This is a consolidated appeal from two decisions of the Court of Federal Claims,
Lion Raisins, Inc. v. United States,
We nonetheless affirm the dismissals. In the reserve pool case, we hold that the case must be dismissed because Lion has failed to allege a cognizable takings claim. With respect to the bins case, we hold that the takings claim may not be brought against the government because the statute provides for an administrative remedy and for judicial review in district court.
BACKGROUND
I
At the heart of this case is. the administration of the AMAA. The AMAA was originally enacted during the Depression, with the objective of helping farmers obtain a fair value for their agricultural products.
Pescosolido v. Block,
The Act operates through the implementation of Marketing Orders, designed “to prevent over-production of agricultural products and excessive competition in marketing them, with price stabilization as the ultimate objective.”
Parker v. Brown,
Marketing orders must be approved by either two-thirds of the affected producers or by producers who market at least two-thirds of the volume of the commodity. 7 U.S.C. § 608e(9)(B). The AMAA restricts the marketing orders “to the smallest regional production areas ... practicable.” 7 U.S.C. § 608c(ll). The Raisin Marketing Order, codified at Part 989 of Title 7 of the Code of Federal Regulations, was originally promulgated in 1960. Its applicable regional production area is the State of California. 7 C.F.R. § 989.4 (2005).
The statute authorizes the Secretary to delegate the responsibility of implementing marketing orders to marketing committees and to empower those committees to issue rules and regulations. 7 U.S.C. § 608c(7)(C)(i)-(iv). The RAC is the marketing committee charged with administering the Raisin Marketing Order. 7 C.F.R. § 989.35(a) & (b). The 47 members of the RAC come from the raisin production industry (with one public member and one
*1359
representative of the industry’s collective bargaining association), and are appointed by the Secretary after industry nomination.
Lion I,
The RAC employs its own staff. The RAC is funded by assessments paid by handlers; it receives no funding from Congress.
Lion I,
The Raisin Marketing Order divides those involved in the raisin industry into two categories-handlers and producers. The Raisin Marketing Order applies directly only to handlers. Under the Act, handlers are "processors, associations of producers, and others engaged in the handling" of covered agricultural commodities. 7 U.S.C. § 608c(1). Handlers are bound by the marketing orders promulgated pursuant to the AMAA. Stark v. Wickard,
The Raisin Marketing Order, like other fruit and vegetable orders established pursuant to the AMAA, seеks to stabilize producer returns by limiting the quantity of raisins sold by handlers in the domestic competitive market. 7 U.S.C. § 608e(6);
see also
John H. Vetne, Federal Marketing Order Programs, in 1
Agricultural Law
75, 78 (John H. Davidson ed., 1981) (describing various marketing control methods permissible under the AMAA for fruit and vegetable orders). The Raisin Marketing Order uses a reserve pool mechanism, authorized under 7 U.S.C. § 608c(6)(E), wherein the RAC can designate a portion of the yearly raisin crop as “free-tonnage” for sale without restrictions, and the surplus or “reserve-tonnage” is withheld for sale in secondary, noncommercial markets. 7 C.F.R. §§ 989.54(d), 989.65 (2005);
see also Prune Bargaining Ass’n v. Butz,
Free-tonnage raisins may be disposed of by the handler in any marketing channel. Producers receive immediate payment from handlers, at the field market price, for the free-tonnage raisins. The market price for the free-tonnage raisins, or the field price, is not set by the RAC, but is determined through a private bargaining process carried out between producers’ and handlers’ bargaining associations. Producers are not paid immediately for reserve raisins. Reserve-tonnage raisins are held by handlers for the account of the reserve pool, which is operated by the RAC.
Lion I,
Producers thus receive payment for their raisins in two installments. At the time of sale, they receive the field market price for free-tonnage raisins. For the reserve-tonnage raisins, they receive a share of the reserve pool sales proceeds, net оf costs. “Funds generated from reserve pool sales programs, net of costs, become the growers’ equity and are disbursed directly to each producer of record for that crop.” Raisin Administrative Committee, Analysis Report, 10 (2001).
The reserve raisins are not warehoused in any central location, but rather stored by handlers on their own premises, and are released for sale per the instructions of the RAC. The RAC provides handlers with RAC-owned bins, free of charge, for the storage of reserve raisins. If the RAC has insufficient bins to handle the reserve-tonnage, handlers utilize their own bins. The regulations provide that “[hjandlers shall be compensated for receiving, storing, fumigating, handling, and inspection of ... reserve raisins ... held by them for the account of the committee.” 7 C.F.R. § 989.66(f). The regulations are specific that handlers who use their own bins to store reserve raisins “shall be compensated for the use of such ... bins.... The rate of compensation shall be ... 20 cents per day, per bin, not to exceed a total of $10 per bin per year.” 7 C.F.R. § 989.401(c).
