In the United States Court of Federal Claims
                                        No. 16-872C
                                Filed: September 22, 2017
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                                       *
                                                     Employee Retirement Income Security Act
                                       *
                                                         (“ERISA”), 29 U.S.C. § 1001;
                                       *
                                                     Rules Of the United States Court of Federal
                                       *
                                                         Claims (“RCFC”)
PETER TURPING, et al.,                 *
                                                         12(b)(1)(Jurisdiction),
                                       *
                                                         12(b)(6) (Failure To State A Claim),
      Plaintiffs,                      *
                                                         23(a) (Class Certification);
                                       *
                                                     Statute Of Limitations, 28 U.S.C. § 2501;
v.                                     *
                                                     Takings Clause, Fifth Amendment to the
                                       *
THE UNITED STATES,                     *             United States Constitution, Tucker Act
                                       *             Jurisdiction, 28 U.S.C. § 1491.
      Defendant.                       *
                                       *
                                       *
                                       *
                                       *
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Douglas E. McKinley, Jr., Law Office of Douglas E. McKinley, Jr., Kennewick, Washington,
Counsel for Plaintiffs.

Albert Salvatore Iarossi, United States Department of Justice, Civil Division, Washington,
D.C., Counsel for the Government.

           MEMORANDUM OPINION AND FINAL ORDER GRANTING
               THE GOVERNMENT’S MOTION TO DISMISS
BRADEN, Chief Judge.

I.     FACTUAL BACKGROUND.1

        During World War II, the Hanford Nuclear Reservation (the “Hanford Site”) was
established by the United States Army Corps of Engineers (the “Army Corps”) in the State of
Washington to produce nuclear material for use in atomic weapons. Am. Compl. ¶¶ 6–10. After
the War, the Hanford Site continued operations, but was managed by the Atomic Energy
Commission (the “AEC”). Am. Compl. ¶ 11. In January 1975, the Energy Research and

       1
        The relevant facts were derived from the February 16, 2017 Amended Complaint
(“Am. Compl. ¶¶ 1–146”) and the three exhibits attached to the Government’s April 7, 2017
Motion To Dismiss (“Gov’t Mot. Exs. A–C”).
Development Administration (the “ERDA”) assumed responsibility for managing the Hanford
Site. Am. Compl. ¶ 12. On October 1, 1977, the United States Department of Energy (“DOE”)
assumed responsibility for managing the Hanford Site. Am. Compl. ¶ 13.

        Between 1947 and 1987, the AEC, the ERDA, and DOE contracted certain work at the
Hanford Site to the General Electric Company (“GE”) and other subcontractors. Am. Compl.
¶ 15. When a subcontractor was replaced or work was transferred between subcontractors, the
affected employees continued to work in the same positions, in the same location, and continued
to receive the same pay and benefits. Am. Compl. ¶ 19. Over the years, however, these transfers
created an administrative burden for DOE and successor subcontractors, when pensions earned
by those employees were transferred from prior subcontractors to new subcontractors. Am.
Compl. ¶ 20.

        In 1987, DOE awarded a contract for the management and operation of the Hanford Site
to the Westinghouse Hanford Company (“WHC”) and instructed WHC to establish a separate
pension plan for all subcontractor employees, known as the Hanford Multi-Employer Pension
Plan (the “MEPP”). Am. Compl. ¶¶ 15, 23–25. The MEPP required, and continues to require,
that any employees transferred from one Hanford Site subcontractor to another would have their
pension benefits calculated to reflect their total years of service at the Hanford Site. Am. Compl.
¶ 33. These requirements are set forth in Article 29 of the MEPP:

       In the case of a Termination for Transfer,2 an Employee who becomes a Participant
       hereunder shall be entitled to credit for eligibility under Article 2, Benefit Service
       under Article 3[,] and Vesting Service under Article 6[,] to such degree as shall be
       determined by the Plan Administrator in order to assure that the Participant receives
       a benefit at Normal Retirement Date which is reflective of his Years of Service on
       the Hanford Reservation. The Plan’s Administrator shall be adopted by a rule[,]
       pursuant to Article 11.

Gov’t Mot. Ex. A at 91.

        The MEPP was and is administered by an independent Plan Administrator. Am. Compl.
¶ 40. The Plan Administrator may not amend the MEPP terms, without prior DOE approval.
Am. Compl. ¶ 41. In addition, the Plan Administrator may not take any action that has a
financial impact on the MEPP, without the prior written approval of DOE. Am. Compl. ¶ 42.




       2
        When contract work was transferred from one subcontractor to another, individual
employees were terminated by the prior subcontractor, but re-hired by the new subcontractor.
Am. Compl. ¶¶ 33–34. This process is referred to in the MEPP as a “Termination For Transfer.”
Am. Compl. ¶¶ 33–34.



                                                  2
       In 1996, DOE issued a Request for Proposals (the “Solicitation”) to obtain proposals
from private corporations willing to assume management of the Hanford Site contract (“Project
Hanford Management Contract”).3 The Solicitation provided that:

        [i]n filling employment positions for work under the contract, other than
        management positions, the Contractor and Major Subcontractors, agree to hire
        employees who are or can become qualified by the time the work commences
        from the workforce of the incumbent contract and its integrated subcontractors
        (Westinghouse Hanford Company, ICF Kaiser Hanford, and Boeing Computer
        Services Richland). The Contractor and Major Subcontractors shall assume the
        assets, liabilities, and other obligations and continue the defined benefit pension
        plans . . . of the incumbent contractor and integrated subcontractors.

Am. Compl. ¶ 38 (emphasis added). At this time, all employees of WHC, and its subcontractors
Boeing Computer Services, Richland (“BCSR”), and Kaiser Engineering Hanford (“KEH”),
were full participants in the MEPP. Am. Compl. ¶ 63.

       On August 6, 1996, however, DOE announced that the Project Hanford Management
Contract would be transferred from WHC, and its subcontractors BCSR and KEH, to a
successor contractor, Fluor Daniel Hanford, Inc. (“FDH”) and new subcontractors. Am. Compl.
¶ 27. The transfer was scheduled for October 1, 1996. Am Compl. ¶ 27.

