Pta-Fla, Inc. v. United States

In the United States Court of Federal Claims PTA-FLA, INC., Plaintiff, No. 25-cv-988 v. Filed: July 22, 2026 THE UNITED STATES, Defendant. James U. Troup of Fletcher, Heald & Hildreth, Arlington, VA, appeared for Plaintiff. With him on the briefs was Tony S. Lee of Fletcher, Heald & Hildreth, Arlington, VA. A. Bondurant Eley of the United States Department of Justice, Civil Division, Washington, D.C., appeared for Defendant. With her on the briefs were Eric P. Bruskin, Patricia M. McCarthy and Brett A. Shumate, of the United States Department of Justice, Civil Division, Washington, D.C. MEMORANDUM AND ORDER Congress created the Secure and Trusted Communications Networks Reimbursement Program, 47 U.S.C. § 1603 (Reimbursement Program), to offer “reimbursements to providers of advanced communications service to replace” certain foreign-made telecommunications equipment that “poses an unacceptable risk to the national security risk of the United States.” Id. §§ 1601(b)(1), 1603(a). The Federal Communications Commission (FCC or Commission) has the power to administer the Reimbursement Program under the Secure and Trusted Networks Act of 2019, Pub. L. No. 116-124, 134 Stat. 158 (2020) (codified at 47 U.S.C. § 1601 et seq.) (Secure Networks Act). Congress directed the FCC to distribute public funds from the Reimbursement Program only to applicants who meet certain eligibility criteria. 47 U.S.C. § 1603(b). Among other requirements, a company can only receive funding if it “provides advanced communications service to United States customers.” Id. § 1608(10)(A). Plaintiff PTA-FLA, Inc. (PTA-FLA or Plaintiff) does not provide service to any customers, nor has it provided service for many years; however, PTA-FLA still requested $273,971,425.71 in federal funds from the Reimbursement Program. See ECF No. 6 (Corrected Motion to Dismiss or Motion) at 55 (Def. App. 1 at A16); ECF No. 6 (Am. Compl.) ¶ 40. At its core, PTA-FLA’s application was a request to spend $273,971,425.71 in public funds to upgrade an inactive telecommunications network. Am. Compl. ¶ 47. The FCC rejected PTA-FLA’s application through a comprehensive regulatory review process. The FCC delegated authority to review applications to the Wireline Competition Bureau, which on July 15, 2022, rejected Plaintiff’s application for funding. Am. Compl. 44; ECF No. 10 (Corrected Motion to Dismiss or Motion) at 41 (Def. App. at A2 nn. 3, 4). Specifically, the Wireline Competition Bureau found that Plaintiff was ineligible for the Reimbursement Program because Plaintiff had not provided telecommunications services for several years. Mot. at 44 (Def. App. at A5). On February 15, 2024, Plaintiff appealed that denial to the full Commission, which has yet to rule upon Plaintiff’s appeal. Id. at 63 (Def. App. at A24). As detailed further below, Federal law dictates that Plaintiff may only seek judicial review after the full Commission rules upon Plaintiff’s appeal, and then Plaintiff may only seek judicial review in a United States court of appeals. 47 U.S.C. § 402(a); Sandwich Isles Commc’ns, Inc. v. United States, 992 F.3d 1355, 1363 (Fed. Cir. 2021). Instead of waiting for the full Commission 1 Defendant failed to attach its appendix as an exhibit to its Motion. Rather, the appendix is included as part of the Motion, with the same ECF citation as the Motion. For clarity about what is in the appendix (as opposed to attorney argument in the Motion), this Memorandum and Order references the page number citation in the Motion and indicates the numbering within the appendix. 2 to rule and then seeking judicial review in a court of appeals, PTA-FLA sued in this Court and raises two counts challenging the Wireline Competition Bureau’s denial of the funding. Am. Compl. In Count One, Plaintiff claims that it has an entitlement to payment under the Reimbursement Program, which it asserts it can collect through an action in this Court. Am. Compl. ¶¶ 55–67. In Count Two, Plaintiff claims that the Secure Networks Act, its enabling regulations, and the public statements of FCC officials together created an offer for a binding contract for reimbursement, which Plaintiff accepted and now seeks to enforce. Am. Compl. ¶¶ 68–94. Defendant, the United States, moves to dismiss on several grounds pursuant to Rules 12(b)(1) and 12(b)(6). Mot. at 10. First, Defendant argues that this Court lacks subject matter jurisdiction because Congress has