  United States Court of Appeals
      for the Federal Circuit
                 ______________________

     AMERICAN BANKERS ASSOCIATION,
  WASHINGTON FEDERAL, N.A., INDIVIDUALLY
  AND ON BEHALF OF ALL OTHERS SIMILARLY
                 SITUATED,
             Plaintiffs-Appellants

                            v.

                   UNITED STATES,
                   Defendant-Appellee
                 ______________________

                       2018-1341
                 ______________________

    Appeal from the United States Court of Federal Claims
in No. 1:17-cv-0194-SGB, Senior Judge Susan G. Braden.
                 ______________________

                Decided: August 8, 2019
                ______________________

    STEPHEN JOSEPH OBERMEIER, Wiley Rein LLP, Wash-
ington, DC, argued for plaintiffs-appellants. Also repre-
sented by CLAIRE J. EVANS, MICHAEL E. TONER.

    ERIC PETER BRUSKIN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also repre-
sented by JOSEPH H. HUNT, ROBERT E. KIRSCHMAN, JR.,
KENNETH M. DINTZER, CLAUDIA BURKE; KATHERINE H.
2                        AMERICAN BANKERS   v. UNITED STATES



WHEATLEY, Board of Governors of the Federal Reserve Sys-
tem, Washington, DC.
               ______________________

    Before WALLACH, CHEN, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
    This case arises out of legislation amending the statu-
tory rate for dividend payments on Federal Reserve Bank
stock. The Federal Reserve Act of 1913 set the dividend
rate at six percent per year, which remained in effect until
Congress amended the dividend provision in 2016. The
amendment effectively reduced the dividend rate for cer-
tain stockholder banks from the fixed six percent rate to a
lower variable rate. American Bankers Association and
Washington Federal, N.A. sued the United States in the
Court of Federal Claims, arguing that banks who sub-
scribed to Reserve Bank stock before the amendment are
entitled to dividends at the six percent rate. The complaint
alleged that, by paying dividends at the amended statutory
rate, the United States breached a contractual duty or, in
the alternative, effected a Fifth Amendment taking. The
trial court dismissed the complaint under Rules of the U.S.
Court of Federal Claims 12(b)(6) for failure to state a claim.
American Bankers and Washington Federal now appeal.
Because the complaint does not allege facts establishing
the existence of a contract or an unconstitutional taking,
we affirm.
                              I
                             A.
   We begin with a brief overview of the Federal Reserve
System and its statutory origins. The Federal Reserve Act
AMERICAN BANKERS    v. UNITED STATES                          3



of 1913, Pub. L. No. 63−43, ch. 6, 38 Stat. 251 (1913), 1 es-
tablished a system to oversee banking operations and pro-
mote greater economic stability. The Federal Reserve
System includes the Federal Reserve Board of Governors,
see id., §§ 10−11, 38 Stat. 260–63, and twelve regional Re-
serve Banks, see id. § 2, 38 Stat. 251–52. The Board exer-
cises broad regulatory supervision over the Reserve Banks,
which serve as banks to the U.S. government and to com-
mercial banks who are members of the Federal Reserve
System.
    The Act sets forth the conditions under which commer-
cial banks may join the Federal Reserve System. One of
the conditions of membership is that member banks must
“subscribe” to the stock of their regional Reserve Bank in
an amount “equal to six per centum of the paid-up capital
stock and surplus of [the] applicant bank . . . .” § 5, 38 Stat.
257. Every national bank 2 is required to join the system
and subscribe to Reserve Bank stock. § 2, 38 Stat 252.
Other financial institutions, such as state banks, are per-
mitted but not required to apply for membership and sub-
scribe to stock. § 9, 38 Stat. 259.
    Reserve Bank stock is “divided into shares of $100,”
which “shall not be transferred or hypothecated.” § 5, 38
Stat. 257. From 1913 to 2015, the Act provided that “the
stockholders of the [Reserve] bank shall be entitled to




