Reply in Support of Motion to Dismiss — 112 Genesee Street, LLC v. United States (Court of Federal Claims)

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The United States' reply in support of its motion to dismiss, filed April 22, 2024 as Document 10 in No. 23-1876C, Case 1:23-cv-01876-RAH, in the United States Court of Federal Claims before Judge Richard Hertling. The plaintiffs are described as 303 businesses in the restaurant industry suing over the Small Business Administration's Restaurant Revitalization Fund program. The reply argues that plaintiffs lack standing or the case is moot, that Section 5003 of ARPA is not money-mandating, that the court lacks Tucker Act jurisdiction over claims that an agency acted arbitrarily and capriciously or over negligence claims, and that transfer to a district court would be futile. It asks the court to dismiss under Rule 12(b)(1) and is signed by William J. Grimaldi and Rebecca S. Kruser of the Department of Justice.

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Case 1:23-cv-01876-RAH Document 10 Filed 04/22/24 Page 1 of 27

No. 23-1876C
(Judge Richard Hertling)

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

112 GENESEE STREET, LLC, et al.,
Plaintiffs,

THE UNITED STATES,
Defendant.

DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS

BRIAN M. BOYNTON
Principial Deputy Assistant Attorney General

PATRICIA M. McCARTHY
Director

WILLIAM J. GRIMALDI
Assistant Director

REBECCA S. KRUSER
Senior Trial Counsel
Commercial Litigation Branch
Civil Division
Department of Justice
P.O. Box 480
Ben Franklin Station
Washington, D.C. 20044
Tele: (202) 305-2035
rebecca.s.kruser@usdoj.gov

April 22, 2024 Attorneys for Defendant
Case 1:23-cv-01876-RAH Document 10 Filed 04/22/24 Page 2 of 27

TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................. i

TABLE OF AUTHORITIES .......................................................................................................... ii

DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS ......................................... 1

ARGUMENT .................................................................................................................................. 1

I. The Court Should Dismiss Because Plaintiffs Lack Standing Or The Case Is
Moot ........................................................................................................................ 1

A. Plaintiffs Cannot Avoid Article III Standing Or Mootness
Requirements .............................................................................................. 2

B. Plaintiffs’ Redressability Arguments Incorrectly Assume That Section
5003 Of ARPA Is Money-Mandating And That They Are Entitled To
Grants ......................................................................................................... 3

C. The Expiration Of The Covered Period Moots Plaintiffs’ Claims ............ 6

II. The Court Does Not Possess Subject-Matter Jurisdiction Because Section 5003
Of ARPA Is Not Money-Mandating ...................................................................... 7

A. Plaintiffs Misread The Language Of Section 5003 Of ARPA .................... 7

B. Comparison To The Shuttered Venue Operators Grant Program Supports
Our Argument ............................................................................................. 9

III. The Court Does Not Possess Subject-Matter Jurisdiction Over Claims That A
Government Agency Acted Arbitrarily And Capriciously ................................... 10

A. Plaintiffs Fundamentally Misunderstand Tucker Act Jurisdiction ........... 11

B. Claiming Money As Damages Does Not Create Tucker Act
Jurisdiction ................................................................................................ 16

IV. The Court Does Not Possess Subject-Matter Jurisdiction Over Negligence
Claims ................................................................................................................... 19

V. Transfer To A District Court Would Be Futile ..................................................... 20

CONCLUSION ............................................................................................................................. 20

i
Case 1:23-cv-01876-RAH Document 10 Filed 04/22/24 Page 3 of 27

TABLE OF AUTHORITIES

CASES

ARRA Energy Co. I v. United States,
97 Fed. Cl. 12 (2011) .................................................................................................................. 8

Bowen v. Massachusetts,
487 U.S. 879 (1988) ........................................................................................................... passim

BP Expl. & Prod., Inc. v. United States,
142 Fed. Cl. 579 (2019) ............................................................................................................ 13

Chef Time 1520 LLC v. SBA
646 F. Supp. 3d 101 (D.D.C. 2022) .......................................................................................... 13

Dancy v. United States,
229 Ct. Cl. 300 (1982) .............................................................................................................. 20

Davis v. Federal Election Comm’n,
554 U.S. 724 (2008) .................................................................................................................... 2

Duncan v. Walker,
533 U.S. 167 (2001) .................................................................................................................... 8

Eastport S. S. Corp. v. United States,
372 F.2d 1002 (Ct. Cl. 1967) ................................................................................................ 7, 12

Fisher v. United States,
402 F.3d 1167 (Fed. Cir. 2005)................................................................................................. 12

Greenlee County, Arizona v. United States,
487 F.3d 871 (Fed. Cir. 2007)................................................................................................. 4, 5

Harlem Globetrotters Int’l, Inc. v. United States,
168 Fed. Cl. 31 (2023) .............................................................................................................. 10

Hous. Auth. of Slidell v. United States,
149 Fed. Cl. 614 (2020) ...................................................................................................... 14, 15

Indiana Municipal Power Agency v. United States,
154 Fed. Cl. 752 (2021), aff’d 59 F.4th 1382, 1383 (Fed. Cir. 2023). ............................. 4, 5, 6

Kanemoto v. Reno,
41 F.3d 641 (Fed. Cir. 1994)..................................................................................................... 12

ii
Case 1:23-cv-01876-RAH Document 10 Filed 04/22/24 Page 4 of 27

Katz v. Cisneros,
16 F.3d 1204 (Fed. Cir. 1994)............................................................................................. 15, 16

Kingsley Rests., Inc. v. United States Small Bus. Admin.,
No. 1:21-2314, 2021 WL 8441778 (N.D. Ga. Aug. 24, 2021) ................................................... 3

Little River Lumber Co. v. United States,
7 Cl. Ct. 492 (1985) .................................................................................................................. 20

Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992) .................................................................................................................... 2

Me. Cmty. Health Options v. United States,
140 S. Ct. 1308 (2020) ...................................................................................................... 3, 8, 19

Martinez v. United States,
333 F.3d 1295 (Fed. Cir. 2003)................................................................................................. 11

MC Mgmt. of Rochester LLC v. Biden,
No. 6:22-6337, 2023 WL 4194771 (W.D.N.Y. June 27, 2023) ................................................. 2

Mission Prod. Holdings, Inc. v. Tempnology, LLC,
139 S. Ct. 1652 (2019) ................................................................................................................ 3

