Case 1:13-cv-00139-EGB Document 10 Filed 05/29/13 Page 1 of 15

No. 13-139C (Judge Bruggink)

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

SEQUOIA PACIFIC SOLAR I, LLC, and EIGER LEASE CO, LLC Plaintiffs, v. THE UNITED STATES, Defendant.

DEFENDANTS MOTION TO DISMISS PLAINTIFFS COMPLAINT

STUART F. DELERY Acting Assistant Attorney General JEANNE E. DAVIDSON Director BRYANT G. SNEE Deputy Director KENNETH M. DINTZER Assistant Director Civil Division Commercial Litigation Branch United States Department of Justice P.O. Box 480 Ben Franklin Station Washington, D.C. 20044 Tel.: (202) 616-0385 KDintzer@CIV.USDOJ.GOV May 29, 2013 Attorneys for Defendant

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TABLE OF CONTENTS ISSUE PRESENTED .......................................................................................................................1 INTRODUCTION ...........................................................................................................................2 STATEMENT OF FACTS ..............................................................................................................2 ARGUMENT ...................................................................................................................................3 I. This Court Should Dismiss Plaintiffs Complaint For Lack Of Subject Matter Jurisdiction ................................................................................................................3 A. B. Standard Of Review .....................................................................................3 This Court Lacks Jurisdiction Over Plaintiffs Complaint ..........................4 1. 2. No APA Review In This Court ........................................................4 Plaintiffs Allege That Treasurys Administration Of The Section 1603 Program Violated The Agencys Statutory Mandate And Authority ...................................................................5 a. Allegations That Treasury Exceeded its Statutory Authority Fall Beyond This Courts Jurisdiction.................5 Allegations That Treasurys Guidance Conflicts With The Agencys Statutory Authority Are Beyond This Courts Jurisdiction ..............................................................8 Allegations Regarding Nonplaintiff Injuries Fall Beyond This Courts Jurisdiction ........................................9

b.

c.

3.

This Court Lacks Jurisdiction To Consider Pending Applications.....................................................................................10

CONCLUSION ..............................................................................................................................11

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TABLE OF AUTHORITIES Cases Alder Terrace, Inc. v. United States, 161 F.3d 1372 (Fed. Cir. 1998)................................................................................................... 3 Bowen v. Massachusetts, 487 U.S. 879 (1988) .................................................................................................................... 6 Carroll v. United States, 67 Fed. Cl. 82 (2005) .............................................................................................................. 6, 7 Century Exploration New Orleans, LLC v. United States, 2013 WL 1174999 (Fed. Cl.) ...................................................................................................... 6 Chambers v. United States, 417 F.3d 1218 (Fed. Cir. 2005)................................................................................................. 10 Crocker v. United States, 125 F.3d 1475 (Fed. Cir. 1997)................................................................................................... 4 DGR Assocs., Inc. v. United States, 690 F.3d 1335 (Fed. Cir. 2012)................................................................................................ 8-9 Lawrence v. United States, 69 Fed. Cl. 550 (2006) ................................................................................................................ 6 Lion Raisins, Inc. v. United States, 416 F.3d 1356 (Fed. Cir. 2005)................................................................................................... 4 M. Snower & Co. v. United States, 140 F.2d 367 (7th Cir. 1944) ...................................................................................................... 2 Martinez v. United States, 333 F.3d 1295 (Fed. Cir. 2003)................................................................................................... 9 Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) .................................................................................................................... 10 Patton v. United States, 64 Fed. Cl. 768 (2005) ................................................................................................................ 4 Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746 (Fed. Cir. 1988)................................................................................................. 3, 4

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Roth v. United States, 378 F.3d 1371 (Fed. Cir. 2004)................................................................................................... 4 Scarseth v. United States, 52 Fed. Cl. 458 (2002) .............................................................................................................. 10 Schweiger Const. Co., Inc. v. United States, 49 Fed. Cl. 188 (2001) .............................................................................................................. 10 Suburban Mortg. Assocs., Inc. v. U.S. Dep't of Hous. & Urban Dev., 480 F.3d 1116 (Fed. Cir. 2007)............................................................................................... 4, 8 U.S. Ass'n of Imps. of Textiles & Apparel v. U.S. Dep't of Commerce, 413 F.3d 1344 (Fed. Cir. 2005)................................................................................................. 10 U.S. Home Corp. v. United States, 92 Fed. Cl. 401 (2010) ................................................................................................................ 4 United States v. Mitchell, 463 U.S. 206 (1983) .................................................................................................................... 6 Statutes 28 U.S.C. 1331 ............................................................................................................................. 6 28 U.S.C. 1491(a)(1) (2006) ........................................................................................................ 6 5 U.S.C. 702 ................................................................................................................................. 7 5 U.S.C. 704 ............................................................................................................................... 10 5 U.S.C. 701-706 (1994) ........................................................................................................ 4, 6 American Recovery and Reinvestment Tax Act of 2009 ............................................................... 1