    1   The Federal Reserve Act is codified as amended in
scattered sections of Chapter 3 of Title 12 of the United
States Code. See 12 U.S.C. §§ 221−522. This opinion cites
to the original 1913 Act, which is the same as the current
version except where otherwise noted.
    2   A national bank refers to a commercial bank char-
tered by the federal government under the National Bank
Act. See 12 U.S.C. § 21 et seq.
4                        AMERICAN BANKERS    v. UNITED STATES



receive an annual dividend of six per centum on the paid-
in capital stock . . . .” § 7, 38 Stat 258.
     On December 4, 2015, Congress passed the Fixing
America’s Surface Transportation Act (FAST Act), which
authorized substantial appropriations for surface trans-
portation infrastructure. See Pub. L. No. 114–94, 129 Stat.
1312. The FAST Act included an amendment to the statu-
tory dividend rate for Reserve Bank stock owned by mem-
ber banks with consolidated assets of more than $10
billion. Under the amended dividend provision, these
banks would receive a variable dividend rate equal to the
lesser of: (1) the rate of the 10-year Treasury note or (2) six
percent. See § 32203, 129 Stat. 1739 (codified as amended
at 12 U.S.C. § 289(a)(1)).
                              B.
     Prior to 2013, Washington Federal operated as a feder-
ally chartered savings and loan association. On May 29,
2013, Washington Federal received approval from the Of-
fice of the Comptroller of the Currency to convert to a na-
tional bank, contingent on, inter alia, Washington Federal
applying for membership in the Federal Reserve System.
    On July 8, 2013, Washington Federal submitted an ap-
plication for Reserve Bank stock to the Reserve Bank of
San Francisco (BSF). A letter from BSF, dated July 17,
2013, informed Washington Federal that its application
and payment for stock had been processed and enclosed an
Advice of Holdings for 479,610 shares of BSF stock. The
letter further noted that “[d]ividends are paid at the statu-
tory rate of 6 percent per annum, or $1.50 per share semi-
annually.” J.A. 65.
    From 2013 to 2015, Washington Federal received divi-
dend payments on its stock at a rate of six percent per year.
After the FAST Act took effect on January 1, 2016, Wash-
ington Federal received dividends at the rate of the 10-year
Treasury note. In 2016, Washington Federal received
AMERICAN BANKERS   v. UNITED STATES                       5



dividends totaling $502,471.53, reflecting an annual rate of
approximately two percent.
                            C.
    Washington Federal and American Bankers Associa-
tion 3 filed a complaint against the United States in the
Court of Federal Claims on February 9, 2017. 4 The com-
plaint alleged that, by paying dividends at a rate lower
than six percent in 2016, the government breached a con-
tractual duty to member banks that subscribed to Reserve
Bank stock before December 4, 2015. The complaint also
asserted, in the alternative, that the government’s conduct
effected a Fifth Amendment taking.
    The government filed a motion to dismiss for lack of
standing under RCFC 12(b)(1) and failure to state a claim
under RCFC 12(b)(6). The Court of Federal Claims deter-
mined that American Bankers failed to meet the require-
ments for associational standing because the damages
requested would require individualized proof for each asso-
ciation member. The court found that Washington Federal
had standing but dismissed all counts of the complaint un-
der RCFC 12(b)(6) for failure to state a claim. Washington
Federal and American Bankers now appeal the court’s dis-
missal of the claims and its standing determination. We
have jurisdiction under 28 U.S.C. § 1295(a)(3).




   3    American Bankers Association is a national trade
association for the banking industry. Its members include
Washington Federal, as well as other banks affected by the
amendment to the dividend rate, i.e., member banks with
more than $10 billion in consolidated assets.
    4   The complaint was subsequently amended on April
14, 2017. This opinion refers to the amended complaint
unless otherwise stated.
6                       AMERICAN BANKERS    v. UNITED STATES



