VASKO v. USA

Filing 33

PUBLISHED OPINION granting 14 Motion to Dismiss - Rule 12(b)(6). The Clerk is directed to enter judgment. Signed by Judge Marian Blank Horn. (dls) Copy to parties.

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No. 12-370C
Fifed: August 19,2013

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FILED
AUG

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I2013

U.S. COURT OF
FEDERAL CLAIMS

************
CAROL ANN VASKO,

Pro Se Plaintiff; Failure to State a
of Subject Matter
Breach of Gontract;
Jurisdiction;
Takings; Torts; Due Process.

Glaim; Lack

Plaintiff,
UNITED STATES,

Defendant.

****
Garol Ann Vasko, Austell, GA, pgq se.

Loren M. Preheim, Trial Attorney, Commercial Litigation Branch, Civil Division,
Department of Justice, Washington D.C., for the defendant. With him were Jeanne E.
Davidson, Director, Commercial Litigation Branch, and Stuart F. Delery, Assistant
Attorney General, Civil Division.

OPINION
HORN. J.
FINDINGS OF FACT

Carol Ann Vasko, a oro se plaintiff, filed a three.page complaint against the
United States in the United States Court of Federal Claims, alleging a breach of mntract
and seeking damages "in excess of Ten Thousand Dollars . . . and costs and such other
and further relief as this Court deems just and proper." Plaintiffs complaint was
accompanied by an Application to Proceed ln Forma Pauperis, which the court granted.
Defendant filed an original motion to dismiss for failure to state a claim or, in the
alternative, for summary judgment. In response, plaintiff filed an amended complaint,
rendering defendant's motion moot, in which she added allegations of a taking under
the Fifth Amendment of the United States Constitution and deprivation of plaintiffs
constitutional rights to her earlier breach of contract claim. Plaintiff subsequently filed a
motion to withdraw and strike her amended complaint.l Defendant then re-filed its
1

Both parties, however, refer to the amended complaint in subsequent filings. Plaintiff
requested to "incorporate by reference" portions of her amended complaint and exhibits

motion to dismiss, or in the alternative, for summary judgment. On the same date
plaintiff responded to the re-filed motion, plaintiff also filed a motion for leave to file a
supplemental pleading and attached "Plaintiffs First Supplemental Pleading," in which
she alleged that subsequent actions by defendant added to plaintiffs injury, and realleged and elaborated on the takings claim and due process claim alluded to in
olaintiffs stricken amended comolaint.

The sequence of filed, and withdrawn, pleadings in this case, as well as the
multiple requests for extensions of time, clouded and prolonged the procedural history
of the case. Plaintiffls allegations also are at times confused and contradictory,
including with regard to the factual history of the property in question. Recognizing,
however, Ms. Vasko's oro se status, the court has read her submissions carefully in
order to compile the apparent facts and understand the fundamentals of her complaint.
Plaintiffs allegations are each addressed for plaintiffs edification as to the merit of her
claims, in addition to a ruling on defendant's motion.
Plaintiff states her interest in the property located at 1721 Nathan Lane, Austell,
Georgia began in "1996 when she thought she purchased said property from a Bill
Brown." Plaintiff included as exhibits to several of her pleadings a number of document
copies, including an "owner's affidavit" from William A. Brown, Jr., a warranty deed to
Ms. Vasko, dated September 27, 1996, which bears the signature of William A. Brown,
Jr., but which plaintiff acknowledges was not recorded, a "Truth in Lending Disclosure
Statement" from William A. Brown, Jr. regarding the property, and an earlier warranty
deed, together with other various documents related to the history of the property.
Defendant's interest in the Nathan Lane property stems from the 1992 purchase
of the property by Howard S. and Helen A. McKinney from American National Financial,
Inc. Defendant asserts that Mr. McKinnev received a loan from the Bank of Oklahoma
to purchase the property
through the Department of Veteran Affairs (VA) Home Loan Program . . . .
This program allows veterans . . . to obtain a loan from a private lender,
which the VA "stands behind . . . ." The program also generally allows
loan servicers to convey properties to VA following loan termination, so
they do not have the added risk of managing and marketing the
properties.
(citation omitted). A security deed, dated December 14, 1992, recorded on December
22, 1992, and re-recorded on February 10, 1993, details the conveyance of the property
to the McKinneys from American National Financial, Inc. and includes a VA Assumption
Policy Rider. Defendant asserts that, "[a]fter Mr. McKinney failed to make payments
due under the mortgage, the Bank of Oklahoma foreclosed on the home and, in late
2011, transferred ownership to the VA."

attached thereto in "Plaintiffs First Supplemental Pleading," and defendant refers to the
amended complaint in its response to plaintiffs supplemental pleading.

Plaintiff claims "that McKinney never lived nor intended to live at the property"
"that the property was purchased for McKinney's daughter, Debra McKinney
and
Carter." Plaintiff alleges that William A. Brown, Jr. purchased the property from the
McKinneys on September 26, 1996, one day prior to plaintiffs alleged purchase from
Mr. Brown, as indicated by a notarized warranty deed signed by Mr. Brown, and an
"unofficial" witness, as well as Debra June McKinney Carter, acting as her parents'
"attorney-in-fact." The warranty deed conveying the property from the McKinneys to Mr.
Brown, however, was not filed with the appropriate county in Georgia, Cobb County,
until October 30, 2009, approximately thirteen years after plaintiff claims to have
purchased the property from Mr. Brown.

Plaintiff alleges that when she purchased the property in 1996, "Brown said the
property was to stay in McKinney's name
. until Plaintiffs mortgage was paid off."
Plaintiff claims her "only duty in the purchase was to make a monthly payment of Six
Hundred Dollars ($600.00)," and that "[p]laintiff was to have no financial cares regarding
the Property except for the monthly mortgage payment." Ms. Vasko further claims that
"Bill Brown alleged that Plaintiff had an interest in the Property in question," although
plaintiff does not specifically identify what type of property interest. Plaintiff has
inconsistently identified her alleged interest in the Nathan Lane property, stating in
various documents that she was an owner, tenant at will, and tenant at sufferance. In
her now withdrawn amended complaint, however, plaintifi asserted, "Plaintiff is not a
tenant at sufferance. lt is counterintuitive to claim Plaintiff is a tenant as she owns the
Property."

.

