          In the United States Court of Federal Claims
                                       No. 15-1572C
                                (Filed: December 22, 2016)

                                           )
 GLENN-COLUSA IRRIGATION                   )
 DISTRICT, et al.,                         )
                                           )      Subject matter jurisdiction; Flood
                      Plaintiffs,          )      Control Act of 1970; divestment of
                                           )      Tucker Act jurisdiction
 v.                                        )
                                           )
 THE UNITED STATES,                        )
                                           )
                      Defendant.           )
                                           )


      Stuart L. Somach, Sacramento, CA, for Plaintiff. Michael A. Gheleta, Francis M.
Goldsberry, II, and Alexis K. Stevens, Sacramento, CA, of counsel.

      Jeffrey M. Lowry, Civil Division, U.S. Department of Justice, Washington, DC,
with whom were Benjamin C. Mizer, Acting Assistant Attorney General, Robert E.
Kirschamn, Jr., Director, and Steven J. Gillingham, Assistant Director, for defendant.

                                      OPINION

FIRESTONE, Senior Judge.

       Plaintiff, Glenn-Colusa Irrigation District (“GCID”), brought this action on

December 23, 2015 invoking this court’s jurisdiction under the Tucker Act, 28 U.S.C.

1491(a)(1) and seeking damages from the United States for an alleged breach of a cost-

sharing agreement between GCID and the United States Army Corps of Engineers

(“Corps”). Under the terms of the cost-sharing agreement, the Corps, “subject to

receiving funds appropriated by the Congress of the United States . . . and using those
funds and funds provided by [GCID]” agreed to construct the Riverbed Gradient Facility

Project for the Sacramento River at the GCID intake. Mot. to Dismiss at A4. GCID

claims that the Corps violated the cost-sharing agreement by failing to properly build the

riverbed gradient facility.

       The government has filed a motion to dismiss pursuant to Rule 12(b)(1) of the

Rules of the Court of Federal Claims (“RCFC”) in which it argues that the court lacks

jurisdiction over the dispute based on Section 221 of the Flood Control Act of 1970, 42

U.S.C. § 1962d-5b(c). Section 221 states as follows: “Enforcement; jurisdiction. Every

agreement entered into pursuant to this section shall be enforceable in the appropriate

district court of the United States.” The government argues that Section 221 vests an

appropriate district court with exclusive jurisdiction over GCID’s breach of contract

claim and therefore the case before this court must be dismissed.

       The government’s motion is fully briefed and oral argument was held on

December 20, 2016. For the reasons discussed below, the motion to dismiss is

GRANTED.

       I.     BACKGROUND

       The following facts are taken from GCID’s complaint and for purposes of this

motion are not disputed. GCID is an irrigation district diverting water from the

Sacramento River pursuant to water rights perfected under California law prior to 1900.

Compl. ¶ 3. As a result of litigation concerning impacts on winter-run salmon from

GCID irrigation diversions, GCID and federal and state agencies agreed to jointly

develop a long-term solution to address both protection of fishery resources and ensuring


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a reliable water supply for GCID. Id. ¶¶ 11-14. The solution was a Fish Screen Project

consisting of two essential components: (1) a fish screen extension (fish screen) and (2) a

Riverbed Gradient Facility for the Sacramento River at the GCID irrigation diversion

intake (Gradient Facility). Id. ¶ 16.

       The fish screen was authorized by Congress, built by the United States Bureau of

Reclamation, and was turned over to GCID, which assumed ownership and responsibility

for its operation, maintenance, and repair in 2011. Id. ¶¶ 17-19. The fish screen is in

operation today and operates as intended. Id.

       Congress originally authorized the Gradient Facility in 1990. Id. ¶ 20.

The Gradient Facility was designed to mimic a natural riffle in the river in order to

accommodate the passage of fish and boats. Id. ¶ 25. The increased water surface

elevations provided by the Gradient Facility during low flows were intended to increase

sweeping flows past the fish screen and to improve the overall performance of the Fish

Screen Project. Id. Authorization for the Gradient Facility was modified several times,

with Congress authorizing a total cost of $14,200,000 in 1996, a total cost of $20,700,000

in 1998, and finally a total cost of $26,000,000 in 1999. Id. ¶¶ 21-23.