                             II
     We review de novo whether the Court of Federal
Claims properly dismissed a complaint for failure to state
a claim upon which relief may be granted. Frankel v.
United States, 842 F.3d 1246, 1249 (Fed. Cir. 2016). To
avoid dismissal under RCFC 12(b)(6), a plaintiff “must al-
lege facts ‘plausibly suggesting (not merely consistent
with)’ a showing of entitlement to relief.” Acceptance Ins.
Cos., Inc. v. United States, 583 F.3d 849, 853 (Fed. Cir.
2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
557 (2007)). “A claim has facial plausibility when the plain-
tiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). In reviewing a motion to dismiss, we accept as true
the complaint’s well-pled factual allegations; however, we
are not required to accept the asserted legal conclusions.
Id.
    For the reasons set forth below, we conclude that the
trial court did not err in dismissing Washington Federal’s
breach of contract and takings claims under RCFC
12(b)(6). 5
                             A.
    First, we address Washington Federal’s breach of con-
tract claim. The complaint asserts that the government
breached an implied-in-fact or express contract with Wash-
ington Federal by paying dividends at a rate lower than six
percent in 2016. Washington Federal alleges that an im-
plied-in-fact contract exists because the Federal Reserve
Act constitutes an offer by the government, which


    5  We need not reach American Bankers’ standing ar-
gument because American Bankers’ allegations are the
same as Washington Federal’s and would thus share the
same flaws regardless of our outcome.
AMERICAN BANKERS   v. UNITED STATES                         7



Washington Federal accepted by submitting its application
and payment for Reserve Bank stock. Alternatively, Wash-
ington Federal contends that an express contract was
formed based on its application for stock, which was a con-
tractual offer that the government accepted by approving
the application and issuing stock.
     There are four requirements to form a contract binding
upon the government: “(1) mutuality of intent to contract;
(2) lack of ambiguity in offer and acceptance; (3) consider-
ation; and (4) a government representative having actual
authority to bind the United States in contract.” Anderson
v. United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003).
These requirements apply to both express and implied-in-
fact contracts. Id. at 1353 n.3. “To satisfy its burden to
prove such a mutuality of intent, a plaintiff must show, by
objective evidence, the existence of an offer and a reciprocal
acceptance.” Id.
    For both its implied-in-fact and express contract theo-
ries, Washington Federal relies largely on the Federal Re-
serve Act as evidence of the government’s intent to
contract. Under its implied-in-fact contract theory, the Act
was an offer to contract; under its express contract theory,
the Act was an invitation to receive offers to contract. Un-
der either theory of contract formation, Washington Fed-
eral argues that the Act contemplates a contractual
agreement between member banks and the government.
Because Washington Federal failed to allege facts estab-
lishing the existence of a contract with the government, we
determine that the trial court did not err in dismissing this
claim.
                              1.
    “[A]bsent some clear indication that the legislature in-
tends to bind itself contractually, the presumption is that
‘a law is not intended to create private contractual or
vested rights but merely declares a policy to be pursued
until the legislature shall ordain otherwise.’” Nat’l R.R.
8                       AMERICAN BANKERS    v. UNITED STATES



Passenger Corp. v. Atchison Topeka & Santa Fe Ry. Co.,
470 U.S. 451, 465–66 (1985) (quoting with alterations
Dodge v. Bd. of Educ., 302 U.S. 74, 79 (1937)). This “well-
established presumption” reflects a recognition that “the
principal function of a legislature is not to make contracts,
but to make laws that establish the policy of the state.” Id.
And “[p]olicies, unlike contracts, are inherently subject to
revision and repeal . . . .” Id.
    To overcome the presumption, there must be a “clear
indication” that the legislature intended to create contrac-
tual rights enforceable against the government. Id. at
465−66. The Supreme Court has recognized evidence of an
intent to contract where a statute “provide[s] for the execu-
tion of a written contract on behalf of the United States” or
“speak[s] of a contract” with the United States. Id. at 467
(emphasis in original); see also Dodge, 302 U.S. at 78; Indi-
ana ex rel. Anderson v. Brand, 303 U.S. 95, 105 (1938). For
example, in Hall v. Wisconsin, 103 U.S. 5 (1880), the stat-
ute provided for a geological, mineralogical, and agricul-
tural survey to be carried out by commissioners appointed
by the governor. Id. at 5–6. The statutory text directed the
governor to “make a written contract with each of the com-
missioners . . . expressly stipulating and setting forth the
nature and extent of the services to be rendered by each,
and the compensation therefor . . . .” Id. at 8–9. Likewise,
in Indiana ex rel. Anderson, the Court found that Indiana’s
Teachers’ Tenure Law contemplated contracts binding on
the state, noting that “[t]he title of the act is couched in
terms of contract” and the text “speaks of the making and
canceling of indefinite contracts” between teachers and
school districts. 303 U.S. at 105.
    In finding that a statute or regulation constitutes an
offer to enter into a unilateral contract, courts have also
relied on explicit references to contractual undertakings.
For example, in Radium Mines, Inc. v. United States, 153
F. Supp. 403 (Ct. Cl. 1957), the regulation at issue included
a section entitled “Purchase Contract,” which stated that,
AMERICAN BANKERS    v. UNITED STATES                         9