Mitchell v. United States,
930 F.2d 893) (Fed. Cir. 1991) ................................................................................................. 12

Momenta Pharms., Inc. v. Bristol-Myers Squibb Co.,
915 F.3d 764 (Fed. Cir. 2019)..................................................................................................... 1

Nat’l Ctr. for Mfg. Scis. v. United States,
114 F.3d 196 (Fed. Cir. 1997)................................................................................................... 15

Reboot Macon, LLC v. United States,
No. 5:21-221, 2023 WL 4672395 (M.D. Ga. July 20, 2023)...................................................... 7

Rick’s Mushroom Serv., Inc. v. United States,
521 F.3d 1338 (Fed. Cir. 2008)................................................................................................. 19

Silver State Land LLC v. United States,
148 Fed. Cl. 217 (2020) ............................................................................................................ 14

Slattery v. United States,
635 F.3d 1298 (Fed. Cir. 2011)................................................................................................. 14

iii
Case 1:23-cv-01876-RAH Document 10 Filed 04/22/24 Page 5 of 27

Starr Int’l Co., Inc. v. United States,
856 F.3d 953 (Fed. Cir. 2017)..................................................................................................... 2

State of S. Carolina v. United States,
144 Fed. Cl. 277 (2019) .............................................................................................................. 4

Steel Co. v. Citizens for a Better Env’t
523 U.S. 83 (1998) ...................................................................................................................... 1

Town of Chester, N.Y. v. Laroe Ests., Inc.,
581 U.S. 433 (2017) .................................................................................................................... 2

TRW Inc. v. Andrews,
534 U.S. 19 (2001) ...................................................................................................................... 8

United States v. Testan,
424 U.S. 392 (1976) .................................................................................................................. 11

White Mountain Apache Tribe v. United States,
249 F.3d 1364 (Fed. Cir. 2001)................................................................................................... 4

STATUTES

5 U.S.C. § 706(2)(A)..................................................................................................................... 11

15 U.S.C. § 9009a ........................................................................................................................... 9

15 U.S.C. § 9009a(b)(2)(A) .......................................................................................................... 10

15 U.S.C. § 9009a(b)(2)(C) .......................................................................................................... 10

15 U.S.C. § 9009c ......................................................................................................................... 10

15 U.S.C. § 9009c(b)(2)(A) ............................................................................................................ 3

15 U.S.C. § 9009c(a)(3) .................................................................................................................. 6

15 U.S.C. § 9009c(c)(1) ............................................................................................................ 7, 13

15 U.S.C. § 9009c(c)(5) .................................................................................................................. 6

15 U.S.C. § 9009c(c)(6) .............................................................................................................. 6, 7

28 U.S.C. § 1491(a) ..........................................................................................................................

28 U.S.C. § 1491(a)(1).................................................................................................................. 15

iv
Case 1:23-cv-01876-RAH Document 10 Filed 04/22/24 Page 6 of 27

28 U.S.C. § 1631 ........................................................................................................................... 20

31 U.S.C. § 1324 ............................................................................................................................. 6

RULES

Rule 12(b)(1)................................................................................................................................... 1

Rule 12(b)(6)................................................................................................................................. 12

v
Case 1:23-cv-01876-RAH Document 10 Filed 04/22/24 Page 7 of 27

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

112 GENESEE STREET, LLC, et al., )
)
Plaintiffs, )
)
v. ) No. 23-1876C
) Judge Richard Hertling
THE UNITED STATES, )
)
Defendant. )

DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS

Defendant, the United States, respectfully submits this reply in support of its motion to

dismiss. See ECF No. 7. In our motion, we demonstrated that the complaint filed by plaintiffs,

303 businesses in the restaurant industry, should be dismissed. Plaintiffs’ opposition is based on

incorrect theories regarding the scope and limitations of this Court’s jurisdiction. Furthermore,

plaintiffs fail to refute our argument that they lack standing or that the case is moot due to the

conclusion of the Small Business Administration’s (SBA) Restaurant Revitalization Fund (RRF)

program. This Court should dismiss pursuant to Rule 12(b)(1).

ARGUMENT

I. The Court Should Dismiss Because Plaintiffs Lack Standing Or The Case Is Moot

As we explained in our motion, the Court should dismiss this case because plaintiffs lack

standing or the case is moot.1 Both standing and mootness are jurisdictional issues. See Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-04 (1998); Momenta Pharms., Inc. v. Bristol-

Myers Squibb Co., 915 F.3d 764, 770 (Fed. Cir. 2019). Plaintiffs have not shown that the

1
Although we separated our arguments regarding standing and mootness into two different
subsections of our motion, plaintiffs combined their arguments on these topics under the general
rubric of redressability. See Pls. Opp’n at 14-22. In order to avoid repetition, we will address
standing and mootness together here.
Case 1:23-cv-01876-RAH Document 10 Filed 04/22/24 Page 8 of 27

injuries they claim to have suffered can be redressed by judicial relief. See Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560 (1992).

A. Plaintiffs Cannot Avoid Article III Standing Or Mootness Requirements

Plaintiffs first raise the unfounded notion that simply alleging a claim for money damages

automatically confers standing or prevents a case from ever becoming moot. See Pls. Opp’n at

15. Plaintiffs do not cite any authority for the idea that the redressability analysis for equitable

claims is “fundamentally different” than for money damages claims or that invoking the Tucker

Act by itself creates standing.2 See id. Asserting money damages, as opposed to equitable relief,

does not immunize a claim from a challenge to standing or mootness.3 Indeed, “standing is not

dispensed in gross” but, “to the contrary, ‘a plaintiff must demonstrate standing for each claim he

seeks to press and for each form of relief that is sought.’” Town of Chester, N.Y. v. Laroe Ests.,

Inc., 581 U.S. 433, 439 (2017) (quoting Davis v. Federal Election Comm’n, 554 U.S. 724, 734

(2008)). The Court of Federal Claims, “though an Article I court, applies the same standing

requirements enforced by other federal courts created under Article III.” Starr Int’l Co., Inc. v.