       GCID entered into a Project Cooperation Agreement (“Agreement”) with the

Corps for the Gradient Facility in 1999. Id. ¶ 28. The Agreement set forth the

responsibilities of GCID and the Corps with respect to cost sharing, construction, and

operation and maintenance of the Gradient Facility. Id. ¶ 34. The Agreement provided

that design and construction of the Gradient Facility would be the responsibility of the

Corps and the Corps was required to “expeditiously construct the Project . . . .” Id. ¶ 35.


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GCID was responsible for contributing a minimum of 25 percent of the total project

costs. Id. ¶ 36. Upon completion of the project, the Agreement provided that GCID

would assume responsibility for the operation, maintenance, repair, replacement, and

rehabilitation of the project. Id. ¶ 42.

       The Agreement included a provision dealing with potential damages from faulty

construction. It required GCID to indemnify the Corps from “all damages arising from

the construction, operation, maintenance, repair, replacement, and rehabilitation of the

Project and any Project-related betterments, except for damages due to the fault or

negligence of the Government or its contractors.” Id. ¶ 45 (emphasis added). The

Agreement also included a dispute resolution provision. Mot. to Dismiss at A14.

       GCID alleges that almost immediately after construction was completed in 2000,

defects associated with the Gradient Facility were observed. Id. ¶ 52-53. The Corps

convened a team of experts, known as the “Gradient Facility Blue Ribbon Panel,” in

August 2008, to assess the design of the Gradient Facility and recommend correction of

any deficiencies. Both prior to and following release of the Blue Ribbon Panel Report,

GCID alleges that it repeatedly tried to get the Corps to address the Gradient Facility’s

defects. Id. ¶¶ 74-85. GCID alleges the defects were not addressed but that on March 22,

2013 the Corps notified GCID that construction of the Gradient Facility was “complete”

and transferred responsibility for the Gradient Facility to GCID. Id. ¶ 86.

       GCID alleges that the Gradient Facility has degraded as a result of the Corps’

failure to address its design and construction deficiencies. GCID contends that it has

incurred, and will continue to incur, substantial costs because of the Corps alleged failure


                                             4
to fulfill its contractual obligations. Id. ¶¶ 91-93. GCID claims that by failing to address

the design and construction defects associated with the Gradient Facility, the Corps has

breached its contractual duties to GCID. GCID further alleges that its attempt to resolve

the dispute under the dispute resolution provision of the Agreement has failed and thus its

breach of contract claims are ripe for adjudication.

       GCID filed the present action on December 23, 2015 and the government filed its

motion to dismiss on April 7, 2016, arguing that this court lacks jurisdiction over the

dispute. Briefing on the government’s motion is complete and oral argument was heard

on December 20, 2016. The matter is now ripe for disposition.

       II.   DISCUSSION

A.     Standard of Review

       This case comes before the court on the government’s motion to dismiss for lack

of jurisdiction pursuant to RCFC 12(b)(1). “In deciding a motion to dismiss for lack of

subject matter jurisdiction, the court accepts as true all uncontroverted factual allegations

in the complaint, and construes them in the light most favorable to the plaintiff.” Estes

Express Lines v. United States, 739 F.3d 689, 692 (Fed. Cir. 2014) (citing Cedars-Sinai

Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 (Fed. Cir. 1993)). However, a party

invoking this court’s jurisdiction ultimately “has the burden of establishing jurisdiction

by a preponderance of the evidence.” Fid. & Guar. Ins. Underwriters, Inc. v. United

States, 805 F.3d 1082, 1087 (Fed. Cir. 2015) (citing Brandt v. United States, 710 F.3d

1369, 1373 (Fed. Cir. 2013); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746,

748 (Fed. Cir. 1988)). If a motion to dismiss for lack of jurisdiction challenges the


                                              5
jurisdictional facts alleged in the complaint, the court may consider relevant evidence

outside the complaint in order to determine whether it has jurisdiction. Banks v. United

States, 741 F.3d 1268, 1277 (Fed. Cir. 2014) (citing Reynolds, 846 F.2d at 747).