        On August 30, 1996, some WHC, BCSR, and KEH employees were provided with an
“Offer Letter” from Lockheed Martin Services, Inc. (“Lockheed”), an “Enterprise-Company”
that was to be a subcontractor of FDH. Am. Compl. ¶ 64. The August 30, 1996 Offer Letter
provided that, “[i]f your employee benefits for this position are different than the current site
benefit program, a summary is enclosed”; but no summary was enclosed. Am. Compl. ¶ 65.
The Offer Letter, however, instructed WHC, BCSR, and KEH employees that they were
required to sign and return the letter by September 9, 1996, if they wanted to accept employment
with Lockheed. Am. Compl. ¶ 68. The Offer Letter also instructed that employees who agreed
to be transferred to Lockheed were not allowed to be employed by any other Hanford Site
contractor. Am. Compl. ¶ 69.

        In September 1996, many former employees of WHC, BCSR, and KEH accepted
employment at Lockheed (the “Lockheed employees”) and were informed that “upon their
retirement, they would not receive the retirement medical benefits, retirement death benefits,
and retirement pension compensation” previously afforded under the MEPP. Am. Compl. ¶¶
70, 77. Thereafter, several Lockheed employees attempted to withdraw their MEPP benefits,
pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001. Am.
Compl. ¶ 78.4

        3
         The February 16, 2017 Amended Complaint does not specify the date when DOE
issued the Solicitation, and no party filed a copy of the Solicitation.
        4
            The named Plaintiffs in this case did not withdraw funds from the MEPP. Am. Compl.
¶ 89.



                                                  3
       On September 30, 1996 and prior to the transfer of the Project Hanford Management
Contract, DOE issued Department of Energy Order 350.1 (“DOE Order 350.1”). Am. Compl.
¶ 31. DOE Order 350.1 provided that,

       DOE approval is required prior to implementing any change to a pension plan covering
       prime cost reimbursement contracts for management and operation of DOE facilities
       and other contracts when designated. Changes shall be in accordance with and pursuant
       to the terms and conditions of the contract.

Gov’t Mot. Ex. C at 29.

      On October 10, 1996, DOE announced that all employees who continued to work at the
Hanford Site would remain in the MEPP. Am. Compl. ¶ 86.

       On January 15, 1997, however, the MEPP was amended so that, upon retirement,
Lockheed employee benefits would be calculated using an employee’s highest five year salary,
with Lockheed or a prior employer, instead of by the total years that an employee worked at the
Hanford Site. Am. Compl. ¶¶ 87–88. Thereafter, and “on numerous occasions,” the Lockheed
employees were informed by DOE and the MEPP Plan Administrator that they could not
challenge the new changes to their benefits until after they retired. Am. Compl. ¶ 89.

       On July 28, 2009, the CEO and President of FDH sent a letter to DOE requesting two
amendments to the MEPP.5 Am. Compl. ¶ 54. On August 12, 2009, a DOE Contracting Officer
approved only one of the two proposed amendments. Am. Compl. ¶ 55. Subsequently, the Plan
Administrator incorporated the amendment into the MEPP. Am. Compl. ¶ 56.

        In October 2014, Peter Turping retired from Lockheed and notified the Plan
Administrator that he intended to begin withdrawing pension benefits from the MEPP. Am.
Compl. ¶ 92. The Plan Administrator, however, declined to calculate Mr. Turping’s pension
benefits, based on his entire term of service at the Hanford Site and refused to recognize Mr.
Turping’s health care and life insurance benefits. Am. Compl. ¶ 93.

II.    PROCEDURAL HISTORY.

        On July 25, 2016, Mr. Turping, on behalf of Dick Cartmell, Philip Isaacs, Greg Brown,
John Bongers, and other similarly situated persons (“Plaintiffs”), filed a Complaint in the United
States Court of Federal Claims. (“Compl.”). The July 25, 2016 Complaint requests certification
of a class of individuals who were transferred from WHC, BCSR, and KEH to Lockheed and
subsequently had their MEPP pension benefits reduced. Compl. ¶¶ 89–108. The July 25, 2016
Complaint also requests breach of contract damages under the Tucker Act or, in the alternative,
alleges that DOE’s actions with respect to the MEPP was an uncompensated taking under the
Fifth Amendment for which they are entitled to just compensation. Am. Compl. ¶¶ 114–15.



       5
       The February 16, 2017 Amended Complaint does not allege the nature of these
amendments.



                                                 4
       On November 17, 2016, the Government filed a Motion To Dismiss arguing that the
Complaint should be dismissed for lack of jurisdiction, pursuant to Rule of the United States
Court of Federal Claims (“RCFC”) 12(b)(1), and for failure to state a claim upon which relief
can be granted, pursuant to RCFC 12(b)(6). ECF No. 8.

        On February 16, 2017, Plaintiffs filed a Consent Motion To Amend the July 25, 2016
Complaint, together with the First Amended Complaint, as an attachment. ECF No. 11. On
February 17, 2017, the court granted Plaintiffs leave to amend. ECF No. 14. The Amended
Complaint alleges that DOE formed a “contract in fact” with Plaintiffs via the creation of the
MEPP and subsequently breached that contract when Plaintiffs were transferred to Lockheed
and altered the method by which their MEPP pension benefits were calculated. Am. Compl.
¶¶ 131–34. The Amended Complaint also alleges that DOE breached a fiduciary duty owed to
Plaintiffs under the MEPP. Am. Compl. ¶¶ 143–46. In the alternative, the Amended Complaint
alleges that DOE’s actions also were an uncompensated taking. Am. Compl. ¶¶ 135–42.6

        On April 7, 2017, the Government filed a renewed Motion To Dismiss the Amended
Complaint (“Gov’t Mot.”), pursuant to RCFC 12(b)(1) and 12(b)(6), together with three
exhibits: the MEPP, restated as of January 1, 1994 (“Gov’t Mot. Ex. A”); the MEPP, restated
as of October 1, 1996 (“Gov’t Mot. Ex. B”); and the September 30, 1996 DOE Order 350.1
(“Gov’t Mot. Ex. C”). ECF No. 19.