2
Contrary to plaintiffs’ suggestion, see Pls. Opp’n at 16, the district court in MC
Management of Rochester, LLC did not state that the plaintiffs could have invoked the Tucker
Act’s waiver of sovereign immunity. See MC Mgmt. of Rochester LLC v. Biden, No. 6:22-6337,
2023 WL 4194771, at *5 (W.D.N.Y. June 27, 2023). Instead, the plaintiffs were seeking to sue
the Small Business Administration’s (SBA) Administrator in her individual capacity. Id.
3
At best, plaintiffs’ arguments only demonstrate that they too actually seek declaratory
and/or equitable relief. For example, in MC Management of Rochester LLC, the plaintiffs sought
a declaratory judgment that the RRF’s race-based and gender-based priority period violated their
constitutional rights, that their RRF applications “must be considered as of the dates they were
received by the SBA, without reference to the aforesaid unconstitutional preferences,” and that if
their applications were “determined to be acceptable as of the dates they were received, the
applications must be granted and funded by Defendants[.]” See MC Mgmt. of Rochester LLC v.
Biden, No. 6:22-6337, 2023 WL 4194771, at *3 (W.D.N.Y. June 27, 2023). Although plaintiffs
do not assert a constitutional violation here, in essence they seek to have this Court declare that
SBA’s administration of the RRF program violated section 5003 of ARPA and that their
applications must be granted and funded because they were amongst the earliest applicants.
2
Case 1:23-cv-01876-RAH Document 10 Filed 04/22/24 Page 9 of 27

United States, 856 F.3d 953, 964 (Fed. Cir. 2017).

The cases that plaintiffs cite do not support their theory that a request for money always

ensures a live controversy. See Pls. Opp’n at 15, 15 n.11. This is not a situation where a

practical recovery against an impoverished, bankrupt, or absent defendant may be “uncertain or

even unlikely[,]” see Mission Prod. Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652, 1660

(2019), but one in which it is “impossible” for the Court to grant any effective relief. Congress

appropriated $28.6 billion for the RRF. 15 U.S.C. § 9009c(b)(2)(A). That money is no longer

available for RRF awards. Plaintiffs cannot create additional Congressional appropriations out

of thin air. And plaintiffs’ assertions that some additional funding could become available in the

future under certain conditions are only speculative and do not provide a basis for standing. See

Kingsley Rests., Inc. v. United States Small Bus. Admin., No. 1:21-2314, 2021 WL 8441778, at

*3 (N.D. Ga. Aug. 24, 2021) (unreported).

B. Plaintiffs’ Redressability Arguments Incorrectly Assume That Section 5003
Of ARPA Is Money-Mandating And That They Are Entitled To Grants

Plaintiffs next argue that the availability of funding is not a standing problem, but instead

a merits issue. Pls. Opp’n at 16. Plaintiffs are generally correct that when a statute is money-

mandating, the failure to appropriate funds does not eliminate the Government’s payment

obligation.4 See Me. Cmty. Health Options v. United States, 140 S. Ct. 1308, 1320-25 (2020).

4
We do not concede that if the Court holds that section 5003 of ARPA is money-mandating,
the Government would be required to pay plaintiffs. Congress stated that “[i]n addition to
amounts otherwise available, there is appropriated to the [RRF] for fiscal year 2021, out of any
money in the Treasury not otherwise appropriated, $28,600,000,000, to remain available until
expended.” 15 U.S.C. § 9009c(b)(2)(A). This case is different from Maine Community Health,
in which Congress created an unlimited money-mandating obligation but then prohibited
subsequent appropriations from being used for the Risk Corridors program. See 140 S. Ct. 1308,
1317 (2020). Plaintiffs appear to agree that the $28.6 billion is a cap, although they also suggest
that the words “amounts otherwise available” would allow SBA to reprogram unrestricted funds
or use funding appropriated for the administration of the RRF program. Pls. Opp’n at 20 n.16.
3
Case 1:23-cv-01876-RAH Document 10 Filed 04/22/24 Page 10 of 27

However, plaintiffs ignore a fundamental distinction – we dispute, and the Court has not held,

that section 5003 of ARPA is money-mandating. Thus, plaintiffs put the cart far before the horse

in their repeated assertions that their claims are “within the scope of the underlying legal

obligation created by the money-mandating statute.” See Pls. Opp’n at 3, 12, 13, 16, 19, 20.

Plaintiffs cannot simply declare that they are entitled to money from the Government.

Plaintiffs’ lengthy discussion of Greenlee County, Arizona v. United States, 487 F.3d 871

(Fed. Cir. 2007) and Indiana Municipal Power Agency v. United States, 154 Fed. Cl. 752 (2021)

also misses the mark. As a preliminary matter, neither case addressed standing because neither

involved appropriated funds becoming inaccessible. Rather, these cases addressed the

permissibility of the Government reducing payments pursuant to confirmed money-mandating

statutes, which is not at all the scenario here.

Greenlee County involved a local government entity alleging that it had been paid less

than it was due from the Federal Government pursuant to the Payment in Lieu of Taxes Act

(PILT). Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 873, 877 (Fed. Cir. 2007).

Contrary to plaintiffs’ suggestion, the Federal Circuit did not simply affirm jurisdiction based on

mere allegations that the statute was money-mandating. See Pls. Opp’n at 17. Instead, the Court

analyzed the key language of the statute (“the Secretary of the Interior shall make a payment for

each fiscal year . . .”) and determined that it was “reasonably amenable” to a reading that it

mandated payment. See Greenlee Cnty, 487 F.3d at 876-77 (discussing White Mountain Apache

Plaintiffs provide nothing, beyond their own speculation, to demonstrate that these potential
alternative sources are in fact “available” and were intended by Congress to be used in this
manner. Plaintiffs, in an undeveloped fashion, also suggest that the Judgment Fund is available.
Id. at 20. The Judgment Fund cannot be used to create an appropriation and circumvent
Congressional intent to limit the Government’s liability. See State of S. Carolina v. United
States, 144 Fed. Cl. 277, 279 (2019).
4
Case 1:23-cv-01876-RAH Document 10 Filed 04/22/24 Page 11 of 27

Tribe v. United States, 249 F.3d 1364, 1383 (Fed. Cir. 2001)).

The Court held, as a straightforward matter of statutory interpretation, that the county

failed to state a claim because the statute stated that payment amounts were “available only as

provided in appropriations laws.” Greenlee Cnty, 478 F.3d at 877-79. This language limited the

Government’s liability only to amounts appropriated by Congress. Id. The Government thus did

not underpay the county. Contrary to plaintiffs’ incorrect reading, the county had an entitlement

to receive PILT payments, but it failed to state a claim for any violation of that statutory

obligation because it was paid the legally correct amount. See id. at 877, 880.