II
Both of the cases before us were brought by Lion in response to alleged takings arising from the operation of this regulatory scheme.
2
In light of the procedural posture of the cases, we must assume the well-pleaded facts of the opera
*1361
tional complaints to be true.
Leider v. United States,
In
Lion I,
the reserve pool case, Lion, in its capacity as a raisin producer and equity holder in the reserve pool, challenged the RAC’s use of reserve pool proceeds from the 1997 crop year to subsidize raisin export programs for the two subsequent years.
In
Lion II,
the bins case, Lion, as a handler, originally asserted a breach of contract claim, alleging that the RAC had failed to reimburse Lion for several thousand bins belonging to Lion that ■. Lion had used to handle reserve raisins on behalf of the RAC. Evidently in the course of shipping the reserve raisins pursuant to the RAC’s instructions, several thousand bins left Lion’s possession, and were not returned.
IÁon II,
In both.the reserve pool case and the bins cases, the Court of Federal Claims held that the NAFI doctrine barred jurisdiction over Lion’s takings claims.
Lion I,
Lion timely appealed both decisions to this court, which were subsequently consolidated for purposes of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
See Core Concepts of Fla., Inc. v. United States,
DISCUSSION
I
We first consider the issue of jurisdiction. We review without deference the dismissals of Lion’s complaints for lack of jurisdiction.
AINS, Inc. v. United States,
The Tucker Act broadly provides jurisdiction for “any claim against the United States founded ... upon the Constitution.” 28 U.S.C. § 1491(a)(1) (2000). This includes on its face all takings claims against the United States.
See Presault v. Interstate Commerce Com’n,
The Supreme Court has held that if agents of the federal government accomplish takings of private property, “[t]he action of the agent is the act of the government” and it is the federal government that is liable for suit, not the agent.
Yearsley v. W.A. Ross Const. Co.,
Thus, for example, when separate corporate entities act for the United States, the United States is liable for their takings. See,
e.g., Russian Volunteer Fleet v. United States,
So too when state agencies act as agents of the United States, the United States may incur takings liability.
See Rose Acre Farms, Inc. v. United States,
There is also no quеstion that NAFIs are agents of the United States. The Supreme Court has repeatedly recognized that NAFIs are “arms of the government” deemed “essential for the performance of governmental functions.”
Standard Oil Co. v. Johnson,
In
Kyer,
our predecessor court held that the now defunct Grape Crush Administra-
*1364
five Committee, established pursuant to a marketing order under the authority of the AMAA, was a NAFI and that the court had no jurisdiction over claims for breach of the Committee’s contracts, but in so holding, the court recognized that the Committee was “an agency of the United States, established and 'controlled by the Secretary of Agriculture pursuant to authority vested in him by the Agricultural Marketing Agreement Act of 1937.”
It would thus appear ' clear that takings claims based on the actions of NAFIs are “claims against the United States founded ... upon the Constitution.” As the Supreme Court recognized in
Preseault,
the “proper inquiry” in any challenge to the exercise of Tucker Act jurisdiction is “whether Congress ha[s]
withdrawn
the Tucker Act grant of jurisdiction ... to hear a suit ... founded ... upon the Constitution.”
The government, however, urges, and the Court of Federal Claims held, that NAFIs are different from other agents of the federal government, and that the Tucker Act provides no jurisdiction over takings claims against the United States based on actions by NAFIs. We disagree. A virtually identical contention was rejected by us in the context of a closely related jurisdiсtional provision of the Tucker Act, granting jurisdiction over “any claim against the United States founded ... upon ... any Act of Congress.” 28 U.S.C. § 1491(a)(1). In
El-Sheikh v. United States,
Even apart from El-Sheikh, we reject the government’s contention that the Tucker Act’s jurisdictional grant does not extend to claims against the United States for takings effected by NAFIs.
First, the government relies on a series of decisions of this court holding that jurisdiction under the Tucker Act is limited by the so-called NAFI doctrine. But, the authority on which the government relies does not support the proposition that the United States is exempt under the Tucker Act for takings claims.
The origins of the NAFI doctrine lie.in
Standard Oil.
There, the Court ruled that the Army “post-exchanges” qualified for a federal government exemption from a California state tax.
