          In the United States Court of Federal Claims
                                         No. 12-157C
                                    (Filed: May 28, 2013)
                                    TO BE PUBLISHED

                                             )
INTERNATIONAL FEDERATION OF                  )
PROFESSIONAL AND TECHNICAL                   )
ENGINEERS, LOCAL 1 and ITS                   )
MEMBERS, individually; EDWARD W.             )
                                                     Motion to Dismiss Under RCFC 12(b)(1)
BOWE, individually; on behalf of             )
                                                     and 12(b)(6); Fifth Amendment Taking
themselves and all others similarly          )
                                                     Claim; 28 U.S.C. § 1500; 28 U.S.C.
situated,                                    )
                                                     § 2501; Capacity to Sue on Behalf of an
                                             )
                                                     Unincorporated Association;
                      Plaintiffs,            )
                                                     RCFC 17(b)(3); Property Interest;
                                             )
                                                     Implied-In-Fact Contract.
v.                                           )
                                             )
THE UNITED STATES,                           )
                                             )
                      Defendant.             )
                                             )

        Kenneth M. Golski, Ann Mayhew Golski, Golski Law Group, PLC, Norfolk, Va., for
plaintiff.

        Corinne A. Niosi, Trial Attorney, Franklin White, Jr., Assistant Director, Jeanne E.
Davidson, Director, Commercial Litigation Branch, Stuart F. Delery, Principal Deputy Assistant
Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for
defendant. Harvey Karp, Senior Trial Attorney, Office of the General Counsel, Navy Litigation
Office, Washington, D.C., M. Kate DeMane, Counsel, Norfolk Naval Shipyard, Portsmouth, Va.,
of counsel.

                                    OPINION AND ORDER

GEORGE W. MILLER, Judge

        In this Fifth Amendment taking suit against the United States, plaintiffs Edward W.
Bowe and the International Federation of Professional and Technical Engineers, Local 1 allege
that the United States Department of the Navy (“Navy”) asserted control over the Norfolk Naval
Shipyard Co-Operative Association (“Co-Op”) and the Co-Op’s assets and funds. Compl. ¶¶ 5,
14 (docket entry 1, Mar. 6, 2012). Plaintiffs claim that the Navy’s assertion of control
constituted a physical or regulatory taking of the Co-Op or its assets and funds or was a breach of
an implied contract for sale of the business of the Co-Op to the Navy. Id. ¶¶ 18–20.
         On March 6, 2012, plaintiffs filed two actions based on the same facts, one in this court
(“COFC”) and the other in the United States District Court for the Eastern District of Virginia
(“EDVA”). Although both actions were filed on the same date, the COFC complaint was filed
before the EDVA complaint. See Affidavit of Kenneth Michael Golski ¶ 9 (docket entry 18-1,
Oct. 24, 2012); Def.’s Resp. Time & Order 2–3 (docket entry 19, Oct. 25, 2012) (acknowledging
that “it appears that the COFC complaint was filed earlier in the day on March 6, 2012, than
when the EDVA complaint was filed”).

         Defendant moved to dismiss plaintiffs’ complaint for lack of jurisdiction and for failure
to state a claim upon which relief can be granted, pursuant to Rules 12(b)(1) and 12(b)(6) of the
Rules of the United States Court of Federal Claims (“RCFC”). Mot. to Dismiss (docket entry 7,
June 6, 2012). The Court heard oral argument on November 9, 2012.

I.     Background1

        The Co-Op is a non-profit unincorporated association, which was established in 1914 by
the employees of the Norfolk Naval Shipyard (“NNSY”), without financial contribution from the
United States government. Compl. ¶¶ 6–7. All NNSY civilian employees are members of the
Co-Op. Id. ¶ 9. “The purpose of the Co-Op has been to provide clean, wholesome, and
nourishing food and other such necessities and conveniences for the benefit of all” civilian and
military employees at NNSY. Id. ¶ 8. The civilian employees of NNSY have continued to
contribute their own personal funds to the Co-Op and, while the buildings and grounds used by
the Co-Op belong to the Navy, Co-Op funds were used to purchase all of the Co-Op’s “assets,
equipment, and fixtures.” Id. ¶¶ 7, 11.

