INTER-TRIBAL COUNCIL OF ARIZONA, INC., Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee
2019-1758
United States Court of Appeals for the Federal Circuit
April 17, 2020
Appeal from the United States Court of Federal Claims in No. 1:15-cv-00342-NBF, Senior Judge Nancy B. Firestone.
MELODY MCCOY, Native American Rights Fund, Boulder, CO, argued for plaintiff-appellant.
PHILLIP SELIGMAN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by JOSEPH H. HUNT, RUTH A. HARVEY, MICHAEL JOHN QUINN; KENNETH A. DALTON, Office of the Solicitor, Indian Trust Litigation Office, United States Department of the Interior, Washington, DC.
Before O‘MALLEY, MAYER, and WALLACH, Circuit Judges.
Appellant Inter-Tribal Council of Arizona, Inc. (“ITCA“)1 filed a lawsuit against the United States (“Government“) in the U.S. Court of Federal Claims, alleging that the Government breached its fiduciary duties established pursuant to the Arizona-Florida Land Exchange Act (“AFLEA“),
ITCA appeals. We have jurisdiction pursuant to
BACKGROUND3
I. Factual History
A. The Phoenix Indian School
From its inception in 1891, “an off-reservation federal Indian elementary and secondary boarding school” (“Phoenix Indian School“) was “operated by” the U.S. Department of the Interior‘s (“DOI“) Bureau of Indian Affairs, on land owned by the Government in Phoenix, Arizona. J.A. 37-38. The Phoenix Indian School “consisted of [thirty-four] buildings on over [one-hundred] acres located in the heart of central Phoenix.” J.A. 38. “While open to members of tribes nationwide, the Phoenix Indian School primarily served tribes located in Arizona.” J.A. 38. In 1987, as part of a larger movement to close boarding schools for students of Indian tribes, J.A. 38, the Government “determined that the Phoenix Indian School was no longer required or needed,” J.A. 40, and the school “was closed in 1990,” J.A. 50; see AFLEA § 404(a) (requiring the U.S. Secretary of the Interior (“Secretary“) to “close the Phoenix Indian . . . School . . . no earlier than June 1, 1990, and no later than September 1, 1990“); see also id. § 401(18) (“‘Secretary’ means the Secretary of the Interior.“).
B. The Arizona-Florida Land Exchange Agreement
“[S]ince at least 1984,” the Government and Barron Collier Co. (“Collier“) “had been discussing . . . the possible acquisition by the [Government]” of approximately 108,000 acres of wetlands owned by Collier in the Florida Everglades. J.A. 38, 246. “Lacking the funds to make an outright purchase of Collier‘s Florida lands,” the Government “offered various surplus property that it held to Collier in exchange for the Florida lands.” J.A. 38. “Collier ultimately selected” the property on which the Phoenix Indian School was located (“Phoenix Indian School Property“), aftеr which the Government and Collier negotiated an exchange agreement that was executed in May 1988. J.A. 43. “The Exchange
1. The AFLEA
The AFLEA established two trust funds: an “Arizona InterTribal Trust Fund” (“AITF“) “for the benefit of Arizona Tribes that were members of . . . [ITCA] . . . and the members of such tribes,” AFLEA §§ 401(2), 405(a)(1); and a “Navajo Trust Fund” (“NTF“) “for thе benefit of the Navajo Tribe and its members,” id. §§ 401(11), 405(a)(2).4 The AFLEA required that “Monetary Proceeds,” defined as “the cash amount required to be paid . . . by Collier upon closing,” id. § 401(10), “be paid to the [Government] for deposit in the [AITF] and the [NTF],” id. § 403(a), with 95 percent “of the total amount” allocated to the AITF, and the remaining 5 percent allocated to the NTF, id. § 405(e). “Trust Income” from the AITF and NTF was to be used only for “supplemental educational and child-welfare programs, activities, and services for the benefit of” members of ITCA and the Navajo Nation, respectively, as well as “the design, construction, improvement, or repair of related facilities[.]” Id. § 405(d)(2)(A), (B); see id. § 401(21) (“‘Trust Income’ . . . means the interest earned on amounts deposited into [the AITF and NTF] and any amounts paid into each such trust fund in the form of annual Trust Fund Payments.“); see also id. § 401(19) (“‘Trust Fund Payment’ means the payment . . . of the Monetary Proceeds for deрosit into . . . the [AITF or NTF], in the form of a lump sum payment or annual payments[.]“). Additionally, “[a]n amount equal to 5 percent of the Trust Income” from the AITF and NTF, was to be “paid annually” to ITCA and the Navajo Nation, respectively, “for education, child welfare, community development, and general administrative purposes[.]” Id. § 405(d)(4)(A), (B).