       On May 6, 2017, Plaintiffs filed a Response to the Government’s April 7, 2017 Motion
to Dismiss (“Pl. Resp.”). ECF. No. 20. On May 22, 2017, the Government filed a Reply (“Gov’t
Reply”). ECF No. 22.

III.   DISCUSSION.

       A.      Jurisdiction.

       The United States Court of Federal Claims has jurisdiction under the Tucker Act,
28 U.S.C. § 1491, to adjudicate “any claim against the United States founded either 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, or for liquidated or unliquidated damages in
cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (emphases added). The Tucker Act,
however, is “a jurisdictional statute; it does not create any substantive right enforceable against
the United States for money damages. . . . [T]he Act merely confers jurisdiction upon [the
United States Court of Federal Claims] whenever the substantive right exists.” United States v.
Testan, 424 U.S. 392, 398 (1976).

       To pursue a substantive right under the Tucker Act, a plaintiff must identify and plead
an independent contractual relationship, constitutional provision, federal statute, and/or
executive agency regulation that provides a substantive right to money damages. See
Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004) (“[J]urisdiction under the Tucker
       6
        Because Plaintiffs responded to the November 17, 2016 Motion To Dismiss with a
Consent Motion To Amend the July 25, 2016 Complaint, on May 8, 2017, the court dismissed
the November 17, 2016 Motion To Dismiss as moot. ECF No. 21.



                                                  5
Act requires the litigant to identify a substantive right for money damages against the United
States separate from the Tucker Act[.]”). Specifically, a plaintiff must demonstrate that the
source of substantive law upon which he relies “can fairly be interpreted as mandating
compensation by the Federal Government.” United States v. Mitchell, 463 U.S. 206, 216 (1983)
(quoting Testan, 424 U.S. at 400). Plaintiff also must make “a nonfrivolous allegation that [he]
is within the class of plaintiffs entitled to recover under the money-mandating source.” Jan’s
Helicopter Serv., Inc. v. F.A.A., 525 F.3d 1299, 1309 (Fed. Cir. 2008).

        In a breach of contract case, “the money-mandating requirement for Tucker Act
jurisdiction normally is satisfied by the presumption that money damages are available for
breach of contract, with no further inquiry being necessary.” Holmes v. United States, 657 F.3d
1303, 1314 (Fed. Cir. 2011). A “well-pleaded allegation” of an express or implied-in-fact
contract “is sufficient to overcome a challenge to jurisdiction.” Trauma Serv. Grp., Inc. v.
United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997). In addition, it is well established that the
“Takings Clause of the Fifth Amendment is a money-mandating source for purposes of Tucker
Act jurisdiction.” Jan’s Helicopter Serv., 525 F.3d at 1309 (citing Moden v. United States, 404
F.3d 1335, 1341 (Fed. Cir. 2005)).

       B.      The Relevant Standards Of Review.

               1.      Standard Of Review For A Motion To Dismiss For Lack Of
                       Jurisdiction, Pursuant To RCFC 12(b)(1).

        A challenge to the United States Court of Federal Claims’ “general power to adjudicate
in specific areas of substantive law . . . is properly raised by a [RCFC] 12(b)(1) motion.”
Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also RCFC 12(b)(1)
(allowing a party to assert, by motion, “lack of subject matter jurisdiction”). When considering
whether to dismiss an action for lack of subject matter jurisdiction, the court is “obligated to
assume all factual allegations [of the complaint] to be true and to draw all reasonable inferences
in plaintiff’s favor.” Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). The plaintiff
bears the burden of establishing jurisdiction by a preponderance of the evidence. See Reynolds
v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).

               2.      Standard Of Review For A Motion To Dismiss For Failure To State
                       A Claim On Which Relief May Be Granted, Pursuant To RCFC
                       12(b)(6).

       A challenge to the United States Court of Federal Claims’ “[ability] to exercise its
general power with regard to the facts peculiar to the specific claim . . . is raised by a [Rule]
12(b)(6) motion[.]” Palmer, 168 F.3d at 1313; see also RCFC 12(b)(6) (“Every defense to a
claim for relief in any pleading must be asserted in the responsive pleading . . . . But a party
may assert the following defenses by motion: . . . (6) failure to state a claim upon which relief
can be granted[.]”).

       When considering whether to dismiss an action for failure to state a claim, the court
must assess whether “a claim has been stated adequately” and whether “it may be supported by
[a] showing [of] any set of facts consistent with the allegations in the complaint.” Bell Atl.


                                                 6
Corp. v. Twombly, 550 U.S. 544, 563 (2007). The plaintiff’s factual allegations must be
substantial enough to raise the right to relief “above the speculative level.” Id. at 555. The
court must accept all factual allegations in the complaint as true and make all reasonable
inferences in favor of the plaintiff. Id.

       C.      The Government’s April 7, 2017 Motion To Dismiss The February 16,
               2017 Amended Complaint.

               1.      The Government’s Argument.

        The Government argues that Plaintiffs’ breach of contract claim should be dismissed for
lack of jurisdiction, because the Amended Complaint fails to allege the essential elements of a
valid contract with the Government, i.e., (1) mutuality of intent; (2) consideration; (3) lack of
ambiguity in offer and acceptance; and (4) actual authority on the part of the Government agent
entering the contract. Gov’t Mot. at 8 (citing Hanlin v. United States, 316 F.3d 1325, 1328
(Fed. Cir. 2003)).

