Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 1 of 18. No C (Senior Judge Bruggink) IN THE UNITED STATES COURT OF FEDERAL CLAIMS

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1 Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 1 of 18 No C (Senior 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. DEFENDANT S REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANT S MOTION TO DISMISS PLAINTIFFS COMPLAINT FOR LACK OF JURISDICTION STUART F. DELERY Assistant Attorney General JEANNE E. DAVIDSON Director BRYANT G. SNEE Deputy Director KENNETH M. DINTZER Acting Deputy Director Civil Division Commercial Litigation Branch United States Department of Justice P.O. Box 480 Ben Franklin Station Washington, D.C Tel.: (202) KDintzer@CIV.USDOJ.GOV August 12, 2013 Attorneys for Defendant

2 Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 2 of 18 TABLE OF CONTENTS ARGUMENT...1 I. The Court Should Dismiss Plaintiffs Complaint For Lack Of Subject Matter Jurisdiction Because It Seeks APA-Like Review...1 A. Plaintiffs Opposition Mischaracterizes Their Complaint As Not Seeking APA-Like Review Of Treasury s Administration Of The Section 1603 Program...3 B. A Money Judgment Will Not Provide Plaintiffs With Adequate Relief Based On Allegations In The Complaint...5 II. If The Court Concludes It Has Jurisdiction, It Should Strike The Unnecessary Paragraphs In Plaintiffs Complaint...6 A. Allegations Challenging Treasury s Calculation Method Are Not Relevant To A Claim For Increased Payment Under Section B. Plaintiffs Contextual Allegations Are Not Routine In Tucker Act Challenges Plaintiffs Broad Allegations Challenging Treasury s Conduct Place A Large, Unnecessary Burden On the Government The Tucker Act Does Not Invite Unnecessary Allegations...9 C. Plaintiffs Must Establish Jurisdiction Over Allegations Challenging Treasury s Calculation Method...11 III. IV. The Court Lacks Jurisdiction Over Allegations Regarding Injuries To Nonparties...12 The Court Lacks Jurisdiction Over Allegations Regarding Plaintiffs Pending Applications...13 CONCLUSION...13

3 Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 3 of 18 TABLE OF AUTHORITIES Cases Aerolineas Argentinas v. United States, 77 F.3d 1564 (Fed. Cir. 1996)... 10, 11 Barber By & Through Barber v. United States, 676 F.2d 651 (Ct. Cl. 1982)... 10, 11 Bowen v. Mass., 487 U.S. 879 (1988)... 6 Davis v. United States, 108 Fed. Cl. 331 (2012)... 4 Gahagan v. United States, 19 Cl. Ct. 168 (1989) Grav v. United States, 886 F.2d 1305 (Fed. Cir. 1989)... 9 Katz v. Cisneros, 16 F.3d 1204 (Fed. Cir. 1994)... 5 Kennedy Heights Apartments Ltd. I v. United States, 63 Fed. Cl. 731 (2005) McClary v. United States, 775 F.2d 280 (Fed. Cir. 1985)... 10, 11 Mendez-Cardenas v. United States, 88 Fed. Cl. 162 (2009)... 4 Mitchell v. United States, 930 F.2d 893 (Fed. Cir. 1991)... 10, 11 Nat'l Ctr. for Mfg. Scis. v. United States, 114 F.3d 196 (Fed. Cir. 1997)... 6 Pines Residential Treatment Ctr., Inc. v. United States, 444 F.3d 1379 (Fed. Cir. 2006)... 6 Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746 (Fed. Cir. 1988)... 1 ii

4 Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 4 of 18 Smithson v. United States, 847 F.2d 791 (Fed. Cir. 1988) Suburban Mortgage Associates., Inc. v. U.S. Department of Housing & Urban Development, 480 F.3d 1116 (Fed. Cir. 2007)... 2, 5 Statutes 5 U.S.C iii