displaced Tucker Act jurisdiction for the type of FCC order at issue here. Second, Defendant argues that this Court lacks subject matter jurisdiction because Plaintiff did not satisfy administrative exhaustion requirements. Third, Defendant argues that Plaintiff fails to state a claim for relief in each Count. Defendant argues that Plaintiff fails to state a claim for relief in Count One because Plaintiff does not meet the requirements of the Reimbursement Program. Defendant argues that Plaintiff fails to state a claim for relief in Count Two because Plaintiff does not allege a mutual intent to contract or unambiguous offer and acceptance between itself and the FCC. The Court GRANTS Defendant’s Corrected Motion to Dismiss (ECF No. 10) in full. Accordingly, Plaintiff’s Amended Complaint (ECF No. 6) is DISMISSED. 3  BACKGROUND 2 Plaintiff “provided advanced communications service to approximately 4,000 customers in Florida, West Tennessee, and South Carolina” using telecommunications devices that qualify for the Reimbursement Program. ECF No. 6 (Am. Compl.) ¶ 24. Plaintiff does not specify in its Amended Complaint the time period when it “provided” such a service, nor does Plaintiff allege in its Amended Complaint that it currently provides telecommunications services or that it provided such services at the time that it applied for FCC funding. See id. On March 12, 2020, President Trump signed into law the Secure Networks Act, which included the Reimbursement Program. See Secure Networks Act § 4. Plaintiff alleges that, subsequently, the FCC “made an offer to Plaintiff” related to reimbursement of expenses for replacing Huawei and ZTE network equipment, which allegedly was sufficient to form a contract with Plaintiff. Am. Compl. ¶ 31. In particular, Plaintiff alleges that “[i]n early 2020 and 2021, the FCC and its leadership publicly urged providers to begin the removal process without delay, highlighting the urgent national security concerns posed by covered equipment.” Am. Compl. ¶ 32. According to Plaintiff, FCC officials “praised providers that removed the Huawei and ZTE 2 At this motion to dismiss stage, the Court does not make factual findings; rather, the Court accepts the well-pleaded facts in the Complaint as true for purposes of resolving a motion to dismiss for failure to state a claim under Rule 12(b)(6). Boyd v. United States, 134 F.4th 1348, 1352 (Fed. Cir. 2025) (“We take all factual allegations in the complaint as true and construe the facts in the light most favorable to the non-moving party.” (quoting Jones v. United States, 846 F.3d 1343, 1351 (Fed. Cir. 2017))). As Defendant has not challenged any factual allegations in the Complaint, the Court also accepts as true all well-pleaded facts for purposes of the resolving the Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. See Estes Express Lines v. United States, 739 F.3d 689, 692 (Fed. Cir. 2014) (“In deciding a motion to dismiss for lack of subject matter jurisdiction, the court accepts as true all uncontroverted factual allegations in the complaint, and construes them in the light most favorable to the plaintiff.” (citing Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583–84 (Fed. Cir. 1993))). 4 equipment from their networks prior to the establishment of the Reimbursement Program and assured them they would receive reimbursement.” Id. ¶ 33. Plaintiff asserts that FCC officials promised during a September 27, 2021 webinar that “providers who acted in good faith to begin the removal and replacement process prior to the reimbursement application window would not be penalized and could still qualify for funding.” Id. ¶ 34. Plaintiff claims that “FCC staff emphasized that reimbursement eligibility could include expenses incurred before the program formally launched, so long as the provider met the other statutory criteria.” Id. Plaintiff alleges that a then-Special Counsel to the FCC Chairman stated “[m]ake no mistake, the time is now to remove this equipment from our networks.” Id. ¶ 35. Plaintiff alleges that these FCC statements during the webinar “made clear that the United States not only supported—but expected—early action.” Id. Plaintiff contends that “[b]y January[] 2022,” it “dismantled its network and removed substantially all of the Huawei and ZTE equipment in advance of final establishment of the Reimbursement Program, incurring substantial expenses.” Id. ¶ 36. Plaintiff alleges that it undertook such