N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ CAROL ANN VASKO, Plaintiff

- Appellant,

v.

UNITED STATES, Defendant

- Appellee.

______________________

2014

- 5014

______________________ Appeal from the United States Court of Federal Claims in No. 1:12

- cv

- 00370

- MBH, Judge Marian Blank Horn.

______________________

Decided: September 15, 2014

______________________

C AROL A NN V ASKO , of Marietta, Georgia, pro se.

L. M ISHA P REHEIM , Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC, for defendant

appellee. With him on the brief were S TUART F. D ELERY , Assistant Attorney General, R OBERT E. K IRSCHMAN , J R

. , Director, and K ENNETH M. D INTZER , Assistant Director.

______________________

Before D YK , T ARANTO , and C HEN , Circuit Judges.VASKO v. US 2

P ER C URIA M

. After the government evicted her from her home, Ca rol Ann Vasko brought suit in the Court of Federal Claims

, alleging a breach of contract and an unconstitutional taking without just compensation. The Court of Federal Claims dismissed her suit for failure to state a claim upon which relief can be granted and for lack of jurisdiction. Vasko v. United States , 112 Fed. Cl. 204 (Fed. Cl. 2013)

. Ms. Vasko appeals the dismissal of her contract and taking claim s . Because Ms. Vasko has not identified reversible error in the Court of Federal Claims ’ determ in ation that she did not plead facts plausibl y suggest ing an entitlement to relief on either claim, we affirm.

B ACKGROUND

This dis pute arises from the government’ s eviction of Ms. Vasko from the house on Nathan Lane where she was living. The property has a tangled ownership history. This much is clear: Helen and Howard McKinney pu rchased the property in 1992 through the Department of Veterans Affairs Home Loan Program, which guarantees a portion of certain home loans made to veterans or other eli gible individuals. The McKinneys executed a Security Deed with their lender , dated December 14, 1992, to secure their payment of a $53,561 debt. Resp. App. 51

– 57. The Security Deed was recorded on December 22, 1992. A few months later, on February 10, 1993, the Security Deed was recorded again. The top of the newly recorded deed states the reason for the second recording:

“ This deed is being rerecorded to add the signature of the closing attorney to the closing attor ney’s affidavit.” Resp. App. 58. On the same day , an assignment of the Security Deed was recorded : the original lender, “[f]or value r eceived,” trans ferred “ al l its right, title and interest” in the property to the Bank of Oklahoma. Resp. App. 64.

T he McKinneys’ debt was in arrears as of 2011, and as a result, the Bank of Oklahoma foreclosed on theVASKO v. US 3

Nathan Lane property . On November 8, 2011, the Bank of Oklahoma transferred the property to the Secre tary of Veterans Affairs under the terms of the VA’s home

- loan guaranty . On January 10, 20 12, the Secretar y initiated an eviction action against anyone living at the property. Ms. Vasko lived there at the time, having done so conti nuously

, she claim s, since 1996. During the eviction pr oceeding, the court handling the eviction issued an order requiring Ms. Vasko to pay her usual monthly rent in to the court. The order told Ms. Vasko that her failure to make a pa yment would result in her eviction “ without further hearing .” Ms. Vasko made one payment to the
court , but failed to timely make any o ther payment s

. On April 13, 2012, the court ordered Ms. Vasko to leave the property.

As to her interest in the property

, Ms. Vasko initially claim ed that she “purchased” the property from a William Brown in August 1996, though she admit s that the tran saction was never recorded with the relevant county records office. Mr. Brown, she claim ed , had purchased the property from the McKinneys the day before he sold it to her. According to Ms. Vasko, her purchase agree ment with Mr. Brown listed her “ [s]ole r e sponsibility with the Property” as paying him $600 each month. B r. of Appe llant 4. Meanwhile, “ [e]verything else, taxes, insurance, [were] taken care of” by Mr. Brown. Id. She now admits, however, that Mr. Brown did not then own the property, see id. a t 2, and therefore could not have conveyed it to her. She now relies on the contention that she acquired ownership through adverse possession.

A fter the government evicted her, Ms

. Vasko sued the United States in the Court of Federal Claims. She allege d that the government breached an oral contract that she had made with the attorney representing the government in the eviction proceeding. She claim ed that the attorney, who worked at a private law firm, told her that she could stay at the property as lo ng as she paid $600 each month.VASKO v. US 4

Ms. Vasko also alleged a taking based on her eviction from the property

. In the Court of Federal Claims, she filed an original complaint, an amended complaint that she later moved to withdraw , and a “First Supplemental Pleading ” that she characterized as a “complaint [that] supplements the original complaint.” See Resp. App. 31 (complaint); Resp. App. 34 (amended complaint); Mot. For Leave To File First Supplemental Pleading, Vasko v. United States