The AFLEA permitted the Secretary to “elect to receive” the Monetary Proceeds “in the form of either a lump sum payment or [thirty] annual payments[.]” Id. § 403(b). Relevant here, if the Secretary “elect[ed] to receive” the Monetary Proceeds “in the form of annual payments,” Collier was required to make: (1) “[thirty] annual payments equal to the interest due on . . . the Monetary Proceeds[,]” id. § 403(c)(2)(A); and (2) “at the time of the last annual payment, a [principal] payment equal to . . . the Monetary Proceeds[,]” id. § 403(c)(2)(B). Further, if the Monetary Proceeds were to be received pursuant to the annual payment method, the Government, through the Secretary of the Treasury, was required to “hold in trust . . . security provided in accordance with the Trust Fund Payment Agreement.” Id.
2. The Trust Fund Payment Agreement, Deed of Trust, and Promissory Note
“In June 1991, Collier gave preliminary notice of [its] intent to accept [the Government‘s] offer on the Phoenix Indian School [P]roperty, but also told [the Government] that it would not proceed with the [Exchange Agreement] unless it could use the annual payment method[.]” J.A. 51. In September 1991, “over objections by” ITCA and the Navajo Nation, the Secretary “agreed to Collier‘s demand for the annual payment method.” J.A. 54 (internal quotation marks omitted). In December 1991, Collier аccepted the Government‘s offer. J.A. 55. Thereafter, Collier and the Government proceeded to negotiate the terms of the land exchange. J.A. 55-61.5
In December 1992, Collier and the DOI executed a Trust Fund Payment Agreement (“TFPA“), J.A. 62; see J.A. 341-468 (TFPA), as well as a deed of trust, J.A. 64; see J.A. 529-99 (Deed of Trust). Consistent with the AFLEA, the TFPA required Collier to provide the Government with a promissory note “for [the] payment of $34.9 million ‘with interest thereon.‘” J.A. 62; see J.A. 349; see also J.A. 469-81 (Promissory Note). Importantly, the TFPA provided that the Deed of Trust and Promissory Note, which were attached as “Exhibits” to the TFPA, “constitute[d]” parts of the “TFPA” “as such term is used in the [AFLEA][.]” J.A. 346.
The Promissory Note—executed by Collier in December 1992, J.A. 62—required Collier to: (1) make thirty annual interest payments of $2,966,500 (“Trust Fund Payments“), reflecting an interest rate of “[8.5] percent . . . per annum” “on the Principal Amount,” J.A. 63, 171; see J.A. 470, 473 (“Principal Amount means $34.9 million.” (emphasis omitted)); and (2) “pay . . . the Principal Amount,” J.A. 62; see J.A. 470. Additionally, Collier was required to make thirty annual payments into аn annuity (“Annuity“), “sufficient . . . to pay the [Government] a lump sum of [$34.9 million]” “on the completion” of those thirty payments. J.A. 62; see J.A. 351-53. According to the TFPA, the Promissory Note was “secured by the Annuity” and a “Trust Estate” as “defined in the Deed of Trust[.]” J.A. 350; see J.A. 63. The Deed of Trust, in turn, provided that the Trust Estate consisted of fifteen acres of the Phoenix Indian School Property (“fifteen-acre Phoenix Indian School Property“), as well as Collier‘s development interests in about seven and one-half acres of land located in downtown Phoenix (“Downtown Development Interests“), which Collier acquired in an exchange with the City of
The Deed of Trust allowed Collier to request, and required the Government to release, portions of the Trust Estate if the value of the property remaining in the Trust Estate exceeded 130 percent of a defined “Release Level Amount.” J.A. 560-61; see J.A. 64.7 The Deed of Trust also included a “Maintenance of Collateral Value” provision, which provided that if, after a partial security release, the “fair value” of the remaining unreleased property falls below 130 percent of the Release Level Amount, Collier “shall add to the Trust Estate” U.S. Government-backed securities sufficient in value to “restore the fair value” of the unreleased property to 130 percent of the Release Level Amount. J.A. 561; see J.A. 65. Finally, the TFPA, Promissory Note, and Deed of Trust each “provide[d] that resort for payment of the [Promissory] Note was to be solely against the Annuity and the Trust Estate[.]” J.A. 66; see J.A. 350 (“[R]esort fоr payment of the Promissory Note shall be solely against the Annuity and the Trust Estate[.]“), 471 (similar), 564 (similar).