Plaintiff alleges that, in 2003, she discovered that the property taxes for 1721
Nathan Lane "were very low, about Ninety Dollars ($90.00) a year compared to the
neighbors [sic] that were about Nine Hundred Dollars ($900.00), the reason being
McKinneys [sic] name was never removed from the tax roll, maintaining their generous
exemptions." Plaintiff claims she "notified the tax assessor's office" that she owned the
property and "[t]he taxes went up tremendously," leading her to contact Brown to
"clarify[] that Plaintiff in no way was going to be responsible for this tax snafu, that her
monthly payment was going to stay at Six Hundred Dollars ($600.00) as they agreed."
After this exchange, plaintiff claims that "Brown sent Plaintiff a copy of McKinney's Bank
of Oklahoma bank statement, the first time Plaintiff received any such information."
Plaintiff asserts that, after learning about the McKinneys' loan from the Bank of
Oklahoma, she began contacting the bank, as well as the VA, "putting them on notice
that she was the owner of the property." She also claims that, sometime after 2003, she
learned that her monthly payments of six hundred dollars to Brown were being used to
pay "McKinney's monthly loan payment of $400.00," which plaintiff identifies as "the VA
loan," while, according to plaintiff, "Brown kept $200.00." Plaintiff claims she "kept on
paying for the mortgage, thinking the house was hers, when in reality Plaintiff was just
paying off the VA loan, to the benefit of Defendant."
Sometime after the property taxes increased, the payments on the McKinneys'
mortgage ceased. The parties disagree as to who was responsible for paying the
mortgage. Plaintiff asserts that "Brown's representative stopped paying McKinney's
mortgage," while defendant claims "Mr. McKinney failed to make payments due under

the mortgage."' Both parties agree, however, that the Bank of Oklahoma foreclosed on
the home in 2011, despite plaintiff having filed an injunction to stop the foreclosure in
the Superior Court of Cobb County, Georgia on November 19,2010.

On November B,2011, the Bank of Oklahoma transferred the property to the
Secretary of Veterans Affairs. On January 10, 2012, in the Cobb County Magistrate
Court, the Secretary of Veteran Affairs initiated a "Proceeding Against Tenant Holding
Ove/' against "Howard S. McKinney, Helen A. McKinney And All Others," which
defendant describes as "an eviction action against anyone living in the home." Plaintiff
appears to have been living on the property at the time and received notice of the
proceeding. She alleges that she attended a March 2,2012 hearing, at which the court
"entered the writ of possession in favor of the VA." Robert W. Shurtz, an attorney
associated with the private law firm McCalla Raymer, represented the Secretary of
Veterans Affairs at the dispossessory hearing. Plaintiff claims that she had met
Attorney Shurtz at a hearing in February 2012, and that she had "assured Mr. Schurtz
[sic] that she would appeal" if the court ruled in favor of the VA. Plaintiff also alleges
that at the March 2, 2012 hearing, "Attorney Schurtz [sic] put the Magistrate Court on
notice that Plaintiff . . . was appealing the decision. The writ of possession was stayed
on the condition that Plaintiff . . . would appeal."

Because Georgia law required that a tenant appealing a judgment in a
dispossessory case pay both past due rent and "all future rent as it becomes due into
the registry of the trial court," see Ga. Code Ann. $ 44-7-56 (2012); see also Ga. Code
Ann. $ 44-7-54 (2012), on March 2, 2012, the Cobb County Magistrate Court issued an
"Order on Motion to Compel Payment of Rent into Court," requiring plaintiff to pay rent
each month in the amount of $600.00 to the court. The Magistrate Court's Order also
stated that "[u]pon the Defendants' [Ms. Vasko's] failure to make any of the payments
on the date it is due into the registry of the court, a writ of possession shall issue
instanter without further hearing."
lt was at this time, in March of 2012, that plaintiff alleges she entered into an oral
contract with "the United States of America, by and through the Secretary of Veterans
Affairs, by and through his legal counsel Robert W. Shurtz," who she claims "stated to
Plaintiff that Plaintiff could live at the Nathan Lane address as long as she wanted, the
only stipulation being that she pay Six Hundred Dollars ($600.00) (a month)." Plaintiff
has inconsistently described the terms of the alleged contract, stating in various
pleadings: "Plaintiff and her family were to remain in the house during all of the
appellate procedure," plaintiff and defendant made "an agreement that allowed Plaintiff
to stay in the property while appeals in all court [sic] continued," and "Plaintiff could stay
in the house as long as she wanted."

2

There is some suggestion by Ms. Vasko that Mr. McKinney may have passed away in
2003 or 2004 and that Mr. Brown also was deceased.

Plaintiff asserts that she made one $600.00 payment to the Cobb County
Magistrate Court.3 Defendant agrees that plaintiff made one payment to the court in
March 2Q12, but adds that she "then stopped making payment." Despite failing to make
the required payments to the court, plaintiff stated she "believes and claims this [her
alleged agreement with Shurtzl to be a binding rental contract sufficient to satisfy the
Statute of Frauds." ln addition to not making her April 2012 rcnt payment, plaintiff failed
to file a timely appeal following the writ of possession. On April 13, 2012, the Cobb
County Magistrate Court issued an Order stating that plaintiff "is no longer entitled to
possession of the premises.'
Plaintiff states:

The gravemen [sic] of this action is that the United States of America, by
and through the Secretary of Veteran Affairs, by and through their counsel
Robert W. Shurtz, violated Plaintiffs rights pertaining to a verbal rental
agreement of her residence at 1721 Nathan Lane, Austell, Georgia . . .
resulting in trespass to Plaintiff's home and damages.
Plaintiff alleges that, on May 23, 2012, the VA "breached its contract with Plaintiff by
arriving at Plaintiffls address with a moving company and attempting to vacate Plaintiff
and her family from their home." According to plaintiff, defendant was only stopped
when, on the same day, May 23, 2012, plaintiff obtained a temporary restraining order
from the Superior Court of Cobb County, the same court in which plaintiff had filed for
an "injunction to stop foreclosure" against the Bank of Oklahoma on November 19,
2010. Although the May 23,2012 eviction was stopped by the temporary restraining
order, plaintiff claims that, as a result of the "acts of the United States of America,
severe damage was done to Plaintiffs property and the property of her family. The
movers stole valuables, especially jewelry and coins and cash. . . . Over seventy five
percent of Plaintiffs possessions are either damaged, destroyed or stolen." On May 25,
2012, plaintiff also filed a second complaint in the Superior Court of Cobb County,
adding the Secretary of Veterans Affairs as a defendant, and alleging that "the
Secretary of Veterans Affairs evicted her and her family as tenants, May 23,2012, in
contrariety [sic] to Plaintiffs claim to the property." The Superior Court issued an order
terminating and dismissing the temporary restraining order on June 25, 2012, and a
consent order dismissing the Cobb County court case on August 1, 2O12. On October
19, 2012, Ms. Vasko was evicted from the property located at 1721 Nathan Lane,
Austell, Georgia, pursuant to the writ of possession issued to the Secretary of Veterans
Affairs.
In her later filings in this court, plaintiff alleges that, in addition to the real property
claims, defendant also effected a taking of plaintiffs personal property by "refus[ing] to
allow Plaintiff her possessions when she asked for them," and by keeping a "GE Profile
[stove] and such items as bookshelves, dishwasher, faucets, and [a] variety of other

"