action based on “good faith reliance on the United States’s representations and directives.” Id. ¶ 37. Plaintiff does not allege that it purchased any replacement equipment, but instead states that it “wait[ed] until the opening of the application window for the Replacement Program to restore its network with replacement equipment.” See id. Plaintiff alleges that the costs incurred in dismantling the network and removing equipment constitute consideration for a contract. Id. ¶ 41 (“Plaintiff’s reliance was justified by the specific purpose and policy goals of the Secure Networks Act, the rules and orders governing the Reimbursement Program, and the express representations by the United States’s agent, the FCC.”). Additionally, Plaintiff asserts that it engaged in forbearance, sufficient to constitute consideration, during this time, as Plaintiff 5 allegedly forbore “from restoring the operation of its network by re-installing the Huawei and ZTE equipment by purchasing, renting, or leasing such equipment.” Id. ¶ 42. On January 23, 2022, Plaintiff signed FCC Form 5640, through which Plaintiff applied for reimbursement under the Reimbursement Program and certified that it would abide by the Program’s terms. Id. ¶ 38. Plaintiff characterizes its signature of Form 5640 as acceptance of a contractual offer from the FCC. Id. Plaintiff claims that at the time that it signed Form 5640, it satisfied the eligibility requirements for the Reimbursement Program, including “the customer- size threshold, the lawful acquisition of covered equipment prior to June 30, 2020, and the submission of detailed cost estimates approved in the FCC’s catalog of approved costs.” Id. ¶ 39. In submitting Form 5640 to the FCC, Plaintiff also contends that it applied for the Reimbursement Program. Id. ¶ 38. Plaintiff alleges that it is owed $273,971,425.71 under its application. Id. ¶ 66. On July 15, 2022, the FCC denied Plaintiff’s application for reimbursement based upon what Plaintiff characterizes as “an erroneous interpretation of the term ‘provider’ in the Secure Networks Act.” Id. ¶ 44. Plaintiff states that it “had only temporarily taken its network offline in the past, not as a permanent cessation of service.” Id. ¶ 47. Plaintiff further alleges that it has continued to pay for tower leases and maintain other infrastructure since deactivating its network. Id. Plaintiff also contends that it could have “promptly” restarted operations if it received payment from the Reimbursement Program. Id. On August 15, 2022, Plaintiff filed a Petition for Reconsideration with the FCC Wireline Competition Bureau. Mot. at 41 (Def. App. at A2) (Order on Reconsideration). On January 16, 2024, the Wireline Competition Bureau denied Plaintiff’s Petition for Reconsideration: it determined that Plaintiff did not qualify for the Reimbursement Program because Plaintiff “had ceased network operations in 2014.” Id. at 41–43 (Def. App. at A2–A4). Plaintiff alleges that this 6 decision “precluded Plaintiff from resubmitting its application or submitting a new application for a reimbursement following the FCC’s denial of Plaintiff’s original application.” Am. Compl. ¶ 50. On February 15, 2024, Plaintiff filed an Application for Review of the Wireline Competition Bureau’s decision to the full Commission. Mot. at 67–82 (Def. App. at A28–43) (Application for Review). At the time Defendant filed its Corrected Motion to Dismiss, the FCC had not yet acted upon Plaintiff’s Application for Review. Mot. at 16. 3 PROCEDURAL HISTORY On June 12, 2025, Plaintiff filed its Complaint and on July 3, 2025, Plaintiff filed its First Amended Complaint, which remains the operative complaint in this case. ECF No. 1; Am. Compl. On August 18, 2025, Defendant filed its Motion to Dismiss. ECF No. 8. On August 29, 2025, the Court granted leave for Defendant to file a Corrected Motion to Dismiss in order to fix pagination errors in Defendant’s previously-filed Motion to Dismiss. See ECF No. 9; Minute Order dated Aug. 29, 2025. On August 29, 2025, Defendant filed its Corrected Motion to Dismiss, which is the motion that is currently before the Court. ECF No. 10 (Motion). On February 25, 2026, after the conclusion of briefing on the Corrected Motion to Dismiss, 4 Plaintiff filed a Motion for Leave to File Notice of Supplemental Authority. ECF No. 20. Plaintiff sought to discuss four district court cases interpreting McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146 (2025), all of which were published after Plaintiff had filed its Response to Defendant’s Corrected Motion to Dismiss. Id. at 1. The Court granted 3 During the March 12, 2026, oral argument, Defendant confirmed that the full Commission had not yet ruled upon the Application for Review. ECF No. 26 (Oral Argument Transcript or OA Tr.) at 6:9. 