B.     Under Section 221 of the Flood Control Act Only the “Appropriate Federal
       District Court” Has Jurisdiction to Hear Disputes Concerning Cooperative
       Agreements

       As noted, GCID premises this court’s jurisdiction on the Tucker Act averring that

the cooperative agreement it entered into with the Corps is a contract which the Corps

breached by failing to properly construct the Gradient Facility. The Tucker Act grants

this court “jurisdiction to render judgment upon any claim against the United States

founded upon . . . any express . . . or implied contract . . . .” 28 U.S.C. § 1491(a)(1). The

Tucker Act waiver of sovereign immunity is not absolute, however, and can be displaced

or modified by statute or treaty. Boston Edison Co. v. United States, 64 Fed. Cl. 167, 175

(2005). The government argues that Section 221 of the Flood Control Act is an example

of a statute that has displaced the Tucker Act and has placed jurisdiction over contract

disputes involving cooperative agreements authorized by the Flood Control Act in the

“appropriate district court.” 42 U.S.C. § 1962d-5b. The government argues in the

alternative that the Flood Control Act does not allow for money damages in the event of a

breach of a cooperative agreement and thus the cooperative agreement does not create a

money-mandating claim against the United States.

       GCID argues in response that the 1970 Flood Control Act did not displace the

Tucker Act. GCID also argues that the cooperative agreement is money-mandating.

Specifically, GCID argues that the Corps agreed in the cooperative agreement that it


                                              6
could be liable for damages “due to the fault or negligence of the Government or its

contractors.” Compl. ¶ 45.

       The court finds for the reasons that follow that Section 221 of the 1970 Flood

Control Act did displace the Tucker Act for disputes involving cooperative agreements

and GCID’s action in this court must be dismissed. It is thus not necessary to decide

whether GCID may seek money damages pursuant to the cooperative agreement.

       It is well-settled that the United States, “as sovereign, is immune from suit save as

it consents to be sued.” United States v. Sherwood, 312 U.S. 584, 586 (1941); accord

Furash & Co. v. United States, 46 Fed. Cl. 518, 520 (2000), aff’d 252 F.3d 1336 (Fed.

Cir. 2001). The Court of Federal Claims does not possess jurisdiction over claims against

the Government unless Congress consents to a particular cause of action. United States v.

Testan, 424 U.S. 392, 399 (1976). Congress does not consent to suit in this Court under

the Tucker Act “when a law assertedly imposing monetary liability on the United States

contains its own judicial remedies.” United States v. Bormes, 133 S. Ct. 12, 18 (2012).

The Supreme Court has explained that the purpose of the Tucker Act was to provide a

judicial avenue for monetary claims against the United States that did not previously

exist. Id. Thus the Supreme Court has held that where statues provide their own specific

judicial remedies, those remedies replace the more general remedies of the Tucker Act.

Id.; see also Horne v. Dep’t of Agric., 133 S. Ct. 2053, 2063 (2013).

       The Supreme Court has further held that to determine whether another statutory

scheme has displaced this court’s Tucker Act jurisdiction requires an examination into

“the purpose of the [statute], the entirety of its text, and the structure of review that it


                                                7
establishes.” Horne, 133 S. Ct. at 2062-63 (citing United States v. Fausto, 484 U.S. 439,

444 (1988)). Following such an examination the Supreme Court in Bormes determined

that the Little Tucker Act, which provides a limited waiver of sovereign immunity for

money claims in federal district courts, similar to the waiver for greater sums in this court

under the Tucker Act, was displaced by the remedial scheme established in the Fair

Credit Reporting Act. In Bormes the plaintiff sought to recover damages for allegedly

improper disclosure of his credit card information by a federal court filing fee system.

133 S. Ct. at 15. The plaintiff argued that the government had waived its sovereign

immunity for violations of the Fair Credit Reporting Act under the Little Tucker Act. Id.

