The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Teton Historic Aviation Foundation and Teton Avjet LLC (collectively "Teton") brought this action against the United States and the U.S. Department of Defense ("DOD") seeking injunctive and declaratory relief under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), alleging that the defendants have deprived them of airplane parts due to them under a contract that they entered into with Government Liquidation, a nonGovernmental agency that sells surplus materials on behalf of the United States. Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that the United States Court of Federal Claims has exclusive jurisdiction over this case because it is a contract action against the United States. Because no party asserts that plaintiffs are in privity of contract with the government, the defendants' motion to dismiss will be denied.
The United States sells to private parties military aircraft parts that it determines to be surplus or outdated. (Second Am. Compl. ("Compl") ¶¶ 18-19.) Materials which are not sold are destroyed by the Aerospace Maintenance and Regeneration Group ("AMARG") operating under the auspices of the United States Air Force. (Id. ¶ 17.) The Defense Reutilization and Marketing Service ("DRMS") handles the sales, which are overseen by DOD. (Id. ¶ 16.) In order to facilitate sales, DRMS contracts with Government Liquidation to solicit bids and arrange purchases. (Id. ¶ 20.)
In 2008, Government Liquidation solicited bids for parts from five surplus United States Navy and Marine Aircraft. (Id. ¶ 25.) Teton bid on the parts in hopes of either obtaining an operable aircraft or, alternatively, acquiring parts to restore aircraft of its own. (Id. ¶¶ 28-29.) Teton made the highest bid, submitted a list of over 5,000 parts that it hoped to receive, and subsequently paid for the parts. (Id. ¶¶ 36-41.) Government Liquidation approved the release of 189 part numbers for a total of 1,890 parts and subsequently informed Teton that it was still awaiting AMARG's final approval of the requested parts. (Id. ¶¶ 43, 46.)
Several months later, Government Liquidation informed Teton that AMARG would approve only 29 part numbers and that Teton would have to pay AMARG an hourly rate of $97.25 for the removal of the parts. (Id. ¶¶ 47, 49.) Government Liquidation then informed Teton that it would have one business day to decide whether it wished to proceed with the contract. (Id. ¶ 51.) In the following days, Teton learned that the Government had destroyed all five of the aircraft covered by the contract. (Id. ¶ 59.) Government Liquidation notified Teton that it would cancel the contract and repay any money Teton had expended under the agreement. (Id. ¶ 60.)
Under the belief that DOD had acted in concert with Government Liquidation to destroy the planes in question, Teton brought suit alleging violations of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and seeking in part to require the defendants to preserve certain aircraft as replacements for those destroyed. (Id. ¶¶ 70-71, pp. 15-17.) Defendants have moved to dismiss for lack of subject matter jurisdiction contending that Teton's claims are contractual in nature and, therefore, that the Court of Federal Claims has exclusive jurisdiction over this action.*fn1
In reviewing a motion to dismiss for lack of subject matter jurisdiction, a court "accepts as true all of the factual allegations contained in the complaint... and may also consider 'undisputed facts evidenced in the record.'" Peter B. v. CIA, 620 F. Supp. 2d 58, 67 (D.D.C. 2009) (quoting Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003)) (internal citation omitted). The plaintiff bears the burden of establishing that the court has jurisdiction over a claim. Public Warehousing Co. K.S.C. v. Def. Supply Ctr. Phila., 489 F. Supp. 2d 30, 35 (D.D.C. 2007) (citing U.S. Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000)). "[P]laintiff's factual allegations in the complaint... will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Id. (internal quotation marks omitted) (alteration in original).
"[T]he United States may not be sued without its consent[,]" United States v. Mitchell, 463 U.S. 206, 212 (1983), and "'[j]urisdiction over any suit against the Government requires a clear statement from the United States waiving sovereign immunity... together with a claim falling within the terms of the waiver.'" Cartwright Int'l Van Lines, Inc. v. Doan, 525 F. Supp. 2d 187, 194 (D.D.C. 2007) (quoting United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003)).
The APA contains a limited waiver of sovereign immunity.
A person suffering legal wrong because of agency action... is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity... shall not be dismissed nor relief therein denied on the ground that it is against the United States....
5 U.S.C. § 702. In other words, the APA gives an individual who has suffered a legal wrong because of agency action the right to seek judicial review in federal court. See id. Judicial review of a final agency action is limited to circumstances where there is no other adequate remedy and where claims seeking relief are not expressly or impliedly forbidden by ...