4 See Plaintiff’s Response in Opposition to the Corrected Motion to Dismiss (ECF No. 13) (Response); Defendant’s Reply in support of the Corrected Motion to Dismiss (ECF No. 19) (Reply). 7 the Motion for Leave to File Notice of Supplemental Authority on the same date. See ECF No. 20; Minute Order dated Feb. 25, 2026. On February 26, 2026, Plaintiff filed its Notice of Supplemental Authority. ECF No. 21 (Plaintiff’s Notice of Supplemental Authority). On March 4, 2026, Defendant filed its Response to Plaintiff’s Notice of Supplemental Authority. ECF No. 22 (Defendant’s Response to Plaintiff’s Notice of Supplemental Authority). Subsequently, on March 12, 2026, the Court conducted oral argument. Minute Entry dated Mar. 12, 2026. At oral argument, Plaintiff cited a newly-issued decision from the United States Court of Appeals for the Federal Circuit (Federal Circuit), Ligado Networks LLC v. United States, No. 25-1792, 2026 WL 653982 (Fed. Cir. Mar. 9, 2026). OA Tr. at 11:10–17. The Court ordered the parties to file supplemental briefs concerning the impact of Ligado Networks, if any, on this action and the pending Motion. ECF No. 23 at 1. On March 27, 2026, each party filed a supplemental brief concerning the impact of Ligado Networks. ECF Nos. 24 (Defendant’s Supplemental Brief), 27 (Plaintiff’s Supplemental Brief). After oral argument, Defendant filed a Motion for Leave to Submit Notice of Supplemental Authority, concerning the decision from the Court of Federal Claims in SI Wireless, LLC v. United States, 181 Fed. Cl. 200 (2026). ECF No. 28 at 1. On May 14, 2026, the Court granted Defendant leave to file the Notice of Supplemental Authority and ordered Plaintiff to file a response brief. See ECF No. 28; Minute Order dated May 14, 2026. On the same day, Defendant filed its Notice of Supplemental Authority. ECF No. 29 (Defendant’s Notice of Supplemental Authority). On May 18, 2026, Plaintiff filed its Response to Defendant’s Notice of Supplemental Authority. ECF No. 30 (Plaintiff’s Response to Notice of Supplemental Authority). The Corrected Motion to Dismiss is now fully briefed and ripe for review. 8  STATUTORY FRAMEWORK Congress created the FCC in the Communications Act of 1934. See Communications Act of 1934, 47 U.S.C. § 151 et seq.; see also 47 U.S.C. § 151 (“[T]here is created a commission to be known as the ‘Federal Communications Commission.’”). Petitioners may seek judicial review of FCC decisions through an appeal to either the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) or a regional court of appeals, depending on the type of FCC decision. See 47 U.S.C. § 402; see also Sandwich Isles Commc’ns., Inc. v. United States, 992 F.3d 1355, 1362 (Fed. Cir. 2021) (“The Communications Act specifically provides for judicial review of FCC decisions in 47 U.S.C. § 402.”); Folden v. United States, 379 F.3d 1344, 1356 (Fed. Cir. 2004) (“[S]ubsections 402(a) and (b) comprise the entire statutory regime by which parties may obtain judicial review of Commission decisions.”). Certain FCC decisions must be appealed to the D.C. Circuit. See 47 U.S.C. § 402(b) (Section 402(b)) (listing decisions that can only be appealed to the D.C. Circuit). All other FCC decisions can be appealed to either the D.C. Circuit or a regional court of appeals—a group that does not include this Court’s reviewing body, the United States Court of Appeals for the Federal Circuit. See 47 U.S.C. § 402(a) (Section 402(a)) (“Any proceeding to enjoin, set aside, annul, or suspend any order of the Commission under this chapter (except those appealable under subsection (b) of this section) shall be brought as provided by and in the manner prescribed in chapter 158 of title 28.”); 28 U.S.C. ch. 158, § 2342(1) (“The court of appeals (other than the United States Court of Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of . . . all final orders of the Federal Communication Commission made reviewable by section 402(a) of title 47.”). 