After the United States District Court dismissed Mr. Bormes’s claim on the grounds that

the Little Tucker Act did not apply and that the Fair Credit Reporting Act did not waive

the Government’s sovereign immunity, the plaintiff appealed to the Federal Circuit. Id.

at 15-16. On appeal, the Federal Circuit held that the Little Tucker Act served to waive

the government’s sovereign immunity and that the Fair Credit Reporting Act was a

money-mandating statute permitting recovery from the government. See Bormes v.

United States, 626 F.3d 574, 580 (Fed. Cir. 2010).

       The Supreme Court reversed the decision of the Federal Circuit holding that the

Tucker Act had been displaced by the specific statutory scheme Congress created in the

Fair Credit Reporting Act. Bormes, 133 S. Ct. at 13. The Court explained that the

Tucker Act was meant to provide an avenue for monetary relief for claimants against the

government that was previously foreclosed by sovereign immunity. See id. at 17-18.

Thus, the Court held that when Congress creates a statue with its own avenues for judicial


                                              8
action, the Tucker Act’s broad waiver of sovereign immunity is replaced by the statues’

specific waiver. Id. at 18-19. With regard to the Fair Credit Reporting Act, a unanimous

Supreme Court concluded that by placing jurisdiction over violations in the “appropriate

United States district court without regard to the amount in controversy, or in any other

court of competent jurisdiction,” Congress meant to displace the Tucker Act as a remedy.

Id. at 19 (quoting 15 U.S.C. § 1681p).

       The Supreme Court reached a similar conclusion in Horne v. Department of

Agriculture, 133 S. Ct. 2053 (2013). In Horne, California raisin growers sought to raise a

Fifth Amendment takings claim as a defense to the Department of Agriculture’s

allegations that they had failed to retain raisins in reserve and pay assessments as required

by the Agricultural Marketing Agreement Act of 1937 (“AMAA”). Id. at 2056. On

appeal the United States Court of Appeals for the Ninth Circuit held that the raisin

growers were required to raise their takings claims in the Court of Federal Claims. Id.

The Supreme Court reversed, holding that the AMAA contained its own remedial scheme

and vested jurisdiction over any disputes with the district courts. Id. at 2063. The

AMAA stated that the federal district court was “vested with jurisdiction” to review an

agency decision. Id. (quoting 7 U.S.C. § 608c 15(B)). Applying the test noted above, the

Court held that the AMAA displaced the Tucker Act and thus raisin growers were

required to take their claim to the appropriate district court, not the Court of Federal

Claims. See id. (“We thus conclude that the AMAA withdraws Tucker Act jurisdiction

over petitioners’ takings claim. Petitioners (as handlers) have no alternative remedy”

other than filing in district court).


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       In this case, as in Horne, an examination of “the purpose of the [statute], the

entirety of its text, and the structure of review that it establishes,” id. at 2062-63,

demonstrates that the Flood Control Act has displaced the Tucker Act and that Congress

has vested the appropriate district court with jurisdiction over GCID’s breach of contract

claim. The Project Cooperation Agreement at issue in this case was entered into under

the authority of the Flood Control Act. Section 221 of the Act, as codified at 42 U.S.C. §

1962d-5b, describes the general requirements for a written water resource project

partnership agreement. In addition to detailing these requirements, as noted, the section

also contains a subsection entitled “Enforcement; jurisdiction.” 42 U.S.C. § 1962d-5b(c).

The “Enforcement; jurisdiction” subsection provides that: “Every agreement entered into

pursuant to this section shall be enforceable in the appropriate district court of the United

States.” Id. Thus, the Flood Control Act, like the statues at issue in Bormes and Horne,

provides a specific avenue of relief in place of the more general jurisdictional grant of the

Tucker Act and vests the “appropriate district court” with jurisdiction over agreement

disputes.

       Plaintiff’s reliance on California v. United States, 271 F.3d 1377 (Fed. Cir. 2001)

to suggest that the Federal Circuit has expressly determined that the Flood Control Act

has not repealed the Tucker Act is unfounded. California concerned 33 U.S.C. § 702c,

which provided that “no liability of any kind shall attach to or rest upon the United States

for any damage from or by floods . . . .” Id. at 1380-81. The Federal Circuit concluded

that the broad immunity provisions in that section did not implicitly repeal the Tucker

Act. Id. at 1383. This case, of course, deals with Section 221 of the 1970 Flood Control


                                               10
Act which is not an immunity provision, but an express grant of power to the district

courts to enforce agreements pursuant to the Act. 42 U.S.C. § 1962d-5b(c).