       Since its inception, the Co-Op has been under the overall direction of the NNSY
Commanding Officer. Id. ¶ 9. The Co-Op was originally governed by its own constitution and
by-laws. Id. ¶ 13. It has been subject to directives and instructions promulgated by the Navy for
many years. Plaintiffs note that “[o]ver the years, the Navy and its military structure and
component has become increasingly involved in the oversight and daily management of the Co-
Op.” Id. ¶ 12.

        On or about January 6, 2010, the NNSY Commanding Officer “intentionally asserted the
Navy’s complete ownership and control over the Co-Op, its funds and assets.” Id. ¶ 14.
According to the complaint, plaintiffs “no longer ha[d] any control over the property of the
NNSY Co-Op” after January 6, 2010. Id. To date, the Co-Op has not been disestablished and is
apparently continuing to provide food and conveniences for NNSY employees. See id. ¶ 16;
Oral Arg. Tr. 43:10–12 (docket entry 23, Nov. 9, 2012); see also Int’l Fed’n of Prof’l &
Technical Eng’rs et al. v. United States, No. 2:12cv121, slip op. at 4 (E.D. Va. Dec. 20, 2012)
(“At the hearing [concerning defendant’s motion to dismiss], Plaintiffs’[] counsel offered
additional information concerning the Co-Op’s current status . . . . [N]otwithstanding the alleged
injury, the Co-Op still exists and actively provides services to NNSY civilian employees.

1
  The facts recited herein are taken from plaintiffs’ complaint, filed on March 6, 2012, and from
documents relied upon by the parties in connection with their arguments on subject matter
jurisdiction.



                                                 2
Therefore, . . . Plaintiffs acknowledge that [the Co-Op] effectively functions as it did prior to the
alleged injury.”).

II.    Discussion

       A.      Jurisdiction

        A court must determine at the outset of a case whether it has subject matter jurisdiction
over the claims involved. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95
(1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed. Cir. 2007). The plaintiff bears
the burden of establishing subject matter jurisdiction. Alder Terrace, Inc. v. United States, 161
F.3d 1372, 1377 (Fed. Cir. 1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298
U.S. 178, 189 (1936)). “If the defendant or the court questions jurisdiction, the plaintiff cannot
rely solely on allegations in the complaint, but must bring forth the relevant, adequate proof to
establish jurisdiction.” Global Computer Enters., Inc. v. United States, 88 Fed. Cl. 350, 402
(2009) (citing McNutt, 298 U.S. at 189), modified, 88 Fed. Cl. 466 (2009). Therefore, in
resolving a motion to dismiss for lack of subject matter jurisdiction, the Court may examine
evidence and consider documents outside the four corners of the pleadings. Id.; see also Sys.
Application & Techs., Inc. v. United States, 100 Fed. Cl. 687, 703 (2011), aff’d, 691 F.3d 1374
(Fed. Cir. 2012).

        Plaintiffs state that the court has jurisdiction over their claims pursuant to the Tucker Act,
28 U.S.C. § 1491 (2006). Compl. ¶ 4. Pursuant to the Tucker Act, this court may hear “any
claim against the United States founded . . . 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.” 28 U.S.C. § 1491(a). The Tucker Act serves as a waiver of sovereign immunity and a
jurisdictional grant, but it does not create a substantive cause of action. Jan’s Helicopter Serv.,
Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1305–06 (Fed. Cir. 2008). A plaintiff must,
therefore, satisfy the court that “‘a separate source of substantive law . . . creates the right to
money damages.’” Id. (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)
(en banc in relevant part)). Defendant does not dispute that the Takings Clause of the Fifth
Amendment is such a money-mandating source.

        Instead, defendant contends that three other provisions prohibit this court from hearing
plaintiffs’ claims: (1) 28 U.S.C. § 1500; (2) 28 U.S.C. § 2501; and (3) RCFC 17(b)(3).

               1.      28 U.S.C. § 1500 Does Not Bar Plaintiffs’ Suit

        28 U.S.C. § 1500 divests this court of jurisdiction of any claim in respect to which a
plaintiff “has pending in any other court any suit or process against the United States.” 28
U.S.C. § 1500.

         “To determine whether § 1500 applies, a court must make two inquiries: (1) whether
there is an earlier-filed ‘suit or process’ pending in another court, and, if so, (2) whether the
claims asserted in the earlier-filed case are ‘for or in respect to’ the same claim(s) asserted in the
later-filed Court of Federal Claims action.” Brandt v. United States, 710 F.3d 1369, 1374 (Fed.
Cir. 2013) (citing Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163–64 (Fed. Cir.