9  The Secure Networks Act became law on March 12, 2020. See Secure Networks Act. The Secure Networks Act required the FCC to publish a list of communications equipment for which the producer or provider “poses an unacceptable risk to the national security of the United States or the security and safety of United States persons.” 47 U.S.C. § 1601(a), (b)(1). As part of the Secure Networks Act, Congress ordered the FCC to create the Reimbursement Program, which would reimburse “providers of advanced communications service” for the cost to replace the equipment the FCC included on the list. Id. § 1603(a). The Secure Networks Act also set eligibility rules for the Reimbursement Program and created guidelines for how the FCC must implement the Reimbursement Program. Id. § 1603(b), (d). Specifically, the FCC was required to undertake a rulemaking process to implement the Reimbursement Program. Id. § 1603(g). The Secure Networks Act also mandates that the FCC has the same enforcement powers and jurisdiction over the Secure Networks Act as over any part of the Communications Act of 1934: A violation of this chapter or a regulation promulgated under this chapter shall be treated as a violation of the Communications Act of 1934 (47 U.S.C. 151 et seq.) or a regulation promulgated under such Act, respectively. The Commission shall enforce this chapter and the regulations promulgated under this chapter in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Communications Act of 1934 were incorporated into and made a part of this chapter. 47 U.S.C. § 1606(a). LEGAL STANDARD I. Rule 12(b)(1) This Court must dismiss claims outside its subject matter jurisdiction. Rules 12(b)(1), 12(h)(3); St. Bernard Par. Gov’t v. United States, 916 F.3d 987, 992 (Fed. Cir. 2019) (“It is well settled that limitations on subject matter jurisdiction are not waivable . . . .”). As Defendant has not challenged any factual allegations in the Complaint, the Court also accepts as true all well- 10 pleaded facts for purposes of the resolving the Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. See Estes Express Lines v. United States, 739 F.3d 689, 692 (Fed. Cir. 2014) (“In deciding a motion to dismiss for lack of subject matter jurisdiction, the court accepts as true all uncontroverted factual allegations in the complaint, and construes them in the light most favorable to the plaintiff.” (citing Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583–84 (Fed. Cir. 1993))); see also Banks v. United States, 741 F.3d 1268, 1277 (Fed. Cir. 2014). The Court “is not restricted to the face of the pleadings, but may review evidence extrinsic to the pleadings” to determine subject matter jurisdiction. Cedars-Sinai, 11 F.3d at 1584; see 3M Co. v. Avery Dennison Corp., 673 F.3d 1372, 1378 (Fed. Cir. 2012). II. Rule 12(b)(6) To withstand a motion to dismiss pursuant to 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff also must establish “more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). Thus, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 555, 557) (second alteration in original) (internal citations omitted). “The Court of Federal Claims may properly grant a motion to dismiss under [Rule] 12(b)(6) when a complaint does not allege facts that show the plaintiff is entitled to the legal remedy sought.” Steffen v. United States, 995 F.3d 1377, 1379 (Fed. Cir. 2021) (citing Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002)). 11  At the motion to dismiss stage, this Court must “take all factual allegations in the complaint as true and construe the facts in the light most favorable to the non-moving party.” Boyd v. United States, 134 F.4th 1348, 1352 (Fed. Cir. 2025) (quoting Jones v. United States, 846 F.3d 1343, 1351 (Fed. Cir. 2017)). The Court, however, need not “accept the asserted legal conclusions.” Am. Bankers Ass’n v. United States, 932 F.3d 1375, 1380 (Fed. Cir. 2019) (citing Ashcroft, 556 U.S. at 678). The Court “must consider the complaint in its entirety” as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The Court may rely on exhibits attached to the complaint, as these “are not ‘matters outside the pleadings.’” Sharifi v. United States, 987 F.3d 1063, 1067 (Fed. Cir. 2021) (quoting Rule 12(d)); see also AlexSam, Inc. v. Aetna, Inc., 119 F.4th 27, 34 (Fed. Cir. 2024) (“Review of a motion to dismiss under Rule 12(b)(6) is generally limited ‘to the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference.’” (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007)). “[I]n the event of conflict between the bare allegations of the complaint and any exhibit attached . . . , the exhibit prevails.” Allen Eng’g Contractor, Inc. v. United States, 115 Fed. Cl. 457, 464 (2014), aff’d, 611 F. App’x 701 (quoting Fayetteville Invs. v. Comm. Builders, 936 F.2d 1462, 1465 (4th Cir. 1991)); 5A Wright & Miller’s Federal Practice and Procedure § 1327 (3d ed. 2004 & Suppl. 