         Although the Amended Complaint alleges that a combination of the MEPP, DOE
regulations, and “non-specific” DOE actions and policies created an implied-in-fact contract,
none of those documents evidence any intent by DOE to be bound in contract. Gov’t Mot. at
9. The MEPP, as it existed prior to Plaintiffs’ October 1, 1996 transfer to Lockheed, expressly
states that it was established for the benefit of “Eligible Employees” by their “Employers,” i.e.,
the subcontractors hired by DOE to manage the Hanford Site. Gov’t Mot. at 9–10 (citing Gov’t
Mot. Ex. A at 7). Neither the United States nor DOE is now Plaintiffs’ employer. Gov’t Mot.
at 10. Nor does DOE Order 350.1 provide evidence of intent to contract, because it is a policy
statement and, as a matter of law, “regulatory proclamations are insufficient to create
contractual obligations.” Gov’t Mot. at 11 (quoting Anderson v. United States, 344 F.3d 1343,
1357 (Fed. Cir. 2003)). After the management of the Hanford Site was assumed by WHC in
1987, the MEPP must be read as establishing a pension plan by a private company. Gov’t Mot.
at 10. In any event, the MEPP does not evidence any intent by Lockheed to grant Plaintiffs the
right to continued participation in the MEPP. Gov’t Mot. at 10.

       The Amended Complaint also fails to allege any offer or acceptance on behalf of the
Government. Gov’t Mot. at 12. The MEPP is an agreement between employees and private
employers. In contrast, the Solicitation was an offer by DOE to potential Hanford Site
contractors. Gov’t. Mot at 12–14.

        In addition, the Amended Complaint fails to allege consideration for DOE’s alleged
promise that Plaintiffs would continue to be covered by the MEPP, although their employers
were not in privity with the Government nor a party to the MEPP. Gov’t Mot. at 14. This is
not surprising since Plaintiffs worked for private employers, i.e., either WHC, BCSR, or KEH,
and subsequently Lockheed, not the Government. Gov’t Mot. at 14. And, the Amended
Complaint fails to allege that any authorized Government representative agreed to the terms of
the alleged implied-in-fact contract. Gov’t Mot. at 17.

       In any event, the court does not have jurisdiction to adjudicate the breach of contract
and the Takings Clause claims alleged in the Amended Complaint, because they are barred by



                                                 7
the Tucker Act’s six year statute of limitations, 28 U.S.C. § 2501, since both accrued in 1996,
when Lockheed informed Plaintiffs that their years of service at Lockheed would not count in
calculating their pension and other employee benefits. Gov’t Mot. at 18–20. Although
Plaintiffs argue that their injury did not accrue until they retired and were denied benefits, the
“right to sue is not suspended until subsequent events shall show the amount of damage or loss.”
Gov’t Mot. at 21 (quoting Fallini v. United States, 56 F.3d 1378, 1381–82 (Fed. Cir. 1995)).

        Specifically, the Takings Clause claim alleged in the Amended Complaint must be
dismissed for failure to state a claim upon which relief can be granted, pursuant to RCFC
12(b)(6). Gov’t Mot. at 25. The Amended Complaint alleges that Plaintiffs’ deprivation of
retirement benefits was “contrary to the Government’s own policies [and] the regulations of an
executive department.” Am. Compl. ¶ 1. But, the United States Court of Appeals for the
Federal Circuit has held that “a claim premised on a regulatory violation does not state a claim
for a taking.” Gov’t Mot. at 25 (citing Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1369
(Fed. Cir. 2005)). In short, a Takings Clause claim requires that a challenged Government
action must be “authorized.” Gov’t Mot. at 25–26; see also Rith Energy, Inc. v. United States,
247 F.3d 1355, 1365 (Fed. Cir. 2001) (“[A]n uncompensated taking and an unlawful
government action constitute two separate wrongs that give rise to two separate causes of
action[.]”) (internal quotation marks and alterations omitted). In any event, Plaintiffs’ right to
participate in the MEPP is not a cognizable property interest, because: (1) deprivation of a
contractual right gives rise to a breach of contract claim, not a Takings Clause claim; and (2)
the Amended Complaint fails to allege that DOE established any property interest founded in
the participation in the MEPP, or an interest that could not be changed or modified in the future.
Gov’t Mot. at 28–29.

               2.      Plaintiffs’ Response.

        Plaintiffs respond that the terms of the MEPP require that any changes must be approved
by DOE, because the MEPP was “funded in its entirety with money provided by the
Government,” and, in a March 19, 2007 letter, DOE advised Plaintiffs that “headquarters (HQ)
[was] responsible for establishing the Department’s policy and implementation for contractor
pensions and benefits.” Pl. Resp. at 2 (quoting Am. Compl. ¶ 47). In addition, the MEPP was
established for the benefit of DOE, as it lowered administrative costs by setting up a pension
plan independent of the Hanford Site contractors. Pl. Resp. at 2.

        Plaintiffs also argue that they have established all the requisite elements of an implied-
in-fact contract with DOE. Pl. Resp. at 6, 13. DOE’s intent to contract is evidenced by the fact
that DOE inserted a “high five clause” into the MEPP in January 1997, pursuant to which DOE
promised that Hanford Site contractor employee benefits would be calculated, based on the
average of an employee’s highest five year salary. Pl. Resp. at 4, 14. DOE’s intent is further
demonstrated by the fact that Article 29 in the MEPP provided that each employee of the
Hanford Site contractors would be provided with a benefit, “reflective of his Years of Service
on the Hanford Reservation,” regardless of future employment. Pl. Resp. at 7. These benefits
specifically were provided when an employee was “Terminated for Transfer,” i.e., an employee
was terminated by an outgoing contractor and rehired by an incoming contractor, because DOE
determined that the retention of experienced employees at the Hanford Site was “in the best
interest of the Government.” Pl. Resp. at 2; see also Gov’t Mot. Ex. A at 91 (1/1/1994 MEPP).


                                                 8
Plaintiffs add that only the Government could make this promise, because “no other party has
or ever had the ability to control both the treatment and classification of its employees by the
incoming contractor and the treatment and classification of those same employees within the
MEPP.” Pl. Resp. at 7. As such, the MEPP was an offer. Plaintiffs accepted that offer and
provided consideration by working for Lockheed. Pl. Resp. at 15–16. And, the MEPP was
executed by a DOE officer, acting within his/her authority to bind the Government in contract.
Pl. Resp. at 17.