                                                  3
2011)). If either question is answered in the negative, § 1500 does not bar jurisdiction. Id.
(citing Trusted Integration, 659 F.3d at 1163–64).

        Plaintiffs do not dispute that their two complaints are based on substantially identical
operative facts. Cf. Trusted Integration, 659 F.3d at 1164 (noting that a court should “focus only
on whether two claims share the same operative facts and not on the relief requested”).
Therefore, the question for the Court is whether the district court action was pending when
plaintiffs filed in this court.

         A suit is “pending” in another court for purposes of § 1500, “only when the suit shall
have been commenced in the other court before the claim was filed in [the Court of Federal
Claims].”2 Kaw Nation of Oklahoma v. United States, 103 Fed. Cl. 613, 617 (2012) (quoting
Tecon, 343 F.2d at 949) (internal quotation marks omitted). The pertinent facts of Kaw Nation
are similar to those of the instant case. Plaintiff, Kaw Nation of Oklahoma, filed two actions on
December 29, 2006—one in the United States Court of Federal Claims and the other in the
United States District Court for the Western District of Oklahoma. Kaw Nation, 103 Fed. Cl.
at 615. The complaints in both courts alleged the same operative facts. Id. It was stipulated for
the purposes of the § 1500 dispute that the COFC complaint was filed earlier in the day than the
district court complaint. Id. Contending that Tecon was no longer good law after the Supreme
Court’s decision in Tohono O’Odham Nation,3 the Government asserted that § 1500 divested the
Court of Federal Claims of jurisdiction because plaintiff filed its actions in district court and the
COFC on the same day. Kaw Nation, 103 Fed. Cl. at 617.

        The court denied the defendant’s motion after finding that Tohono left intact the “order-
of-filing rule.” Id. (“Despite defendant’s claims, it is abundantly clear that Tohono did not
expressly overrule Tecon. The majority’s opinion unambiguously stated that ‘[t]he Tecon
holding is not presented in this case because the [Court of Federal Claims] action here was filed

2
  Known as the “order-of-filing rule,” this principle dates back to Tecon Engineers, Inc. v. United
States, 343 F.2d 943 (Ct. Cl. 1965). In Tecon, a plaintiff displeased with the progression of its
Court of Claims lawsuit filed a claim based on the same operative facts in a district court after
more than two years of litigation in the Court of Claims. The Court of Claims held that the
plaintiff could not destroy jurisdiction by virtue of the later-filed suit. “The long established rule
of comity in such cases is that the court . . . which first obtains and exercises . . . jurisdiction,
retains jurisdiction until a final judgment is entered.” Tecon, 343 F.2d at 946.
3
  In Tohono, the Supreme Court held that a common factual basis with a case pending in another
court suffices to bar jurisdiction in the Court of Federal Claims under § 1500, regardless of the
relief sought. United States v. Tohono O’Odham Nation, 131 S. Ct. 1723, 1731 (2011) (“Two
suits are for or in respect to the same claim, precluding jurisdiction in the CFC, if they are based
on substantially the same operative facts, regardless of the relief sought in each suit.”); see also
id. at 1729 (“Reading the statute to require only factual and not also remedial overlap makes
sense in light of the unique remedial powers of the CFC.”). Because the COFC action in Tohono
was filed after the district court action, there was no question that the district court action was
pending. Thus, the Court did not consider whether a later-filed district court case could also
prohibit this court’s jurisdiction.



                                                  4
after the District Court suit.’” (alteration in original) (quoting Tohono, 131 S. Ct. at 1729–30));
see, e.g., Warren Trust v. United States, 107 Fed. Cl. 533, 554 (2012) (“In Tohono, the Supreme
Court unequivocally declared that the ‘Tecon holding is not presented in this case because the
[Court of Federal Claims] action here was filed after the District Court suit.’” (alteration in
original) (quoting 131 S.Ct. at 1729–30)); see also Tohono, 131 S. Ct. at 1735 n.5 (Sotomayor,
J., concurring) (“As the majority notes, . . . the validity of the Court of Claims holding in [Tecon]
is not presented in this case. This Court has never considered that holding.” (alteration in
original)). “Therefore, Tohono did not impact Tecon’s order-of-filing rule.” Warren Trust, 107
Fed. Cl. at 554; see also Nez Perce Tribe v. United States, 101 Fed. Cl. 139, 145 (2011) (holding
that the “Tecon timing rule” remains “undisturbed”).