2016) (explaining that the Court “obviously is not bound to accept the pleader’s allegations as to the effect of the exhibit, but can independently examine the document and form its own conclusions”); see also Rocky Mountain Helium, LLC v. United States, 841 F.3d 1320, 1326 (Fed. Cir. 2016) (favorably quoting Wright & Miller § 1327). 12  DISCUSSION The Discussion proceeds in three parts, corresponding to the three lines of argument raised by the Motion. As explained further below, this Court lacks jurisdiction over Plaintiff’s Amended Complaint, and, even if jurisdiction existed, this Court would still be required to dismiss Plaintiff’s Amended Complaint because it fails to state a plausible claim for relief. First, the Court lacks Tucker Act jurisdiction over the entirety of this suit. Defendant argues that the comprehensive regulatory system and judicial review provisions for FCC decisions displaces Tucker Act jurisdiction. As discussed further below, although the Tucker Act generally provides this Court with jurisdiction over money-mandating claims, Congress withdraws that jurisdiction where, as here, there is a comprehensive scheme of judicial review over administrative decisions. Here, Congress has provided specific authorities for FCC review of Reimbursement Program applications and judicial review provisions for FCC decisions, which remove cases concerning such applications from this Court’s jurisdiction. Plaintiff cannot side-step this jurisdictional defect by attempting to recharacterize its appeal of an FCC decision as a contract claim. Second, this Court also lacks jurisdiction over the entirety of this suit because Plaintiff failed to exhaust its mandatory administrative remedies. FCC regulations require Plaintiff to wait for a decision on its appeal to the full Commission before seeking judicial review, and Plaintiff failed to do so in this case. Third, even if the Court had jurisdiction over Plaintiff’s claims, each Count would fail to state a claim as a matter of law. Plaintiff fails to state a claim for relief in Count One because, according to the facts pleaded in the Amended Complaint, Plaintiff was not eligible for the Reimbursement Program as a matter of law. Plaintiff did not operate a telecommunications 13 network when it applied to the Reimbursement Program, but the Reimbursement Program required that grant recipients operate an active network. Plaintiff fails to state a claim for relief in Count Two because the facts in its Amended Complaint do not plausibly plead a contract with the United States. The United States never made an offer to enter into a contract with Plaintiff. I. Tucker Act Jurisdiction Defendant argues that this Court lacks subject matter jurisdiction over the entire Amended Complaint because Congress has displaced the Court of Federal Claims’ Tucker Act jurisdiction over appeals from FCC decisions. Mot. at 19. In support of its position, Defendant makes several arguments. First, Defendant relies upon the Federal Circuit’s decision Sandwich Isles Commc’ns, Inc. v. United States, 992 F.3d 1355, 1363 (Fed. Cir. 2021), for the contention that “the Communications Act’s comprehensive scheme for review displaces Tucker Act jurisdiction for FCC orders and decisions falling within 47 U.S.C. § 402(a).” Mot. at 20–21; see 47 U.S.C. § 402(a) (limiting jurisdiction to the courts of appeals over “[a]ny proceeding to enjoin, set aside, annul, or suspend any order of the [FCC] under [Chapter 5 of Title 47 of the United States Code]”). Defendant argues that FCC decisions under the Secure Networks Act, including the denial of the Reimbursement Program application that Plaintiff challenges, are subject to the Section 402(a) jurisdictional provision. Mot. at 21. The Secure Networks Act directs that it should be interpreted “as though all applicable terms and provisions of the Communications Act of 1934 were incorporated into and made a part of this chapter.” 