# I n 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. BOWE, individually; on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

THE UNITED STATES,

Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Motion to Dismiss Under RCFC 12(b)(1) and 12(b)(6); Fifth Amendment Taking Claim; 28 U.S.C. § 1500; 28 U.S.C. § 2501; Capacity to Sue on Behalf of an Unincorporated Association; RCFC 17(b)(3); Property Interest; Implied-In-Fact Contract.

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 Li tigation Branch, Stuart F. Dele ry, Principal Deputy Assistant Attorney General, Civil Divisi on, United States Department of Justice, Washington, D.C., for defendant. Harvey Karp, Senior Trial Attorne y, Office of the General Counsel, Navy Litigation Office, Washington, D.C., M. Kate DeMane, C ounsel, Norfolk Naval Shipyard, Portsmouth, Va.,
of counsel.

OPINION AND ORDER

GEORGE W. MILLER , Judge

In this Fifth Amendment taki ng suit against the United Stat es, plaintiffs Edward W.
Bowe and the International Federation of Profe ssional 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”) a nd 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 f unds or was a breach of an implied contract for sale of the business of the Co-Op to the Navy. Id. ¶¶ 18–20.2 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 Dist rict Court for the Eastern District of Virginia (“EDVA”). Although both actions were filed on th e 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’ compla int for lack of jurisdiction and for failure to state a claim upon which relief can be granted, pursuant to Ru les 12(b)(1) and 12(b)(6) of the
Rules of the United States Court of Federal Claims (“RCFC”). Mo t. to Dismiss (docket entry 7, June 6, 2012). The Court heard oral argument on November 9, 2012.

I. Background 1

The Co-Op is a non-profit unincorporated a ssociation, 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 conve niences 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 f unds to the Co-Op and, while the buildings and grounds used by the Co-Op belong to the Navy, Co-Op funds were us ed 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 dir ection 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 CoOp.” Id. ¶ 12.

On or about January 6, 2010, the NNSY Comma nding Officer “intentionally asserted the Navy’s complete ownership and control ove r the Co-Op, its funds and assets.” Id. ¶ 14. According to the complaint, plaintiffs “no l onger 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], Plainti ffs’[] counsel offered additional information concerning th e Co-Op’s current status . . . . [N]otwithstanding the alleged injury, the Co-Op still exists and actively prov ides services to NNSY civilian employees.

1 The facts recited herein are taken from plai ntiffs’ complaint, filed on March 6, 2012, and from documents relied upon by the parties in connect ion with their arguments on subject matter jurisdiction.3 Therefore, . . . Plaintiffs acknowle dge 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 jurisdic tion, the plaintiff cannot rely solely on allegations in the complaint, but must bring forth the rele vant, 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 s ubject 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 a ny express or implied contract with the United States.” 28 U.S.C. § 1491(a). The Tucker Act serves as a waiv er 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 sour ce 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 th e 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 jurisd iction of any claim in respect to which a plaintiff “has pending in any other court any su it 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’ pendi ng 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.4 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 opera tive facts and not on th e relief requested”). Therefore, the question for the Court is whethe r the district court ac tion 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 ma rks omitted). The pertinent facts of Kaw Nation
are similar to those of the instant case. Plain tiff, Kaw Nation of Oklaho ma, 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 th e 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 co mplaint 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 jurisd iction because plaintiff filed its ac tions 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 “orderof-filing rule.” Id. (“Despite defendant’s claims , it is abundantly clear that Tohono did not expressly overrule Tecon . The majority’s opinion unamb iguously 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 wi th the progression of its
Court of Claims lawsuit filed a claim based on th e same operative facts in a district court after more than two years of litigati on in the Court of Claims. The Court of Claims held that the plaintiff could not destroy jurisdic tion by virtue of the later-filed su it. “The long established rule of comity in such cases is that the court . . . which first obtains and exercises . . . jurisdiction, retains jurisdiction until a fi nal 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, pr ecluding jurisdiction in the CFC, if they are based on substantially the same operative facts, rega rdless 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 wa s no question that the di strict court action was pending. Thus, the Court did not consider whethe r a later-filed district court case could also prohibit this court’s jurisdiction.5 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 de clared that the ‘ Tecon holding is not presented in this case because the [Court of Federal Claims] action here was filed af ter 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, . . . th e 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, a nd 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 th e 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). Plainti ffs 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 th e NNSY Commanding Offi cer’s statement on January 6, 2010 as both a physical and a regulatory taking. Compare Compl. ¶ 18 (“The intentional assertion of full ownership and cont rol of the Co-Op constitutes a physical taking by the United States Government through the Navy under the 5 th Amendment of the United States Constitution.”) with id. ¶ 19 (“The intentional assertion of full ownership and control of the CoOp and its assets under the Directives and Inst ructions of the Navy constitutes a regulatory taking by the United States Government under the 5 th Amendment of the United States Constitution.”). The only difference the Court can iden tify between these claims is that plaintiffs may arguably base their “regulatory” taki ng claim, not on the NNS Y Commanding Officer’s statement, but rather on the Di rectives and Instructions of the Navy. The complaint does not specify which Directives and Instructions plai ntiffs believe constitute a regulatory taking. Plaintiffs, in their opposition to defendant’s motion to dismiss, identify three Navy Instructions—BUPERSINST 12990.1, NAVSH IPYDNORINST 12990.1, and BUPERSINST 12990.1A—that may form the basis for plai ntiffs’ regulatory taking claim. See Pls.’ Opp’n 3–5 (docket entry 12, Aug. 20, 2012). A claim based on these Instructions, ho wever, is barred by 28 U.S.C. § 2501, the Court’s statute of limitations.6 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 plainti ffs allege constitutes a regulator y 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 befo re 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 plain tiffs do not have capacity to br ing a suit for a taking of the Co-Op’s funds and assets. Capacity is jurisdicti onal: a claimant must pl ead and prove that it has capacity to file suit before the Cour t 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 dism iss 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 th e laws of the Commonwealth of Virginia.” Compl. ¶ 1. Under RCFC 17(b)(3), an unincorporated association’s ca pacity to sue or be sued is determined by the law of the applicable state.