“Relying on the Court’s observation in
[Standard Oil
] that the ‘Government assumes none of the financial obligations’ of military post exchanges, ... the Court of Claims, in a series of decisions, ... held that it could not entertain contract claims against nonappropriated fund instrumen-talities.”
Sheehan,
Following the decisions of our predecessor court, we have repeatedly held that the Tucker Act confers no jurisdiction over claims based on contracts made by NAFIs other than those contemplated in the 1970 amendments. 6 All of these cases apply “[t]he general rule ... that the Court of
*1366
Federal Claims lacks jurisdiction to grant judgment against the United States on a claim against a NAFI because the United States has not assumed the financial obligations of those entities by appropriating funds to them.”
El-Sheikh,
The- Supreme Court recognized the NAFI doctrine, and its applicability to the contracts context, in
Hopkins,
stating that “[t]he nonappropriated-fund status of the exchanges places them in a position whereby the Federal Government, absent special legislation, does not assume the obligations of those exchanges in the manner that contracts entered into by appropriated fund agencies are assumed.”
Second, the government contends that even if the decided cases do not directly preclude takings jurisdiction, the reasoning of those cases applies equally to takings claims. We again disagree. The contract cases rest directly on the language of the Tucker Act. The language of the Tucker Act provides, with respect to contract claims, that the jurisdiction of the Court of Federal Claims exists over any “claim against the United States founded ... upon any express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1). The theory of the NAFI cases is that NAFIs are separate entities (although they are agents of the United States). Such separate entities may make contracts that bind the entities themselves, but the Tucker Act does not authorize suits against those entities. It authorizes suits only against the United States, and then only based on contracts “with the United States”. A contract made by a separate entity is a contract with the United States, binding on the United States, only if the separate entity has the authority to obligate appropriated funds, or, as stated in
Kyer,
if “that contract [is] one which, in the contemplation of Congress, could obligate public monies.”
*1367 Finally, the government contends that the language of the 1970 amendments to the Tucker Act shows that the Tucker Act does not extend to takings claims against the United States based on actions by NAFIs. Again we cannot agree.
Contrary to the government’s argument, the text and history of the 1970 amendments do not in any way suggest that Congress intended to limit Tucker Act jurisdiction with respect to NAFIs outside thе contracts context. In 1970, Congress amended the Tucker Act to “afford contractors a federal forum in which to sue NAFIs” by providing for jurisdiction over contract claims against the armed forces exchanges.
Hopkins,
The legislative history focuses on “post exchange types of operations,”
McDonald’s Corp.,
Neither the text of the 1970 amendments, nor the legislative history, indicates that the amendments were intended to address anything beyond the limited question of which NAFIs would be able to subject the United States to suit based upon their contracting behavior.
In summary, we see no basis in the text of the Tucker Act itself; the legislative history of the 1970 amendments; or in the decisions of the Supreme Court or' this court, for limiting the scope of the jurisdictional grant over claims “against the United States ... founded upon the Constitution” to exclude takings claims against the
*1368
United States based on actions by NAFIs.
7
“If there is a taking, the claim is ‘founded upon the Constitution’ and within the jurisdiction of the Court of Claims to hear and determine.”
United States v. Causby,
II
Even though the Court of Federal Claims dismissed both cases on jurisdictional grounds, we may consider whether the cases may be appropriately dismissed on any other legal grounds. As we have noted, “[a]n appellate court may affirm the [trial] court on a ground not selected by the [trial] judge so long as the record fairly supports such an alternative disposition of the issue.”
Banner v. United States,
With respect to both the reserve pool claim and the bins claim, the essence of the claims being asserted is that the RAC has either violated its statutory and regulatory obligations (in the reserve pool case) or failed to comply with its regulatory and contractual obligations (in the bins case). We conclude that these claims are not properly presented as takings challenges in the Court of Federal Claims, and instead must be pursued in the designated administrative and judicial fora.
We consider first the reserve pool issue. Here Lion asserts a claim as a producer with an interest in the 1997 reserve pool proceeds. Lion, both in the Court of Federal Claims and in this Court, has made clear that it does not challenge the overall operation of the regulatory scheme, including the requirement that growers contribute raisins to the reserve pool. (First Am. Compl. of Lion I, at ¶ 23; Br. of Appellant at 14; see also Appellant Supp’l Br. at 5 (“Neither case seeks a modification or exemption from the Raisin Order, nor a ruling that one of its provisions is unlawful.”))