        Plaintiffs demonstrated that, at the time plaintiffs filed their complaint in the Court of
Federal Claims on March 6, 2012, plaintiffs had not yet filed their complaint in the EDVA. See
Def.’s Resp. Time & Order 2–3 (“[I]t appears that the COFC complaint was filed earlier in the
day on March 6, 2012, than the EDVA complaint, and that plaintiffs have established the
sequence of the filing of the two complaints on March 6, 2012.”). Because plaintiffs filed their
complaint in the Court of Federal Claims before they filed their EDVA complaint, the district
court action was not pending at the time this case was filed. As a result, § 1500 does not bar this
action.

               2.      Plaintiffs’ Regulatory Taking Claim Based on the
                       Directives and Instructions of the Navy is Barred by § 2501

        Under § 2501, a plaintiff has six years from the time an action accrues to file a claim.
Casitas Mun. Water Dist. v. United States, 708 F.3d 1340, 1359 (Fed. Cir. 2013). A taking claim
based on the Fifth Amendment “accrues when the act that constitutes the taking occurs.” Ingrum
v. United States, 560 F.3d 1311, 1314 (Fed. Cir. 2009). Plaintiffs filed their taking claim in this
court on March 6, 2012. Therefore, plaintiffs’ claims are timely only if the act they allege
constitutes a taking occurred on or after March 6, 2006.

        Plaintiffs’ complaint characterizes the NNSY Commanding Officer’s statement on
January 6, 2010 as both a physical and a regulatory taking. Compare Compl. ¶ 18 (“The
intentional assertion of full ownership and control of the Co-Op constitutes a physical taking by
the United States Government through the Navy under the 5th Amendment of the United States
Constitution.”) with id. ¶ 19 (“The intentional assertion of full ownership and control of the Co-
Op and its assets under the Directives and Instructions of the Navy constitutes a regulatory
taking by the United States Government under the 5th Amendment of the United States
Constitution.”). The only difference the Court can identify between these claims is that plaintiffs
may arguably base their “regulatory” taking claim, not on the NNSY Commanding Officer’s
statement, but rather on the Directives and Instructions of the Navy. The complaint does not
specify which Directives and Instructions plaintiffs believe constitute a regulatory taking.
Plaintiffs, in their opposition to defendant’s motion to dismiss, identify three Navy
Instructions—BUPERSINST 12990.1, NAVSHIPYDNORINST 12990.1, and BUPERSINST
12990.1A—that may form the basis for plaintiffs’ regulatory taking claim. See Pls.’ Opp’n 3–5
(docket entry 12, Aug. 20, 2012). A claim based on these Instructions, however, is barred by 28
U.S.C. § 2501, the Court’s statute of limitations.



                                                  5
        BUPERSINST 12990.1A—issued in February 2004—is the most recent Instruction
identified by plaintiffs. See Pls.’ Opp’n 5. Therefore, taken in the light most favorable to
plaintiffs, the act that plaintiffs allege constitutes a regulatory taking occurred in early 2004 at
the latest, well before March 6, 2006. Since the regulations underlying plaintiffs’ regulatory
taking claim were enacted more than six years before plaintiffs filed suit, plaintiffs’ regulatory
taking claim is time-barred. Navajo Nation v. United States, 631 F.3d 1268, 1273–74 (Fed. Cir.
2011).

               3.      Plaintiffs Lack Capacity to Maintain Taking
                       Claims on Behalf of the Co-Op

        Defendant contends that plaintiffs do not have capacity to bring a suit for a taking of the
Co-Op’s funds and assets. Capacity is jurisdictional: a claimant must plead and prove that it has
capacity to file suit before the Court can hear the claimant’s case. KDH Corp. v. United States,
23 Cl. Ct. 34, 37 (1991) (citing Mather Constr. Co. v. United States, 475 F.2d 1152, 1155 (Cl.
Ct. 1973) (per curiam) (granting motion to dismiss for lack of jurisdiction where corporate
plaintiffs lacked capacity to sue under California law)). Plaintiffs allege that the Co-Op is “an
unincorporated association . . . existing under the laws of the Commonwealth of Virginia.”
Compl. ¶ 1. Under RCFC 17(b)(3), an unincorporated association’s capacity to sue or be sued is
determined by the law of the applicable state.

