Appealed from: U.S. Claims Court, Chief Judge Smith.
Mayer, Circuit Judge, Smith, Senior Circuit Judge, and Michel, Circuit Judge. Mayer, Circuit Judge, dissenting.
The United States appeals the decision of the United States Claims Court, Grav v. United States, 14 Cl. Ct. 390 (1988), granting the Gravs' motion for summary judgment for $50,686.00 to which they were entitled and wrongfully denied under the Milk Diversion Program (MDP), 7 U.S.C. § 1446(d) (Supp. I 1983). The Claims Court denied the United States' (government's) motion to dismiss and cross-motion for summary judgment. We affirm.
The facts were stipulated by the parties as follows. In September, 1983, the Gravs and Ken Goodale entered into an agreement for the sale and purchase of seven milk cows. A price was agreed upon at this time.*fn1 Removal of the cows from the Gravs' property in South Dakota was the responsibility of Goodale and had to occur prior to February, 1984. Goodale took possession and paid for the cows on January 9, 1984. On January 9, 1984, the Gravs sold all their remaining dairy cattle for slaughter and applied for participation in the MDP. First National Bank, a secured creditor of the Gravs and the holder of a specific assignment of their right to payments under the MDP, failed to notify or to receive approval from the government of this assignment as required by 31 U.S.C. § 3727 (1982).
The Gravs' application was ultimately denied on December 5, 1984, because the Department of Agriculture's Agricultural Stabilization and Conservation Service officials for the Gravs' county determined that the Gravs were ineligible for the program since they had transferred dairy cattle to a third person after the statutory deadline of November 8, 1983, thereby violating 7 U.S.C. § 1446(d)(3)(B)(iii) (Supp. I 1983). After exhausting all their administrative remedies, the Gravs filed a complaint in the Claims Court seeking relief. A final judgment was entered against the government on October 25, 1988, for $50,686.00.
Our jurisdiction is based on 28 U.S.C. § 1295(a)(3) (1982), governing "an appeal from a final decision of the United States Claims Court."
The first issue before us is whether the Claims Court had jurisdiction. The Claims Court's Tucker Act jurisdiction is limited to:
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.
28 U.S.C. § 1491(a)(1) (1982). The government argues that the Claims Court did not have jurisdiction because the MDP was not a money mandating statute nor was there an implied-in-fact contract. The Claims Court concluded it had jurisdiction because the language of the statute setting up the MDP offered milk producers a unilateral contract, provided the Gravs met the criteria, which they could accept by performance, or because the MDP statute created an implied contract, provided the Gravs met the criteria, with intent for the government being manifested by the language of the statute and intent for the milk producer being manifested by his application for the program.*fn2
Our analysis whether the Claims Court had jurisdiction turns on whether the Secretary of Agriculture was granted discretion to refuse participation by any applicant who was qualified for the program. We conclude the Secretary was not. Therefore, this is a money mandating statute that triggers Tucker Act jurisdiction in the Claims Court.
"'The starting point in every case involving construction of a statute is the language itself.'" Watt v. Alaska, 451 U.S. 259, 265, 68 L. Ed. 2d 80, 101 S. Ct. 1673 (1981) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 44 L. Ed. 2d 539, 95 S. Ct. 1917 (1975) (Powell, J., concurring)). The ...