C. Collier‘s Performance and Default
In December 1997, Collier began making its required Trust Fund Payments—95 percent of which the Government “deposited . . . into the AITF“—as well as payments toward the Annuity. J.A. 70.8 In 1998, and again in 2007, “Collier requested releases of [the] liens” on Collier‘s Downtown Development Interests, “both of which the [Government] granted.” J.A. 71. After the lien release in 2007, “only the [fifteen]-acre Phoenix Indian School [P]roperty remained in the Trust Estate to secure [Collier‘s] . . . obligations.” J.A. 72. Although the Government “received appraisals submitted by Collier” “[i]n connection with the two lien releases,” the Government “did not perform or cause to be performed its own appraisals of the security in the Trust Estate either before or after releasing the liens.” J.A. 71. At that time, the Government also “did not provide notice to ITCA of its decisions to releаse the liens” on Collier‘s Downtown Development Interests, and “did not provide information to ITCA from which ITCA could independently calculate the value of the existing or remaining security that the [Government] held in the Trust Estate[.]” J.A. 72.
In December 2012, after making fifteen Trust Fund Payments of $2,966,500, “for a total of $44,497,500[,]” and fifteen annual
D. The Government Sought to Require Collier to Provide Additional Security
In January 2014, the Government filed suit against Collier in the Arizona District Court, “s[eeking] to require Collier to provide additional security to fulfill its contractual promises to the [Government].” J.A. 76 (internal quotation marks omitted).9 The Government alleged that “[s]ince 2007, the value of the [fifteen]-acre [Phoenix] Indian School [P]roperty ha[d] dropped significantly, and that reduction in value ha[d] left the debt owed by Collier grossly under-collateralized.” J.A. 606; see J.A. 75. Specifically, the Government alleged that “Collier [wa]s currently below its required level for collateral by an amount equal to $18,499,556,” and thus “Collier [wa]s required to make additional pledges of collateral in the form of [U.S.]
Government-backed securities in th[at] amount . . . to achieve the minimum level of 130[ percent] of the Release Level Amount anticipated as of December 31, 2015.” J.A. 78. The Government and Collier “stipulated that the value of the [fifteen-acre] Phoenix Indian School [P]roperty (based on appraisals as of September 15, 2015) was $25 million,” and that “[a]ccording to the [Government], the value of the Annuity as of November 30, 2015[,]
In September 2016, the Arizona District Court stayed execution of its judgment, pending resolution of post-trial motions, J.A. 973; and, in October 2016, the Arizona District Court stayed litigation, “except as to settlement related purposes[,]” based upon a “tentative” settlement agreement between the parties. J.A. 974. In July 2017, the Government and Collier “reached and executed” a settlement agreement, J.A. 80, after which the Arizona District Court “terminated [the case] in its entirety with prejudice[,]” J.A. 81. The Government “reported . . . that the . . . settlement ha[d] a projected gross recovery of $54.5 million, consisting of $16 million cash, $13.5 million in [the] [A]nnuity, and [the fifteen-acre] Phoenix [Indian School Property] with a 2015 appraised value of $25 million.” J.A. 81. Pursuant to the settlement agreement, in July 2017, Collier paid “$16 million in cash” to the Government. J.A. 81. In 2018, the General Services Administration sold the fifteen-acre Phoenix Indian School Property for $18.5 million. J.A. 85.
II. Procedural History
In April 2015, ITCA filed a lawsuit against the Government in the Court of Federal Claims, alleging that the Government breached its fiduciary duties established pursuant to the AFLEA. J.A. 86-91. The Complaint consisted of three claims. Relevant here, Claim I generally alleged “breaches of fiduciary obligations [on the part of the Government] regarding the [AFLEA]‘s Trust Fund Payments security requirements,” J.A. 86 (capitalization normalized); see J.A. 86-89, and Claim II generally alleged “breaches of fiduciary obligations [on the part of the Government] to collect, deposit[,] and make Trust Fund Payments required by the [AFLEA] for which earnings have been lost,” J.A. 89 (capitalization normalized); see J.A. 89-90. In May 2018, the Government filed its Motion to Dismiss the Complaint for lack of subject matter jurisdiction and for failure to state a claim, pursuant to Rules 12(b)(1) and 12(b)(6) of the RCFC, respectively. See Motion to Dismiss Second Amended Complaint, Inter-Tribal Council of Ariz., Inc. v. United States, No. 1:15-cv-00342-NBF (Fed. Cl. May 16, 2018), ECF No. 59.10 In October 2018, the Court of Federal Claims granted the Government‘s motion in part, dismissing Claim I for lаck of subject matter jurisdiction and for failure to state a claim, and Claim II for failure to state a claim. See Inter-Tribal Council of Ariz., 140 Fed. Cl. at 460.