5 Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 5 of 18 IN THE UNITED STATES COURT OF FEDERAL CLAIMS SEQUOIA PACIFIC SOLAR I, LLC, ) and EIGER LEASE CO, LLC, ) ) Plaintiffs, ) ) v. ) No C ) (Senior Judge Bruggink) THE UNITED STATES, ) ) Defendant. ) DEFENDANT S REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANT S MOTION TO DISMISS PLAINTIFFS COMPLAINT FOR LACK OF JURISDICTION Defendant, the United States, respectfully submits this reply to plaintiffs opposition to defendant s motion to dismiss plaintiffs complaint. Plaintiffs complaint should be dismissed in its entirety because the United States Court of Federal Claims lacks subject matter jurisdiction to entertain plaintiffs claims. In the alternative, and to the extent the Court finds that it possesses jurisdiction with respect to certain claims, the Court should dismiss or strike the other claims and allegations that fall beyond the Court s jurisdiction, as plaintiffs overbroad complaint would needlessly subject the Government to costly and burdensome obligations to preserve evidence and to answer allegations. ARGUMENT I. The Court Should Dismiss Plaintiffs Complaint For Lack Of Subject Matter Jurisdiction Because It Seeks APA-Like Review The Court should conclude that plaintiffs complaint asks the Court to review the United States Department of Treasury s (Treasury s) administration of a federal program. Accordingly, the Court should dismiss plaintiffs complaint in its entirety for lack of jurisdiction. The plaintiffs bear the burden of establishing jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).

6 Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 6 of 18 Plaintiffs cannot establish jurisdiction here because their complaint seeks Administrative Procedure Act (APA)-like review of an agency s administration of an entire Federal program. The requested review in the complaint falls outside this Court s jurisdiction. See 5 U.S.C Plaintiffs, moreover, cannot save their complaint by rewriting it in their response to a motion to dismiss. Plaintiffs have not amended their complaint, and thus are left with the complaint they filed. In opposition to our motion to dismiss, plaintiffs make arguments that sidestep the analysis laid out in our motion. Plaintiffs first argue that subject matter jurisdiction exists because their complaint requests monetary relief based on Section 1603, and does not request APA review. Pls. Opp Second, plaintiffs rely on Suburban Mortgage Associates., Inc. v. U.S. Department of Housing & Urban Development, 480 F.3d 1116 (Fed. Cir. 2007), and argue that jurisdiction lies in the CFC regardless of how a complaint is drafted, as long as a money judgment will provide the plaintiff an adequate remedy. Pls. Opp. 8. Third, plaintiffs claim that their allegations challenging Treasury s method for calculating payments under Section 1603 are entirely appropriate to lay the predicate for claims for monetary relief, that such allegations are routine in Tucker Act challenges, and in any event have no bearing on subject matter jurisdiction. Id. at 2-3, 11. The Court should reject each of these arguments because they do not change the fact that the complaint seeks review of the administration of a federal program. Plaintiffs arguments in their opposition to our motion are wrong as a matter of law and are an attempt to rewrite the complaint. Accordingly, the Court should dismiss plaintiffs complaint in its entirety. 2

7 Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 7 of 18 A. Plaintiffs Opposition Mischaracterizes Their Complaint As Not Seeking APA-Like Review Of Treasury s Administration Of The Section 1603 Program Sequoia Pacific Solar I, LLC s (Sequoia s) and Eiger Lease Co, LLC s (Eiger s) numerous challenges to Treasury s actions place plaintiffs complaint well beyond this Court s jurisdiction. In their opposition, plaintiffs argue that subject matter jurisdiction exists because their complaint seeks only money to which plaintiffs are allegedly entitled under Section 1603 and not APA review. Pls. Opp Plaintiffs description of the complaint ignores the character of the allegations on their face. See id. at 7-8, 10. For example, the opposition attempts to reframe plaintiffs allegations in multiple instances to state that they merely challenge the manner in which Treasury analyzed the claimed basis in their 1603 applications. See id. at 2 ( While the Complaint certainly details the ways in which the Government s calculation of the amounts owed did not comport with statutory requirements ); id. at 4 ( While the Complaint does describe Treasury s failure properly to carry out Section 1603 provisions regarding the calculation of cash grants ); id. at 11 ( The Complaint does of course explain that Treasury s calculation of cash grants under Section 1603 was inconsistent with that statute and Congressional intent because these facts establish that Treasury s calculations are wrong. ). The complaint, however, challenges Treasury s very authority to perform any independent evaluation of basis prior to administering a Section 1603 payment. As we showed in our motion, the complaint contains numerous allegations seeking review of Treasury s administration of the Section 1603 program. See, e.g., Compl. 3-6, 36-51, The complaint alleges that Treasury s administration of the program violated Treasury s statutory mandate and exceeded Treasury s statutory authority. See, e.g., id. 3-4, 3