if a sample of uranium delivered to the Commission
“meet[s] the conditions of this section, the Commission will
forward to the person making the offer a form of contract
containing applicable terms and conditions ready for his
acceptance.” Id. at 405. Similarly, the statutory provision
in Grav v. United States, 14 Cl. Ct. 390 (1988), aff’d, 886
F.2d 1305 (Fed. Cir. 1989), provided that “[t]he Secretary
shall offer to enter into a contract” with milk producers. Id.
at 392.
     In contrast, the Supreme Court determined in Dodge
that the Miller Law did not clearly express the govern-
ment’s intent to contract. 302 U.S. at 80. As originally en-
acted, the Miller Law established a compulsory retirement
age for public school teachers and provided for the payment
of annuities to retired teachers. Id. at 76. The law stated
that teachers “who served in the public schools of such city
for twenty or more years prior to such retirement, shall be
paid the sum of fifteen hundred dollars ($1,500.00) annu-
ally and for life from the date of such retirement . . . .” Id.
Nearly ten years after it was passed, the Miller Law was
amended to reduce annuity payments to $500 for all retired
teachers, including those who had retired prior to the
amendment. Id. at 77. The teachers who filed suit against
the Board of Education argued that they were contractu-
ally entitled to annuity payments at $1,500 because the
Miller Law constituted an offer to contract, which they had
accepted by remaining in service for at least twenty years.
Id. at 77. The Supreme Court rejected this argument, con-
cluding that neither the statutory language nor the circum-
stances of enactment indicated a legislative intent to create
binding contractual obligations. Id. at 79−81.
                              2.
    To determine whether a statute gives rise to a contrac-
tual obligation, we first look to the language of the statute.
See Dodge, 302 U.S. at 78; Nat’l R.R., 470 U.S. at 466. The
language of the Federal Reserve Act is devoid of the
10                       AMERICAN BANKERS    v. UNITED STATES



traditional indicia of a contractual undertaking. The Act
does not “speak of a contract” between Reserve Banks and
member banks; nor does it “provide for the execution of a
written contract on behalf of the United States.” See Nat’l
R.R., 470 U.S. at 467. Rather, the Act sets forth a regula-
tory system, in which member banks are granted certain
“powers and privileges” and are subject to specified “duties,
liabilities, and regulations.” § 8, 38 Stat. 259. Among the
duties, member banks are “required . . . to subscribe to the
capital stock” of their regional Reserve Bank. § 2, 38 Stat.
252. Among the privileges, banks “shall be entitled to re-
ceive an annual dividend of six per centum on the paid-in
capital stock. . . .” § 7, 38 Stat. 258.
     Washington Federal urges us to discern contractual in-
tent from the terms “subscribe” and “subscription,” which
it contends are “contractual terms of art in the context of
stock offerings. . . .” Appellant’s Op. Br. 31; see also id. at
32−33. But we must interpret the language in the context
in which it is written. In the context of a regulatory stat-
ute, we will not infer a contractual undertaking “absent ‘an
adequate expression of an actual intent’ of the State to bind
itself. . . .” Nat’l R.R., 470 U.S. at 466–67 (quoting Wis. &
Mich. Ry. Co. v. Powers, 191 U.S. 379, 386–87 (1903)). And
the use of terminology that carries contractual connota-
tions when used in the private sector does not, on its own,
establish such intent. For example, in Dodge, the Supreme
Court rejected appellants’ argument that “annuity” is “ter-
minology based on contract” that reflected the legislature’s
intent to establish contractual rights. 302 U.S. at 81. Like-
wise, we find that the subscription language in the Federal
Reserve Act does not unequivocally express the govern-
ment’s intent to bind itself in contract.
    Washington Federal further argues that the govern-
ment’s intent to contract is evident from the exchange of
obligations between member banks and Reserve Banks.
According to Washington Federal, the Act contemplates an
agreement that Reserve Banks will pay member banks an
AMERICAN BANKERS   v. UNITED STATES                       11