        Additionally, although DOE Order 350.1 cannot “by itself” form a contract, it is
“compelling” evidence that DOE intended to contract with Plaintiffs to provide them with
benefits, in the event they were transferred between contractors. Pl. Resp. at 18. DOE’s intent
is also evidenced by the fact that the Solicitation provided that the incoming contractor would
be bound by the terms of the MEPP. Pl. Resp. at 18. The most compelling evidence of intent,
however, is the fact that DOE continued to provide MEPP benefits to thousands of Hanford Site
employees, when they were transferred to different contractors. Pl. Resp. at 19. Lockheed
Employees were the only group to lose their benefits, as a result of the 1996 transfer. Pl. Resp.
at 20.

        With respect to the statute of limitations, DOE repudiated the contract in 1996, but did
not breach the contract until each individual Plaintiff retired. Under the terms of the MEPP,
pension benefits were to be paid beginning at the “Normal Retirement Date,” based on each
participant’s “Years of Service on the Hanford Reservation.” Pl. Resp. at 24. Moreover, the
Government was not required to perform, until each Plaintiff retired. As a matter of law, a
promisor’s renunciation of a “contractual duty before the time fixed in the contract for . . .
performance” is a repudiation. Pl. Resp. at 25 (quoting 4. A. CORBIN, CONTRACTS § 959
(1951)). For this reason, the United States Supreme Court has held that that the Government’s
repudiation of a contractual duty does not trigger the six year statute of limitations under
28 U.S.C. § 2501. See Franconia Assocs. v. United States, 536 U.S. 129, 144 (1993). Although
an injured party may elect to treat the repudiation as a breach, it may decide to wait until the
date performance commences, triggering the statute of limitations. Id. at 143 (“[A] repudiation
ripens into a breach prior to the time for performance only if the promisee ‘elects to treat it as
such.’” (quoting Roehm v. Horst, 178 U.S. 1, 13 (1900))). In the alternative, the Government
is equitably estopped from asserting the statute of limitations defense, because Plaintiffs were
advised by the Government in 1996 that they could not dispute their post-retirement benefits
until they retired. Pl. Resp. at 26.

        In the alternative, Plaintiffs argue that their contractual rights under the MEPP
constituted a cognizable property interest protected by the Fifth Amendment. Pl. Resp. at 28
(citing Lynch v. United States, 292 U.S. 571, 579 (1934) (“Rights against the United States
arising out of a contract with it are protected by the Fifth Amendment.”)). Moreover, the MEPP
expressly stated that the Plan Administrator was a “fiduciary.” Pl. Resp. at 30. Although the
Plan Administrator was allowed to amend the terms of the MEPP, it was required to do so as a
fiduciary, i.e., an agent with the duty to act in the best interest of the beneficiary. Pl. Resp. at
31. These obligations also extend to DOE, since under the MEPP, DOE had complete control
over the Plan Administrator. Pl. Resp. at 30–31.




                                                  9
               3.      The Government’s Reply.

        The Government replies that the MEPP is a contract between private government
contractors and their employees, not a contract between those employees and a federal agency.
Gov’t Reply at 3 (citing Gov’t Mot. Ex. A at 7). Therefore, at most, the Amended Complaint
alleges that the MEPP is part of an implied-in-fact contract between Plaintiffs and DOE. Gov’t
Reply at 3. But, the Amended Complaint does not allege the essential elements of an implied-
in-fact contract. The fact that DOE was in the “best position” to enforce Article 29 does not
evidence any intent to contract with Plaintiffs. Gov’t Reply at 4. Moreover, the Amended
Complaint “leaves the [c]ourt guessing” as to when the alleged implied-in-fact contract was
formed, i.e., “in 1987[,] when the MEPP was created, at some point in the subsequent years[,]
or in 1996[,] when the [Project] Hanford [] [M]anagement [C]ontract was re-competed[?]”
Gov’t Reply at 4. The Amended Complaint alleges that the MEPP is only part of an implied-
in-fact contract, the provisions of which were delineated by the Solicitation and the issuance of
DOE Order 350.1, on September 30, 1996. Gov’t Reply at 6. But, the Amended Complaint
alleges that DOE repudiated the contract in August or September 1996, prior to the issuance of
DOE Order 350.1, on September 30, 1996. Gov’t Reply at 6. Assuming that a contract was
formed in 1987, when the MEPP was established, there should be contemporaneous evidence
of the Government’s intent to contract, but the Amended Complaint only cites events that took
place almost ten years after the contract would have been formed. Gov’t Reply at 7.

        Plaintiffs’ argue that the Government’s intent to contract is also evidenced by DOE
“continu[ing] to pay money into the MEPP to fund the increasing benefits owed to Plaintiffs[,]”
but the Government counters that “neither DOE nor the Government has ever paid any money
into the Hanford MEPP. The MEPP is funded entirely by private government contractors.”
Gov’t Reply at 7 n.2 (citing Pl. Resp. at 14).

        In addition, the Amended Complaint fails to allege that there was an unambiguous offer
and acceptance. Gov’t Reply at 8. In fact, “essentially every material term required to form a
binding contract is missing from the [A]mended [C]omplaint’s allegations,” including those
sufficient to “provide a basis for determining the existence of a breach and for giving an
appropriate remedy.” Gov’t Reply at 8 (quoting RESTATEMENT (SECOND) OF CONTRACTS, §
33(2) (1981) (“RESTATEMENT”)). Although Plaintiffs argue that all the essential terms are
contained in Article 29 of the MEPP, in fact, Article 29 does not speak to any mutual promises
or consideration on the part of the parties. Gov’t Reply at 8.