, No. 12

- 370 (Fed. Cl. Jan. 17, 2013) (with First Supplemental Pleading attached as an exhibit ; the court considered this pleading when dismissing her suit ).
On August 19, 2014, the Court of Federa l Claims granted the government’ s motion to dismiss for fail ure to state a claim. Vasko , 112 Fed. Cl. at 224. The court held that Ms. Vasko had “not alleged a breach of contract claim or a takings claim upon which relief can be granted ,” and therefore dismissed both claims under United States Court of Federal Cla ims Rule 12(b)(6). Id

. ( The court also held that it lacked jurisdiction over certain other claims that are no t raised here

. Id. ) Regarding the contract claim, the court concluded, first, that Ms. Vasko did not allege facts suggesting that the private attorney repr esenting the government in the eviction proceeding had

any authority to bind the government to the alleged oral contract and, second, that she did not allege any of the other elements necessary for entering into a contract with the government , including mutuality of intent to contract

, consideration , and an unambiguous offer and acceptance

. Id . at 2 16

– 17. Regarding the taking claim, t he court concluded that Ms. Vasko had (at least) constructiv e notice of the recorded Security Deed , which prevented her from ac quiring an ownership interest in the property through adverse possession. Id. at 220

– 21.
Ms. Vasko filed a motion for reconsideration, which the Court of Federal Claims denied. Resp. Ap p. 24. Ms. Vasko timely appealed here , raising only the contractVASKO v. US 5

claim and taking claim. 1 We have jurisdiction under 28 U.S.C. § 1295(a)(3)

. D ISCUSSION We review de novo a decision to dismiss a complaint for failure to state a claim

. Kam

- Almaz v. United States

, 682 F.3d 1364, 1368 (Fed. Cir. 2012)

. Like the Court of Federal Claims, we take as true all undisputed facts alleged in the complaint and draw all reasonable infe rences based on those allegations. Bell Atl. Corp. v. Twombly

, 550 U.S. 544

, 555

– 56 (2007)

. While we hold pro

se complaints to “less stringent standards than formal pleadings drafted by lawyers ,” Haines v. Kerner , 404 U .S. 519, 520 (1972), t o avoid dismissal for failure to state a claim, “a complaint must allege facts ‘plausibly sugg esting (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 Twombly , 550 U.S.
at 557 ). The facts alleged “must be enough to raise a right to relief above the speculative level, on the assum ption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly , 550 U.S. at 555 (citations omitted). At the same time, a court is “‘not bound to accept as true a legal conclusion couched as a factual allegation.’” Id

. Applying those complaint

sufficiency standards , we affirm

. A

The Court of Federal Claims did not err in dismissing Ms. Vasko’s contract claim

. “T o form an agreement

1 In her brief in this court, Ms. Vasko asserts in passing th at the government exacted money from her illegally. See Br. of Appellant 19. Because she never made such an allegation in the Court of Federal Claims, and has not developed this assertion in this court, this argument is waived.VASKO v. US 6

binding upon the government, four basic requirements must be met: (1) mutuality of intent to contract; (2) lack of ambiguity in offer and acceptance; (3) consideration; and (4) a government representative having actual authority to bind the United States i n contract.” Anderson v. Uni ted States , 344 F.3d 1343, 1353 (Fed. Cir. 2003). The Court of Federal Claims focused primarily on the fourth factor

, as to which it conclud ed that “ there is no indication in the record that [the private attorney who represent ed the government in the eviction proceeding ] had authority to authorize plaintiff to remain on the property indefinit ely. ” Vasko , 112 Fed. Cl. at 216

– 17. We see no error in th at determination.
“[A]nyone entering into an arrangement with the Government ” is responsible for “accurately ascertain[ing] that he who purports to act for the Government stays within the bounds of his authority .” Fed. Crop Ins. Corp. v. Merrill , 332 U.S. 380, 384 (1947). Accordingly, “[w]here a party contracts with the governme nt, apparent author ity of the government’s agent .

. . is not sufficient; an agent must have actual authority to bind the government.” Winter v. Cath

- dr/Balti Joint Venture , 497 F.3d 1339, 1344 (Fed. Cir. 2007). “ Such actual authority may be express or i mplied from the authority granted to that agent. ” Id. Here, Ms. Vasko has not alleged facts that plausibly suggest that the private attorney hired by the VA to effectuate the eviction had authority to enter into a contract that allowed Ms. Vasko to remain on the prope rty indefinitely or, indeed, at all

. Given the legal requirements for government co ntracting, Ms. Vasko’s allegations about the private atto rney do not state a plausible basis for inferring authority on his part to bind the governmen t to the contract she alleges. “ Authority to bind the government may be i mplied when it is an integral part of the duties assigned to the particular government employee. ” Id . at 1346 . The only allegation about the attorney’s role is that the go v-VASKO v. US 7

ernment retained him to represent it in seeking to evict from the property anyone who was living there. Authority to permit a tenant to remain on the property is not “ an integral part of the duties ” needed to evict a tenant. Accordingly, the Court of Federal Cla ims correctly dete rmined that Ms. Vasko furnished no plausible basis for finding that the attorney had actual ( express or implied ) authority to bind the government here or, therefore, for granting relief on her contract claim.