       GCID’s reliance on this court’s decision in King v. United States, 112 Fed. Cl.

396, 400 (2013) to suggest that this court may still have jurisdiction over plaintiff’s

contract dispute is also unfounded. The issue in King was whether the Fair Labor

Standards Act which permits suit in “any Federal or State court of competent

jurisdiction,” includes this court. Because the court concluded that the Court of Federal

Claims was a “court of competent jurisdiction” it denied the government’s motion to

dismiss. The statute at issue in King is substantively different from the Flood Control

Act. Section 221 of the Flood Control Act expressly places jurisdiction in “the

appropriate district court,” which is far more narrow language than provided by the Fair

Labor Standards Act. The Flood Control Act thus requires that agreements made

pursuant to 42 U.S.C. § 1962d-5b(c) be enforced only in federal district courts, which the

Court of Federal Claims is not.

       Plaintiff further contends that the Flood Control Act, read together with the Tucker

Act, combines to allow a party two avenues of recovery. Pl.’s Response at 14 (“Under the

1970 Flood Control Act, a party may proceed in the district court seeking the equitable

remedy of enforcement of an agreement executed under authority of that act, while under

the Tucker Act, that same party could proceed in the Court of Federal Claims and seek a

legal remedy of damages for breach of contract.”). In essence, Plaintiff avers that the

Flood Control Act limits the appropriate district court to only provide equitable relief,

while any party seeking money damages would have to come to the Court of Federal


                                             11
Claims. There is no reason to believe that the district courts are limited in the remedies

they may provide a plaintiff in any action brought pursuant to the Flood Control Act.

Nothing in 42 U.S.C. § 1962d-5b(c) can be fairly interpreted as reducing federal district

courts to mere courts of equity when faced with a breach of a contract under the Flood

Control Act.

       Plaintiff finally argues that the Flood Control Act does not expressly repeal Tucker

Act jurisdiction. Specifically, Plaintiff notes that “Congress could have said that

jurisdiction was ‘solely’ or ‘exclusively’ in the district court, but it did not use any such

express language.” Pl.’s Response at 12. Such specific language, however, is not

required in order to divest the Court of Federal Claims of jurisdiction when a statute has

specifically granted jurisdiction to the district courts. For example, in Horne, discussed

supra, the relevant statute was 7 U.S.C.S. § 608c 15(B), which stated that “The District

Courts of the United States (including the Supreme Court of the District of Columbia

[District Court of the United States for the District of Columbia]) in any district in which

such handler is an inhabitant, or has his principal place of business, are hereby vested

with jurisdiction in equity to review such ruling. . . .” That statute never used the words

“solely” or “exclusively” when stating that the district courts were vested with

jurisdiction to hear AMAA matters. Nevertheless, the Supreme Court held that that

language was sufficient enough to withdraw Tucker Act jurisdiction over petitioners’

claims. Horne, 133 S. Ct. at 2063.

       The same conclusion must be reached here. The 1970 Flood Control Act states

that “[e]very agreement entered into pursuant to this section shall be enforceable in the


                                              12
appropriate district court of the United States.” 42 U.S.C. § 1962d-5b(c). That language

is just as specific as the language noted in Horne. Accordingly, the court must find that

the intention of the of the Flood Control Act was to allow for disputes in agreements to

be adjudicated by the appropriate federal district court, thereby divesting the Court of

Federal Claims of Tucker Act jurisdiction.

       III.   CONCLUSION

       For the foregoing reasons, this court does not have jurisdiction over GCID’s

breach of contract case. The government’s motion to dismiss for lack of subject matter

jurisdiction is GRANTED. The complaint shall be dismissed without prejudice. The

Clerk of Court shall enter judgment accordingly.

       IT IS SO ORDERED.



                                                           s/Nancy B. Firestone
                                                           NANCY B. FIRESTONE
                                                           Senior Judge




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