8 Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 8 of 18 37, 39, The complaint also alleges that Treasury issued rules that were inconsistent with Section See, e.g., id. 4, 39-48, In fact, the majority of the complaint s allegations are irrelevant to any claim for payment under Section 1603, and do not mention plaintiffs or any alleged harm to plaintiffs. See, e.g., id. 3-5, 36-50, Only a few isolated allegations in the complaint directly address plaintiffs request for increased payment under Section See, e.g., id , The complaint, however, makes no attempt to allege facts that connect plaintiffs request for payment to plaintiffs challenge to Treasury s administration of the program; the complaint only offers a conclusory allegation that, [a]s a result of the foregoing and other misapplications of the Section 1603 program, Plaintiffs have not been paid the cash grants to which they are entitled. Id. 52. The Court should reject plaintiffs attempt to use their opposition to a motion to dismiss as a way to reframe their complaint as only seeking payment under Section 1603, ignoring extensive allegations demonstrating otherwise. As judges of this court have noted: [I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss. Davis v. United States, 108 Fed. Cl. 331, 338 n.4 (2012) (quoting Mendez-Cardenas v. United States, 88 Fed. Cl. 162, (2009)) (alteration in original). Plaintiffs ignore this axiom. Plaintiffs contend that their complaint only sought monetary damages... and the award of a money judgment equal to the difference between the grant Plaintiffs were paid and the grant to which they were entitled under Section Pls. Opp. 10. Plaintiffs, however, describe and seek this relief in seven paragraphs in the complaint. See Compl , They fail to explain why 25 paragraphs in the complaint are dedicated to Treasury s alleged actions and conduct having nothing to do with demonstrating their entitlement to damages. See id. 3-6, 36-51,

9 Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 9 of 18 The Court should properly decide our motion to dismiss based on the complaint that plaintiffs filed. Even a cursory review of that complaint reveals that plaintiffs are wrong when they argue that they did not file suit seeking review of the administration of a Federal program. Accordingly, the Court should reject plaintiffs argument that their complaint does not seek APA-like review and dismiss this complaint. B. A Money Judgment Will Not Provide Plaintiffs With Adequate Relief Based On Allegations In The Complaint In their opposition, plaintiffs cite Suburban Mortgage Associates and argue that, regardless of how they drafted their complaint, jurisdiction exists because a money judgment will provide them with adequate relief. Pls. Opp Plaintiffs, however, misread Suburban Mortgage Associates. In Suburban Mortgage Associates, the plaintiff s suit sought a declaration that the agency acted unlawfully when it refused to accept assignment of a mortgage and defaulted loan. The Federal Circuit, however, held that it was, in substance, a contract-based action asking for monetary relief from the Government. 480 F.3d at The Federal Circuit further held that the Court of Federal Claims could provide an adequate remedy and thus APA jurisdiction was lacking. Id. at Suburban Mortgage Associates does not stand for the proposition that a plaintiff may avoid dismissal of its complaint by insisting in their opposition to a motion to dismiss that a money judgment will provide an adequate remedy, notwithstanding the factual allegations in the complaint demonstrating to the contrary. Indeed, in Suburban Mortgage Associates, the Court concluded that in determining whether a plaintiff s suit is to be heard in district court or the Court of Federal Claims, [a court] must look beyond the form of the pleadings to the substance of the claim. Id. at 1124; see Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994) 5