Plaintiffs’ reliance on Indiana Municipal is similarly misplaced. As this Court is well-

aware, that case involved section 1531 of the American Recovery and Reinvestment Act of 2009

(ARRA), which created Direct Payment Build America Bonds and entitled bond issuers to a tax

refund by the Government of 35 percent of the bond interest. Ind. Mun. Power Agency v. United

States, 154 Fed. Cl. 752, 755 (2021), aff’d 59 F.4th 1382, 1383 (Fed. Cir. 2023). The case did

not involve a challenge to standing or mootness because the source of funding for the program

remained available to make payments. The Government also did not challenge that section 1531

of ARRA was money-mandating and thus it is not surprising that the Court ruled on the merits.

See id. at 758.

Contrary to plaintiffs’ analysis, Indiana Municipal did not turn on the timing of the

submission of tax refund forms by the bond issuers.5 See Pls. Opp’n at 18, 18 n.14. Instead, the

5
Plaintiffs seize on a portion of the decision discussing the argument of the bond issuers that
the payments were exempt from sequestration as an “obligated balance” pursuant to the
Government Accountability Office definition of this budget concept. See id. at 763-64. It is
unclear why plaintiffs give the bond issuers’ mistaken argument such significance because it had
no relevance to jurisdiction or to the lack of a challenge to redressability. The Government did
not “concede” anything in Indiana Municipal that could assist plaintiffs here. See Pls. Opp’n at
18 n.14, 19. Plaintiffs cannot simply declare that the Government incurred a legal obligation to
5
Case 1:23-cv-01876-RAH Document 10 Filed 04/22/24 Page 12 of 27

Court held that 31 U.S.C. § 1324, the indefinite, permanent appropriation for the payment of tax

refunds, which was the funding mechanism for paying bond issuers, was direct spending subject

to sequestration. Ind. Mun. Power Agency, 154 Fed. Cl. at 759-63. Although the bond issuers,

contrary to plaintiffs’ description, were entitled to bond interest payments in general, Congress

modified and reduced the payment amount set forth in section 1531 of ARRA through

sequestration. Id. at 765-66. Thus, the bond issuers failed to state a claim that the Government

had violated a statutory duty to pay at a 35 percent rate. This holding simply does not bear on

the instant case; plaintiffs’ reliance on Greenlee County and Indiana Municipal is puzzling.

C. The Expiration Of The Covered Period Moots Plaintiffs’ Claims

As we explained in our motion, section 5003 of ARPA required that all RRF awards be

“use[d]” during the statutory “covered period,” which began on February 15, 2020 and ended on

March 11, 2023. 15 U.S.C. § 9009c(a)(3); 15 U.S.C. § 9009c(c)(5). In terms of returning funds,

the statute clearly states that if an eligible entity that received a grant “fails to use all grant funds

. . . the eligible entity shall return to the Treasury any funds that the eligible entity did not use . . .

.” 15 U.S.C. § 9009c(c)(6) (emphasis added). Plaintiffs ignore this language and argue that they

incurred allowable expenses before or during the covered period. See Pls. Opp’n at 20-22.

Contrary to plaintiffs’ assertion, we do not contend that RRF grant money could only be

used to pay expenses incurred after the grant award. See Pls. Opp’n at 21. We agree that section

5003 of ARPA allowed awardees to pay allowable expenses incurred as early as February 15,

2020. We only point out the obvious practical impediment that even if plaintiffs were somehow

awarded grants, there is no way for plaintiffs to now use any grant award by March 11, 2023, as

required by the statute, because that date has passed. Any money not used by March 11, 2023,

pay them when they submitted their RRF applications.
6
Case 1:23-cv-01876-RAH Document 10 Filed 04/22/24 Page 13 of 27

must be returned to the Treasury pursuant to 15 U.S.C. § 9009c(c)(6). Therefore, their claims

became non-redressable on that date. Reboot Macon, LLC v. United States, No. 5:21-221, 2023

WL 4672395, at *5 (M.D. Ga. July 20, 2023).

II. The Court Does Not Possess Subject-Matter Jurisdiction Because Section 5003 Of
ARPA Is Not Money-Mandating

The only portion of section 5003 of ARPA raised by plaintiffs as money-mandating

states that, except as provided in the provisions creating the priority program, the SBA

Administrator “shall award grants to eligible entities in the order in which applications are

received by the Administrator.” Compl. at ¶¶ 31-35; 15 U.S.C. § 9009c(c)(1). As we explained

in our motion, this language cannot be “fairly interpreted as mandating compensation by the

Federal Government for the damage sustained.” Eastport S. S. Corp. v. United States, 372 F.2d

1002, 1009 (Ct. Cl. 1967). Instead, it only speaks to the method of application administration

and processing of award disbursements.

Plaintiffs must understand the correct meaning of this sentence at some level because

their complaint does not state a direct violation of a money-mandating statute, but instead attacks

SBA for paying too much money to applicants who applied later than them or who were

allegedly ineligible. Plaintiffs assert that this “misallocation” constituted an arbitrary, capricious,

and negligent administration of the entire RRF program. Plaintiffs’ attempts to cast their

complaint in line with genuinely money-mandating statutes are misguided.

A. Plaintiffs Misread The Language Of Section 5003 Of ARPA

The cornerstone of plaintiffs’ argument is that the statutory provision quoted above

contains the words “shall award grants.” See Pls. Opp’n at 2, 5-12. However, plaintiffs then

simply ignore the rest of the sentence or eliminate it through ellipses. See id. This is not a valid

method of statutory interpretation. “It is ‘a cardinal principle of statutory construction’ that ‘a

7
Case 1:23-cv-01876-RAH Document 10 Filed 04/22/24 Page 14 of 27

statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence,

or word shall be superfluous, void, or insignificant.’” TRW Inc. v. Andrews, 534 U.S. 19, 31

(2001) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001). Plaintiffs’ interpretation makes

superfluous the remaining language of the statutory provision by erasing it entirely.

We do not dispute that the word “shall” creates a mandatory duty to do something in

general, as opposed to the word “may.” See Pls. Opp’n at 6-8. Furthermore, we do not dispute

that in the proper context, the phrase “shall award/provide a grant” would be money-mandating.

But that is not actually what section 5003 of ARPA states. None of the cases that plaintiffs cite

stand for the proposition that the word “shall” near the word “award,” “grant,” and/or “pay,” is

all that matters and that the rest of the statutory provision or other context should be ignored.