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SEQUOIA PACIFIC SOLAR I, LLC, and EIGER LEASE CO, LLC Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 13-139C (Judge Bruggink)

DEFENDANTS MOTION TO DISMISS PLAINTIFFS COMPLAINT Pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims ("RCFC"), the United States, defendant, respectfully requests that the Court dismiss plaintiffs complaint in its entirety because this Court lacks subject matter jurisdiction to consider plaintiffs claims. In support of our motion, we rely upon the complaint and the following memorandum of law. ISSUE PRESENTED 1. The Court of Federal Claims does not have the general, Federal question

jurisdiction necessary to review an agencys actions and decisions. Plaintiffs allege that the United States Department of the Treasury (Treasury) has improperly administered Section 1603 of the American Recovery and Reinvestment Tax Act of 2009 (ARRTA), thereby violating the agencys statutory mandate and exceeding the agencys statutory authority. Because the plaintiffs ask the Court to review Treasurys administration of a Federal program, the Court should dismiss the complaint for lack of jurisdiction.

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INTRODUCTION Plaintiffs, Sequoia Pacific Solar I, LLC, and Eiger Lease Co, LLC, sue the United States pursuant to Section 1603 of ARRTA, a program that Congress designed to subsidize certain energy projects. Plaintiffs allege that Treasury violated its statutory mandate, exceeded its statutory authority, and issued guidance inconsistent with the ARRTA. Plaintiffs seek monetary damages for themselves, but also allege injuries to nonparties and anticipate future injuries arising from applications still pending before the agency. The complaints extensive allegations are irrelevant to a claim for increased payments under Section 1603; indeed, the majority of the complaint attacks Treasurys administration of ARRTA. Taken as a whole, plaintiffs complaint asks this Court to review an agencys administration of a Federal program. The Court should dismiss the complaint because the review being sought exceeds this Courts jurisdiction. STATEMENT OF FACTS Plaintiffs allege the following facts: 1 Sequoia Pacific and Eiger are companies that finance, develop, own, and lease solar energy projects. Compl. at 9-11. Plaintiffs submitted applications to Treasury pursuant to Section 1603 of ARRTA. Id. at 53-54. Under Section 1603, the Government reimbursed a portion of the expense of the designated energy projects. Id. at 28-30. Sequoia Pacific submitted Section 1603 applications for 115 residential and 31 commercial solar energy projects. Id. at 53. In each application, Sequoia asserted a cost basis associated with the projects purchase price, and confirmed these cost bases by appraisals.
1

We reserve the right to contest each factual allegation in the complaint, should the Court deny our motion. E.g., M. Snower & Co. v. United States, 140 F.2d 367, 370 (7th Cir. 1944). 2

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Id. Collectively, Treasury paid Sequoia Pacific $6,079,167 less than Sequoia Pacific claimed in its applications. Id. at 53. Regarding these applications, Treasury has notified Sequoia Pacific that the agencys decisions constituted final agency action. Id. at 55. Eiger submitted Section 1603 applications for 2036 residential solar energy projects. Id. at 54. In each application, Eiger asserted a cost basis associated with the projects purchase price, and confirmed these cost bases by appraisals. Id. Collectively, Treasury paid Eiger $1,995,241 less than Eiger claimed in its applications. Id. at 54. Regarding these applications, Treasury has notified Eiger that the agencys decisions constituted final agency action. Id. at 55. Sequoia Pacific and Eiger allege that they received some Section 1603 payments later than 60 days after they submitted their applications. Id. at 48. Both plaintiffs have additional, pending Section 1603 applications. Id. at 56. ARGUMENT I. This Court Should Dismiss Plaintiffs Complaint For Lack Of Subject Matter Jurisdiction________________________________________________________ Because the complaint asks the Court to review Treasurys administration of the Section 1603 program, Comp. at 37, the Court should dismiss the complaint for lack of jurisdiction. RCFC 12(b)(1). A. Standard Of Review

Plaintiffs bear the burden of establishing subject matter jurisdiction, Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998), and must do so by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). In resolving a motion to dismiss for lack of subject matter jurisdiction, this Court presumes all undisputed, factual allegations to be true and applies all reasonable inferences to 3