DISCUSSION
I. Standard of Review and Legal Standard
“A plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence.” M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010) (citation omitted). “We review de novo a grant or denial of a motion to dismiss for lack of jurisdiction.” Hopi Tribe v. United States, 782 F.3d 662, 666 (Fed. Cir. 2015). Likewise, “[w]e review the . . . grant of a motion to dismiss for failure to state a claim de novo.” Prairie Cty., Mont. v. United States, 782 F.3d 685, 688 (Fed. Cir. 2015) (citation omitted) (italicization normalized). In either case, “[w]e take all factual allegations in the complaint as true and construe the facts in the light most favorable to the non-moving party.” Jones v. United States, 846 F.3d 1343, 1351 (Fed. Cir. 2017); see Pixton v. B & B Plastics, Inc., 291 F.3d 1324, 1326 (Fed. Cir. 2002) (applying the same standard “[w]hen a party has moved to dismiss for lack of subject matter jurisdiction“). A complaint should not be dismissed for failure to state a claim, “unless the complaint fails to ‘state a claim to relief that is plausible on its face.‘” K-Tech Telecomms., Inc. v. Time Warner Cable, Inc., 714 F.3d 1277, 1282 (Fed. Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“[T]he Supreme Court has established a two-part test for determining jurisdiction under the Indian Tucker Act.” Hopi Tribe, 782 F.3d at 667 (citing United States v. Navajo Nation (Navajo Nation II), 556 U.S. 287, 290 (2009)); see
Second, “the [trial] court must . . . determine whether the relevant source of substantive law can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties the governing law imposes.” Navajo Nation II, 556 U.S. at 291 (internal quotation marks, alterations, and citation omitted). “At th[is] second step . . . , common-law trust principles come into play.” Hopi Tribe, 782 F.3d at 668. Specifically, “principles of trust law might be relevant ‘in drawing the inference that Congress intended damages to remedy a breach.‘” Navajo Nation II, 556 U.S. at 291 (quoting United States v. White Mountain Apache Tribe, 537 U.S. 465, 477 (2003)). Indeed, the Supreme Court “ha[s] consistently recognized that the existence of a trust relationship between the [Government]
Finally, “[t]he jurisdiction of the Court of Federal Claims is limited by the six-year statute of limitations of
II. The Court of Federal Claims Improperly Dismissed a Portion of Claim I of the Complaint
The Court of Federal Claims dismissed Claim I of the Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the RCFC. See Inter-Tribal Council of Ariz., 140 Fed. Cl. at 455-57, 460. Specifically, as to Claim I‘s allegation that the Government “failed to ensure . . . adequate security for the entire amount of the trust fund obligations . . . , when it negotiated the TFPA in 1992[,]” id. at 455, the Court of Federal Claims concluded that, “[b]ecause ITCA clearly knew about the terms of the TFPA and the amount of security that Collier wаs required to hold more than six years before [ITCA] filed [its] lawsuit,” that portion of Claim I “is barred by the six-year statute of limitations,” id. at 457; see
ITCA contends that the Court of Federal Claims erred on both grounds of dismissal. First, ITCA argues that the Court of Federal Claims erred by “fail[ing] to interpret correctly the express
As discussed below, we agree with ITCA, and find that the Court of Federal Claims erred in dismissing the failure-to-maintain-sufficient-security portion of Claim I at this stage of the proceedings. As to the remainder of Claim I, however, we agree with the Court of Federal Claims that it should be dismissed.