10 Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 10 of 18 ( Regardless of the characterization of the case ascribed by [plaintiffs] in [their] complaint, the Court must look to the true nature of the action in determining the existence or not of jurisdiction. ) (citations omitted). The substance of Sequoia s and Eiger s claims is clear it is entirely directed at Treasury s conduct toward plaintiffs and third parties. The Court should, thus, look beyond the form of plaintiffs pleadings and conclude that the factual allegations contained within them demonstrate that plaintiffs request APA-like review, which the Court may not provide. See Pines Residential Treatment Ctr., Inc. v. United States, 444 F.3d 1379, 1381 (Fed. Cir. 2006) (rejecting an artful attempt to style a claim as within the Court of Federal Claim s jurisdiction); Nat l Ctr. for Mfg. Scis. v. United States, 114 F.3d 196, (Fed. Cir. 1997) (finding that Court of Federal Claims did not possess jurisdiction after [l]ooking behind the complaint and to the true nature of the claims to determine if a simple money judgment issued by the Court of Federal Claims would not be an appropriate remedy (citing Bowen v. Mass., 487 U.S. 879, 893 (1988))). Accordingly, the Court should find that a money judgment is not consistent with relief to the allegations raised in the complaint. II. If The Court Concludes It Has Jurisdiction, It Should Strike The Unnecessary Paragraphs In Plaintiffs Complaint The Court should conclude it does not have jurisdiction over plaintiffs complaint, taken as a whole. If, however, the Court concludes that plaintiffs have established jurisdiction by alleging a claim under Section 1603, the Court should strike those paragraphs in the complaint that Sequoia and Eiger admit are unnecessary to a claim for damages. 6

11 Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 11 of 18 A. Allegations Challenging Treasury s Calculation Method Are Not Relevant To A Claim For Increased Payment Under Section 1603 The Court should conclude that the complaint s paragraphs challenging Treasury s conduct are not consistent with a monetary claim. In their opposition, plaintiffs acknowledge that [t]he Complaint does of course explain that Treasury s calculation of cash grants under Section 1603 was inconsistent with that statute and Congressional intent. Pls. Opp. 11. Plaintiffs insist that [s]uch allegations are entirely appropriate to lay the predicate for claims for monetary relief that are necessarily measured by the difference between what Treasury actually paid and what it should have paid under the correct application of law. Id. at Plaintiffs are mistaken. Of course, a grant s amount directly relates to a request in this Court for increased payment under Section The complaint, however, does not plausibly suggest that allegations attacking Treasury s calculation method or rationale behind the method are relevant to whether a plaintiff is due an increased payment and, if so, the amount. Indeed, according to plaintiffs complaint, one need only look at statutes to determine how much additional money is owed. See Compl Thus, plaintiffs handwringing over Treasury s conduct is rendered unnecessary by plaintiffs own allegations. In their opposition, Pls. Opp. 12, plaintiffs suggest that allegations that explain that Treasury s calculation of cash grants under Section 1603 was inconsistent with that statute and Congressional intent are relevant based on one allegation in their complaint: As a result of the foregoing and other misapplications of the Section 1603 program, Plaintiffs have not been paid the cash grants to which they are entitled. Compl. 52. Not only is that allegation conclusory, it is not even responsive to the issue of whether allegations attacking Treasury s calculation method are relevant to a request for increased payment under Section

12 Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 12 of 18 Accordingly, the Court should reject plaintiffs contention that numerous allegations challenging Treasury s calculation method are entirely appropriate to lay the predicate for a claim for increased payment under Section 1603 because the argument is not supported by the complaint. Pls. Opp. 12. B. Plaintiffs Contextual Allegations Are Not Routine In Tucker Act Challenges If the allegations regarding Treasury s conduct are not necessary for plaintiffs monetary claims, as plaintiffs acknowledge, the Court should strike the superfluous allegations. The Court should conclude that plaintiffs broad challenges to the Government s conduct are neither harmless nor routine. Plaintiffs acknowledge that the Complaint certainly details the ways in which the Government s calculation of the amounts owed did not comport with statutory requirements, but assert that these allegations are harmless. Pls. Opp. 2. Indeed, plaintiffs insist that such allegations are routine in Tucker Act challenges and have no bearing on subject matter jurisdiction. Id. at 2-3. Plaintiffs claim that the complaint describe[s] Treasury s failure [to] properly... carry out Section 1603 provisions regarding the calculation of cash grants... only to provide context and background. Id. at 4. As discussed above, the complaint does not plausibly suggest that allegations attacking Treasury s calculation method are relevant to a claim for increased payment under Section These admittedly irrelevant allegations create a large and unnecessary burden on the Government. Furthermore, the cases plaintiffs cite do not support the contention that Tucker Act plaintiffs routinely challenge how the Government applied a money-mandating statute. Id. at 13 (citing cases). 8