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favor the plaintiffs. Reynolds, 846 F.2d at 747. The relevant issue in a motion to dismiss under RCFC 12(b)(1) "is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." U.S. Home Corp. v. United States, 92 Fed. Cl. 401, 406 (2010) (quoting Patton v. United States, 64 Fed. Cl. 768, 773 (2005)). B. This Court Lacks Jurisdiction Over Plaintiffs Complaint

The Court should conclude that it does not have jurisdiction to consider plaintiffs claims, as they seek Administrative Procedures Act ("APA")-like review of Treasurys administration of the Section 1603 program. See 5 U.S.C. 701-706 (1994).2 1. No APA Review In This Court

It is routinely acknowledged that this Court lacks jurisdiction to review agency decisions or actions. See Suburban Mortg. Assocs., Inc. v. U.S. Dept of Hous. & Urban Dev., 480 F.3d 1116, 1122 (Fed. Cir. 2007). Of course, no APA review is available in the Court of Federal Claims. Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1370 n.11 (Fed. Cir. 2005) (citations omitted). Specifically, this Court lacks the general federal question jurisdiction of the district courts, which would allow it to review the agencys actions and to grant relief pursuant to the Administrative Procedure Act[.] Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir. 1997). Moreover, the Court of Federal Claims does not possess general equity jurisdiction where no independent basis for jurisdiction exists. Roth v. United States, 378 F.3d 1371, 1384 (Fed. Cir. 2004).

We do not concede that plaintiffs have properly pled an APA claim, or any other claim, upon which relief can be granted, and we reserve our right to challenge any such claims, here or in any other forums. 4

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2.

Plaintiffs Allege That Treasurys Administration Of The Section 1603 Program Violated The Agencys Statutory Mandate And Authority_______________________________________________

Congress established the Section 1603 program to provide payments for renewable energy projects. Compl. at 2. Plaintiffs contend, however, that Treasury has improperly administered the program. Compl. at 3-5, 31-38. Plaintiffs first (and only) count asserts Violations of Section 1603, violations of Treasurys statutory mandate, and violations of the agencys statutory authority. Compl. at Claim for Relief. Because the Court does not have jurisdiction to review Treasurys administration of the Section 1603 program, the Court should dismiss the complaint under RCOFC 12(b)(1). A review of the plaintiffs allegations demonstrates that they ask the Court, improperly, to review Treasurys administration of the Section 1603 program. a. Allegations That Treasury Exceeded Its Statutory Authority Fall Beyond This Courts Jurisdiction___________________

First, plaintiffs allege that Treasurys administration of the Section 1603 program violates the agencys statutory mandate: In Section 1603, Congress did not create a new administrative program. Congress did not set forth new criteria for the receipt of payments. Congress did not authorize rulemaking. Instead, Congress mandated that Treasury make payments -promptly -based on well-known tax concepts that applied to ITCs under Internal Revenue Code Section 48. Treasury did not apply those rules. Treasury instead established its own, different rules (called "Guidance") for determining the amount the United States Government would pay for Section 1603 cash grants. Treasury had no authority to promulgate or to enforce those rules, which in any event were contrary to the plain language of Section 1603. Compl. at 4 (emphasis added). An allegation that an agency has exceeded its statutory mandate in administering that agencys programs falls beyond the scope of this Courts review authority. To the extent this

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claim seeks judicial review of an agency action. . . it is not within this Court's jurisdiction. This court has no general federal question jurisdiction, see 28 U.S.C. 1331, nor the right generally to review final agency action under the Administrative Procedure Act (APA), 5 U.S.C. 701706. Lawrence v. United States, 69 Fed. Cl. 550, 554 (2006) (quoting Carroll v. United States, 67 Fed. Cl. 82, 86 (2005)). To the extent a plaintiff seeks to challenge the reasonableness or substantive validity of the Government's actions, the party may only pursue the case in the district courts, not in the Court of Federal Claims. See Century Exploration New Orleans, LLC v. United States, 2013 WL 1174999, 22 (Fed. Cl.) (citing Bowen v. Massachusetts, 487 U.S. 879, 891 n.16 (1988)). Of course, under the Tucker Act, if a money mandating statute exists, the Court may properly determine if a plaintiff is entitled to a Government payment that has not been forthcoming. 28 U.S.C. 1491(a)(1) (2006); United States v. Mitchell, 463 U.S. 206, 212 (1983). In such a case, the Courts determination would turn on a plaintiffs eligibility for the payment sought. Absent express, statutory authorization, however, the Court does not have jurisdiction to review whether a Federal agency has exceeded its authority. Sequoia Pacific and Eiger ask the Court to review whether Treasury had authority to promulgate or to enforce rules, which were, allegedly, contrary to the plain language of Section 1603. Compl. at 4. The Court should dismiss such a request for lack of jurisdiction, because no express statutory grant of jurisdiction exists. The plaintiffs allegations reflect their confusion as to the Courts jurisdictional limits. Rather than assert a claim for compensation under Section 1603, the complaint challenges Treasurys administration of the entire Section 1603 program: 36. Consistent with Section 1603 and established practice, solar energy developers such as SolarCity and sophisticated investors, assisted by 6

