UNITEDSTATES COURT OF APPEALS

TENTH CIRCUIT

DAVID W. LANDRY,

Plaintiff - Appellant,

v.

NANCY SMITH, Director, UnitedStates Department of Agriculture,National Appeals Division; GLENMILLER, JR., Hearing Officer,

United States Department ofAgriculture, National AppealsDivision; ERNEST M. RENFROW,County Supervisor, Farmers HomeAdministration (FmHA)/RuralEconomic and CommunityDevelopment (RECD),

Defendants - Appellees.No. 02-7075

D.C. No. 01-CV-711-S

(E. D. Oklahoma)

ORDER AND JUDGMENT

Before EBEL, HENRY, and HARTZ, CircuitJudges.

After examining the briefs and appellate record, this panel has determinedunanimously to grant the parties' request for a decision on the briefs without oralargument. See Fed. R. App. P. 34(f). The case is therefore ordered submittedwithout oral argument. This order and judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. Thecourt generally disfavors the citation of orders and judgments; nevertheless, anorder and judgment may be cited under the terms and conditions of 10th Cir. R.36.3.

Plaintiff David Wayne Landry was denied a loan from the Farm ServiceAgency of the United States Department of Agriculture (USDA) because theNatural Resources Conservation Service (NRCS) characterized his site as awetland, ineligible for the requested loans. A hearing officer reviewed andaffirmed the wetland characterization. The Director of the National AppealsDivision (NAD) of the USDA (the "Director") upheld the hearing officer'sdecision.

Plaintiff brought suit in the United States District Court for the EasternDistrict of Oklahoma challenging the NRCS's wetland determination and theDirector's subsequent approval. See Landry v. Cooper, No. 97-596-S(E.D. Okla.May 4, 1998) ("Landry I"). The district court found that "the NRCS's wetlanddetermination was supported by substantial evidence and was not otherwisearbitrary, capricious, or an abuse of the agency's discretion." Id. at 5. It alsofound, "[T]he NRCS's determination that no exemption applies . . . is . . .supported by the record." Id. at 6. As a result, both the NRCS determination andthe Director's decision were upheld. This court affirmed. Landry v. Cooper, No.98-7077 (10th Cir. Mar. 15, 1999).

Plaintiff brought a second action challenging the Secretary of the USDA'sfailure to implement a decision of the National Appeals Staff. Plaintiff assertedthat the decision, if implemented, would have allowed the USDA to issue him aloan. See Landry v. Glickman, No. 99-165-S (E.D. Okla. July 7, 1999)("LandryII"). The district court found the suit barred because, in accordance with LandryI, the property was a wetland and the Secretary was prohibited from making loansto disturb wetlands. Plaintiff's appeal was dismissed as untimely. Landry v.Glickman, No. 99-7130 (10th Cir. Feb. 3, 2000).

In October 2000 Plaintiff filed a third action asking the court to find thathe was entitled to a wetland exception that would have allowed him to secure aUSDA loan. See Landry v. Glickman, No. CIV-00-546-S (E.D. Okla.May 29,2001) ("Landry III"). The district court dismissed the case on the basis of resjudicata. The Tenth Circuit affirmed. Landry v. Veneman, No. 01-7121 (10thCir. May 30, 2002).

Plaintiff then filed the current action, Landry v. Smith, No. CIV-01-711-S(E.D. Okla. Apr. 11, 2002) ("Landry IV"), challenging the manner in which hisloan application was processed and the Director's approval of the hearingofficer's determination. Again, the district court dismissed the case on the basisof res judicata.

On appeal Plaintiff claims that the district court erred when it (1) grantedDefendants' motion to dismiss without first requiring an answer to be served, and(2) exercised subject matter jurisdiction despite Plaintiff's alleged failure toexhaust his administrative remedies. In his reply brief he also argues that resjudicata does not apply because each action challenged the conduct of a separateagency. He contends that Defendants' answer brief "is another attempt to re-litigate it's [sic]affirmative defense of res judicata against [Plaintiff's]previously [sic] claims, thereby continuing to burden and abuse the judicialprocess by filing frivolous affirmative defenses . . . ." Aplt. Reply Br. at 1.

We review de novo a district court's dismissal under Federal Rule of CivilProcedure 12(b)(6). County of Santa Fe v. Public Serv. Co. of N.M., 311 F.3d1031, 1034 (10th Cir. 2002). Exercising jurisdiction under 28 U.S.C. § 1291, weaffirm.

I. The Pre-Answer Motion

Rule 12(a) gives a federal governmental defendant 60 days in which toanswer a plaintiff's complaint. Fed. R. Civ. P. 12(a)(3)(A)-(3)(B). In this casethe governmental defendants never answered Plaintiff's complaint. Instead, theymoved to dismiss under Federal Rule of Civil Procedure 12(b)(6). The districtcourt granted their motion. Plaintiff asserts that Defendants defaulted when theyfailed to answer his complaint within the 60-day period.

The 12(b)(6) defense may be raised in a pre-answer motion. Fed. R. Civ.P. 12(b). "Unless a different time is fixed by court order, the service of a[12(b)(6)] motion . . . alters the[] period[] of time [for filing an answer]." Fed.R. Civ. P. 12(a)(4). "[I]f the court denies the motion . . . , the [answer must] beserved within 10 days after notice of the court's action." Fed. R. Civ. P.12(a)(4)(A). If the court grants the motion, as it did here, the plaintiff's action isdismissed, and an answer is no longer necessary. Thus, Defendants did notdefault.

II. Subject Matter Jurisdiction

Plaintiff claims that he failed to exhaust his administrative remedies andthat therefore the court in this action, as well as the courts in the three previousactions, lacked subject matter jurisdiction. Because Plaintiff failed to raise thisissue in the district court, we consider it only to the extent that it implicatesjurisdiction in this case. See Sac and Fox Nation v. Hanson, 47 F.3d 1061, 1063(10th Cir. 1995). Whether the courts in Landry I, Landry II, andLandry III hadsubject matter jurisdiction, while potentially relevant to the application of thedoctrine of res judicata, has no bearing on jurisdiction in this case. Accordingly,we do not address whether jurisdiction was present in Plaintiff's earlier actions. We are concerned solely with the district court's jurisdiction in Landry IV.

The district court's power to review the Director's decision derived from 7 U.S.C. § 6999, which reads, "A final determination of the [National Appeals]Division shall be reviewable and enforceable by any United States district courtof competent jurisdiction in accordance with chapter 7 of Title 5." Under thisstatute the district court had subject matter jurisdiction if the Director's decisionwas "final." The Supreme Court has explained the finality requirement asfollows:

As a general matter, two conditions must be satisfied foragency action to be final: First, the action must markthe consummation of the agency's decisionmakingprocess--it must not be of a merely tentative orinterlocutory nature. And second, the action must beone by which rights or obligations have beendetermined, or from which legal consequences willflow.

Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations and internal quotationmarks omitted). The NAD decision at issue here explicitly states, "Thisconcludes the administrative appeal of this case." ROA at 15. Moreover, itappears to dispose of Plaintiff's claims fully. Plaintiff does not explain in whatway the NAD decision was not final or how he failed to exhaust hisadministrative remedies. We therefore conclude that the district court hadsubject matter jurisdiction to resolve Plaintiff's claim.

III. Res Judicata

Because he did not raise the issue until his reply brief, we need not addressPlaintiff's argument that the elements of res judicata have not been established. Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). In any event, the issue wasthoroughly and correctly addressed in the district court's orders in Landry III andLandry IV.

We AFFIRM.

Entered for the Court

Harris L Hartz

Circuit Judge