13 Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 13 of Plaintiffs Broad Allegations Challenging Treasury s Conduct Place A Large, Unnecessary Burden On The Government The complaint s broad challenge to Treasury s administration of the Section 1603 program needlessly places an enormous burden on the Government. The majority of the complaint s allegations which plaintiffs attempt to minimize as background, context, and hav[ing] no bearing on subject matter jurisdiction, Pls. Opp. 2-4 are not harmless. Specifically, plaintiffs complaint has required the Government to implement and maintain litigation holds in multiple Federal agencies. Further, if plaintiffs admittedly overbroad complaint is permitted to stand, the United States would be required to answer dozens of allegations far removed from any money mandating claim. These preservation and response obligations would be costly, burdensome, and, most importantly, unnecessary for resolving any claim within the Court s jurisdiction. 2. The Tucker Act Does Not Invite Unnecessary Allegations The case law does not support the assertion that the Tucker Act allows unnecessary allegations. Plaintiffs first cite Grav v. United States, 886 F.2d 1305 (Fed. Cir. 1989), which involved a challenge to the Department of Agriculture s decision that the plaintiffs sold cows after a statutory deadline and therefore were ineligible for a program. Id. at Because the terms sold, leased or otherwise transferred were not defined within the statute and authority to define such words was not delegated to the agency, [the Court] turn[ed] to state contract law. Id. at The Court did not review the manner in which the Department of Agriculture applied the statutory terms sold, leased or otherwise transferred because such a review was not necessary to resolve the plaintiffs claims. The Court s review in Grav however is not the type of review that the Sequoia plaintiffs seek. The Sequoia plaintiffs ask this Court to address and resolve challenges to Treasury s 9

14 Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 14 of 18 calculation method despite the fact the Court need not resolve those claims to address a request for increased payment under Section Accordingly, references to Treasury s internal actions are beyond any money claim. The Sequoia plaintiffs description of Gahagan v. United States, 19 Cl. Ct. 168, 169 (1989), is incomplete. In their brief, plaintiffs argue that in Gahagan the Claims Court had jurisdiction to determine that National Weather Service s employee work scheduling policy violated statutory requirements, and to award compensation for resulting loss pay. Pls. Opp (emphasis added). In the Gahagan decision, although the Court did find that the agency s policy violated statutes, defendant relied on the agency s articulated policy in response to the plaintiffs claims that the shifting of their work schedules had violated statutes. See, e.g., Gahagan, 19 Cl. Ct. at 176 ( [D]efendant maintains that NWS supervisors followed NWS scheduling policies by changing plaintiffs schedules when they requested jury or military leave. ). Here, however, at this point, the Government has not relied on agency policy in response to plaintiffs claims. The Sequoia plaintiffs find Kennedy Heights Apartments Ltd. I v. United States, 63 Fed. Cl. 731 (2005), significant because the court suggested that the claims for payment under a statute could be supported by reference to an agency s handbook, memoranda, and audit report. Pls. Opp. 14. But, the Sequoia plaintiffs allegations are silent as to the relevancy of their allegations challenging Treasury s administrative material. Finally, plaintiffs cite Mitchell v. United States, 930 F.2d 893, 894 (Fed. Cir. 1991), Aerolineas Argentinas v. United States, 77 F.3d 1564, 1573 (Fed. Cir. 1996), McClary v. United States, 775 F.2d 280, 283 (Fed. Cir. 1985), Barber By & Through Barber v. United States, 676 F.2d 651, 655 (Ct. Cl. 1982), but those cases are inapposite and do not assist plaintiffs. Even 10