In her March 7, 2013 filing, plaintiff claims that she attempted to make a second
payment, but the payment arrived at the court thirty minutes too late. The Order issued
by the magistrate court requiring payment stated: "Payments shall be made at the
clerk's office . . . during regular business hours, on or before the day ordered."

items . . . in the house." Plaintiff also claims that "Defendant failed to put Plaintiffs
family possessions in areas wherein Plaintiffs family could remove them." Plaintiff
argues that the "[d]ispossessory .denies Plaintiff her constitutionally protected rights,"
including her due process rights." Plaintiff claims entitlement to $85,000.00, although
no support is offered for the amount. Plaintiff claims damages for "the value of the real
estate at 1721 Nathan Lane, Austell, Georgia and the cost of replacement or repair" of
plaintiff s and her family's personal property."
In its re-filed motion to dismiss, with respect to plaintiffls breach of contract claim,
defendant argues that plaintiff "fails to sufficiently allege that Mr. Shurtz had authority to
bind the United States in the alleged contract." Defendant also asserts that plaintiffs
takings claims fail because plaintiff does not have a legally cognizable interest in the
real property, plaintiff does not claim that the real property or her personal property were
taken for public use, and plaintiff is barred from bringing this claim by the doctrine of
collateral estoppel. In addition, defendant argues that this court does not have
jurisdiction to hear plaintiffls tort or due process claims.
DISCUSSION

When determining whether a mmplaint filed by a pro se plaintiff is sufficient to
invoke review by a court, pro se plaintiffs are entitled to liberal construction of their
pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations
contained in a pgs se complaint be held to "less stringent standards than formal
pleadings drafted by lawyers"), reh'q denied, 405 U.S. 948 (1972); see also Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Huohes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v.
Gamble,429 U.S.97, 106 (1976), reh'q denied,429 U.S. 1066 (1977). "However,
"'[t]here is no duty on the part of the trial court to create a claim which [the plaintiffJ has
not spelled out in his [or her] pleading.""' Lenoen v. United States, 100 Fed. Cl. 317,
328 (2011) (alterations in original) (quoting Scoqin v. United States,33 Fed. C|.285,
293 (1995) (quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167,1169 (6th Cir.
1975))); see also Bussie v. United States, 96 Fed. Cl. 89, 94, affd,443 F. App'x 542
(Fed. Cir. 201 1); Minehan v. United States, 75 Fed. Cl. 249, 253 (2007). "While a pro
plaintiff is held to a less stringent standard than that of a plaintiff represented by an

g
a

Once again in her filings plaintiff reiterates (although previously struck from the record

at plaintiffs request) that she "relies upon the information of Plaintiffs First
Amended Complaint," in which she alleged violations of her Fourth, Fifth, and
Fourteenth Amendment rights. In subsequent filings, however, plaintiff only raises a
violation of her due process rights under the Fifth Amendment.
5 ln her original complaint, filed before the October 19,2012 eviction, plaintiff alleges
that she informed Mr. Shurtz that "the house was only worth Twelve Thousand Dollars
($12,000.00) (the recent purchase price) . . . ." After the October 19, 2012 eviction,
plaintiff filed her amended complaint, later struck at her request, in which she sought
$25,000.00 in damages "for property'taken,'stolen, damaged, destroyed, from Plaintiff
and her family in what Plaintiff considers to be an illegal eviction . . . ."

attorney, the pro se plaintiff, nevertheless, bears the burden of establishing the Court's
jurisdiction by a preponderance of the evidence." Riles v. United States, 93 Fed. Cl.
163, 165 (2010) (citing Huqhes v. Rowe,449 U.S. at 9; Tavlor v. United States,303
F.3d 1357, 1359 (Fed. Cir.) ("Plaintiff bears the burden of showing jurisdiction by a
preponderance of the evidence."), reh'q and reh'q en banc denied (Fed. Cir. 2002).
According to the United States Court of Appeals for the Federal Circuit:

lf a trial court concludes that the particular statute simply is not moneymandating, then the court shall dismiss the claim for lack of subject matter
jurisdiction under Rule 12(bX1). lf, however, the court concludes that the
facts as pled do not fit within the scope of a statute that is moneymandating, the court shall dismiss the claim on the merits under Rule
12(bX6) for failing to state a claim upon which relief can be granted.
Adair v. United States, 497 F.3d 1244, 1251 (Fed. Cir. 2007) (citations omitted). A
motion to dismiss under Rule 12(b)(6) of the Rules of the Court of Federal Claims
(RCFC) for failure to state a claim upon which relief can be granted "'is appropriate
when the facts asserted by the claimant do not under the law entitle him [or her] to a
remedy."' Murdock v. United States, 103 Fed. Cl. 389, 394 (2012) (alterations in
original) (quoting Perez v. United States, 156 F.3d 1366, 1370 (Fed. Cir. 1998)). In
examining what must be pled in order to state a claim, under both RCFC 8(a)(2) and
Rule (8XaX2) of the Federal Rules of Civil Procedure, a plaintiff need only state in the
complaint "a short and plain statement of the claim showing that the pleader is entitled
to relief." RCFC 8(a)(2) (2012);Fed. R. Civ. P. 8(a)(2) (2013); see also Bell Atl. Corp. v.
Twomblv,550 U.S.544,555 (2007); TrinCo Inv. Co. v. United States, No.2012-5139,
2013 WL 3746090, at -4 (Fed. Cir. July 18,2013) ("To avoid dismissal under RFCF
IRCFCI 12(bX6), a party need only plead 'facts to state a claim to relief that is plausible
on its face,' with facts sufficient to nudge'claims across the line from conceivable to
plausible."') (quoting Bell Atl. Corp. v. Twomblv, 550 U.S. at 555)). The United States
Supreme Court in Twomblv stated:

While a complaint attacked by a Rule 12(bXO) motion to dismiss for
failure to state a claiml does not need detailed factual allegations, a
plaintiffs obligation to provide the "grounds" of his "entitle[ment] to relief'
requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do, see Papasan v. Allain, 478
U.S.265,286 (1986) (on a motion to dismiss, courts "are not bound to
accept as true a legal conclusion couched as a factual allegation").
Factual allegations must be enough to raise a right to relief above the
speculative level, see 5 C. Wright & A. Miller, Federal Practice and
Procedure S 1216, pp. 235-36 (3d ed. 2004) (hereinafter Wright & Miller)
("[T]he pleading must contain something more. . . than . . . a statement of
facts that merely creates a suspicion [of] a legally cognizable right of
action"), on the assumption that all the allegations in the complaint are
true (even if doubtful in fact), see, e.q., Swierkiewicz v. Sorema N.A., 534
U.S. 506, 508 n.1 (2002) ("Rule 12(bXO) does not countenance
dismissals based on a judge's disbelief of a complaint's factual

allegations"); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (a wellpleaded complaint may proceed even if it appears "that a recovery is very
remote and unlikely") . . . . [W]e do not require heightened fact pleading of
specifics, but only enough facts to state a claim to relief that is plausible
on its face.