        Virginia law is clear that only certain individuals may sue to enforce the rights of
unincorporated entities. In interpreting the (substantially similar) predecessor statute, the
Virginia Supreme Court held that legal actions brought pursuant to Virginia Code § 8.01-15 on
behalf of unincorporated associations must be “instituted by the officers of such unincorporated
association or order who have charge of its affairs or by members of the association or order who
have been legally authorized to proceed with the litigation.” Brown v. Va. Advent Christian
Conference, 76 S.E.2d 240, 242 (1953); see Jeffress v. Titius, 756 F. Supp. 255, 257 (W.D. Va.
1990) (citing Brown, 76 S.E.2d at 242), aff’d, 925 F.2d 1456 (4th Cir. 1991); see also Liu v.
Lung, No. 1:06cv776, 2006 WL 2850651, at *3 (E.D. Va. Oct. 2, 2006) (interpreting Va. Code
§ 8.01-15 to mean officers or those “having charge of [the association’s] affairs” may litigate on
behalf of an association; finding capacity for association’s trustee and sole officer).
Accordingly, “[t]he law does not authorize suits to be brought in the name of individual
members, or by third parties claiming representation of member interests,” because “only
officers and legally authorized members may institute an action in the Co-Op’s name.” Int’l
Fed’n, slip op. at 10.

        Plaintiffs are not officers of the Co-Op in charge of the Co-Op’s affairs and none of the
plaintiffs have been authorized to initiate this litigation on the Co-Op’s behalf. See Brown, 76
S.E.2d at 242; Jeffress, 756 F. Supp. at 257. In fact, plaintiffs acknowledge that the Co-Op is not
interested in pursuing this suit or authorizing them to maintain this action on the Co-Op’s behalf.
Pls.’ Opp’n 18 (“As previously described, the Co-Op is under the overall direction of the
Shipyard Commander. Despite repeated requests and efforts to take corrective action, the Co-Op
will not institute an action against itself . . . .”). Because plaintiffs are not “officers of [the Co-
Op] who have charge of its affairs or . . . members of the [Co-Op] who have been legally
authorized to proceed with the litigation,” plaintiffs may not maintain this action on behalf of the
Co-Op. See Brown, 76 S.E.2d at 242.


                                                  6
       B.      Plaintiffs’ Claim for a Taking of the Co-Op

        Plaintiffs allege that “[o]n or after January 6, 2010, the NNSY Base Commander
intentionally asserted the Navy’s complete ownership and control over the Co-Op . . . and has
maintained such control and ownership from that date.” Compl. ¶ 14. In order to survive a Rule
12(b)(6)4 motion, “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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556). This means that the complaint must “raise a right to relief above the speculative level.”
See Twombly, 550 U.S. at 555. Accordingly, “threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678; accord
Twombly, 550 U.S. at 555 (“While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” (brackets, internal quotation marks, and citations
omitted)).

        When ruling on a Rule 12(b)(6) motion to dismiss, the court “must accept as true all the
factual allegations in the complaint” and must make “all reasonable inferences in favor of the
non-movant.” Sommers Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed. Cir. 2001); accord
Hornback v. United States, 601 F.3d 1382, 1384 (Fed. Cir. 2010). The court may not “choose
among competing inferences as long as there are sufficient facts alleged to render the non-
movant’s asserted inferences plausible.” In re Bill of Lading Transmission & Processing Sys.
Patent Litig., 681 F.3d 1323, 1340 (Fed. Cir. 2012). Nonetheless, the court is “not bound to
accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S.
265, 286 (1986); see Twombly, 550 U.S. at 555.

        Finally, courts “generally consider only the allegations contained in the complaint,
exhibits attached to the complaint[,] and matters of public record” when deciding a motion to
dismiss. Love Terminal Partners v. United States, 97 Fed. Cl. 355, 385 (2011) (alteration in
original) (quoting Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d
Cir. 1993)). The Court also “has discretion to consider materials beyond the pleadings and ‘is
not limited to the four corners of the complaint’ when ruling upon an RCFC 12(b)(6) motion.”
Love Terminal, 97 Fed. Cl. at 385 (quoting 5B Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1357 (3d ed. 2004) (discussing FRCP 12(b)(6)). Courts “have allowed
[such] consideration of matters incorporated by reference or integral to the claim,” id., because
“[t]hese matters are deemed to be a part of every complaint by implication.” 5B Wright &
Miller, supra, § 1357; see also In re Syntex Corp. Secs. Litig., 95 F.3d 922, 926 (9th Cir. 1996)