Plaintiffs’ reliance on known money-mandating statutes only demonstrates that section

5003 of ARPA is different. For example, in Maine Community Health, the statute stated that the

Secretary of Health and Human Services “shall provide” for payments according to a precise

statutory formula, and “shall pay” insurers for losses exceeding the statutory threshold. Me.

Cmty. Health Options, 140 S. Ct. at 1320-21. The subject of this language was payment to a

particular group, i.e., insurers with unprofitable plans. Similarly, the statute in ARRA Energy

stated, “the Secretary of the Treasury shall, subject to the requirements of this section, provide a

grant to each person who places in service specified energy property to reimburse such person

for a portion of the expense of such property . . . .”6 ARRA Energy Co. I v. United States, 97 Fed.

6
Although plaintiffs suggest otherwise, we do not repeat the arguments advanced by the
Government that were rejected in ARRA Energy. See Pls. Opp’n at 10. We do not assert that this
Court “may never exercise jurisdiction over suits based on a statute that requires the payment of
money as a grant or subsidy.” ARRA Energy Co. I v. United States, 97 Fed. Cl. 12, 25 (2011).
We also do not argue that this Court only has jurisdiction “over those claims that are based on a
statute containing an express damages remedy for its violation by the government.” Id. We rely
on Bowen v. United States and Katz v. Cisneros for different reasons.
8
Case 1:23-cv-01876-RAH Document 10 Filed 04/22/24 Page 15 of 27

Cl. 12, 14 (2011). Once again, this statute mandated payment to an identifiable group, namely

persons who had placed specified energy property into service. Id. at 19-20.

By contrast, in section 5003 of ARPA, Congress did not just state that SBA shall award a

grant to any or all eligible entities or to eligible entities who applied at a certain date or time or

met certain criteria. The words “the order in which applications are received” clarify that this

provision is not a command for payment but an instruction to SBA as to how to manage

disbursements. Plaintiffs’ interpretation that the section 5003 identifies a group owed payment is

circular. Pls. Opp’n at 11-12. Plaintiffs’ argument impermissibly rests on their own, self-serving

determination that SBA became legally obligated to them at the moment that they submitted their

applications because, according to plaintiffs, SBA was required to have paid grants based on

time of submission only. See id. This is not a money-mandating claim, but a disguised

challenge to SBA’s program administration.

B. Comparison To The Shuttered Venue Operators Grant Program Supports
Our Argument

Plaintiffs contend that a similar program, the Shuttered Venue Operators Grant (SVOG)

program, codified at 15 U.S.C. § 9009a, demonstrates that section 5003 of ARPA contains

money-mandating language. Pls. Opp’n at 7-8. Plaintiffs point out that the SVOG statute uses

the discretionary word “may” in several key instances, which they contrast with the “shall”

language in section 5003. Id. For example, the SVOG statute states, “[t]he Administrator may

make initial grants to eligible persons or entities in accordance with this section []” and “[a]fter

the end of the initial 28-day period during which the Administrator awards grants under this

paragraph, the Administrator may award an initial grant to any eligible person or entity.” 15

U.S.C. § 9009a(b)(2)(A); 9009a(b)(2)(C).

9
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However, plaintiffs’ argument only proves our point.7 Although the statutes are similar

in structure and purpose, section 5003 of ARPA does not simply contain the language from the

SVOG statute with the word “shall” transposed in the place of “may.” Section 5003 does not

contain provisions that state outright, without additional language that plaintiffs ignore, that SBA

“shall make grants to eligible persons or entities” or that SBA “shall award a grant to any eligible

person or entity” after a certain time period. See generally 15 U.S.C. § 9009c. Plaintiffs cannot

analogize to the discretionary SVOG program to demonstrate that the RRF program is money-

mandating because the language that they rely upon is not otherwise identical across statues.8

III. The Court Does Not Possess Subject-Matter Jurisdiction Over Claims That A
Government Agency Acted Arbitrarily And Capriciously

Our motion explained that plaintiffs’ allegations fundamentally present a claim pursuant

to the Administrative Procedures Act (APA). The crux of plaintiffs’ complaint is that SBA

managed the RRF program in various arbitrary and capricious ways and that these acts and

7
Harlem Globetrotters International, Inc. also does not assist plaintiffs. See Pls. Opp’n at 7-
8, 8 n.4. The Harlem Globetrotters plaintiff similarly alleged in the first count of its complaint
that SBA acted “arbitrarily and capriciously in refusing to disburse the Shuttered Venue
Operators Grant funds” but, unlike the instant case, also included a second count alleging that
this refusal constituted a breach of contract. Harlem Globetrotters Int’l, Inc. v. United States,
168 Fed. Cl. 31, 34 (2023). The Court determined, based on the plaintiff’s description of its
theories, that this first count was duplicative of the breach of contract count, which failed to state
a claim. Id. at 34. But to the extent that the first count “effectively claims that the SBA acted in
an arbitrary and capricious manner,” it was “best seen as being brought under the
[Administrative Procedures Act] and is therefore beyond the jurisdiction of the Court of Federal
Claims.” Id. The same logic should apply here.
8
Plaintiffs reference our reply in support of our motion to dismiss in Adia Holdings, Inc. v.
United States, No. 23-623. Pls. Opp’n at 8 n.4. That case also involved the RRF program and a
breach of contract theory. To the extent that plaintiffs suggest that we endorsed or admitted in
Adia that section 5003 is money-mandating, this is particularly incorrect. In the portion of our
reply that plaintiffs cite, we rejected any money-mandating theory and stated specifically that
“[t]he language in Section 5003 does not mandate payment, but instead empowers the Small
Business Administration to award grants in general and creates the application process.” Adia
Holdings, Inc. v. United States, No. 23-623, ECF No. 11 at 7.
10
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omissions prevented them from receiving funding by allowing the money to be distributed to

other applicants. See Compl. at ¶¶ 7, 9, 75, 83, 128, 135, 142-153. Section 706 of the APA

empowers courts to “hold unlawful and set aside agency action, findings, and conclusions” that

are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5

U.S.C. § 706(2)(A). This Court does not possess subject-matter jurisdiction over such claims.

See, e.g., Martinez v. United States, 333 F.3d 1295, 1313 (Fed. Cir. 2003).