        The Amended Complaint also fails to allege that the alleged contract was agreed to by
a Government representative with the authority to bind the United States in contract. Gov’t
Reply at 9. Specifically, the Amended Complaint alleges only that a DOE Contracting Officer
“approved” changes to the MEPP in 2008 and 2009; but, these actions occurred more than a
decade after DOE allegedly repudiated the contract in 1996. Gov’t Reply at 9. But, the
Amended Complaint did not allege that any Government official, with authority, agreed to a
contract either in 1987, when the MEPP was formed, or in 1996, when Plaintiffs voluntarily
transferred to Lockheed. Gov’t Reply at 9.

       The Government adds that the anticipatory repudiation doctrine also does not apply,
because the alleged breach is not “wholly anticipatory.” Gov’t Reply at 11. The United States


                                                10
Court of Appeals for the Federal Circuit has held that the statute of limitations begins to run
when an anticipatory breach is accompanied by contractual nonperformance. Gov’t Reply at
11 (citing Kinsey v. United States, 852 F.2d 556, 558 (Fed. Cir. 1988) (“If, however, the breach
is not wholly anticipatory because it involves some contractual nonperformance, the statute of
limitations begins to run immediately.”)). In this case, the Amended Complaint alleges that the
1996 repudiation was accompanied by contractual nonperformance, when DOE nominally
forced Plaintiffs to remain in the MEPP and refused to allow them to withdraw their pensions,
in violation of the terms of the MEPP. Gov’t Reply at 11 (citing Am. Compl. ¶ 86). Moreover,
the Government was alleged to have barred any challenge to Lockheed’s decision not to abide
by the MEPP, until after Plaintiffs retired, although Article 11.7 of the MEPP requires the Plan
Administrator to provide a claim appeal procedure. Gov’t Reply at 11 (citing Gov’t Mot. Ex.
A at 52). The Amended Complaint also alleges that the terms of the MEPP were altered to
reduce Plaintiffs’ accrued benefits, despite the fact that Article 19 of the MEPP provides that a
future modification or amendment may change a participant’s accrued benefits. Gov’t Reply at
12. Nevertheless, Plaintiffs argue that the Government should be equitably estopped from
asserting the statute of limitations defense, because the doctrine of equitable tolling does not
apply to Tucker Act cases. Gov’t Reply at 13 (citing Adde v. United States, 81 Fed. Cl. 415,
420 (Fed. Cl. 2008)).

       With respect to the alleged Takings Clause claim, Plaintiffs failed to rebut, or even
address, the Government’s argument that a Takings Clause claim may not rest on unauthorized
conduct. Gov’t Reply at 14. In any event, Plaintiffs’ Takings Clause claim is based on the
existence of a property right to continued participation in the MEPP, but neither the MEPP nor
DOE regulations conferred such a right. Gov’t Reply at 14.

        Finally, Plaintiffs’ breach of fiduciary duty claim should be dismissed, because
Plaintiffs have failed to establish a contract imposing any fiduciary duty on the United States
with respect to Plaintiffs. Gov’t Reply at 15.

               4.      The Court’s Resolution.

                       a.      Whether The Statute Of Limitations Bars The Claims
                               Alleged In Plaintiffs’ February 16, 2017 Amended
                               Complaint.

        Pursuant to 28 U.S.C. § 2501, “[e]very claim of which the United States Court of Federal
Claims has jurisdiction shall be barred unless the petition thereof is filed within six years after
such claim first accrues.” Although the statute of limitations is considered, in other contexts,
an affirmative defense that may be waived, the United States Supreme Court has held that
section 2501 is “jurisdictional,” because of the Government’s waiver of sovereign immunity.
See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139 (2008) (“This Court has
long interpreted the court of claims limitations statute as . . . ‘jurisdictional.’”)

        Therefore, as a matter of law, a claim “accrues” for purposes of section 2501 when “all
the events have occurred that fix the alleged liability of the [G]overnment and entitle the
claimant to institute an action.” Holmes v. United States, 657 F.3d 1303, 1317 (Fed. Cir. 2011).
In the case of a breach of a contract, “a cause of action accrues when the breach occurs.” Alder


                                                 11
Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998). Section 2501, however,
does not “create[] a special accrual rule for suits against the United States.” Franconia Assocs.
v. United States, 536 U.S. 129, 145 (1993). Therefore, “the repudiation doctrine [applies] in its
traditional form when evaluating the timeliness of suits governed by § 2501.” Id. at 131. As
such, “[a] takings claim accrues, when all the events have occurred which fix the liability of the
Government and entitle the claimant to institute an action.” John R. Sand & Gravel Co. v.
United States, 457 F.3d 1345, 1355–56 (Fed. Cir. 2006), aff’d, 552 U.S. 130 (2008) (internal
quotation marks omitted).

                               i.      Plaintiffs’ Breach Of Contract Claim Is Timely.

       The Amended Complaint alleges that Plaintiffs were informed in September 1996 that
DOE would not honor the implied-in-fact contract, by allowing Plaintiffs’ MEPP benefits to be
reduced when Plaintiffs were eligible for retirement. Am. Compl. ¶ 77. Plaintiffs argue that
DOE’s conduct in September 1996 was a repudiation of the implied-in-fact contract, not a
breach. Pl. Reply at 24.

         The United States Supreme Court has held that the federal government’s renunciation
of a contractual duty, before the time fixed in the contract for performance, is a repudiation that
“ripens into a breach prior to the time for the performance[,] only if the promisee elects to treat
it as such.” Franconia Assocs., 536 U.S. at 143 (internal quotation marks and citations omitted).
Therefore, a claim for repudiation does not accrue under section 2501, unless and until the
injured party elects to treat that repudiation as a breach. Id. at 144. This rule was discussed in
Franconia Associates, where the enactment of the Emergency Low Income Housing
Preservation Act, 42 U.S.C. § 5301 (“ELIHPA”), imposed new conditions on the prepayment
of certain government loans. Id. The United States Supreme Court held this to be a repudiation,
instead of a breach of contract, so that the cause of action did not accrue until the borrowers
attempted to tender prepayment and were rejected. Id.