Virginia law is clear that only certain i ndividuals may sue to enforce the rights of unincorporated entities. In in terpreting the (substantially sim ilar) 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 char ge 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 fo r association’s trustee and sole officer). Accordingly, “[t]he law does not authorize su its to be brought in the name of individual members, or by third parties claiming repres entation 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 ch arge of the Co-Op’s affairs and none of the plaintiffs have been author ized to initiate this litig ation on the Co-Op’s behalf. See Brown , 76 S.E.2d at 242; Jeffress , 756 F. Supp. at 257. In fact, plainti ffs 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 over all direction of the Shipyard Commander. Despite repeated requests a nd efforts to take corrective action, the Co-Op will not institute an action against itself . . . .”). Because plaintiffs are not “officers of [the CoOp] who have charge of its affairs or . . . members of the [Co-Op] who have been legally authorized to proceed with the litigation,” plainti ffs may not maintain this action on behalf of the Co-Op. See Brown , 76 S.E.2d at 242.7 B. Plaintiffs’ Claim for a Taking of the Co-Op

Plaintiffs allege that “[o]n or afte r January 6, 2010, the NNSY Base Commander intentionally asserted the Navy’s complete owne rship and control over the Co-Op . . . and has maintained such control and ownership from that da te.” Compl. ¶ 14. In order to survive a Rule 12(b)(6) 4 motion, “a complaint must contai n sufficient factual matter, acce pted 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 cont ent 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 r ecitals of the elements of a cause of action, supported by mere concluso ry 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 al legations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a fo rmulaic recitation of the elements of a cause of action will not do.” (br ackets, internal quotation marks, and citations omitted)).

When ruling on a Rule 12(b)(6) motion to dismi ss, the court “must a ccept 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 a lleged to render the nonmovant’s asserted inferences plausible.” In re Bill of Lading Transmission & Processing Sys. Patent Litig. , 681 F.3d 1323, 1340 (Fed. Cir. 2012). Noneth eless, the court is “not bound to accept as true a legal conclusion c ouched as a factual allegation.” Papasan v. Allain , 478 U.S. 265, 286 (1986); see Twombly , 550 U.S. at 555.

Finally, courts “generally c onsider only the allegations contained in the complaint, exhibits attached to the complaint[,] and matte rs of public record” when deciding a motion to
dismiss. Love Terminal Partne rs 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 Charle s 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 incorporatedby 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 Federa l 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 th e 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 inte rpreting FRCP 12 as well as on those interpreting RCFC 12.8 (“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 Amendmen t 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 indici a 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 th e 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 cons titutions belie plaintiffs’ claims that they own the Co-Op. In fact, the Co-Op constitutions expre ssly 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 associ ation shall not be incorporated. No stock will be issued or held by anyone in the name of the association, nor will any individual or indi viduals participate in the divisi on 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 particip ate in any profits made by the Association.”).

Plaintiffs also claim to have an ownershi p interest in the Co-Op based on Mr. Bowe’s status as an NNSY civilian empl oyee. Compl. ¶¶ 2, 7. Plaintiffs assert that the Co-Op was established in 1914 using only the pe rsonal 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 contribu ting 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 c onstitute a taking. The govern ment’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 establis h 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 expropriat ion, and to guarantee just compensation for the property taken, what counts is not what governme nt said it was doing, or what it later says its intent was, or whether it may have used the langu age of a proprietor. What counts is what the9 government did .”). Plaintiffs’ complaint does not allege that the Navy did anything that interfered with any rights plain tiffs had in the Co-Op. Accord ingly, without more, plaintiffs’ claim that the Navy “asserted” its ownership of th e 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 cla im. The United States Court of Appeals for the
Federal Circuit has delineated the elemen ts of an implied-in-fact contract:

Plaintiff has the burden to prove the exis tence 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) c onsideration, (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 th at “[t]he intentiona l 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 cont ract for sale of the Co-Op business between the United States and the Co-Op and its members.” Co mpl. ¶ 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 existe nce of any of the four elements of an impliedin-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 thei r 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, actu ally 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 establishe d that the Court of Federal Clai ms 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 exte nds to express or imp lied-in-fact contracts, based on a meeting of the minds, and not to implied-in-law contracts).

Plaintiffs must do more than make a “who lly 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 ha ve not alleged facts sufficient10 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 plaintif fs have failed to state a claim upon which relief can be granted for either a physical taking or fo r breach of an implied-in-fact contract. In addition, the Court holds that plain tiffs lack capacity to bring litig ation on behalf of the Co-Op. Accordingly, defendant’s motion to dismi ss 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