A. Plaintiffs Fundamentally Misunderstand Tucker Act Jurisdiction

In their opposition, plaintiffs essentially argue that this Court has the same jurisdiction as

a district court. They assert that the Court “may resolve disputes regarding SBA’s interpretation

of and compliance with [F]ederal law” and suggest that this Court and the district courts “share

the power to adjudicate overlapping issues.” Pls. Opp’n at 27-29. Plaintiffs argue that this Court

may, under the Tucker Act, engage in judicial review of SBA’s decisions in administering the

RRF program and resolve disputes “over whether an agency violated the law in administering a

grant program,” even if those decisions are characterized as arbitrary, capricious, negligent or

“whatever.” See id. at 3, 29.

Plaintiffs drastically misunderstand this Court’s jurisdiction. Plaintiffs generally invoke

the Tucker Act, but do not cite any authority for the idea that the Tucker Act itself permits the

Court to review the lawfulness of agency actions. See Pls. Opp’n at 27, 30. Indeed, the Tucker

Act does not waive sovereign immunity with respect to “any claim invoking a constitutional

provision or a federal statute or regulation” or for any claim of a violation of a “substantive

right.” See United States v. Testan, 424 U.S. 392, 400, 402 (1976). The Tucker Act is “merely

jurisdictional” and a plaintiff’s entitlement to money damages depends upon the existence of a

separate, money-mandating statute. Id. The Tucker Act does not permit the Court to address

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just any statutory violation.

Plaintiffs also misunderstand the scope of statutory interpretation to be performed by the

Court. Of course, the Court is not required to accept an agency’s own interpretation of statutes

and regulations. See Pls. Opp’n at 30. At the outset of the case, the Court, either in response to a

motion or on its own initiative, shall determine whether the statute (or Constitutional provision

or regulation) raised in the complaint is money-mandating. 9 Fisher v. United States, 402 F.3d

1167, 1173 (Fed. Cir. 2005). The Court therefore must interpret whether the statutory text can be

fairly interpreted as mandating compensation by the Government. See Eastport S. S. Corp., 372

F.2d at 1009. Then, if the Court determines that a statute is money-mandating, the Court “has

the power to make a determination of liability that will give rise to a remedy of monetary relief

by finding . . . that an agency has misinterpreted its statutory mandate to pay out monies.”

Kanemoto v. Reno, 41 F.3d 641, 647 (Fed. Cir. 1994) (citing Mitchell v. United States, 930 F.2d

893, 895-97) (Fed. Cir. 1991)).

Here there is no statutory mandate to pay out money, meaning that plaintiffs fail at the

jurisdictional level. However, even if the statute was money-mandating, the Court is limited in

its statutory interpretation to determining liability, namely whether the agency has misinterpreted

its statutory mandate “to pay out monies.” See id. Plaintiffs’ complaint ranges beyond such a

question and contains a wide range of allegations, from failure to detect fraud to mismanagement

of the online portal.

9
Fisher also eliminates plaintiffs’ suggestion that we should have moved to dismiss pursuant
to Rule 12(b)(6) or that their allegations that “they are eligible applications within the class of
RRF application to whom SBA was obligated” must be taken as true. See Pls. Opp’n at 5, 14.
Plaintiffs’ allegations that any obligation existed are legal conclusions. The Court must
determine whether a statute is money-mandating and does not just accept a plaintiff’s allegations
of the Court’s jurisdiction. See Fisher v. United States, 402 F.3d 1167, 1172-73 (Fed. Cir. 2005).
12
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Plaintiffs do not connect these allegations to the misinterpretation of a statutory payment

mandate or a related erroneous decision by a Government official that directly caused each of

them not to receive grants. Instead, they seek a determination that they deserve payment because

SBA’s alleged improper administration caused SBA to “misallocate” funds. There is no basis in

the law for plaintiffs’ suggestion that the Court can also review various ancillary, non-monetary,

administrative matters, most of which are not even connected to the text of the statute, as “part

and parcel” of its power to adjudicate money claims.10 See Pls. Opp’n at 28.

Plaintiffs also confuse that this Court uses the APA arbitrary and capricious standard

when reviewing an agency’s action under a money-mandating statute (or in a bid protest) with

the Court having overlapping APA jurisdiction with the district courts. See id. at 29. This

distinction is explained in the case that plaintiffs themselves cite, BP Exploration & Production,

Inc. v. United States. There, the Court held that the Federal Oil and Gas Royalty Management

Act of 1982 did not create a remedial scheme that displaced the Tucker Act. BP Expl. & Prod.,

Inc. v. United States, 142 Fed. Cl. 579, 592-93 (2019). The Court rejected the Government’s

argument that a provision in the statute affording judicial review of a final agency decision on oil

and gas royalty refunds “in accordance with Title 5” routed review to a district court under APA

10
We included a footnote in our motion to dismiss stating that we do not agree with
plaintiffs’ underlying premise that paying on applications in approval order was contrary to
statute or arbitrary and capricious. See Def. Mot. at 13 n.5. In response, plaintiffs provide five
pages of exegesis. See Pls. Opp’n at 22. However, when an application was “received” is
irrelevant to both jurisdiction and merits in this Court. Section 5003 of ARPA does not mandate
payment to eligible entities if their applications were “received” at a certain time, so the
determination of when an application was “received” does not relate to money damages.
Plaintiffs’ reliance on Chef Time 1520 LLC v. SBA is misplaced because the plaintiffs in that case
did what plaintiffs have not done here – file in district court while there was still RRF funding
available for new awards and seek a determination under the APA that SBA’s failure to maintain
their places in the queue and not disburse their grants was arbitrary and capricious and contrary
to 15 U.S.C. § 9009c(c)(1). See 646 F. Supp. 3d 101, 111 (D.D.C. 2022).
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jurisdiction. Id. at 589, 592-93.

The BP Court applied “existing jurisdictional principles” and held that Tucker Act

jurisdiction encompassed BP’s claim because it was for money damages against the Government

pursuant to a money-mandating statute. Id. at 592-93. The Court would then apply the APA’s

standard of review, instead of a de novo standard, to the agency’s royalty refund decision, in line

with the Court’s review of agency procurement decisions and military correction board

decisions. Id. at 593. The Court specifically explained that it was not exercising jurisdiction

“over claims arising under the APA” but was exercising Tucker Act jurisdiction. Id.