        In this case, DOE set the date of performance as Plaintiffs’ respective retirement dates.
Therefore, DOE’s alleged September 1996 statement that Plaintiffs’ MEPP benefits would be
reduced in the future evidenced DOE’s intent to breach the contract—but only when Plaintiffs
retired. Plaintiffs retired within six years of when the July 25, 2016 Complaint was filed. Am.
Compl. ¶¶ 90–109. The Government responds that the Amended Complaint also alleges that
DOE breached multiple other provisions of the MEPP and, as such, DOE’s September 1996
conduct was not “wholly anticipatory.” Gov’t Reply at 11.

        The United States Court of Appeals for the Federal Circuit has held that “the statute of
limitations begins to run immediately,” if an anticipatory repudiation is accompanied by
contractual nonperformance. See Kinsey, 852 F.2d at 558. In this case, however, Plaintiffs’
claims are based, in part, on DOE’s breach of an alleged implied-in-fact contract, not an
anticipatory repudiation of the terms of the MEPP.

       For these reasons, the court has determined that the Amended Complaint’s claim for
breach of an implied-in-fact contract is timely and not barred by the statute of limitations.




                                                 12
                               ii.     Plaintiffs’ Takings Clause Claim Is Time-Barred.

        The Amended Complaint alleges DOE’s breach of its implied-in-fact contract resulted
in a taking of Plaintiffs’ pension rights in violation of the Tucker Act and the Fifth Amendment
to the United States Constitution. Am. Compl. ¶¶ 137, 140–41.

        The Tucker Act does not create “substantive rights; [it is simply a] jurisdictional
provision[] that operate[s] to waive sovereign immunity for claims premised on other sources
of law (e.g., statutes or contracts).” United States v. Navajo Nation, 556 U.S. 287, 290 (2009).
Therefore, Plaintiffs’ claim cannot rest on a violation of the Tucker Act alone. See Jan’s
Helicopter Serv., Inc., 525 F.3d at 1308 (“If the statute is not money-mandating, the Court of
Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject matter
jurisdiction.”) (internal quotation marks omitted). In this case, Plaintiffs’ takings claim rests on
the Takings Clause of the Fifth Amendment. Id. at 1309 (“It is undisputed that the Takings
Clause of the Fifth Amendment is a money-mandating source for purposes of Tucker Act
jurisdiction.”).

        As such, the Amended Complaint alleges that a taking occurred when the “Department
of Energy, [exercising] Executive [authority] under Article II of the Constitution, re-shaped
[Plaintiffs’] post-retirement benefits . . . without adequate compensation [in September 1996.]”
Am. Compl. ¶¶ 77, 137. (“In September of 1996 . . . [Lockheed], acting on behalf of the
Government, told the Class Members that upon their retirement, they would not receive the
retirement medical benefits, retirement death benefits, and retirement pension compensation
promised to them by the Government at retirement[.]”). Since the statute of limitations is
calculated from September 1996, Plaintiffs’ Takings Clause claim became untimely in
September 2002. See 28 U.S.C. § 2501. Yet, Plaintiffs did not file a Complaint in the United
States Court of Federal Claims until July 25, 2016. Am. Compl. ¶ 1.

        Plaintiffs attempt to overcome the statute of limitations by arguing that the Government
is equitably estopped from asserting that Plaintiffs’ claims are untimely, because “the
Government told the Plaintiffs that they could not dispute their post retirement benefits until
they retired.” Pl. Resp. at 26 (citing Compl. ¶ 89). The United States Supreme Court, however,
has held that the Tucker Act’s statute of limitations is “jurisdictional and not susceptible to
equitable tolling.” John R. Sand & Gravel Co., 552 U.S. at 136 (internal quotation marks and
corrections omitted).

       For these reasons, the court has determined that Plaintiffs’ Takings Clause claim is
barred by the statute of limitations.

                       b.      Whether The Court Otherwise Has Subject Matter
                               Jurisdiction To Adjudicate Plaintiffs’ Implied-In-Fact
                               Contract Claim.

        The Amended Complaint alleges that: (1) an implied “contract in fact” existed between
Plaintiffs and DOE; (2) DOE breached that contract by changing the benefits that Plaintiffs
were entitled to receive on retirement under the MEPP; and (3) Plaintiffs are entitled to
damages. The United States Court of Appeals for the Federal Circuit has held that,



                                                  13
       [i]n determining whether the Court of Federal Claims has [subject matter]
       jurisdiction, all that is required is a determination that the claim is founded upon
       a money-mandating source and the plaintiff has made a nonfrivolous allegation
       that it is within the class of plaintiffs entitled to recover under the money-
       mandating source. There is no further jurisdictional requirement that the court
       determine whether the additional allegations of the complaint state a
       nonfrivolous claim on the merits.

Jan’s Helicopter Serv., Inc., 525 F.3d at 1309.

        In this case, Plaintiffs’ claim is founded on a claim for breach of an implied-in-fact
contract with DOE. Am. Compl. ¶¶ 28–109. A breach of contract claim against the
Government is a money-mandating source. See Holmes v. United States, 657 F.3d 1303, 1314
(Fed. Cir. 2011) (holding in a breach of contract case that, “the money-mandating requirement
for Tucker Act jurisdiction normally is satisfied by the presumption that money damages are
available for breach of contract, with no further inquiry being necessary.”); see also Trauma
Serv. Grp., Inc. v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997) (a “well-pleaded
allegation” of an express or implied-in-fact contract “is sufficient to overcome a challenge to
jurisdiction.”).

       For these reasons, the court has determined that it has subject matter jurisdiction to
adjudicate Plaintiffs’ breach of contract claim.

                       c.      Whether Plaintiffs Have Stated A Claim For Breach Of An
                               Implied-In-Fact Contract On Which Relief May Be Granted.

        The Amended Complaint alleges an implied “contract in fact” existed between DOE
and Plaintiffs and that DOE breached that contract by changing the amount of benefits to which
Plaintiffs are entitled to receive under the MEPP. Am. Compl. ¶¶ 24–109.