Bell Atl. Corp. v. Twomblv, 550 U.S. at 555-56, 570 (footnote and other citations
omitted; brackets and omissions in original); see also Ashcroft v. lobal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twomblv, 550 U.S. at 555-57, 570); Totes-lsotoner
Corp. v. United States,594 F.3d 1346, 1354-55 (Fed. Cir.), cert. denied, 131 S. Ct. S2
(2010); Bank of Guam v. United States, 578 F.3d 1318, 1326 (Fed. Cir.) ("ln order to
avoid dismissal for failure to state a claim, the complaint must allege facts 'plausibly
suggesting (not merely consistent with)' a showing of entitlement to relief." (quoting Bell
Atl. Corp. v. Twomblv, 550 U.S. at 557)), reh'q and reh'o en banc denied (Fed. Cir.
2009), cert. denied, 130 S. Ct.3a6B (2010); Cambridqe v. United States,558 F.3d
1331 , 1335 (Fed. Cir. 2009) ("tAl plaintiff must plead factual allegations that support a
facially 'plausible' claim to relief in order to avoid dismissal for failure to state a claim."
(quoting Bell Atl. Corp. v. Twomblv, 550 U.S. at 570)); Carv v. United States, 552 F.3d
1373, 1376 (Fed. Cir.) ("The factual allegations must be enough to raise a right to relief
above the speculative level. This does not require the plaintiff to set out in detail the
facts upon which the claim is based, but enough facts to state a claim to relief that is
plausible on its face." (citing Bell Atl. Coro. v. Twomblv, 550 U.S. at 555, 570)), reh'q
denied (Fed. Cir.), cert. denied,'t29 S. Ct.2878 (2009); Peninsula Gro. Caoital Coro. v.
United States, 93 Fed. Cl. 720, 726-27 (2010), appeal dismissed, 454 F. App'x 900
(2011); Leqal Aid Soc'v of NewYork v. United States,92 Fed. Cl.285, 292,298,298
n.14 (2O10); Hall v. Bed Bath & Bevond. Inc., 705 F.3d 1357,1362 (Fed. Cir. 2013)
("the factual allegations must'raise a right to relief above the speculative level' and must
cross'the line from conceivable to plausible."' (quoting Bell Atl. Coro. v. Twomblv, 550
U.S. at 555)).
When deciding whether a plaintiff has failed to state a claim upon which relief can
granted, this court must assume that all undisputed facts alleged in the complaint are
be
true and must draw all reasonable inferences in the non-movant's favor. See
Cambridqe v. United States,5SB F.3d at 1335 (citing Papasan v. Allain,478 U.S. at
283); Carv v. United States, 552 F.3d at 1376 (citing Gould. Inc. v. United States, 935
F.2d 1271,1274 (Fed. Cir. 1991)); Anaheim Gardens v. United States, 444 F.3d 1309,
1315 (Fed. Cir.), reh'q denied (Fed. Cir.2006); Bovle v. United States,200 F.3d 1369,
1372 (Fed. Cir. 2000); Perez v. United States, 156 F.3d at 1370; Henke v. United
States, 60 F.3d 795, 797 (Fed. Cir. 1995). lf a defendant or the court challenges
jurisdiction or a plaintiffs claim for relief, however, the plaintiff cannot rely merely on
allegations in the complaint, but must instead bring forth relevant, competent proof to
establish jurisdiction. See McNutt v. Gen. Motors Acceptance Coro. of Ind., 298 U.S.
178, 189 (1936); see also Revnolds v. Armv & Air Force Exch. Serv.,846F.2d746,747
(Fed. Cir. 19BB). Therefore, although the court must assume that the undisputed facts
alleged in the complaint are true for the purposes of the motion to dismiss and draws all
reasonable inferences in the plaintiffs'favor, the facts alleged in the complaint must be
plausible and not merely naked assertions devoid of a factual basis. See Ashcroft v.

lqbal. 556 U.S. at 678; see also McZeal v. Sprint Nextel Corp.. 501 F.3d 1354, '1363 n.9
(Fed. Cir. 2007) (mere allegations of law and conclusions of fact are insufficient to
support a claim); SUFI Network Servs.. Inc. v. United States, 102 Fed. CI.656,660
(2012) (plaintiff "must provide more than mere'labels and conclusions' or 'a formulaic
recitation of the elements of a cause of action."' (citing Bell Atl. Corp. v. Twomblv, 550
U.S. at 555 (citing Papasan v. Allain, 478 U.S. at 286))).
Breach of Contract Claim
Plaintiff claims that defendant breached a rental contract, which she alleges she
verbally entered into with the VA through Attorney Robert W. Shurtz. Mr. Shurtz is an
attorney, who, at the time of the dispossessory hearing, was associated with the private
law firm McCalla Raymer, and had been retained by the VA "for purposes of handling
eviction proceedings concerning the Nathan Lane property." Although plaintiff
acknowledges that there is no written rental contract associated with her claim, she
cites to Georgia law, which states that "[c]ontracts creating the relationship of landlord
and tenant for any time not exceeding one year may be by parol." Ga. Code Ann. $ zM7-2(a) (2012). Plaintiff asserts that the oral contract was "sufficient to satisfy the Statute
of Frauds . . . in that it would not last longer than a year."
Plaintiff alleges her contract with defendant was entered into on March 2,2012,
the same day as the hearing in which the Cobb County Magistrate Court signed the writ
of possession in favor of the VA. As noted above, plaintiff s description of the terms of
the alleged contract varies in her submissions to this court. Ms. Vasko relies on her
allegation that Attorney Shurtz entered into an agreement with plaintiff that she "could
live at the Nathan Lane address so long as she wanted, the only stipulation being that
she pay. . . ($600.00) (a month)." (parentheses in original). She also states, however,
"Plaintiff and her family were to remain in the house during all of the appellate
procedure," as well as, "an agreement . . . allowed Plaintiff to stay in the property while
appeals in all courts continued." As noted above, however, plaintiff also suggests the
rental agreement was for no longer than a one-year term, as she states, to meet the
Statute of Frauds.