Plaintiffs’ reliance on Housing Authority of Slidell and other breach of contract cases is

misplaced. See Pls. Opp’n at 27-29. There, the plaintiff claimed that the agency acted arbitrarily

and capriciously in rejecting requests to release funding and in imposing onerous financial

requirements, and that these acts constituted a breach of contract. Hous. Auth. of Slidell v.

United States, 149 Fed. Cl. 614, 622 (2020). The Court rejected the Government’s argument that

the breach of contract claim was actually an APA claim for specific performance. Id. at 623-24.

The Court held that the plaintiff had pled “unequivocal claims for money damages arising from a

breach of contract and the implied duty of good faith and fair dealing.” Id. at 624, 626.

However, that case has no application here.11 Plaintiffs do not invoke the Tucker Act’s

11
Slattery v. United States does not assist plaintiffs. See Pls. Opp’n at 3. In that case, the
Government argued that the Court “does not have jurisdiction of breach of contract claims when
the federal entity that incurred the breach does not receive appropriated funds.” Slattery v.
United States, 635 F.3d 1298, 1300 (Fed. Cir. 2011). The quote selected by plaintiffs relates to
the Court’s holding that a statute authorizing the Federal Deposit Insurance Corporation to “sue
and be sued” generally did not withdraw Tucker Act jurisdiction or require suit in district court.
See id. at 1314-15. Slattery does not speak to any of the issues at stake here. Silver State Land
LLC v. United States is also inapposite and did not address jurisdiction or the interplay between
the Tucker Act and the APA at all. See Pls. Opp’n at 29 n.24. Instead, the Court rejected the
Government’s argument on the merits that prior APA litigation barred the breach of contract
claim under the doctrine of issue preclusion. See Silver State Land LLC v. United States, 148
14
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waiver of sovereign immunity for claims founded upon an express or implied contract with the

United States.12 See 28 U.S.C. § 1491(a)(1). We are not attempting to recharacterize a claim for

contract damages as an APA claim. Rather, we are analyzing plaintiffs’ own allegations of

arbitrary and capricious actions by SBA given binding Tucker Act jurisprudence and the lack of

any money-mandating language in section 5003 of ARPA.

Indeed, plaintiffs identify no support for the idea that this Court can generally review an

agency’s non-monetary, administrative actions for compliance with Federal law.13 It is well-

established that the APA waives sovereign immunity only for an action seeking relief “other than

money damages,” whereas the Tucker Act waives sovereign immunity for actions for money

damages. See Nat’l Ctr. for Mfg. Scis. v. United States, 114 F.3d 196, 199 (Fed. Cir. 1997).

These are non-overlapping spheres and, as we discuss in the next section, the payments plaintiffs

seek are not actually “money damages.”

Fed. Cl. 217, 223, 257 (2020).
12
We also do not argue, as in Housing Authority of Slidell, that a reference to arbitrary and
capricious conduct in a complaint can turn clear breach of contract allegations into an APA
claim. See Hous. Auth. of Slidell v. United States, 149 Fed. Cl. 614, 637 (2020). Plaintiffs are
correct, Pls. Opp’n at 29, that the label a plaintiff applies to its cause of action does not
determine jurisdiction. See Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994). However, it
is unclear why sophisticated plaintiffs would choose to characterize SBA’s actions as arbitrary,
capricious, and negligent, descriptions plainly connected to APA claims and torts, if they meant
something else entirely. The simplest explanation is that, despite artful pleading, plaintiffs could
not manage to shoehorn their claims into the Tucker Act’s money-mandating statute or breach of
contract waivers of sovereign immunity.
13
None of the cases cited by plaintiffs, see Pls. Opp’n at 29 n.25, state that this Court may
determine if an agency acted arbitrarily and capriciously in the absence of a violation of a
money-mandating statute, a breach of contract, or a bid protest.
15
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B. Claiming Money As Damages Does Not Create Tucker Act Jurisdiction

As we explained in our motion, simply claiming a payment of money as a remedy for

various agency wrongs does not move an APA case into the jurisdiction of this Court. We relied

on Bowen v. Massachusetts, 487 U.S. 879 (1988) and Katz v. Cisneros, 16 F.3d 1204 (Fed. Cir.

1994). Plaintiffs attempt to distinguish these cases but ignore that they seek the same kind of

relief found to be within the district courts’ APA jurisdiction in both cases.

Plaintiffs assert that the Federal Circuit found Tucker Act jurisdiction lacking in Katz

“because there was no money-mandating source of law alleged by the plaintiff, not because the

plaintiff challenged the agency’s interpretation of federal regulations.” Pls. Opp’n at 30. This is

incorrect. Katz did not turn on the existence of a money-mandating statute, which, in any event,

is lacking here as well. Instead, the Government asserted that the claims of the plaintiff,

Hollywood Associates, were contractual in nature and thus should be heard in the Court of

Federal Claims. See Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994). However, the

Federal Circuit disagreed and explained that the matter belonged in district court under the APA

because, as relevant here, Hollywood Associates “challenged [the agency’s] interpretation of the

regulations governing the calculation of contract rents.” Id. at 1206 (emphasis added).

Contrary to plaintiffs’ contentions, Pls. Opp’n at 31, Hollywood Associates sought

“judicial interpretation of a federal regulation.” Katz, 16 F.3d at 1209. Although Hollywood

Associates sought money, which would typically suggest Tucker Act jurisdiction and prevent a

case from being heard under the APA because the APA only waives sovereign immunity for

claims seeking relief “other than money damages,” the Federal Circuit held that the relief sought

was not “money damages.” Id. at 1208. The Federal Circuit stated that Hollywood Associates

“seeks payments to which it alleges it is entitled pursuant to federal statute and regulations; it

16
Case 1:23-cv-01876-RAH Document 10 Filed 04/22/24 Page 23 of 27

does not seek money as compensation for a loss suffered.” Id. at 1208. “That a payment of

money may flow from a decision that [the agency] has erroneously interpreted or applied its

regulation does not change the nature of the case.” Id. at 1208. The Federal Circuit concluded

that “no relief is available in the Court of Federal Claims here because the case challenges the

interpretation of law which controls payment to Hollywood Associates.” Id.

The Court does not possess jurisdiction in the instant case for the same reasons. Plaintiffs

similarly assert that SBA did not follow a “statutory mandate” in section 5003 of ARPA to award

grants in the order in which applications were received. See Compl. at ¶¶ 3, 5, 8, 9, 34.