B
The Court of Federal Claims also properly dismissed Ms. Vasko’s taking claim. One prerequisite for that claim is that she have a protected “ private property interest ” in what she claims was taken. Adams v. United States , 391 F.3d 1212, 1218 (Fed. Cir. 20 04)

. In the Court of Federal Claims, Ms. Vasko alleged that she acquired a property interest in the Nathan Lane property either through her agreement with Mr. Brown or through her adverse po ssession of the property. The court, considering both contention s, held that she “failed to establish that she had a legally cognizable property interest in the Nathan Lane property to which she claims entitlement.” Vasko , 112 Fed. Cl. at 219. O n appeal, she presents only the adverse

possession argument
, s ee Br. of Appellant 2 , which the Court of Federal Claims rejected on the ground that she had at least con structive notice

— and seemed to admit that she even had actual notice

— of the recorded Security Deed executed by the McKinneys and their original lender and of its subsequent recorded assignment to the Bank of Oklahoma

. Id. at 220

– 21

. We see no error in the Court of Federal Claims’ d etermination tha t, at the time of her eviction , Ms. Vasko had no property interest in the Nathan Lane property

. A statute of Georgia, the site of the property, states the following about “ prescription” ( adverse possession) :VASKO v. US 8

Prescription shall not run against the owner or holder of a mortgage, a deed to secure debt, a bill of sale to secure debt, or any other instrument creating a lien o n or conveying an interest in real or personal property as security for debt in favor of a person who has actual or constructive notice of such instrument.

Ga. Code Ann. § 44 -5- 176. Under this statute, there can be no adverse possession if Ms. Vasko had a ctual or constructive notice of the Security Deed here. We note, as a procedural matter, that Ms. Vasko has not challenged the propriety of considering the Security Deed and related

papers in deciding the motion to dismiss in this case.

Ms. Vasko a rgues that the December 22, 1992 recording did not provide her with constructive notice of the Security Deed. She points to the fact that the “Closing Attorney’s Affidavit”

— which was attached to the Security Deed— does not have a signature on the signature line design ated for the closing attorney. The re is no dispute, however, that the recorded deed “ w as signed by [Mr.] McKinney, [Mrs.] McKinney, and an ‘additional’ witness, and had been notarized .” Vasko , 112 Fed. Cl. at 220

– 21

. We agree that, under Georgia law, the December 22nd recording and its subsequent recorded assignment to the Bank of Oklahoma on February 10, 1993, along with the provision that day of the missing signature on the “Closing Attorney’s Affidavit,” provided Ms. Vasko with constructive notice

— before her claimed 1996 occupancy

— th at the original lender and then the Bank of Oklahoma held “a lien on or .

. . an interest in ” the Nathan Lane property “ as security for debt .” Ga. Code Ann. § 44 -5- 176

. We see no basis for concluding that the missing signature
on t he “Closing Attorney’s Affidavit” defeats the constru ctive notice. It is a separate document from the Security Deed, and she has advanced no basis for finding either the 1993 addition of the signature to be defective or theVASKO v. US 9

absence of the signature in 1992 to undermine the notice of the recording. Moreover, we see no reason why the 1992 recording of t he Security Deed itself , which was not defective, failed to provide constructive notice: it was attested to by an official wit ness and an unofficial witness and then “ duly filed, recorded, and indexed on the appr opriate county land records .” Ga. Code Ann. § 44

- 14

- 33; see also Wells Fargo Bank, N.A. v. Gordon , 292 G a. 474, 475, 749 S.E.2d 368, 370 (2013) ( “ The recording of a prop erly attested security deed serves as constructive notice to all subsequent bona fide purchasers .”). Similarly, we have been given no reason why the 1993 assignment of the deed to the Bank of Oklahoma, itself duly recorded, did
not further provide constru ctive notice. In these circu mstances, under Georgia law adverse possession could not run “in favor” o f Ms. Vasko and “against” either the original lender or the Bank of Okla homa, se e Ga. Code Ann. § 44 -5- 176

, and Ms. Vasko had no property interest, a prerequisite to her taking claim

. Finally, Ms. Vasko seeks the return of

, or damages for

, a stove that she bought and installed on the property. The recorded Security Deed, however, has a provision directly addressing such property that gives the lender the right , as “security for the indebtedness,” to “collect and retain” “all fixtures now or hereafter attached to or used in connection with the premises.” Resp. App. 51. The deed states that the term “fixture” includes “hou sehold appliances” and specifically lists “range/oven” as an example. Id. Thus, in addition to its right to repossess the Nathan Lane property , the government also had the right to repossess fixtures to that property.

C ONCLUSION For the foregoing reasons, we affirm the judgment of the Court of Federal Claims.

No Costs.VASKO v. US 10

AFFIRMED