*1369
In its amended complaint, Lion alleged a first cause of action, charging a “Violation of an Act of Congress and Regulations Issued by the Secretary of USDA.” The allegations of illegal agency action were incorporated wholesale into the takings claim (the second cause of action).
Lion I,
We have made clear that a claim premised on a regulatory violation does not state a claim for a taking. In
Rith Energy, Inc. v. United States,
We note that this is not a case in which the plaintiffs claim to have a contractual right in the maintenance of a particular calculation of net proceeds. If the party asserting the taking has contracted with the federal government, the contract itself may be a cognizable property interest that, if abrogated by legislation or regulatory action, may form the basis of a takings claim.
See, e.g., Chancellor Manor v. United States,
Ill
We now turn to the bins case, which is asserted by Lion only in its capacity as a handler. To the extent that, as with the reserve claim, Lion is asserting that a taking has occurred because the RAC has violated the regulations, Lion has failed to state a claim.
But the complaint also appears to allege that Lion owned bins; that Lion transferred bins to the RAC; and that a taking occurred because the RAC appropriated the bins to its own use. To the extent that Lion contends that the United States has used the bins without payment, or retained the bins, the administrative and judicial review procedures available under 7 U.S.C. § 608c(15)(A) provide a remedy to recover the value of the rights alleged to be taken.
Section 608c(15) provides an administrative remedy to handlers wishing to challenge marketing orders under the AJVLAA; requires that the Secretary grant a hearing and make a ruling on petitions brought by handlers; and vests the district courts with jurisdiction to review the Secretary’s decision. It states:
(A) Any handler subject to an order may file a written petition with the Secretary of Agriculture, stating that any such order or any provision of any such order or any obligation imposed in connection therewith is not in accordance with law and praying for a modification thereof or to be exempted therefrom. He shall thereupon be *1371 given an opportunity for a hearing upon such petition .... After such hearing, the Secretary shall make a ruling upon thе prayer of such petition which shall be final, if in accordance with law.
(B) The District Courts of the United States ... are vested with jurisdiction in equity to revieio such ruling .... If the court determines that such ruling is not in accordance with law, it shall remand such proceedings to the Secretary with directions either (1) to make such ruling as the court shall determine to be in accordance with law, or (2) to take such further proceedings as, in its opinion, the law requires.
7 U.S.C. § 608c(15) (emphases added).
In
Ruzicka,
the Supreme Court observed that Congress, in this provision, “explicitly gave to an aggrieved handler an appropriate opportunity for .the correction of errors or abuses by the agency” and held that any challenges to a marketing order could only be raised using the special statutory procedure provided by section 608c(15).
Congress has provided a special procedure for ascertaining whether such an order is or is not in accordance with law.... And so Cоngress has provided that the remedy in the first instance must be sought from the Secretary of Agriculture. It is on the basis of his ruling, and of the elucidation that he would presumably give to his ruling, that resort may be had to the courts.
Id.
at 294,
Lion contends that the congressionally mandated administrative and judicial review procedures do not provide an adequate remedy because they do not provide for a monetary remedy. The statute vests district courts with jurisdiction in equity to review the administrative decisions of the Secretary under § 608c(15). The case law demonstrates that monetary relief, in the form of equitable restitution, may be awarded in the course of judicial review of section 608c(15)(A) proceedings.
See Borden, Inc. v. Butz,
In short, as acknowledged by the government, Lion may challenge the RAC’s actions with respect to the missing bins in the congressionally mandated review proceedings, and these proceedings are able to provide the full range of relief sought by Lion in the form of equitable restitution for the missing bins and any unjust enrichment on the part of the RAC resulting from its use of the bins without payment. Lion may not seek compensation in the Court of Federal Claims under the guise of a takings claim for what is essentially a challenge to invalid agency action.
We have repeatedly held that Tucker Act review of takings claims is precluded where Congress has provided “a specific and comprehensive scheme for administrative and judicial review.”
Vereda, Ltda. v. United States,
For example, in
Vereda,
we concluded that the availability of complete administrative review by the DEA and subsequent judicial review in district court of the merits of a seizure and forfeiture of property in а drug forfeiture case under 21 U.S.C. § 881 precluded the exercise of jurisdiction in the Court of Federal Claims over the alleged taking.
In summary, we affirm the Court of Federal Claims’ dismissals of the two cases, albeit on different grounds. The reserve pool case is properly dismissed for failure to state a Fifth Amendment takings claim. The bins case is properly dismissed for lack of jurisdiction given the availability of an alternative administrative and judicial review procedurе.