According to plaintiffs, if the Court determines that SBA did not comply with “statutory

requirements and its own regulations,” the Court would then decide “which additional

applications should have been awarded grants had SBA not made erroneous disbursements to

applicants in violation of the statutory mandate.” Pls. Opp’n at 28. This request is plainly

seeking the payment of money that would result from a holding that SBA misinterpreted section

5003 of ARPA and should have awarded grants in a different order. Regardless of plaintiffs’

claim for so-called money damages or use of Tucker Act language, they challenge SBA’s

interpretation of a law that controls payment to entities like plaintiffs. Katz is dispositive.

Plaintiffs’ discussion of Bowen is similarly erroneous. Although plaintiffs explain why

the Supreme Court in Maine Community Health found Bowen to be distinguishable and not a

barrier to determining that the Court of Federal Claims possessed jurisdiction, plaintiffs are not

in the same position and do not seek the same relief as the insurance companies in Maine

Community Health. See Pls. Opp’n at 32-34. Maine Community Health did not limit Bowen to

its facts or overrule it in any way. See id. at 32. Plaintiffs point to several specific reasons why

they believe that Bowen does not prevent the Court from taking jurisdiction. However, these are

17
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all unfounded.

First, contrary to their representations, plaintiffs here do not actually seek “money

damages for past injuries . . . .” See Pls’ Opp’n at 33. Plaintiffs’ facial characterization of their

claims as money damages in their prayer for relief is of no legal import. The essence of

plaintiffs’ allegations is that they did not receive a grant award from the Government while

others, who applied later or had defective applications, obtained grant awards. Thus, plaintiffs

seek a determination that SBA awarded grants using an incorrect statutory or regulatory

interpretation. See Compl. at ¶¶ 9-10. As noted above, any payment of money would result

from a judicial determination that SBA erred in its interpretations and should have awarded

grants to plaintiffs based on their place in a now-corrected queue. Plaintiffs do not, therefore,

seek “money damages” to compensate for their past injuries or labors.

Second, the fact that Bowen addressed a “rather complex ongoing relationship” between a

State and the Federal Government does not make it inapposite. Although there is currently no

ongoing relationship between plaintiffs and SBA, the key point here is that plaintiffs seek to

create one prospectively.14 Again, in plaintiffs’ own words, they request that the Court

determine “what additional applications should have been awarded grants had SBA not made

erroneous disbursements to applicants in violation of a statutory mandate.” Pls. Opp’n at 28.

This case is thus “not a suit seeking money in compensation for the damage sustained by the

failure of the Federal Government to pay as mandated; rather, it is a suit seeking to enforce the

statutory mandate itself, which happens to be one for the payment of money.” Bowen v.

Massachusetts, 487 U.S. 879, 900 (1988). Here, the alleged statutory mandate is to award grants

14
Plaintiffs’ acknowledgement that the RRF program ended and that the statutory covered
period expired over a year ago appears to be at odds with their standing argument. See Pls.
Opp’n at 33-35.
18
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in the order in which applications were received.

Third, plaintiffs note that in Maine Community Health, the statute employed a

backwards-looking formula designed to “compensate insurers for losses incurred in providing

healthcare coverage for the prior year.” Me. Cmty. Health Options, 140 S. Ct. at 1329. Plaintiffs

argue that the RRF statute was also meant to compensate restaurants for financial losses incurred

in the first year of the pandemic. Pls. Opp’n at 34. However, the purpose of the statute is not the

relevant point of comparison but instead what relief plaintiffs seek.

Here, although called “money damages,” plaintiffs seek to clarify SBA’s obligation to

them by obtaining a decision that SBA acted arbitrarily and capriciously and failed to follow

statutory directives. See Compl. at ¶¶ 142, 143, 149-153. As in Bowen, any payment made by

the Government would be “a mere by-product of [the district court’s] primary function of

reviewing the Secretary’s interpretation of federal law.” Bowen, 487 U.S. at 910. This is

different relief than that sought by the insurers in Maine Community Health, who sought the

payment of money that the statute stated was owed and due but had not been paid. See Me.

Cmty. Health Options, 140 S. Ct. at 1317-18. Plaintiffs’ attempt to distinguish Bowen fails.

IV. The Court Does Not Possess Subject-Matter Jurisdiction Over Negligence Claims

We explained in our motion to dismiss that it is well-established and non-controversial

that this Court does not possess jurisdiction to entertain negligence claims. The Federal Circuit

has recognized that “[t]he plain language of the Tucker Act excludes from the Court of Federal

Claims jurisdiction claims sounding in tort.” Rick’s Mushroom Serv., Inc. v. United States, 521

F.3d 1338, 1343 (Fed. Cir. 2008); 28 U.S.C. § 1491(a). Plaintiffs only suggest that it does not

matter how they characterized SBA’s actions. See Pls. Opp’n at 29. To the contrary, if

plaintiffs’ claims sound in tort, this Court does not possess jurisdiction.

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V. Transfer To A District Court Would Be Futile

Plaintiffs fail to address our point that transfer to a district court would be futile here.

When the Court lacks jurisdiction over a case, it is to transfer the case to a different court where

the lawsuit could have been brought if it is “in the interest of justice” to do so. 28 U.S.C. § 1631.

However, although the complaint makes allegations that should be considered APA claims under

district court jurisdiction, “a case should not be transferred or retransferred to a [d]istrict [c]ourt

if it most probably would be a futile act.” Little River Lumber Co. v. United States, 7 Cl. Ct.

492, 494 (1985) (citing Dancy v. United States, 229 Ct. Cl. 300, 308 (1982)). As we explained

in our motion, transfer would be futile here because plaintiffs lack standing or the case is moot.

CONCLUSION

For these reasons, as well as those set forth in our motion to dismiss, we respectfully

request that the Court dismiss the complaint for lack of subject-matter jurisdiction.

Respectfully submitted,

BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General

PATRICIA M. McCARTHY
Director

/s/ William J. Grimaldi
WILLIAM J. GRIMALDI
Assistant Director

/s/ Rebecca S. Kruser
REBECCA S. KRUSER
Senior Trial Counsel
Commercial Litigation Branch
Civil Division
U.S. Department of Justice
P.O. Box 480
Ben Franklin Station
Washington, D.C. 20044
Tel: (202) 305-2035

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rebecca.s.kruser@usdoj.gov

April 22, 2024 Attorneys for Defendant

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