Int'l Fed'n of Prof'l & Technical Eng'rs v. United States

• Decision Date: 28 May 2013
• Docket Number: No. 12-157C,12-157C
• Parties: 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.
• Court: U.S. Claims Court

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.

No. 12-157C

United States Court of Federal Claims

Filed: May 28, 2013

TO BE PUBLISHED

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 Litigation Branch, Stuart F. Delery, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for defendant. Harvey Karp, Senior Trial Attorney, Office of the General Counsel, Navy Litigation Office, Washington, D.C., M. Kate DeMane, Counsel, Norfolk Naval Shipyard, Portsmouth, Va., of counsel.

OPINION AND ORDER

GEORGE W. MILLER, Judge

In this Fifth Amendment taking suit against the United States, plaintiffs Edward W. Bowe and the International Federation of Professional and Technical Engineers, Local 1 allege that the United States Department of the Navy ("Navy") asserted control over the Norfolk Naval Shipyard Co-Operative Association ("Co-Op") and the Co-Op's assets and funds. Compl. ¶¶ 5, 14 (docket entry 1, Mar. 6, 2012). Plaintiffs claim that the Navy's assertion of control constituted a physical or regulatory taking of the Co-Op or its assets and funds or was a breach of an implied contract for sale of the business of the Co-Op to the Navy. Id. ¶¶ 18-20.

On March 6, 2012, plaintiffs filed two actions based on the same facts, one in this court ("COFC") and the other in the United States District Court for the Eastern District of Virginia ("EDVA"). Although both actions were filed on the same date, the COFC complaint was filed before the EDVA complaint. See Affidavit of Kenneth Michael Golski ¶ 9 (docket entry 18-1, Oct. 24, 2012); Def.'s Resp. Time & Order 2-3 (docket entry 19, Oct. 25, 2012) (acknowledging that "it appears that the COFC complaint was filed earlier in the day on March 6, 2012, than when the EDVA complaint was filed").

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

I. Background¹

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

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

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

II. Discussion

A. Jurisdiction

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

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

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

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

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

"To determine whether § 1500 applies, a court must make two inquiries: (1) whether there is an earlier-filed 'suit or process' pending in another court, and, if so, (2) whether the claims asserted in the earlier-filed case are 'for or in respect to' the same claim(s) asserted in the later-filed Court of Federal Claims action." Brandt v. United States, 710 F.3d 1369, 1374 (Fed. Cir. 2013) (citing Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163-64 (Fed. Cir.2011)). If either question is answered in the negative, § 1500 does not bar jurisdiction. Id. (citing Trusted Integration, 659 F.3d at 1163-64).

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

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

The court denied the defendant's motion after finding that Tohono left intact the "order-of-filing rule." Id. ("Despite defendant's claims, it is abundantly clear that Tohono did not expressly overrule T...