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skilled advisors, engaged in carefully negotiated transactions, resulting in agreements for the sale of specific solar energy assets as to which Section 1603 applications were submitted. Where applicable, those applications recited the purchase price that the parties had negotiated, and were further supported by an independent appraisal, prepared by an expert, certified appraiser, which applied various valuation techniques for assessing the fair market value of the solar energy facility. 37 Instead of administering the Section 1603 program as Congress intended, Treasury improperly changed the rules, reduced grant payments, and undermined the economic assumptions under which industry participants obtained financing and installed renewable energy facilities. Administration of the Section 1603 program was delegated to Treasury's Office of the Fiscal Assistant Secretary. That Office has no expertise or experience in making proper cost basis determinations, and upon information and belief, had not previously been made responsible for administering any program comparable to the Section 1603 cash grant program. Rather, according to its website description, that Office "helps formulate policy systems for the collection, disbursement, management and security of public monies in the United States and abroad, and related government-wide accounting and reporting for those funds." See http://www.treasury.gov/about/organizational-structure/offices/Pages/ Office-of-Fiscal-Service.aspx.

38

Compl. at pages 14-15. Notably, these paragraphs do not mention the plaintiffs or the alleged harm. Certainly, the allegations are not tied to any pleadings that would be necessary under a money-mandating statute. Instead, plaintiffs assertions address Treasurys alleged errors in administering the ARRTA program. The APA authorizes suit by a party who is adversely affected or aggrieved by agency action within the meaning of a relevant statute[.] 5 U.S.C. 702. Plaintiffs contend that Treasury abused its discretion in administering the Section 1603 program; this APA-like claim falls outside the court's jurisdiction. See Carroll v. United Sates, 67 Fed. Cl. 82, 86 (2005).

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b.

Allegations That Treasurys Guidance Conflicts With The Agencys Statutory Authority Are Beyond This Courts Jurisdiction________________________________________

The complaint also challenges Treasurys general authority to administer the program by providing guidance regarding cost-basis determinations. The complaint alleges: 39 Section 1603 did not grant Treasury authority to promulgate rules or regulations related to the administration of the cash grant program, and certainly not rules or regulations for determining "cost basis," because Congress dictated that ITC definitions would govern. Treasury nonetheless did issue such rules and regulations, most problematically in the form of so-called "guidance" for the determination of cost basis: "Evaluating Cost Basis for Solar Photovoltaic Property" ("Cost Basis Evaluation Process Guidance") available at http://www.treasury.gov/ini tiatives/ recovery/Documents!N%20Evaluating_Cost_Basis_for_Solar _PV_Properties%20f inal.pdf. Treasury's "Cost Basis Evaluation Process Guidance" is not consistent with the ITC program that it is supposed to mimic. Among other defects, all of which resulted in lower cash grants than those to which applicants were entitled, and which undermined the legitimate expectations upon which financing for solar energy facilities had been obtained:

40.

Compl. at page 15-16. Thus, plaintiffs argue that Treasury issued guidance that was both unauthorized and inconsistent with Section 1603. Again, these paragraphs do not discuss the plaintiffs or their interactions with Treasury; instead, Sequoia Pacific and Eiger contend that Treasurys administration of this ARRTA program has affected all applicants. Indeed, plaintiffs argue that Treasurys actions have undermined the entire program: This uncertainty surrounding the cash grant program made it less likely that entities would be willing to invest in solar energy projects, the direct opposite of what Congress intended. Compl. at 45. Allegations such as these are not within this Courts authority to review. See Suburban Mortg. Assocs., 480 F.3d at 1122. Certainly, this Court does not have the authority to invalidate an executive branch agencys policies. See, e.g., DGR Assocs., Inc. v. United States, 690 F.3d 8