A. The Government‘s Alleged Failure to Maintain Sufficient Security in the Trust Estate
Beginning with the first step of the Supreme Court‘s two-part jurisdictional test, we must initially consider whether ITCA has identified a “‘substantive source of law‘” that establishes a specific fiduciary duty. Navajo Nation II, 556 U.S. at 290 (quoting Navajo Nation I, 537 U.S. at 506). Section 405(c)(2) of thе AFLEA, which ITCA identified in the Complaint as imposing a fiduciary duty upon the Government, see, e.g., J.A. 50, 64, provides that if, as was the case, the Monetary Proceeds were to be received “in the form of annual payments[,]” the Government “shall hold in trust the security provided in accordance with the [TFPA][.]” The TFPA, in turn, defines the security to be held, as well as the security‘s intended purpose. Specifically, the TFPA required Collier to pay both the Principal Amount and “interest thereon[,]” J.A. 349, 470 (Promissory Note) (“Collier . . . promises to pay . . . the Principal Amount . . . with interest thereon[.]“), and the Government was required to hold the Annuity and Trust Estate as security against those payment obligations, J.A. 350 (“The parties acknowledge that the Promissory Note . . . is secured by the Annuity, and the ‘Trust Estate[.]‘“).11 The AFLEA confirms this purpose, and demonstrates Congress‘s expectation that the security was to be maintained at a level sufficient to secure Collier‘s payment obligations.
Moreover, the Deed of Trust invested the Government with discretionary control over the level of security held in trust, by, for example, granting the Government exclusive authority to “release or reconvey” all or any portion of the Trust Estate “at any time at [its] option[.]” J.A. 547; see J.A. 547 (granting the Government authority to “take or release any other or additional security“); see also White Mountain Apache Tribe, 537 U.S. at 466 (explaining that because “[t]he statute
Next, as part of the first step of the Supreme Court‘s jurisdictional test, we must also consider whether ITCA alleged that the Government has “failed to faithfully perform” its fiduciary duty. Id. Claim I of the Complaint does exactly this, alleging that the Government breached its fiduciary obligations by failing to maintain “sufficient security in the Trust Estate[.]” J.A. 87; see J.A. 87-88. The Government‘s representations to the Arizona District Court support this allegatiоn, as the Government acknowledged that the value of the Trust Estate fell below the Release Level Amount “sometime after” the Government released liens on Collier‘s Downtown Development Interests in 2007, J.A. 72, and that by January 2014, “the debt owed by Collier [had become] grossly under-collateralized,” J.A. 606; see J.A. 74-75. In fact, by as early as March 2012, the value of the Trust Estate had decreased to a point “far below” the value of Collier‘s “remaining obligation[s].” J.A. 665; see J.A. 74-75. While the Government has attributed this to a “decline in [property] value[s]” caused by the economic downturn of 2008, J.A. 72; see J.A. 75, it appears to be the result of much more. ITCA alleged, for example, that the Government released the liens on Collier‘s Downtown Development Interests without “perform[ing] . . . its own appraisals of the security in the Trust Estate[,]” or otherwise “determin[ing] whether sufficient security would remain . . . in the Trust Estate to secure [Cоllier‘s] obligations.” J.A. 71; see J.A. 72.13 ITCA further alleged that, despite Collier‘s obligation to “restore the fair value” of the Trust Estate to 130 percent of the Release Level Amount, J.A. 561, the Government “did not demand that Collier substitute security at any time up to and before the lien releases . . . or even after the economic downturn,” J.A. 73. Instead, the Government “only demanded that Collier
If proven, ITCA‘s allegations would demonstrate a breach of the Government‘s fiduciary duty to “hold in trust the security” against Collier‘s payment obligations, including the duty to preserve the property held in trust, see White Mountain Apache Tribe v. United States, 249 F.3d 1364, 1378 (Fed. Cir. 2001) (“Under the common law of trusts, it is indisputable that a trustee has an affirmative duty to act reasonably to preserve the trust property.“); see also Restatement (Third) of Trusts § 77 (2007) (“The trustee has a duty to administer the trust as a prudent person would, in light of the purposes, terms, and other circumstances of the trust.“), as well as the duty to provide ITCA with pertinent information, see In re United States, 590 F.3d 1305, 1312 (Fed. Cir. 2009) (“[T]he fiduciary has a duty to disclose all information related to trust management to the beneficiary.“); see also Restatement (Third) of Trusts § 82 cmt. d (2007) (A trustee has an “affirmative” duty to “inform . . . beneficiaries of important develоpments and information that appear reasonably necessary for the beneficiaries to be aware of in order to protect their interests.“). This is especially so, in light of the “most exacting fiduciary standards” by which the Government is to conduct itself “in its relationship with . . . Indian beneficiaries.” Shoshone Indian Tribe, 364 F.3d at 1348 (internal quotation marks and citation omitted).