4
  The Rules of the United States Court of Federal Claims generally mirror the Federal Rules of
Civil Procedure (“FRCP”). See RCFC 2002 Rules Committee Note (“[I]nterpretation of the
court’s rules will be guided by case law and the Advisory Committee Notes that accompany the
Federal Rules of Civil Procedure.”). RCFC 12 is substantially identical to FRCP 12. The Court
therefore relies on cases interpreting FRCP 12 as well as on those interpreting RCFC 12.



                                                 7
(“When deciding a motion to dismiss, a court may consider the complaint and ‘documents whose
contents are alleged in the complaint and whose authenticity no party questions, but which are
not physically attached to the pleading.’” (quoting Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.
1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1121
(9th Cir. 2002))); Love Terminal, 97 Fed. Cl. at 385 (“Where a complaint refers to a document
but does not incorporate it, a party may submit a copy of the document to support or oppose a
motion to dismiss as long as the document is ‘central’ to the complaint.” (quoting P.D. v. Mt.
Vernon Cmty. Sch. Corp., No. 1:07cv1048, 2008 WL 1701877, at *1 (S.D. Ind. Apr. 10, 2008)).

        Defendant argues that plaintiffs’ claim does not meet the threshold requirement for a
taking: identification of a cognizable Fifth Amendment property interest that is asserted to be the
subject of the taking. See Hearts Bluff Game Ranch, Inc. v. United States, 669 F.3d 1326, 1329
(Fed. Cir. 2012), cert. denied, 132 S. Ct. 2780 (2012); see also Maritrans Inc. v. United States,
342 F.3d 1344, 1351 (Fed. Cir. 2003); Cienega Gardens v. United States, 331 F.3d 1319, 1328
(Fed. Cir. 2003) (“For any Fifth Amendment takings claim, the complaining party must show it
owned a distinct property interest at the time it was allegedly taken . . . .”).

        Courts look for “‘crucial indicia of a property right,’ such as the ability to sell, assign,
transfer, or exclude.” Hearts Bluff, 669 F.3d at 1330 (citing Conti v. United States, 291 F.3d
1334, 1342 (Fed. Cir. 2002)). None of these indicia are present in this case. The complaint does
not assert that plaintiffs have any interest in the Co-Op that they can sell, assign, transfer, or that
would enable them to exclude others from the Co-Op. Plaintiffs respond that their interest arose
out of the Co-Op constitutions, but even the constitutions belie plaintiffs’ claims that they own
the Co-Op. In fact, the Co-Op constitutions expressly provided that no one shall own the Co-Op.
See, e.g., Co-Op Const. of 1978, art. II (Pls.’ Opp’n App. 64) (“The association shall not be
incorporated. No stock will be issued or held by anyone in the name of the association, nor will
any individual or individuals participate in the division of profits, if any, made by the
association.”); see also Co-Op Const. of 1949, art. III (Pl.’s Opp’n App. 46) (“No stock shall be
issued or held by anyone and no one is to participate in any profits made by the Association.”).

        Plaintiffs also claim to have an ownership interest in the Co-Op based on Mr. Bowe’s
status as an NNSY civilian employee. Compl. ¶¶ 2, 7. Plaintiffs assert that the Co-Op was
established in 1914 using only the personal funds of NNSY employees, id. ¶ 6, and “[e]mployees
have continued contributing their own personal funds to the Co-Op,” id. ¶ 7. But plaintiffs do
not allege that these donations created a right that contributing employees could then sell,
transfer, assign, or exercise to exclude others. Accordingly, such contributions do not create a
property interest.

        Moreover, even if plaintiffs had a property interest in the Co-Op, they fail to allege
government action that could constitute a taking. The government’s mere assertions of
ownership cannot, standing alone, constitute a taking. Cent. Pines Land Co. v. United States,
107 Fed. Cl. 310, 325 (2010) (“In order to establish a taking, something more than the mere
assertion of title [(i.e., ownership)] is required.”); see also Yuba Goldfields, Inc. v. United States,
723 F.2d 884, 889 (Fed. Cir. 1983) (“The purpose and function of the [Fifth] Amendment being
to secure citizens against governmental expropriation, and to guarantee just compensation for the
property taken, what counts is not what government said it was doing, or what it later says its
intent was, or whether it may have used the language of a proprietor. What counts is what the


                                                   8
government did.”). Plaintiffs’ complaint does not allege that the Navy did anything that
interfered with any rights plaintiffs had in the Co-Op. Accordingly, without more, plaintiffs’
claim that the Navy “asserted” its ownership of the Co-Op is insufficient to state a claim for a
compensable taking.