Although plaintiff inconsistently describes the contract terms, all descriptions
appear to indirectly reference the Cobb County Magistrate Court's "Order on Motion to
Compel Payment of Rent into Court." Plaintiff was ordered to pay rent in the amount of
$600.00 to the court each month, which she claims would allow her to maintain
possession of the property. See Ga. Code Ann. SS 44-7-54, 44-7-56.6 Plaintiff,

o

Georgia Code section 44-7-54 provides, in relevant part:
(a) In any case where the issue of the right of possession cannot be finally
determined within two weeks from the date of service of the copy of the
summons and the copy of the affidavit, the tenant shall be required to
pay into the registry of the trial court:

however, only paid rent once, in March 2012, and failed to continue making rental
payments or to file a timely appeal regarding the writ of possession. Nonetheless,
plaintiff claims that on "May 23,2012,. . . the United States of America, [sic] breached
its contract with Plaintiff by arriving at Plaintiffs address with a moving company and
attempting to vacate Plaintiff and her family from their home." Defendant responds that
plaintiff has not alleged the elements necessary to establish the existence of an express
or implied-in-fact contract with the United States because she has not alleged facts
showing that Attomey Shurtz had the authority to bind the United States in the alleged
contract.
Because plaintiff does not allege that she signed a written rental agreement for
the Nathan Lane property with Attorney Shurtz, or anyone else allegedly representing
the United States, plaintiff must be relying on the alleged oral agreement she claims
was entered into with Attorney Shurtz in order to establish that she entered into a
contract with the United states. contract claims against the United states are governed
by the Tucker Act, which grants jurisdiction to this court as follows:

(1) All rent and utility payments which are the responsibility
of the tenant payable to the landlord under terms of the
lease which become due after the issuance of the
dispossessory warrant, said rent and utility payments to be
paid as such become due.

(b) lf the tenant should fail to make any payment as it becomes due

pursuant to paragraph (1) or (2) of subsection (a) of this Code section, the
court shall issue a writ of possession and the landlord shall be placed in
full possession of the premises by the sheriff, the deputy, or the constable.

Ga. Code Ann. $ 44-7-54. Section 44-7-56, pertaining to appeals of dispossessory
proceedings, states:

lf the judgment of the trial court is against the tenant and the tenant

appeals this judgment, the tenant shall be required to pay into the registry
of the court all sums found by the trial court to be due for rent in order to
remain in possession of the premises. The tenant shall also be required to
pay all future rent as it becomes due into the registry of the trial court
pursuant to paragraph (1) of subsection (a) of Code Section 4#7 -54 unlil
the issue has been finally determined on appea,.
Ga. Code Ann. $ 44-7-56.

10

The United States Court of Federal Claims shall have jurisdiction to render
judgment upon 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.

28U.S.C.S1a91(a)(1). AsinterpretedbytheUnitedStatesSupremeCourt,theTucker
Act waives sovereign immunity to allow jurisdiction over claims against the United
States (1) founded on an express or implied contract with the United States, (2) seeking
a refund from a prior payment made to the government, or (3) based on federal
constitutional, statutory, or regulatory law mandating compensation by the federal
government for damages sustained.' See United States v. Navaio Nation, 556 U.S.
287,289-90 (2009); United States v. Testan,424 U.5.392, 400 (1976); see also
Greenlee Cntv.. Ariz. v. United States,487 F.3d 871,875 (Fed. Cir.), reh'o and reh's en
banc denied (Fed. Cir. 2007), cert. denied, 552 U.S. 1'142 (2008); Palmer v. United
States, 168 F.3d 1310, 1314 (Fed. Cir. 1999). "Forthere to be an express contract, the
parties must have intended to be bound and must have expressed their intention in a
manner capable of understanding. A definite offer and an unconditional acceptance
must be established." Russell Corp. v. United States,210 Ct. C|.596,606,537 F.2d
474,481 (1976), cert. denied,429 U.S. 1073 (1977)). lmplied-in-fact contracts are
agreements ""'founded upon a meeting of the minds, which, although not embodied in
an express contract, is inferred, as a fact, from conduct of the parties showing, in the
light of the surounding circumstances, their tacit understanding.""' Trauma Serv. Gro.
v. United States, 104 F.3d 1321 ,1325 (Fed. Cir. 1997) (quoting Hercules. Inc. v. United
States, 516 U.S.417, 424 (1996) (quoting Balt. & Ohio R.R. Co. v. United States,261
U.S. 592, 597 (1923))); see also Bank of Guam v. United States, 578 F.3d at 1329
(citing Trauma Serv. Grp. v. United States, 104 F.3d at 1326); BavView. Inc. v. United
States,2TB F.3d 1259, 1265-66 (Fed. Cir.2001), reh'q and reh'q en bancdenied,285
F.3d 1035 (Fed. Cir.), cert. denied, 537 U.S. 826 (2002); Westlands Water Dist. v.
United States, 109 Fed. Cl. 177,203 (2013); Peninsula Grp. Capital Corp. v. United
States, 93 Fed. Cl. at 728 (citing Balt. & Ohio R.R. Co. v. United States, 261 U.S. at
597; Russell Corp. v. United States,210 CL Cl. at 609, 537 F.2d at 482. Such an
agreement will not be implied "unless the meeting of minds was indicated by some
intelligible conduct, act or sign." Balt. & Ohio R.R. Co. v. United States, 261 U.S. at
598; see also Russell Corp. v. United States , 210 Ct. Cl. at 609, 537 F.2d at 482.
To invoke the jurisdiction of the United States Court of Federal Claims for her
breach of contract claim, Ms. Vasko "must show that either an express or implied-in-fact
contract underlies [her] claim." Trauma Serv. Gro. v. United States, 104 F.3d at 1325.
"'A well pleaded allegation of an express, or implied-in-fact, contract necessarily
includes allegations going to each of the requisite elements of a contract."' De
Archibold v. United States,57 Fed. Cl.29,32 (2003) (quoting McAfee v. United States,
46 Fed. Cl. 428, 432, aooeal dismissed, 243 F.U 565 (Fed. Cir. 2000)). "A party

'

Ms. Vasko makes no allegations of entitlement to a refund or of prior payment to the
United States.
11