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1335, 1341 (Fed. Cir. 2012)(addressing challenges to an agencys regulations). This Court, moreover, does not have jurisdiction to consider let alone resolve plaintiffs challenges to Treasurys authority to administer the Section 1603 program. See also Martinez v. United States, 333 F.3d 1295, 1313 (Fed. Cir. 2003) (en banc) (the Court of Federal Claims lacks APA jurisdiction.). c. Allegations Regarding Nonplaintiff Injuries Fall Beyond This Courts Jurisdiction___________________________________

Plaintiffs alleged injuries to nonparties also are beyond this Courts jurisdiction. Plaintiffs contend that Treasurys approach to ARRTA resulted in program payments arriving after the statutes 60-day deadline. Compl. at 48. Plaintiffs, however, do not allege any specific injury to themselves from this delay as would be expected under a properly-pled claim for compensation. Instead, Sequoia Pacific and Eiger describe only injuries to a third party: The effect of such later payments can be severe for any company, and were particularly severe for SolarCity. Indeed, over time, limited liability companies in which SolarCity was an investor were forced to apply for smaller grants than they were entitled, because the negative impact of delayed payments was simply too great to bear. Compl. at 49 (emphasis added). The complaint describes SolarCity as a Non-party. Compl. at 8. Plaintiffs assert no jurisdictional basis for this Court to consider injuries allegedly sustained by nonparties. Moreover, plaintiffs reference to these alleged injuries further demonstrates that the complaint attacks Treasurys program administration, rather than articulating a claim under Section 1603. Accordingly, the Court should dismiss plaintiffs complaint for want of jurisdiction.

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3.

This Court Lacks Jurisdiction To Consider Pending Applications

Even when the complaint refers to plaintiffs applications, the allegations are not limited to claims before this Court. Plaintiffs assert, Both Sequoia Pacific and Eiger have still more applications that are pending before Treasury. If Treasury reduces the bases for Plaintiffs' remaining projects in the same way that it has past projects, Sequoia Pacific and Eiger will suffer millions of dollars in additional damages. Compl. at 56. No statute or rule authorizes this Court to review Treasurys actions under the Section 1603 program but even if jurisdiction existed, it would be limited to final agency action regarding these referenced claims. See, e.g., Chambers v. United States, 417 F.3d 1218, 1225 (Fed. Cir. 2005) (The Court of Federal Claims acquires jurisdiction over claims for military disability retirement only after an appropriate board has evaluated the service member's entitlement); Scarseth v. United States, 52 Fed. Cl. 458, 47980 (2002) (claim not ripe until considered by MEB, PEB, or Army Board for Correction of Military Records). Even when the APA permits review of agency actions the agency action must be final. 5 U.S.C. 704; Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 61-62 (2004); U.S. Ass'n of Imps. of Textiles & Apparel v. U.S. Dep't of Commerce, 413 F.3d 1344, 134950 (Fed. Cir. 2005). Plaintiffs allegations regarding their still-pending applications further demonstrate that the complaints objective is not to seek unpaid monies under the program, but to have this Court review Treasurys administration of the program in its entirety. Such a review much like a review of pending agency actions is beyond this Courts jurisdiction. The allegations of a complaint must be read as a whole. See Schweiger Const. Co., Inc. v. United States, 49 Fed. Cl. 188, 203 (2001). Here, the sum of plaintiffs complaint is unmistakable plaintiffs ask the Court to review Treasurys management of the Section 1603

10

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program. Plaintiffs request for damages is a small tail appended to a very large dog. Because the requested review is beyond this Courts jurisdiction, the Court should dismiss the complaint. CONCLUSION Because the complaint asks the Court to determine whether Treasurys administration of the Section 1603 program violated the agencys statutory mandate, the Court does not have jurisdiction and the complaint should be dismissed.3 Respectfully submitted,

STUART F. DELERY Acting Assistant Attorney General JEANNE E. DAVIDSON Director

s/ Bryant G. Snee BRYANT G. SNEE Deputy Director

s/ Kenneth M. Dintzer KENNETH M. DINTZER Assistant Director Civil Division Commercial Litigation Branch United States Department of Justice P.O. Box 480 Ben Franklin Station Washington, D.C. 20044 Tel.: (202) 616-0385 KDintzer@CIV.USDOJ.GOV May 29, 2013
3

Attorneys for Defendant

The United States requests that it be relieved of the obligation to engage in case management activities, such as early meeting of counsel and preparation of a Joint Pretrial Scheduling Report, as required by the RCFC, pending resolution of this motion. In the event the Court denies this motion, the United States requests an enlargement of 30 days from the date of the order denying the motion to respond to the complaint and commence case management activities. 11