47 U.S.C. § 1606(a) (Section 1606). Defendant asserts that Count One of the Amended Complaint must be dismissed because it explicitly seeks review of an FCC decision that has been displaced from Tucker Act jurisdiction. Mot. at 21–22. Second, Defendant contends that Count Two of Plaintiff’s Amended Complaint must be dismissed for a similar lack of jurisdiction, even though Plaintiff alleges a contract with the FCC, because 14 the “true nature” of the claim remains an appeal of an FCC order. Id. at 22 (quoting Sandwich Isles, 992 F.3d at 1364). Plaintiff disputes Defendant’s argument that Section 402(a) displaces Tucker Act jurisdiction over this case. 5 Resp. at 23. Plaintiff argues that there must be “unambiguous congressional intent to displace the Tucker Act’s waiver of sovereign immunity.” Id. (quoting Acceptance Ins. Cos. Inc. v. United States, 503 F.3d 1328, 1336 (Fed. Cir. 2007)). Plaintiff also argues that a recent Supreme Court case limited the set of cases exclusively granted to the courts of appeals. Id. at 28 (citing McLaughlin, 606 U.S. at 162). Finally, Plaintiff contests the application of Sandwich Isles to this case, on the basis that the relief sought here differs from the relief sought in that case. Id. at 34. A. Tucker Act Displacement Defendant is correct: the Communications Act of 1934 displaces Tucker Act jurisdiction over this case. Under the Tucker Act, this Court generally has jurisdiction over “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.” 28 U.S.C. § 1491(a)(1). However, the Court lacks jurisdiction over money-mandating claims arising under a statute if “Congress has withdrawn the Tucker Act grant of jurisdiction in the relevant statute.” Horne. v. Dep’t of Agric., 569 U.S. 513, 527 (2013) (citing Eastern Enters. v. Apfel, 524 U.S. 498, 520 5 Plaintiff devotes a significant portion of its briefing to an argument that the Secure Networks Act is money-mandating for purposes of Tucker Act jurisdiction. See Resp. at 12–17. Defendant, however, does not contest that the Secure Networks Act is money-mandating; instead, challenges Tucker Act jurisdiction on other grounds. See Reply at 7–8 (“[R]egardless of whether the Secure Networks Act is money-mandating, jurisdiction over claims brought under that statute to challenge FCC orders lies exclusively in the courts of appeals.” (emphasis in original)). 15 (1998) (plurality opinion)). “To determine whether a statutory scheme displaces Tucker Act jurisdiction, a court must ‘examin[e] the purpose of the [statute], the entirety of its text, and the structure of review that it establishes.’” Id. (alterations in original) (citing United States v. Fausto, 484 U.S. 439, 444 (1988)). A “precisely drawn” statute that “contains its own judicial remedies” displaces the Tucker Act. United States v. Bormes, 568 U.S. 6, 12 (2012) (quoting Hinck v. United States, 550 U.S. 501, 506 (2007)). Binding precedent establishes that Section 402(a) and Section 402(b) displace this Court’s Tucker Act jurisdiction over FCC decisions. See Sandwich Isles, 992 F.3d at 1363 (“[T]he Communication Act’s comprehensive scheme for review displaces Tucker Act jurisdiction for FCC orders and decisions falling within 47 U.S.C. § 402(a).”); Alpine PCS, Inc. v. United States, 878 F.3d 1086, 1097–98 (Fed. Cir. 2018) (holding that Section 402(b) displaces Tucker Act jurisdiction); Biltmore Forest, 555 F.3d 1375, 1384 (Fed. Cir. 2009) (“[J]urisdiction conferred by § 402(b) is exclusive.”); Folden, 379 F.3d at 1356 (“[T]he D.C. Circuit’s jurisdiction pursuant to subsection 402(b) is also exclusive: subsections 402(a) and (b) comprise the entire statutory regime by which parties may obtain judicial review of Commission decisions.”). Thus, it is well- established that if an FCC decision is subject to Section 402(a) or (b), this Court lacks Tucker Act jurisdiction. Defendant correctly argues that this Court’s jurisdiction over the FCC’s denial of Plaintiff’s application for the Reimbursement Program was displaced because the FCC’s denial is subject to Section 402(a). See Mot. at 20–21. Congress displaced Tucker Act jurisdiction over FCC orders under the Secure Networks Act via the Secure Networks Act’s enforcement provision. See 47 16 U.S.C. § 1606(a). That law grants the FCC the power to enforce 6 the Secure Networks Act “in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Communications Act of 1934 were incorporated into and made a part of this chapter.” Id. In Sandwich Isles, Section 402(a) applied to the challenged FCC decision and displaced Tucker Act jurisdiction because the FCC had made a decision, pursuant to its Communications Act of 1934 authority, “regarding the amount of subsidies [plaintiff] could receive.” Sandwich Isles, 992 F.3d at 1364. The same rule applies here because, under the Secure Networks Act’s grant of “the same jurisdiction, powers, and duties” as the Communications Act of 1934, the FCC denied Plaintiff’s application for funding from the Reimbursement Program. 