annual dividend of six percent in exchange for member
banks’ subscription to Reserve Bank stock. The language
and structure of the Act, however, do not reflect a bar-
gained-for quid pro quo between two parties. The dividend
rate is set forth in an entirely different section than the
provisions governing stock subscription. Compare § 7, 38
Stat. 258, with § 2, 38 Stat. 251−52, and § 5, 38 Stat. 257–
58. Moreover, the Act does not frame dividend payments
as a contractual obligation of the Reserve Banks. Rather,
the six percent dividend is described as a benefit that mem-
ber banks “shall be entitled to receive.” § 7, 38 Stat. 258.
And a statute does not create contractual obligations
merely by setting forth “benefits to those who comply with
its conditions.” Wis. & Mich, Ry. Co., 191 U.S. at 387. In-
deed, in Dodge, the statutory language provided that teach-
ers who retired after serving twenty or more years in the
public schools “shall be paid the sum of fifteen hundred dol-
lars ($1,500.00) annually and for life from the date of such
retirement . . . .” 302 U.S. at 76 (emphasis added). Yet the
Supreme Court declined to find that the teachers’ rights to
$1,500 annuity payments vested upon meeting the statu-
tory conditions. Id. at 77, 79−81. Similarly, we conclude
that the Federal Reserve Act does not demonstrate the gov-
ernment’s clear intent to confer vested contractual rights
on each member bank who complies with the stock sub-
scription requirement.
     The circumstances surrounding the passage of the Fed-
eral Reserve Act and its legislative history offer further
support. See Nat’l R.R., 470 U.S. at 468. The Federal Re-
serve Act was passed in 1913 in response to ongoing insta-
bility within the financial sector, which had given rise to a
series of banking crises in the preceding decades. See H.R.
Rep. No. 63-69, at 3−5 (1913). One of the deficiencies of the
banking system at the time was that it “fail[ed] to afford
any safeguard against panics and commercial stringencies
or any means of alleviating them.” Id. at 6.
12                       AMERICAN BANKERS   v. UNITED STATES



     Congress created the Federal Reserve System to pre-
vent and contain the financial disruption caused by bank
failures. The Reserve Banks were intended to serve as
lenders of last resort by maintaining a reserve of liquid cap-
ital “ready for use in protecting the banks of any section of
the country and for enabling them to go on meeting their
obligations instead of suspending payments, as so often in
the past.” Id. at 11; see also id. at 19−22. To provide the
funds for this reserve, Congress established the require-
ment that member banks subscribe to Reserve Bank stock.
Id. at 16−17, 20−21. Thus, the origins of the subscription
requirement reflect a regulatory effort to promote stability
in the banking system through collaboration, rather than
a collection of private contractual undertakings.
     Statements in the legislative history bear this out. For
example, the House Report accompanying the bill later
passed as the Federal Reserve Act, expressed the view that
“banking institutions which desire to be known by the
name ‘national’ should be required, and can well afford, to
take upon themselves the responsibilities involved in joint
or federated organization.” Id. at 16. Likewise, the Senate
Report stated that the Reserve Banks were “not intended
to be merely money-making banks,” but “guardians of the
public welfare, primarily safeguarding the member banks,
protecting their reserves, safeguarding their credit, [and]
protecting them from panic or financial stringency. . . .” S.
Rep. No. 63-133, at 10 (1913). Although the proposed leg-
islation was to provide member banks with a return on the
use of their funds, the Senate Report noted that “the sta-
bility of the business of the bank, and the peace of mind it
will give to the bankers in having freedom from constant
anxiety, would more than compensate them, even if the fi-
nancial advantages did not do so.” Id. at 12.
   Accordingly, we discern no “clear indication” of the gov-
ernment’s intent to contract in either the language of the
Federal Reserve Act or the circumstances under which it
was passed.
AMERICAN BANKERS    v. UNITED STATES                        13



