The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
INTRODUCTION AND BACKGROUND
This action arises from a dispute over a wetlands determination - to wit, the National Resources Conservation Service ("NRCS") determined that certain lands plaintiffs, Star Growers and Star Growers, Inc. ("Star Growers"), were farming were wetlands that had been manipulated and that Star Growers had violated certain provisions of the Food Security Act of 1985 (16 U.S.C. §§3821 -3824). The NRCS determination adversely affected Star Growers, who pursued administrative remedies within the United States Department of Agriculture ("USDA") and ultimately prevailed upon a decision by the Deputy Director of the National Appeal Division ("NAD") of the USDA finding that the prior determination was erroneous and that they were entitled to farm the land and to have their subsidies and other USDA benefits restored.
Star Growers subsequently filed the instant action against the USDA and NRCS under the Equal Access to Justice Act of the Administrative Procedure Act ("EAJA")(5 U.S.C. §504) and the Federal Tort Claims Act ("FTCA")(28 U.S.C. §§1346(b) & 2671, et seq.) seeking attorney's fees and other expenses and damages related to the pursuit of their claims. Attached to the complaint are, inter alia, an application for fees and expenses under the EAJA, a copy of the June 16, 2003 Director Review Determination from the NAD of the USDA in which Star Growers prevailed in their appeal of the wetlands determination, an October 3, 2003 Notice of Claim sent by Star Growers to various subsidiaries of and agencies within the USDA demanding reasonable costs and expenses relating to the pursuit of the underlying claim and the various letters the USDA sent in response to that demand.
The defendants have moved to dismiss the complaint for lack of subject matter jurisdiction and/or for failure to state a claim upon which relief can be granted (Dkt. #8) .
The Court's subject matter jurisdiction over the United States exists only to the extent that the United States has waived its sovereign immunity. Hercules, Inc. v. United States, 516 U.S. 417, 422- 423 (1996). Further, any waiver of this sovereign immunity is to be strictly construed in favor of the government. See Library of Congress v. Shaw, 478 U.S. 310 (1986); Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983); McMahon v. United States, 342 U.S. 25, 27 (1951); Escobar v. United States, 935 F.2d 650 (4th Cir. 1991); Smedberg Mach. & Tool Inc. v. Donovan, 730 F.2d 1089 (7th Cir. 1984).
Star Growers claim jurisdiction under the provisions of the EAJA which are contained in 5 U.S.C. §504, et seq. and provide, in part, that "An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust."
Defendants claim that this Court lacks subject matter jurisdiction over the EAJA claim for two key reasons.
First, they assert that lawsuit is untimely. They refer to a letter attached to Star Growers' complaint in support of this argument. The letter is from the Director of the NAD of the USDA and is dated October 27, 2003. It purports to respond to Star Growers' aforementioned Notice of Claim of October 3, 2003. It said that the Director interpreted Star Growers' "letter" (Notice of Claim) as an application for fees and expenses submitted pursuant to the EAJA, but that it would not be considered because Star Growers failed to comply with the requirements contained in 7 C.F.R. §1.190, et seq. regarding such applications and that, nevertheless, the USDA uniformly takes the position that the EAJA does not apply to NAD proceedings except where required by court decision. The letter also advised Star Growers that it was responding only to the extent that a claim was being made under the EAJA and that the office of the General Counsel of the USDA would respond to any other type of claim implicit in the "letter" (Notice of Claim).
Defendants state that the Director's letter constituted a determination and denial of Star Growers' application for EAJA fees and expenses. The Court agrees. 5 U.S.C. §504(c)(2) requires that an appeal to this Court be filed "within 30 days after the determination is made". Presumably this means that the lawsuit herein needed to be filed within 30 days of the Director's letter of October 27, 2003 - which Star Growers obviously did not do. However, the USDA regulations implementing the EAJA state that "[i]f neither the applicant nor agency counsel seeks [internal] review [as is the case at bar], the initial decision on the ...