47 U.S.C. § 1606; see Sandwich Isles, 992 F.3d at 1364. As in Sandwich Isles, any challenge to the FCC’s order must be brought in an appropriate court of appeals pursuant to Section 402(a). See 47 U.S.C. § 402(a); Sandwich Isles, 992 F.3d at 1364. Here, Count One of the Amended Complaint expressly challenges the FCC’s order denying Plaintiff’s application for Reimbursement Program funding, so Count One must be brought pursuant to Section 402(a). See Sandwich Isles, 992 F.3d at 1364; Am. Compl. ¶¶ 62 (“The United States’s denial of reimbursement to Plaintiff violated the Secure Networks Act”), 63 (“The United States violated 47 U.S.C. §§ 1603(a) and (d)(5)(A) by failing to ‘make reasonable efforts to ensure that reimbursement funds are distributed equally among all applicants.’”). “[E]xclusive jurisdiction” over challenges brought pursuant to Section 402(a) belongs to “[t]he court of appeals (other than the United States Court of Appeals for the Federal Circuit).” 28 U.S.C. § 2342. As this Court is not a “court of appeals (other than the United States Court of Appeals for the Federal 6 The FCC cited Section 1606 when it denied Plaintiff’s petition for reconsideration. Mot. at 47 (Def. App. at A8). 17 Circuit),” this Court lacks subject matter jurisdiction to review challenges to FCC decisions made under the Secure Networks Act and cannot hear Plaintiff’s Count One challenge to the FCC’s decision. See id.; Sandwich Isles, 992 F.3d at 1363. The Court also lacks jurisdiction over Count Two because Count Two merely recharacterizes a challenge to the FCC’s denial order as a contract claim. In Count Two, Plaintiff alleges that the FCC formed a contract to reimburse Plaintiff because Plaintiff applied for the Reimbursement Program and removed equipment from its network in reliance upon alleged assurances that Plaintiff could be repaid. Am. Compl. ¶¶ 77, 79. Plaintiff seeks the same remedy for the alleged breach of contract in Count Two as for the alleged statutory violation in Count One: the payment of $273,971,425.71, plus interest. Id. ¶ 93. Defendant contends that the “true nature” of Plaintiff’s contract-based claim in Count Two is also an appeal of the FCC’s decision. Mot. at 22 (quoting Sandwich Isles, 992 F.3d at 1364). Plaintiff responds that the “courts of appeals have expressly rejected subject matter jurisdiction under the Hobbs Act to decide such claims.” Resp. at 35 (citing Northpoint Tech., Ltd. v. Fed. Commc’n Comm’n, 414 F.3d 61, 76 (D.C. Cir. 2005)). This Court agrees with Defendant that the true nature of Plaintiff’s claim in Court Two is an appeal of the FCC’s denial decision. The Federal Circuit has instructed that Tucker Act jurisdiction is still displaced over challenges to FCC decisions even where those challenges are characterized as contract claims, rather than as direct challenges to agency action. Sandwich Isles, 992 F.3d at 1364. In Sandwich Isles, the Federal Circuit held that even though plaintiff had characterized a claim as a takings claim for purposes of Tucker Act jurisdiction, Section 402(a) displaced the Tucker Act as the “alleged takings claims challenge FCC actions and orders and thus are governed by subsection 402(a).” Id. The takings claim at issue was “based on [plaintiff’s] disagreement with FCC 18 decisions regarding the amount of subsidies” that plaintiff received from the FCC. Id. Section 402(a) applied because the plaintiff could have presented its takings claim to the FCC (although plaintiff chose not to do so), the FCC could have granted or denied the remedy sought, and plaintiff could have appealed that decision to the court of appeals. 7 Id. at 1365. Similarly, challenges to FCC decisions subject to Section 402(b) are still subject to Tucker Act displacement if they are characterized as breach of contract claims. Alpine PCS, 878 F.3d at 1094–95. Here, Plaintiff’s contract-based claim is based upon a dispute with the FCC about Plaintiff’s entitlement to subsidies: Plaintiff argues it is entitled to more than $273 million, while the FCC says zero. Am. Compl. ¶ 54. The FCC could have granted the remedy of payment from the Reim