alleging either an express or implied-in-fact contract with the government 'must show a
mutual intent to contract including an offer, an acceptance, and consideration. "' Bank of
Guam v. United States, 578 F.3d at1326 (quoting Trauma Serv. Gro. v. United States,
104 F.3d at 1325); see also Chattler v. United States, 632 F.3d 1324, 1330 (Fed. Cir.)
(citing Trauma Serv. Grp. v. United States, 104 F.3d al 1325), reh'q en banc denied
(Fed. Cir.2011); Hanlin v. United States,316 F.3d 1325,1328 (Fed. Cir.2003) (citing
Citv of Cincinnati v. United States, 153 F.3d 1375, 1377 (Fed. Cir. 1998)); Total Med.
Mqmt.. lnc. v. United States, 104 F.3d 1314, 1319 (Fed. Cir.) ("The requirements for a
valid contract with the United States are: a mutual intent to contract including offer,
acceptance, and consideration; and authority on the part of the government
representative who entered or ratified the agreement to bind the United States in
contract.") (citations omitted), reh'o denied and en banc suosestion declined (Fed. Cir.),
cert. denied,522 U.S.857 (1997); Toon v. United States,96 Fed. C|.288,299-300
(2010); Peninsula Gro. Capital Coro. v. United States,93 Fed. Cl. at728 (citing Total
Med. Mqmt.. Inc. v. United States, 104 F.3d at 1319). The elements of a binding
contract with the United States are identical for express and implied-in-fact contracts.
See De Archibold v. United States, 57 Fed. Cl. at 32 (citing Trauma Serv. Grp. v. United
States, 104 F.3d at 1325); see also Flexfab. L.L.C. v. United States,424 F.3d 1254,
1265 (Fed. Cir.2005) (citing Schism v. United States, 316 F.3d 1259, 1278 (Fed. Cir.
2002),cert. denied,539 U.S.910 (2003)); Mastrolia v. United States,91 Fed. C|.369,
384 (2010) (citing Flexfab. L.L.C. v. United States,424 F.3d at 1265); Anderson v.
United States,344 F.3d 1343, 1353 (Fed. Cir.2003) (citing Cal. Fed. Bank. FSB v.
United States, 245 F.3d 1342, 1346 (Fed. Cir. 2001 ); Citv of El Centro v. United States,
922F.2d 816,820 (Fed. Cir. 1990); Russell Corp. v. United States,2lO Ct. Ct.596,
608, 537 F.2d 474, 481-82 (1976); Rivera v. United States, 105 Fed. Ct. 644, 650
(2012).
Significantly, however, the government "is not bound by its agents acting beyond
their authority and contrary to regulation." Urban Data svs.. Inc. v. United states, 699
F.2d 1147,1153 (Fed. Cir. 1983) (citing Fed. Crop Ins. Corp. v. Merriil,332 U^S, 3S0,
384 (1947)) (other citations omitted); see also chattler v. united States , 632 F.3d 1324,
1330 (Fed. Cir. 2011); Toon v. United States, 96 Fed. Ct. 288, 299-300 (2010);
93 Fed. Ct. 710, 714 (2010).
Privity of contract between a plaintiff and the government is required to bring a cause of
action in the United states court of Federal claims for express and implied contracts.
See Cieneqa Gardens v. United States, 194 F.3d 1231,1239 (Fed. Cir. 1998) (,,Under
the Tucker Act, the court of Federal claims has jurisdiction over claims based on 'any
express or implied contract with the United States.' 28 U.S.C. g 1a91(a)(1) (1994). We
have stated that '[t]o maintain a cause of action pursuant to the Tucker Act that is based
on a mntract, the contract must be between the plaintiff and the government.' Ransom
v. United States. 900 F.2d 242, 244 (Fed. Cir. 1990). In other words, there must be
privity of contract between the plaintiff and the United states. see Erickson Air crane
Co. of Wash. v. United States. 731 F.2d 810,813 (Fed. Cir. 1984) (,The govemment
consents to be sued only by those with whom it has privity of contract.').,'); see also
S. Cal. Fed. Sav. & Loan Ass'n v. United States,422 F.3d 1319, 1328 (Fed. Ciil t n
plaintiff must be in privity with the United states to have standing to sue the sovereign

Conzatez-tvtcCautlm,

tz

on a contract claim," but noting exceptions to this general rule (citing Anderson v. United
States,344 F.3d at 1351; United States v. Alqoma Lumber Co.,30S U.S. 415,421
(1939))), reh'q and reh'q en banc denied (Fed. Cir.2005), cert. denied, b4B U.S.904
(2006). Moreover, for a contract to be valid, it must be made and entered into with
someone who can enforce the contract. In other words, with limited exceptions which
do not apply here, the "government consents to be sued only by those with whom it has

privityofcontract." Flexfab.L.L.c.v.Unitedstates,424F.3dat1263(quotingErickson
Air crane co. of wash. v. United states , 731 F.2d at 813); see also citv of El cenrro v.
United States, 922 F.2d at 82O.

"[T]he burden rests with the party asserting the existence of a contract with the
United States to determine whether the person with whom it dealt had actual authority
to enter into the contract on behalf of the Government." perri v. united states, 53 Fed.
Cl. 381, 394 (2001), affld, 340 F.3d 1337 (Fed. Cir. 2003). ,,,An ernployee ot tfre
Government possesses express authority to obligate the Government only when the
Gonstitution, a statute, or a regulation grants it to that employee in unambrguous
terms."' Abraham v. United States,81 Fed. cl. 178, 1s6 (2008) (emphasis in original)
(quoting Garzav. United States,34 Fed. Cl. 1, 18 (199S)). However,,,[a]uthorityto bind
the government may be implied when it is an integral part of the duties assigned to the
particular government employee." winter v. cath-dr/Balti Joint Venture, 497F.3d 1339,
1346 (Fed. cir.) (citing H. Landau & co. v. United states, 886 F.2d 322,324 (Fed. cir.
1989)), reh'q and reh'q en banc denied (Fed. Cir. 2007).
Attorney Shurtz, according to his uncontested declaration submitted to this coun,

was "not an employee of the Department of Veterans Affairs or any other Federal
agency." Attorney shurtz states in his declaration that he has "never represented to the
public that I am a contracting officer or indicated in any manner that I have authority to
enter into contracts on behalf of the United States or any Federal Agency." Attorney
Shurtz was hired to represent the secretary of Veterans Affairs at the diipossessory
hearing in cobb county Magistrate court in order to remove plaintiff from ttre property,
and there is no indication in the record that he had authority to authorize piaintiff to
remain on the property indefinitely. To the contrary, he was the attorney hired by the
VA to have Ms. Vasko evicted.
Anyone entering into an agreement with the government assumes the risk of
having "accurately ascertained that he who purports to act for the Government stays
within the bounds of his authority." Flexfab. L.L.c. v. United states, 424 F.3d at 1260
(quoting Fed. crops Ins. coro. v. Merrill, 332 u.s. at 394). Even 'Lpparent authority 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 at 1344 (citing Trauma
serv. Gro. v. United states, 104 F.3d at 1325). Although plaintiff claims tr,lr. snnrtz
"said he worked for the VA," plaintiff admits that "[a]t the time of this
lFebruary 2012
magistrate courtl hearing Mccalla Raymer website showed Mr. shurtz as one of their
attorneys," conceding that plaintiff knew Mr. shurtz worked for a private law firm, ano
was not a government employee. plaintiff argues that, although

IJ

McCalla Raymer and Mr. Shurtz are independent contractors, the
government has obviously delegated authority to same with matters of this
foreclosure . . . McCalla Raymer keeps an open line of communication
with the government, carbon copying the correspondence to the
government, keeping the government well informed, such that the
government is responsible for this agent in this setting.

.

Ms. Vasko's argument, however, fails. Mr. Shurtz was retained to represent defendant
at the dispossessory hearing and his function was to remove plaintiff from the property,
not to permit her to remain on the property indefinitely.

