” and which were financially solvent,

and thus able to reimburse the Treasury for any adverse judgments. Id. at 1130-31.

Neither the text of the 1970 amendments, nor the legislative history, indicates

that the amendments were intended to address anything beyond the limited question of

which NAFIs would be able to subject the 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 amendments; or in the decisions of the Supreme Court or this court,

04-5027,-5037 19
for limiting the scope of the jurisdictional grant over claims “against the United States

. . . founded upon the Constitution” 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 the Court of Claims to hear and determine.”

United States v. Causby, 328 U.S. 256, 267 (1946). The RAC is an agent of the United

States, and the United States may properly be sued in the Court of Federal Claims for

any takings that are allegedly consummated by the acts of its agent.8

II

Even though the Court of Federal Claims dismissed both cases on jurisdictional

grounds, we may consider whether the cases 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 [trial] 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 quotation 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 argument, there is nothing in the language
of 28 U.S.C. § 2517(a) (2000) (“[E]very final judgment rendered by the United States
Court of Federal Claims against the United States shall be paid out of any general
appropriation therefor”) to suggest that the United 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 the 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 Association, 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 20
was on appeal we directed the parties to submit supplemental briefs. Although the

Court of Federal Claims was not barred from reviewing these claims due to the NAFI

doctrine, we conclude that the dismissal of these actions should nonetheless be

sustained.

With respect to both the reserve pool claim 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 administrative 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 clear that it does not challenge the overall

operation of the regulatory scheme, including the requirement 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 first cause of action, charging a

“Violation of an Act of Congress and Regulations Issued by the Secretary 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 21
subsequent crop years constituted a taking because it was unlawful.9 Even after Lion

voluntarily dismissed its first cause of action 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” (that 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 Marketing 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 “specific factual allegations contained 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 property interest in
the raisins themselves, but only 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 Complaint, which is incorporated by
reference into the takings claim, reads, in its entirety:

Title 7 C.F.R. § 989.66(h) specifically states that the net proceeds of
reserve raisins sold into the various permissible markets must be
distributed by the committee to the 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) states that when the Secretary
establishes reserve pools the Secretary must provide “for the equitable
distribution of the net return derived from the sale thereof among the
persons beneficially interested therein.” Neither the regulation 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 22
 We 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 between 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 consistently with its statutory and

regulatory mandate” and the 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 plaintiff claims it is entitled to

prevail because the agency acted in violation of statute or regulation, [our decisions do]

not give the plaintiff a right to litigate that issue in a takings action rather than in the

congressionally mandated administrative 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 for rehearing, we clarified that “in a

takings case we assume that the underlying 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 allegations that the RAC violated the statute

and regulations, the Court of Federal Claims 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 calculation of net proceeds. If the party

asserting the taking has contracted with the federal government, the contract itself may

be a cognizable property interest that, if abrogated 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 23
331 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, Lion 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 asserted by Lion only in its capacity as a

handler. To the extent that, as with the reserve claim, Lion is asserting that a taking has

occurred because the RAC has violated the regulations, 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 taking 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 the 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 administrative 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 Administrative 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 than 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 available 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 federal question jurisdiction to review the
propriety of agency action under the Administrative Procedure Act, 5 U.S.C. §§ 701-706
(2000) and noting that the “Tucker Act does not create jurisdiction in the Court of
Federal Claims for a party contesting the propriety of a taking”) (citations omitted).

04-5027,-5037 24
hearing and make a ruling on petitions brought by handlers; and vests the district courts

with jurisdiction to review the Secretary’s decision. It states:

(A) Any handler subject to an order may file a written petition with the
Secretary of Agriculture, stating that any such order 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 shall 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 either (1) to make such ruling as the
court shall determine to be in accordance 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 appropriate opportunity for the correction of

errors or abuses by the agency” and held that any challenges to a marketing order

could only be raised using the special statutory procedure provided by section 608c(15).

329 U.S. at 292-93. As the Court explained:

Congress has provided a special procedure for ascertaining whether such
an order is or is not in accordance with 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 presumably 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 section explicitly provides for challenges to

“any obligation imposed in connection” with “any such order.” The marketing order

obligates handlers to store reserve tonnage raisins “separate and apart from other

04-5027,-5037 25
raisins” 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, fumigating, handling, and inspection of . . .

reserve raisins . . . held by them for the account of the committee.” 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 acknowledged that Lion has 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 administrative and judicial

review procedures do not provide an adequate remedy because they do not provide for

a monetary remedy. The statute vests district courts with jurisdiction in equity to review

the administrative decisions of the Secretary under § 608c(15). The case law

demonstrates that monetary relief, 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) (awarding 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 Processing, Inc. v. Yeutter, 917 F.2d

1190, 1195 (9th Cir. 1990) (holding that “the district court, upon proper application can

12
Court: “You say, speaking with the authority of the Secretary of
Agriculture, that the Secretary 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 26
shape 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 government, 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 review 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. Ctr. v. United States, 32 F.3d 548, 550 (Fed. Cir.

1994)); see also United States v. Fausto, 484 U.S. 439, 453-54 (1988) (holding that

Civil Service Reform Act had a “comprehensive 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) (no Tucker Act jurisdiction

over claim for breach of crop insurance contract, 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 section 608(c)15 cases, but that case stands for
the proposition that monetary relief is only available in the form of equitable restitution,
and that “[t]here is no authorization . . . for consequential damages.” Id. at 1416.

04-5027,-5037 27
in 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 claims for Medicare benefits is withdrawn

through “the specialized administrative and judicial 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, both 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 Federal Claims is barred from

exercising jurisdiction over the bins case given 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 case 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 alternative administrative and judicial review

procedure.

04-5027,-5037 28
 CONCLUSION

For the foregoing reasons, the Court of Federal Claims’ dismissals of Lion’s

actions are

AFFIRMED.

COSTS

No costs.

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