       C.      Plaintiffs’ Claim for Breach of an Implied-In-Fact Contract

        Plaintiffs also allege a breach of an implied-in-fact contract based on the same facts that
plaintiffs rely upon in support of their taking claim. The United States Court of Appeals for the
Federal Circuit has delineated the elements of an implied-in-fact contract:

       Plaintiff has the burden to prove the existence of an implied-in-fact contract. Pac.
       Gas & Elec. v. United States, 3 Cl. Ct. 329, 339 (1983), aff’d, 738 F.2d 452 (Fed.
       Cir. 1984) (table). An implied-in-fact contract with the government requires
       proof of (1) mutuality of intent, (2) consideration, (3) an unambiguous offer and
       acceptance, and (4) “actual authority” on the part of the government’s
       representative to bind the government in contract. City of Cincinnati v. United
       States, 153 F.3d 1375, 1377 (Fed. Cir. 1998).

Hanlin v. United States, 316 F.3d 1325, 1328 (Fed. Cir. 2003).

        Plaintiffs’ sole, unsupported allegation is that “[t]he intentional assertion of full
ownership and control of the Co-Op and its assets by the United States Government without
payment represents a breach of an implied contract for sale of the Co-Op business between the
United States and the Co-Op and its members.” Compl. ¶ 20. Plaintiffs fail to allege any facts
showing mutuality of intent, consideration, offer and acceptance, or that they had an agreement
involving a government representative with actual authority to bind the government in contract.
See Hanlin, 316 F.3d at 1328. Therefore, “[u]nfortunately for plaintiff[s], the allegations of fact
in the complaint do not plausibly support the existence of any of the four elements of an implied-
in-fact contract.” Grayton v. United States, 92 Fed. Cl. 327, 334 (2010) (citing Twombly, 550
U.S. at 560).

        Instead, plaintiffs’ argument in support of their implied-in-fact contract claim is merely a
restatement of their taking claim. See, e.g., Pls.’ Opp’n 26–27 (“As the United States acted
directly and physically took the property of the Co-Op members, there is, under the law, an
implied-in-fact contract to pay just compensation.”). However, Great Falls Manufacturing, the
case on which plaintiffs rely exclusively, actually equates an uncompensated taking with a
breach of an implied-in-law contract. United States v. Great Falls Mfg. Co., 112 U.S. 645, 656–
57 (1884). It is well established that the Court of Federal Claims does not have jurisdiction over
claims involving implied-in-law contracts. See, e.g., Hercules Inc. v. United States, 516 U.S.
417, 423 (1996) (stating that the Tucker Act only extends to express or implied-in-fact contracts,
based on a meeting of the minds, and not to implied-in-law contracts).

        Plaintiffs must do more than make a “wholly conclusory statement of [a] claim,”
Twombly, 550 U.S. 561, based on an incorrect reading of Great Falls, to meet their burden to
state a claim based upon an implied-in-fact contract. Plaintiffs have not alleged facts sufficient




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to state a claim that an implied-in-fact contract existed or was breached by the government. The
Court therefore grants defendant’s motion to dismiss plaintiffs’ implied-in-fact contract claim.

                                         CONCLUSION

       For the foregoing reasons, the Court lacks jurisdiction over plaintiffs’ regulatory taking
claim based on the Navy Instructions and plaintiffs have failed to state a claim upon which relief
can be granted for either a physical taking or for breach of an implied-in-fact contract. In
addition, the Court holds that plaintiffs lack capacity to bring litigation on behalf of the Co-Op.
Accordingly, defendant’s motion to dismiss based upon RCFC 12(b)(1) and RCFC 12(b)(6) is
GRANTED, and plaintiffs’ complaint is DISMISSED.

       The Clerk shall enter judgment accordingly.

       IT IS SO ORDERED.



                                                   s/ George W. Miller
                                                   GEORGE W. MILLER
                                                        Judge




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