Plaintiff also has not demonstrated any of the other elements, in addition to
actual authority, necessary for entering into a contract with the United States
government. As noted above, in order to prevail on a claim based on an express or an
implied-in-fact contract, a plaintiff must show: "(1) mutuality of intent to contract; (2)
consideration; (3) an unambiguous offer and acceptance and; (4) actual authority on the
part of the government's representative to bind the Government." Mastrolia v. United
States, 91 Fed. Cl. at 384 (citing Flexfab. LLC v. United States,424 F.3d at 1265;
Abraham v. United States, 81 Fed. Cl. at 184). Plaintiff has not alleged any facts that
suggest that the United States intended to enter into a contract with plaintiff regarding
the Nathan Lane property. Moreover, plaintiffs various descriptions of what she alleges
were the contract terms also indicate that no contract came into being between plaintiff
and Attorney Shurtz, or anyone else. There also was no allegation of consideration
exchanged between plaintiff and the United States, as plaintiff only alleges she made
monthly payments to Mr. Brown, and made the single, $600.00 payment to the Cobb
County Magistrate Court, in acmrdance with the court's "Order on Motion to Compel
Payment of Rent into Court." At no point has plaintiff demonstrated that she even spoke
with, much less entered into an agreement with, any individual authorized to contract on
behalf of the government. For these reasons, plaintiff has failed to plead the essential
elements for the existence of a contract with the United States. Absent an existing
contract, either express or implied-in-fact, between plaintiff and defendant, plaintiff
cannot recover against the government for an alleged breach of contract.
Takings Ciaims
Although not in her original complaint, plaintiff also tries to raise allegations of a
taking under the Fifth Amendment to the United States Constitution in her amended
complaint, and specifically alleged a takings claim in "Plaintiffs First Supplemental
Pleading," with regard to the real property at issue, as well as with regard to her
personal property. Plaintiff also briefly, and without elaboration, referenced a "breach
and taking" in her "Response to Defendant's Motion to Dismiss, or in the Alternative, for
Summary Judgment." Claims raised for the first time in a response brief are generally
waived. See Kalick v. United States, 109 Fed. Cl. 551, 561 n.10 (2013) (citing Casa de
Cambio Comdiv S.A.. de C.V. v. United States, 291 F.3d 1356, 1366 (Fed. Cir. 2002);
United States v. Ford Motor Co.,463 F.3d 1267,1276-77 (Fed. Cir.2006)); see also
Novosteel SAv. United States,284 F.3d 1261 ,1274 (Fed. Cir.2002); Becton Dickinson
& Co. v. C.R. Bard. lnc.,922 F.2d 792,800 (Fed. Cir. 1990). Under RCFC 15(d),
14

however, a party may be permitted to file a supplemental pleading ,,setting out any
transaction, occurrence, or event that happened after the date of the pleading to be
supplemented. The court may permit supplementation even though the original pleading
is defective in stating a claim or defense." RCFC 15(d) (2012); see also peiro-Huni.
L.L.c. v. United states, 1 05 Fed. cl. 37 , 44 ("Recent cases confirm that a supplemental
pleading may include a new cause of action 'provided there is some relationship
between the original and the later accruing material."' (citations omitted)), recons.
denied, 105 Fed. Cl. 132 (2012), recons. denied, 108 Fed. Ct. 398 (2013). Given the
liberal construction afforded to pro se plaintiffs' pleadings, see Haines v. Kemer,404
U.s. at 520-2'1 , the fact that Ms. Vasko raised allegations of a taking in her now stricken
amended complaint, and "Plaintiff's First supplemental pleading" addresses limited
events that took place after plaintiff filed her original complaint, the court addresses
plaintiffs takings allegations to explain to plaintiff why her takings claim also must fail.

The takings clause of the Fifth Amendment to the United states constitution

provides in pertinent part: "nor shall private property be taken for public use without just
compensation." U.S. const. amend. V. The purpose of this Fifth Amendment proviiion
is to prevent the government from "'forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the public as a whole."' palazzolo
v. Rhode lsland,533 u.s.606,618 (2001) (quoting Armstronq v. United stat,es,364
U 9 40, 49 (1960)), abroqated on other qrounds py Linqle v. Chevron U.SA lnc., 544
U S 528 (2005), recoqnized
Haoeland Aviation Servs.. Inc. v. Harms, ZIO p.Sa qqq
(Alaska 2009); see also Linole v. Chevron U.S.A. Inc., S44 U.S. at 536; E. Enrers. v.
444, 524 U.S. 498, 522 (1998); Penn Cent. Transo. Co. v. Citv of New york, 438 U.S.
104, 123-24, reh'q denied,439 U.S.883 (1978); Rose Acre Farm. Inc. v. United States,
559 | 3d 1260, 1266 (Fed. Cir.), reh'o en banc denied (Fed. Cir. 2009), gert. dCded,
130 S. Ct. 1501 (2010); Janowskvv. United States, 133 F.3d 888,892 (Fed-. 1998);
Cir.
Invs.. lnc. v. united states,85 Fed. c|.447, a69-70 (2009); pumpellvv. Green Bav
Bes,
& Miss. Canal Co.,80 U.S. (13 Wail.) 166, 179 lteZt) lciting to
whicfi
establish that "private property may be taken for public uses when public necessity or
utility requires" and that there is a "clear principle of natural equity that the individual
whose property is thus sacrificed must be indemnified").

I

pnnc

To succeed under the Fifth Amendment takings clause, a plaintiff must show that
private property interest for public use without just
compensation. see Adams v. United states, 391 F.3d 1212, 1218 (Fed. cir. 2004).
cert. denied, 546 U.S. 811 (2005); Arbelaez v. United States, 94 Fed. Cl.753,76,
(2010); Gahaqan v. United States , 72 Fed. Cl. 1 57, 162 (2006). ,,The issue of whether a
taking has occurred is a question of law based on factual underpinnings.,' Huntleiqh
USACqrp. v. United States,52S F.3d 1370, 1377-78 (Fed. Cir.), cert. denied,5SS U.S.
1045 (2008). The govemment must be operating in its sovereign, rather than in its
proprietary capacity, when it initiates a taking. see St. christopher Assocs., L.p. v.
United States,511 F.3d 1376, 1385 (Fed. Cir.2008).

the government took

a

To establish a taking, a plaintiff must have a legally cognizable property interest,
such as the right of possession, use, or disposal of the property. see Loretto v.
Teleprompter Manhattan GATV coro., 458 u.s. 41g,4gs (1982) (citing uFiteo-Slates v.
15