     The additional evidence on which Washington Federal
relies, primarily for its express contract theory, does noth-
ing to remedy this deficiency. For example, the July 17,
2013 letter from the BSF merely states that Washington
Federal’s application and payment have been processed
and informs Washington Federal of some of the obligations
and benefits associated with membership in the Federal
Reserve System. Washington Federal points to the letter’s
statement that “[d]ividends are paid at the statutory rate
of 6 percent per annum, or $1.50 per share semi-annually.”
J.A. 65. But this is simply a statement of policy based on
the statutory dividend rate in effect at the time, not the
language of a promise or contractual undertaking. See
Chattler v. United States, 632 F.3d 1324, 1330 (Fed. Cir.
2011) (“[T]he obligation of the government, if it is to be held
liable, must be stated in the form of an undertaking, not as
a mere prediction or statement of opinion or intention.
Likewise statements of information or definition are not
statements of obligation.” (internal citations and quotation
marks omitted)).
    Because Washington Federal did not plead facts suffi-
cient to establish the government’s intent to contract, the
complaint fails to state a plausible claim for breach of con-
tract. Accordingly, this claim was properly dismissed. 6




    6   Washington Federal’s claim for breach of implied
duty of good faith and fair dealing likewise depends on the
existence of a valid contract. See Centex Corp. v. United
States, 395 F.3d 1283, 1304 (Fed. Cir. 2005) (“The covenant
of good faith and fair dealing is an implied duty that each
party to a contract owes to its contracting partner.”).
Therefore, this claim was also properly dismissed.
14                       AMERICAN BANKERS   v. UNITED STATES



                             B.
    We now turn to Washington Federal’s Fifth Amend-
ment takings claim. The complaint sets forth two takings
theories: (1) by enacting the FAST Act, the government de-
prived Washington Federal of its “property interest[] in the
promised six percent dividend,” J.A. 57 ¶ 92; and (2) by
paying dividends at a rate lower than six percent, the gov-
ernment effected “a taking of [Washington Federal’s] capi-
tal investment[] in Federal Reserve Bank stock without
just compensation in the form of a market return on the
invested capital,” J.A. 57 ¶ 93. Under either theory, Wash-
ington Federal failed to state a plausible takings claim.
    To state a claim for a taking under the Fifth Amend-
ment, a plaintiff must identify a legally cognizable property
interest. Tex. State Bank v. United States, 423 F.3d 1370,
1378 (Fed. Cir. 2005). “The Constitution neither creates
nor defines the scope of property interests compensable un-
der the Fifth Amendment.” Conti v. United States, 291
F.3d 1334, 1340 (Fed. Cir. 2002) (citing Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 577 (1972)). Property
interests arise from “existing rules and understandings
and background principles derived from an independent
source, such as state, federal, or common law. . . .” Air Peg-
asus of D.C., Inc. v. United States, 424 F.3d 1206, 1213
(Fed. Cir. 2005) (internal quotation marks omitted). To
support a takings claim, a property interest must be more
than a “mere unilateral expectation or an abstract need.”
Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S.
155, 161 (1980).
    Under its first takings theory, Washington Federal as-
serts a property interest in its “contractual and statutory
rights to receive a six percent dividend on Federal Reserve
Bank stock . . . .” J.A. 57 ¶ 90. While contract rights are a
form of property that may be compensable under the Fifth
Amendment, see Cienega Gardens v. United States, 331
F.3d 1319, 1329–30 (Fed. Cir. 2003), the complaint does not
AMERICAN BANKERS   v. UNITED STATES                        15



