                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          FEB 13 2003
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 DAVID W. LANDRY,

              Plaintiff - Appellant,

 v.

 NANCY SMITH, Director, United
 States Department of Agriculture,                      No. 02-7075
 National Appeals Division; GLEN                   D.C. No. 01-CV-711-S
 MILLER, JR., Hearing Officer,                       (E. D. Oklahoma)
 United States Department of
 Agriculture, National Appeals
 Division; ERNEST M. RENFROW,
 County Supervisor, Farmers Home
 Administration (FmHA)/Rural
 Economic and Community
 Development (RECD),

              Defendants - Appellees.


                           ORDER AND JUDGMENT


Before EBEL , HENRY , and HARTZ , Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore ordered submitted

without oral argument. This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and collateral estoppel. The

court generally disfavors the citation of orders and judgments; nevertheless, an

order and judgment may be cited under the terms and conditions of 10th Cir. R.

36.3.

        Plaintiff David Wayne Landry was denied a loan from the Farm Service

Agency of the United States Department of Agriculture (USDA) because the

Natural Resources Conservation Service (NRCS) characterized his site as a

wetland, ineligible for the requested loans. A hearing officer reviewed and

affirmed the wetland characterization. The Director of the National Appeals

Division (NAD) of the USDA (the “Director”) upheld the hearing officer’s

decision.

        Plaintiff brought suit in the United States District Court for the Eastern

District of Oklahoma challenging the NRCS’s wetland determination and the

Director’s subsequent approval. See Landry v. Cooper, No. 97-596-S (E.D. Okla.

May 4, 1998) (“Landry I”). The district court found that “the NRCS’s wetland

determination was supported by substantial evidence and was not otherwise

arbitrary, capricious, or an abuse of the agency’s discretion.” Id. at 5. It also

found, “[T]he NRCS’s determination that no exemption applies . . . is . . .

supported by the record.” Id. at 6. As a result, both the NRCS determination and




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the Director’s decision were upheld. This court affirmed. Landry v. Cooper, No.

98-7077 (10th Cir. Mar. 15, 1999).

      Plaintiff brought a second action challenging the Secretary of the USDA’s

failure to implement a decision of the National Appeals Staff. Plaintiff asserted

that the decision, if implemented, would have allowed the USDA to issue him a

loan. See Landry v. Glickman, No. 99-165-S (E.D. Okla. July 7, 1999) (“Landry

II”). The district court found the suit barred because, in accordance with Landry

I, the property was a wetland and the Secretary was prohibited from making loans

to disturb wetlands. Plaintiff’s appeal was dismissed as untimely. Landry v.

Glickman, No. 99-7130 (10th Cir. Feb. 3, 2000).

      In October 2000 Plaintiff filed a third action asking the court to find that he

was entitled to a wetland exception that would have allowed him to secure a

USDA loan. See Landry v. Glickman, No. CIV-00-546-S (E.D. Okla. May 29,

2001) (“Landry III”). The district court dismissed the case on the basis of res

judicata. The Tenth Circuit affirmed. Landry v. Veneman, No. 01-7121 (10th

Cir. May 30, 2002).

      Plaintiff then filed the current action, Landry v. Smith, No. CIV-01-711-S

(E.D. Okla. Apr. 11, 2002) (“Landry IV”), challenging the manner in which his

loan application was processed and the Director’s approval of the hearing




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officer’s determination. Again, the district court dismissed the case on the basis

of res judicata.

      On appeal Plaintiff claims that the district court erred when it (1) granted

Defendants’ motion to dismiss without first requiring an answer to be served, and

(2) exercised subject matter jurisdiction despite Plaintiff’s alleged failure to

exhaust his administrative remedies. In his reply brief he also argues that res

judicata does not apply because each action challenged the conduct of a separate

agency. He contends that Defendants’ answer brief “is another attempt to re-

litigate it’s [sic] affirmative defense of res judicata against [Plaintiff’s] previously

[sic] claims, thereby continuing to burden and abuse the judicial process by filing

frivolous affirmative defenses . . . .” Aplt. Reply Br. at 1.

      We review de novo a district court’s dismissal under Federal Rule of Civil

Procedure 12(b)(6). County of Santa Fe v. Public Serv. Co. of N.M., 311 F.3d

1031, 1034 (10th Cir. 2002). Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

      I. The Pre-Answer Motion

      Rule 12(a) gives a federal governmental defendant 60 days in which to

answer a plaintiff’s complaint. Fed. R. Civ. P. 12(a)(3)(A)-(3)(B). In this case

the governmental defendants never answered Plaintiff’s complaint. Instead, they

moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). The district


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court granted their motion. Plaintiff asserts that Defendants defaulted when they

failed to answer his complaint within the 60-day period.

      The 12(b)(6) defense may be raised in a pre-answer motion. Fed. R. Civ. P.

12(b). “Unless a different time is fixed by court order, the service of a [12(b)(6)]

motion . . . alters the[] period[] of time [for filing an answer].” Fed. R. Civ. P.

12(a)(4). “[I]f the court denies the motion . . . , the [answer must] be served

within 10 days after notice of the court’s action.” Fed. R. Civ. P. 12(a)(4)(A). If

the court grants the motion, as it did here, the plaintiff’s action is dismissed, and

an answer is no longer necessary. Thus, Defendants did not default.

      II. Subject Matter Jurisdiction

      Plaintiff claims that he failed to exhaust his administrative remedies and

that therefore the court in this action, as well as the courts in the three previous

actions, lacked subject matter jurisdiction. Because Plaintiff failed to raise this

issue in the district court, we consider it only to the extent that it implicates

jurisdiction in this case. See Sac and Fox Nation v. Hanson, 47 F.3d 1061, 1063

(10th Cir. 1995). Whether the courts in Landry I, Landry II, and Landry III had

subject matter jurisdiction, while potentially relevant to the application of the

doctrine of res judicata, has no bearing on jurisdiction in this case. Accordingly,

we do not address whether jurisdiction was present in Plaintiff’s earlier actions.

We are concerned solely with the district court’s jurisdiction in Landry IV.


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      The district court’s power to review the Director’s decision derived from 7

U.S.C. § 6999, which reads, “A final determination of the [National Appeals]

Division shall be reviewable and enforceable by any United States district court

of competent jurisdiction in accordance with chapter 7 of Title 5.” Under this

statute the district court had subject matter jurisdiction if the Director’s decision

was “final.” The Supreme Court has explained the finality requirement as

follows:

             As a general matter, two conditions must be satisfied for
             agency action to be final: First, the action must mark
             the consummation of the agency’s decisionmaking
             process—it must not be of a merely tentative or
             interlocutory nature. And second, the action must be
             one by which rights or obligations have been
             determined, or from which legal consequences will flow.


Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations and internal quotation

marks omitted). The NAD decision at issue here explicitly states, “This

concludes the administrative appeal of this case.” ROA at 15. Moreover, it

appears to dispose of Plaintiff’s claims fully. Plaintiff does not explain in what

way the NAD decision was not final or how he failed to exhaust his

administrative remedies. We therefore conclude that the district court had subject

matter jurisdiction to resolve Plaintiff’s claim.




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      III. Res Judicata

      Because he did not raise the issue until his reply brief, we need not address

Plaintiff’s argument that the elements of res judicata have not been established.

Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). In any event, the issue was

thoroughly and correctly addressed in the district court’s orders in Landry III and

Landry IV.

      We AFFIRM.

                                              Entered for the Court


                                              Harris L Hartz
                                              Circuit Judge




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