Two particular allegations make the Government‘s purported conduct in this case particularly troubling. First, after the lien release in 2007, only real property, viz., the fifteen-acre Phoenix Indian School Property, remained in the Trust Estate, J.A. 72, a practice which the Government, in September 1991, cautioned against, J.A. 203-204 (DOI officials advising against “real estate as part of the security” because “[n]obody knows what [real] property is going to be worth [ten]-[fifteen] years from now. It[‘]s tough to get rid of [real] property in a bad market” and “even in a good markеt [it] isn‘t all that liquid“), 211 (a DOI attorney explaining that “[b]ased upon my experience . . . , I become concerned about a portfolio that proposes exclusively in real estate“). Indeed, as the Assistant Secretary for Indian Affairs explained to the Secretary that same month, “because of the uncertain value of the [Phoenix Indian School] [P]roperty . . . , securing the full amount of the Indian trust funds with the property would not be adequate in meeting our trust responsibilities.” J.A. 226. Second, “Collier‘s debt was ‘nonrecourse,‘” J.A. 66, such that when Collier defaulted, the Government was required to “solely resort to, and proceed in rem against” the security held by the Government, J.A. 471; see J.A. 350 (similar), 564 (similar). Accordingly, ITCA alleged that the Government has “failed to faithfully perform” its fiduciary duty. Navajo Nation II, 556 U.S. at 290.
Turning to the
Finally, because the Government failed to disclose to ITCA that Collier had defaulted and that Collier‘s obligations were under collateralized until March 2013, J.A. 75; see Oral Arg. at 7:37-8:00, the statute of limitations did not commence to run against ITCA before that time, see Shoshone Indian Tribe, 364 F.3d at 1348.14 Thus, Claim I, originally filed in April 2015, J.A. 86, was brought well within the six-year statute of limitations on claims brought against the Government in the Court of Federal Claims, see
B. The Government‘s Alleged Failure to Ensure Adequate Security When it Negotiated the TFPA
ITCA did not cite, and we have not found, support in the AFLEA, case
III. The Court of Federal Claims Properly Dismissed Claim II of the Complaint
The Court of Federal Claims dismissed Claim II of the Complaint pursuant to Rule 12(b)(6) of the RCFC. See Inter-Tribal Council of Ariz., 140 Fed. Cl. at 457-58, 460. Specifically, the Court of Federal Claims found that the AFLEA “does not impose any obligation on the [G]overnment to make payments if Collier fails to make payments. . . . Therefore, [Claim II] must be dismissed for failure to state a claim upon which relief can be granted.” Id. at 458 (internal quotation marks, alterations, and citation omitted). ITCA contends, however, that the Court of Federal Claims “ignored the [AFLEA]‘s mandates and erred under applicable case law . . . when it dismissed ITCA‘s claim for damages based upon the [Government‘s] failure under the [AFLEA] to collect and pay all of the [AFLEA]‘s required remaining annual payments and the full final payment after Collier‘s default.” Appellant‘s Br. 10. We disagree with ITCA.
Claim II fails to state a claim upon which relief can be granted. Relevant to Claim II, ITCA contends that the AFLEA “required the [Government] to collect from Collier all Trust Fund Payments required under the [AFLEA], and that the [Government‘s] failure to collect all of the payments is a breаch of trust for which the [Government] is liable.” Appellant‘s Br. 26 (emphasis omitted). Specifically, ITCA alleged in the Complaint, that the Government “has not collected [or made] . . . any Trust Fund Payments—annual or final—from Collier since 2011.” J.A. 74; see J.A. 89. However, ITCA did not cite, and we have not found, support in the AFLEA, case law, or otherwise, for the imposition of a duty consistent with this allegation. Instead, those portions of the AFLEA cited by ITCA for support, requiring, for example, that “[t]he Monetary Proceeds shall be paid to the [Government],” AFLEA § 403(a), impose, at most, a duty upon Collier, not the Government. In fact, § 403(c)(2) explicitly provides that the “Purchaser,” defined as “Collier,” id. § 401(16), “shall make” the requisite payments under the annual payment method.15 Moreover, ITCA‘s reliance on
CONCLUSION
We have considered the parties’ remaining arguments and find them unpersuasive. Accordingly, the Partial Final Judgment of the U.S. Court of Federal Claims is
AFFIRMED-IN-PART AND REVERSED-IN-PART