establish that Washington Federal had a contractual right
to a six percent dividend, see supra Section II.A.2. Thus,
the trial court properly dismissed the contract-based tak-
ings claim.
     Likewise, Washington Federal has not alleged a legally
cognizable property interest arising from its “statutory
rights” under the Federal Reserve Act. Absent independ-
ent evidence of a contractual undertaking, a statutory en-
titlement “creates no vested right.” Dodge, 302 U.S. at 79.
Because “Congress at all times retains the ability to amend
statutes, a power which inheres in its authority to legislate,
Congress at all times retains the right to revoke legisla-
tively created entitlements.” Members of Peanut Quota
Holders Ass’n, Inc. v. United States, 421 F.3d 1323, 1335
(Fed. Cir. 2005). Indeed, in this case, Congress “expressly
reserved” its “right to amend, alter, or repeal” any provi-
sion of the Federal Reserve Act. See § 30, 38 Stat. 275
(1913), renumbered § 31, Pub. L. No. 95−630, title I, § 101,
92 Stat. 3641 (1978). Washington Federal emphasizes
that, prior to the FAST Act, the six percent dividend rate
had remained unchanged for over 100 years. But Wash-
ington Federal’s “unilateral expectation” that Congress
would not exercise its right to amend the dividend provi-
sion going forward does not give rise to a compensable
property interest under the Fifth Amendment. See Webb’s,
449 U.S. 161; Peanut Quota Holders, 421 F.3d at 1334
(“[Appellants] have no legally protected right against the
government’s making changes in the underlying [regula-
tory] program and no right to compensation for the loss in
value resulting from the changes.”).
   Washington Federal’s alternative takings theory con-
templates a taking of its underlying capital investment in
Reserve Bank stock without just compensation. 7 This


    7   The trial court did not directly address this alter-
native takings theory. Washington Federal contends that
16                       AMERICAN BANKERS   v. UNITED STATES



claim also fails. Washington Federal’s initial subscription
of stock was part of its voluntary participation in a regula-
tory scheme, and we have held that “enforceable rights suf-
ficient to support a taking claim against the United States
cannot arise in an area voluntarily entered into and one
which, from the start, is subject to pervasive Government
control.” Mitchell Arms, Inc. v. United States, 7 F.3d 212,
216 (Fed. Cir. 1993) (internal quotation marks omitted); see
also Commonwealth Edison Co. v. United States, 271 F.3d
1327, 1339 (Fed. Cir. 2001) (“[R]egulatory actions requiring
the payment of money are not takings.”). Furthermore, un-
der the Federal Reserve Act, Washington Federal can sur-
render its stock and obtain a refund of its paid-in capital.
See 12 U.S.C. §§ 287, 321. Thus, the requirement that
member banks subscribe to reserve bank stock under the
Federal Reserve Act does not constitute a regulatory tak-
ing.




remand is necessary for the trial court to rule on this issue
in the first instance. We conclude, however, that principles
of judicial economy counsel against remand, and whether
Washington Federal has adequately stated a claim under
its alternative takings theory is an issue amenable to reso-
lution for the first time on appeal. See Glaxo Grp. Ltd. v.
TorPharm, Inc., 153 F.3d 1366, 1371 (Fed. Cir. 1998) (not-
ing that “an appellate court may choose to decide [an] issue
even if not passed on by the trial court” where the issue “is
one of law” and “has been fully vetted by the parties on ap-
peal”); Singleton v. Wulff, 428 U.S. 106, 121 (1976) (“The
matter of what questions may be taken up and resolved for
the first time on appeal is one left primarily to the discre-
tion of the courts of appeals, to be exercised on the facts of
individual cases.”).
AMERICAN BANKERS   v. UNITED STATES                       17



    Because the complaint fails to allege facts sufficient to
support a taking under the Fifth Amendment, the trial
court properly dismissed this claim under RCFC 12(b)(6).
                             III
    For the foregoing reasons, we conclude that the com-
plaint fails to state a claim upon which relief may be
granted. Thus, we affirm the trial court’s grant of the gov-
ernment’s motion to dismiss Washington Federal’s claims
under RCFC 12(b)(6).
                       AFFIRMED
