The opinion of the court was delivered by: Judge Wiley Y. Daniel
ORDER ADOPTING AND AFFIRMING RECOMMENDATION
THIS MATTER is before the Court on Defendants Bureau of Land Management's ("BLM") and Wild Horse Holding Facility's Motion to Dismiss for Lack of Subject Matter Jurisdiction, filed April 15, 2005. The matter was referred to Magistrate Judge Patricia A. Coan for a recommendation on April 18, 2005. Magistrate Judge Coan issued a Recommendation on August 1, 2005, which is incorporated herein by reference ("Recommendation"). See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
Magistrate Judge Coan recommends therein that Defendants' Motion to Dismiss be granted and Plaintiff's complaint be dismissed in its entirety. Recommendation at 6. The Recommendation advised that written objections were due within ten days after service of the Recommendation. Id. Plaintiff filed her objection on August 19, 2005.
Defendants filed a Response to Plaintiff's Objection on September 2, 2005.
On November 17, 2004, Plaintiff filed her pro se Complaint in this case. In her Complaint Plaintiff alleges that on or about August 24, 2004, she was approved for bidding on the BLM Wild Horse Internet Adoption Auction. Plaintiff states that on September 15, 2004, she was informed that she was the second highest bidder and next in line to adopt wild horse #7359. Plaintiff complains that although she informed the BLM that she desired to adopt horse #7359, Defendants allowed another party to adopt the horse without first giving Plaintiff proper notification or opportunity to adopt the horse upon its release. Plaintiff seeks "completion of the option to adopt horse #7359," transfer of horse #7359 to a training facility, and "reimbursement for court cost, travel expenses, and loss of work time as calculated at close of case." Essentially, Plaintiff requests that this Court enter an Order compelling the BLM to allow her to complete adoption of horse #7359.
Defendants BLM and Wild Horse Holding Facility filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction on April 15, 2005, in which they characterized Plaintiff's claim as one for "specific performance of a purported contract with Defendants," to adopt horse #7359. Defendants asserted that the District Court lacks jurisdiction to grant specific performance on a breach of contract claim against the United States because the United States has not waived its sovereign immunity for such a remedy. Plaintiff filed a Response to the Motion to Dismiss on May 24, 2005. In her Response, Plaintiff did not dispute Defendants' characterization of her claim but asserted that the District Court has jurisdiction to grant specific performance on a breach of contract claim because the United States has waived its sovereign immunity under the Administrative Procedure Act ("APA"), 5 U.S.C. § 702. Plaintiff further asserted that the Tenth Circuit "upheld specific performance under the APA" in Hamilton Stores, Inc. v. Hodel, 925 F.2d 1272 (10th Cir. 1991).
On August 1, 2005, Magistrate Judge Coan issued a Recommendation to grant Defendants' Motion to Dismiss and to dismiss Plaintiff's Complaint in its entirety. In her Recommendation Magistrate Judge Coan characterized this case as an action for specific performance of a contract in which Plaintiff is "seeking to exercise her option to adopt a wild horse, pursuant to a $235 bid she made for the horse." Magistrate Judge Coan noted that the adoption program Plaintiff participated in is authorized by the Wild Free-Roaming Horse and Burro Act, 16 U.S.C. § 1331, and its implementing regulations, but further noted that "[t]hose regulations do not specify the manner by which the adoptions, undertaken in person or via the internet, are conducted." While Magistrate Judge Coan found that Plaintiff made no reference to any source of federal jurisdiction in her Complaint, in an effort to liberally construe the pro se Complaint, she examined several possible bases for subject matter jurisdiction. Ultimately, Magistrate Judge Coan concluded that Plaintiff's Complaint lacked subject matter jurisdiction under both the Little Tucker Act, 28 U.S.C. § 1346, and the APA.
Plaintiff objected to the Recommendation, reasserting her argument that the APA waives sovereign immunity in cases against federal agencies for non-monetary relief. Plaintiff also objected to the Magistrate Judge Coan's statement in a footnote of the Recommendation that "Federal Courts appear to be unanimous in their holding that the Tucker Act impliedly forbids a federal district court from granting equitable relief against the government in contract claims," and again cited the Tenth Circuit's decision in Hamilton Stores, Inc., supra. Defendants filed a Response to Plaintiff's Objection on September 2, 2005.
As an initial matter, I note that in their Response to Plaintiff's Objection, Defendants assert that in reviewing the Recommendation the Court should apply a "no clear error on the face of the record" standard of review because the Objection was untimely filed pursuant to FED. R. CIV. P. 6(a) and (e). Although it appears that Plaintiff's Objection was filed one day late, I exercise my discretion and review the Recommendation under the more stringent de novo standard of review as to those specified proposed findings or recommendations to which objection is made since the nature of the matter is dispositive. See Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b)(1).
It is well settled that sovereign immunity prohibits the United States from being sued without an express waiver by Congress. Block v. North Dakota ex rel. Bd. of Univ. and School Lands, 461 U.S. 273, 287 (1983). Without a waiver of sovereign immunity, courts lack jurisdiction to adjudicate actions against the United States. See United States v. Sherwood, 312 U.S. 584, 586 (1941). While Plaintiff brings this action pro se, she nevertheless bears the burden of showing that her case falls within this Court's subject matter jurisdiction.
Plaintiff does not object to the portion of the Recommendation characterizing the remedy she seeks in this action as specific performance, rather than monetary damages. While Plaintiff's Complaint makes reference to what she describes as "internet adoption protocol" she does not assert Defendants' actions violated any federal statute or regulation. Nor does she take issue with Magistrate Judge Coan's observation that nothing in the Wild Free-Roaming Horse and Burro Act, 16 U.S.C. § 1331, nor its implementing regulations "specify the manner by which the adoptions, undertaken in person or via the internet, are conducted." In her Complaint, Plaintiff states that subject matter jurisdiction over her claim is proper because ...