CONCLUSION
For the foregoing reasons, the Court of Federal Claims’ dismissals of Lion’s actions are
AFFIRMED.
COSTS
No costs.
Notes
. The Raisin Marketing Order's definition of handlers includes "any person who places, ships, or continues natural condition raisins in the current of commerce from within the area to any point outside thereof.” 7 C.F.R. § 989.15(b) (2005).
. Appellant, Lion Raisins, Inc., a plaintiff in both the bins case and the reserve pool case, *1361 is both a producer and a handler. Lion Brothers, the second appellant, is only a raisin producer, and participated as a plaintiff only in the reserve pool case. For convenience we refer to both entities as "Lion”.
. For purposes of the Federal Tort Claims Act, NAFIs have also been held to be agencies of the federal government and thus able to subject the United States to liability for their actions.
See, e.g., United States v. Holcombe,
. The
Kyer
court rejected the argument that 7 U.S.C. § 612c, which provides for a general appropriation from the Treasury to the Secretary of Agriculture to fund administrative expenses of the Secretary incurred under the AMAA, constituted a source of appropriated funds available to the marketing committee sufficient to undermine the committee's NAFI status.
. To be sure, the Tucker Act grant of jurisdiction, and the corresponding waiver of sovereign immunity, is inapplicable if the money-mandating provision does not make the United States liable for the actions of NAFIs.
Compare El-Sheikh,
. 28 U.S.C. § 1491(a)(1) now reads, in its entirety:
The United States Court of Federal Claims shall have jurisdiction to render judgment upon 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. For the purpose of this рaragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, *1366 or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States.
. Contrary to the government’s argument, there is nothing in the language of 28 U.S.C. § 2517(a) (2000) ("[Ejvery final judgment rendered by the United States Court of Federal Claims against the United States shall be paid out of any general appropriation therefor”) to suggest that the United States will not pay just compensation when held liable for a taking of public property by a NAFI.
See, e.g., Hurley v. Kincaid,
. In light of our conclusion that the RAC is an agent of the United States, we need not consider whether the Secretary's involvement in oversight of the RAC’s activities is sufficient to implicate direct takings liability for the federal government.
See, e.g., Casa de Cambio,
. Lion also claimed that the change in the reserve pool benefit constituted a physical taking of the raisins themselves. (Lion I, First Am. Compl. at ¶ 23.) Of course, once the raisins were transferred to the RAC, Lion no longer had a property interest in the raisins themselves, but only in its share of the reserve pool proceeds as defined by the regulations. 7 C.F.R. § 989.66(h).
. Paragraph 21 of the First Amended Complaint, which is incorporated by reference into the takings claim, reads, in its entirety:
Title 7 C.F.R. § 989.66(h) specifically states that the net proceeds of reserve raisins sold into the various permissible markets must be distributed by the committee to the respective producers or their successor in interest thereto "on thе basis of the volume of their respective contribution to the reserve tonnage of such varietal type.” An Act of Congress, 7 U.S.C. § 608c(6)(E) slates that when the Secretary establishes reserve pools the Secretary must provide "for the equitable distribution of the net return derived from the sale thereof among the persons beneficially interested therein.” Neither the regulation nor the statute permits the RAC or USDA to allow the net proceeds to be used except to benefit the 1997 reserve pool equity holders such as Plaintiffs. The United States has violated the Act of Congress and the Marketing Order and thus is liable to the Plaintiffs in an amount according to proof, but a sum in excess of $1 million dollars not only to Plaintiffs as reserve equity holders, but as assignees or successors in interest to other producer’s reserve equity.
(Lion I, First Am. Compl. at ¶ 21.) (emphasis added).
. Under the Supreme Court’s decision in
Stark,
and its progeny, Lion was entitled to judicial review under the Administrative Procedure Act ("APA”) as to whether the RAC violated the law by using a portion of the 1997 reserve pool to fund the export program for years other than 1997.
. Court: "You say, speaking with the authority of the Secretary of Agriculture, that the Secretaiy reads this statute broadly enough to encompass claims of the sort involved in the bin case?”
Counsel: "Yes, and the Secretary is currently reviewing such a case.”
. Lion relies on In re Jet Farms, Inc., 50 Ag. Dec. 1373 (1991) in asserting that monetary relief is not available in section 608(c)15 cases, but that case stands for the proposition that monetaiy relief is only available in the form of equitable restitution, and that ”[t]here is no authorization ... for consequential damages.” Id. at 1416.