15 Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 15 of 18 plaintiffs parenthetical descriptions of those cases in plaintiffs opposition show that the cases are irrelevant. See Pls. Opp In Mitchell, a military pay case, the plaintiff challenged the Air Force Board for Correction of Military Records (board s) decision denying the plaintiff s request to remain on active duty for additional years, based on a statute prohibiting discharge within two years of retirement. 930 F.2d at 894. In Barber By & Through Barber, another military pay case, the plaintiffs challenged the board s decision finding that a statute only required notification to a spouse that the serviceman had initially declined a survivor annuity. 676 F.2d at 655. In McClary, a civilian pay case, the plaintiff filed suit seeking reimbursement for moving expenses and alleging that the agency coerced plaintiff to assume his own moving expenses. 775 F.2d at 283. In Aerolineas Argentinas, an illegal exaction case, the plaintiffs alleged that, by misinterpreting or misapplying a regulation and agreements, the Immigration and Naturalization Service had compelled the airlines to bear certain costs to house, sustain, and guard travelers. 77 F.3d at In each of those cases, allegations about the Government s conduct were organic and necessary to the claim. Here, Treasury s calculation method is irrelevant to a request for increased payment under Section 1603 and, contrary to plaintiffs argument, such allegations are not routine in Tucker Act challenges. C. Plaintiffs Must Establish Jurisdiction Over Allegations Challenging Treasury s Calculation Method Plaintiffs argue that details [of] the ways in which the Government s calculation of the amounts owed did not comport with statutory requirements... have no bearing on subject matter jurisdiction. Pls. Opp. 2-3 (emphasis added); see also id. at 4 ( While the Complaint does describe Treasury s failure properly to carry out Section 1603 provisions regarding the 11

16 Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 16 of 18 calculation of cash grants, it does so only to provide context and background for Plaintiffs demand for the amounts to which they were rightfully entitled under Section 1603, pursuant to the cash grant applications they made under that federal law. ) (emphasis added). Plaintiffs misunderstand their jurisdictional burden. A court must consider, separately, each aspect of the case or contention advanced by a plaintiff in determining whether jurisdiction exists over each one. Smithson v. United States, 847 F.2d 791, 794 (Fed. Cir. 1988). As the Federal Circuit explained when considering if there was jurisdiction over every aspect of the case or every contention advanced by appellants, jurisdiction over the individual points has to be judged separately. Id. Therefore, plaintiffs characterization of certain allegations as background, context, and hav[ing] no bearing on subject matter jurisdiction cannot save them from dismissal for lack of jurisdiction. Pls. Opp For the reasons stated above, plaintiffs arguments in opposition to our motion to dismiss are wrong as a matter of law and improperly seek to rewrite plaintiffs complaint. Accordingly, the Court should dismiss the entirety of plaintiffs complaint because it seeks APA-like review, and the Court cannot provide the requested relief. In the alternative, if the Court finds that plaintiffs have met their burden to establish jurisdiction with respect to certain claims, the Court should dismiss or strike the other claims and allegations that fall beyond this Court s jurisdiction. III. The Court Lacks Jurisdiction Over Allegations Regarding Injuries to Nonparties As we explained in our brief, Def. Mot. 9, the Court lacks jurisdiction over allegations regarding injuries to nonparties. Plaintiffs contend that their complaint does not seek relief on behalf of nonparties. Pls. Opp. 16. Plaintiffs are wrong, and their argument further illustrates that plaintiffs seek to avoid dismissal of their complaint by rewriting the complaint in an opposition to a motion to dismiss. 12

17 Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 17 of 18 The complaint clearly alleges injuries to nonparty SolarCity Corporation, see, e.g., Compl. 8, 49, and the Court may not entertain claims on behalf of nonparties. IV. The Court Lacks Jurisdiction Over Allegations Regarding Plaintiffs Pending Applications As demonstrated in our motion, allegations regarding plaintiffs pending applications fall beyond the Court s jurisdiction. Def. Mot. 10. In response, plaintiffs insist that the complaint does not seek relief for any pending Section 1603 applications. Pls. Opp Plaintiffs are incorrect, as is demonstrated by allegations found in the complaint s paragraph 56 ( 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. ). Accordingly, for the reasons stated in our motion, the Court should find that it lacks jurisdiction over allegations regarding plaintiffs pending applications. CONCLUSION For the reasons stated above, plaintiffs have failed to establish the Court s jurisdiction over their complaint. Accordingly, the Court should dismiss the entirety of plaintiffs complaint for lack of jurisdiction. Respectfully submitted, STUART F. DELERY Assistant Attorney General JEANNE E. DAVIDSON Director Bryant G. Snee BRYANT G. SNEE Deputy Director 13

18 Case 1:13-cv EGB Document 13 Filed 08/12/13 Page 18 of 18 Kenneth M. Dintzer KENNETH M. DINTZER Acting Deputy Director Civil Division Commercial Litigation Branch United States Department of Justice P.O. Box 480 Ben Franklin Station Washington, D.C Tel.: (202) August 12, 2013 Attorneys for Defendant 14