        As a matter of law, an implied-in-fact contract is “inferred . . . from [the] conduct of the
parties showing, in the light of the surrounding circumstances, their tacit understanding.” Balt.
& Ohio R.R. v. United States, 261 U.S. 592, 597 (1923). An implied-in-fact contract requires
the court to find that “surrounding circumstances” show: (1) mutuality of intent to contract; (2)
consideration; (3) lack of ambiguity in offer and acceptance; and (4) actual authority on the part
of the Government representative to bind the Government in contract. See City of El Centro v.
United States, 922 F.2d 816, 820 (Fed. Cir. 1990) (discussing the factors required to find an
implied-in-fact contract with the Government). In other words, “the requirements for an
implied-in-fact contract are the same as for an express contract; only the nature of the evidence
differs.” Hanlin v. United States, 316 F.3d 1325, 1328 (Fed. Cir. 2003).

        As a threshold condition for contract formation, “there must be an objective
manifestation of voluntary, mutual assent.” Anderson, 344 F.3d at 1353 (citing RESTATEMENT
§ 18).7 Mutuality of intent to contract is evidenced by the existence of an offer and a reciprocal

       7
         Common law governs a contractual relationship between the United States and a
private party. See United States v. Winstar, 518 U.S. 839, 871–72 (1996) (“In evaluating the


                                                  14
acceptance. Id. (citing Estate of Bogley v. United States, 206 Ct. Cl. 695, 514 F.2d 1027, 1032
(1975) (“It is fundamental that in order to have a valid contract one party must make an offer
that is a promise which is conditional upon receipt by the offeror of some act or promise from
the offeree, and the offer must be accepted as to all its terms by the offeree.”); see also
RESTATEMENT § 22(1) (“The manifestation of mutual assent to an exchange ordinarily takes the
form of an offer or proposal by one party followed by an acceptance by the other party or
parties.”).

        An offer is “the manifestation of willingness to enter into a bargain, so made as to justify
another person in understanding that his assent to that bargain is invited and will conclude it.”
RESTATEMENT § 24. Acceptance is “a manifestation of assent to the terms [of the offer] made
by the offeree in a manner invited or required by the offer.” RESTATEMENT § 50. In addition,
there must be a “lack of ambiguity in offer and acceptance,” if a contract is to exist. See
Anderson, 344 F.3d at 1353.

        In this case, the Amended Complaint alleges that an implied-in-fact contract between
Plaintiffs and the Government was formed “in part” by: “virtue of the MEPP itself” (Am.
Compl. ¶ 32); “the Government’s solicitation of the Hanford site contract” (Am. Compl. ¶ 36);
“the regulations of an executive agency, specifically Department of Energy Order 350.1” (Am.
Compl. ¶ 28); “other actions and policies of the Government” (Am. Compl. ¶ 26); “other actions
and policies of . . . agents acting on behalf of the Government” (Am. Compl. ¶ 26); and an
employment offer letter from Lockheed with an “implicit promise that [Lockheed] employees
would continue the retirement benefits enjoyed by Plaintiffs with their prior employer” (Am.
Compl. ¶ 67).

        None of these “surrounding circumstances,” however, evidence “a clear indication of
intent to contract” by DOE. See D & N Bank v. United States, 331 F.3d 1374, 1378 (Fed. Cir.
2003) (“Although a contract may arise as a result of the confluence of multiple documents, there
must still be a clear indication of intent to contract and the other requirements for concluding
that a contract was formed.”). First, the MEPP does not evidence any DOE intent to contract
with Plaintiffs, because DOE was not a party to the MEPP. Am. Compl. ¶¶ 25, 34 (the MEPP
was created by WHC in 1987 “to assure that the Participant receives a benefit at Normal
Retirement Date which is reflective of his Years of Service on the Hanford Reservation”).
Although the Amended Complaint later alleges that “the United States Department of Energy
has actually controlled the terms, administration, and operation of the MEPP,” Am. Compl. ¶
40, that allegation is a legal conclusion. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (the court is “not bound to accept as true a legal conclusion couched as a factual
allegation”).

       Second, the Solicitation does not evidence any DOE intent to contract with Plaintiffs,
because the Solicitation was an offer conveyed by DOE to potential bidders on the Project
Hanford Management Contract. Am. Compl. ¶ 36.

relevant documents and circumstances, we have, of course, followed the Federal Circuit in
applying ordinary principles of contract construction and breach that would be applicable to any
contract action between private parties.”).



                                                  15
         Third, DOE Order 350.1 does not evidence an intent to contract with Plaintiffs, because
it is a “regulation of an executive agency,” and “regulatory proclamations are insufficient to
create contractual obligations.” See Anderson, 344 F.3d at 1357; see also D & N Bank, 331
F.3d at 1378–79 (“performance of . . . regulatory or sovereign functions does not create
contractual obligations”).

        Fourth, the Amended Complaint’s allegation that an implied-in-fact contract was
formed, in part, by “other actions and policies of the Government and agents acting on behalf
of the Government” (Am. Compl. ¶ 26), is not sufficient to satisfy Plaintiffs’ “obligation to
provide the grounds of [their] entitlement to relief.” See Twombly, 550 U.S. at 555 (“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”)
(internal quotation marks and corrections omitted); see also id. (“Factual allegations must be
enough to raise a right to relief above the speculative level[.]”). The Amended Complaint does
not allege what these “other actions” are.

        Finally, Lockheed’s Offer Letter does not evidence DOE’s intent to contract with
Plaintiffs. Am. Compl. ¶ 64.

        For these reasons, the court has determined that the Amended Complaint failed to allege
facts sufficient to establish that DOE entered into an implied-in-fact contract with Plaintiffs.

IV.    CONCLUSION.

       For these reasons, the Government’s November 17, 2016 Motion To Dismiss is granted.
The Clerk of the United States Court of Federal Claims is directed to enter judgment
accordingly.

       IT IS SO ORDERED.
                                                      s/ Susan G. Braden
                                                       SUSAN G. BRADEN
                                                       Chief Judge




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