Gen. MotorsCorp.,323 U.S.373 (1945)); CRV Enters.. Inc. v. United States,626 F.3d
1241 , 1249 (Fed. Cir. 2010), cert. denied, 131 S. Ct. 2459 (2011); Karuk Tribe of Cat. v.
Ammon, 209 F.3d 1366, 1374-75 (Fed. Cir.), reh'q denied and en banc suoqestion
denied (Fed. cir. 2000), cert. denied, 532 u.s. 941 (2001). "'lt is axiomatic that oniy
persons with a valid property interest at the time of the taking are entitled to
compensation."'Am. Pelaqic Fishino Co. v. United States,379 F.3d 1363, 1372 (Fed.
Cir. 2004) (quoting Wvatt v. United States , 271 F .3d 1090, 1096 (Fed. Cir. 2001 ), cert.
denied,353 U.S. 1077 (2002) (citing Cavin v. United States,956 F.2d 1131, 1134 (Fed.
Cir. 1992))), cert. denied, 545 U.S. 1139 (2005). Therefore, ,,[i]f the claimant fails to
demonstrate the existence of a legally cognizable property intereit, the courts [sic] task
ls at an end." Am. Pelaqic Fishinq co. v. United states, 379 F.3d at 1372 Giting
Maritrans Inc. v. United states,342 F.3d 1344, 13s2 (Fed. cir. 2003); M & J coat bo. vl
United States, 47 F.3d 1148, 1154 (Fed. Cir.), cert. denied,516 U.S. S08 (1990). Tl,e
court does not address the second step "without first identifying a cognizable property
interest." Air Peqasus of D.c.. Inc. v. United states,424 F.3d 1206, 1213 (Fed. cir.)
(citing Am. Pelaoic Fishinq Co. v. United States,379 F.3d at 13g1; Conti v. United
States,291 F.3d 1334, 1340 (Fed. Cir.), reh'q en banc denied (Fed. Crr.2002), gC1|
qenied,537 u.s. 1112(2003)), reh'q denied and reh'q en bancdenied (Fed. cir.2o0$
only if there is to be a next step, "'after having identified a valid property interest, the
court must determine whether the governmental action at issue amounted to a
compensable taking of thal property interest."' Huntleioh USA corp. v. United states,
'
525 F.3d at 1378 (quoting Am. petaoic Fishinq co. v. united states-zgTid;t 1372)r

Property interests are not created by the constitution, but rather ""'they are
created and their dimensions are defined by existing rules or understandings that stem
from an independent source such as state law.""' Ruckelshaus v. Monsaito co., 467
U.s. at 1001 (quoting webb's Fabulous pharmacieffi
1b5,
161 (1980) (quoting Bd. of Reoents v. Roth, 408 U.S. 564, 577 (1972))); see arso
Elellia Rock Indus.. Inc. v. united states, 1g F.3d 1s60, 1575 (Fed. cir. tsg+l (Rigfrts
in land depend on the law of the particular state." (citing preseault v. lcc, 494'u.S. 1,
16 n.9,20-25 (1990))). when analyzing an alleged taking, therefore3e court must
determine whether the plaintiff had an interest in the real property under state law. see
Glosemever v. United statgg, 45 Fed. ct. 771, 776 (Fedt. ci. zcioo) (.[w]hen a federal
court analyzes the effect of federal action on real property, it must utilize the law of the
situs." (citing Foster v. united states, 221 ct. ct. 412, 420-21, 607 F.2d 943. 948
(1e7e))).

Plaintiff has failed to establish that she had a legally cognizable property interest
in the Nathan Lane property to which she claims entiflement. She has aileged in
various pleadings that she was an owner, tenant at will, and tenant at sufferance, but
has not documented her property right allegations. The documentation provided to the
court by plaintiff and defendant supports the claim that there was a valid conveyance of
the Nathan Lane property from American National Financial, Inc. to Howard s. and
Helen A. McKinney on December 22, 1992. There also is evidence in the record that
the McKinneys purchased the home with a loan from the Bank of oklanoma,
guaranteed by the VA as part of the VA Home Loan program. plaintiff alleges thal
to

William A. Brown, Jr. purchased the Nathan Lane property from the McKinneys on
September 26, 1996, and plaintiff claims she purchased the property from Mr. Biown.
Plaintiff provided copies of a warranty deed purporting to convey the property from
Howard S. and Helen A. McKinney lo William A. Brown, Jr., dated September 26, 1996,
an "owner's affidavit" signed by William A. Brown, Jr. on September 27, 1g96,
representing that he was the rightful owner ofthe Nathan Lane property, and a warranty
deed purporting to convey the property from william A. Brown, Jr. to plaintiff on
september 27, 1996. There were problems with these legal documents, however,
including the fact that the warranty deed conveying the property from the McKinneys to
Mr. Brown was not filed with the appropriate county until october 20,2oog, more than
thirteen years after plaintiff alleges Mr. Brown sold the property to her. In addition,
plaintiff acknowledges that she knew the property "was to stay in McKinney's name . .
until Plaintiffs mortgage was paid off."
.

Although the chain of title is murky, it appears that the Bank of oklahoma
mortgage remained in the McKinneys' name, and was guaranteed by the VA. When the
mortgage payments ceased, the Bank of oklahoma foreclosed on the Nathan r_ane
property and, on November 8,2011, transferred the property to the Secretary of
Veterans Affairs. The Secretary of Veterans Affairs then initiated a "Proceeding Agiinst
Tenant Holding over'' in the cobb county Magistrate court, in which the cob6 county
court acknowledged the VA's title and, after a hearing, "entered the writ of possessron
in favor of the VA" on March 2,2012. The Georgia state court, therefore, determined
that the secretary of Veterans Affairs held tifle to the Nathan Lane property, not plaintiff,
and that anyone occupying the property was an unlaMul tenant. plaintiff was given the
opportunity to appeal the Magistrate court's decision, but failed to file a timely appeal
and also failed to comply with court's order that she pay rent into the registry of the
court as it came due, pending the appeal. on April 13, 2012, the cobb county
Magistrate court issued an order stating that plaintiff "is no longer entitled to possession
of the premises." Thus, the Georgia state court determined that, under Georgia law,
plaintiff had no valid property interest in the Nathan Lane property. In causing pliintifr
to
be evicted from the Nathan Lane property, defendant was acting pursuant to its
possessory rights established under applicable Georgia law.
Plaintiff also argues that she had an interest in the Nathan Lane property througn
adverse possession. citing Kinoman Reef Atoll lnvestments. L.L.c. v. United states,

541F.3d11B9,1199(9thCir.2008),defendantcorrec@States

cannot 'lose property rights through adverse possession."' To the extent that plaintiff
claims she obtained an interest through adverse possession, Georgia law states:
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 on 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.

17

Ga. Code Ann. $ 44-5-176 (2012). "'flln the absence of fraud, a deed which, on its face,
complies with all statutory requirements is entitled to be recorded, and once accepted
and filed with the clerk of court for record, provides constructive notice to the world of its
existence."' Bvers v. McGuire Prooerties, Inc.,679 S.E.2d 1,4 (Ga.2009) (quoting
Leeds Bldq. Products v. Sears Mortq. Coro., 477 S.E.2d 565 (Ga. 1996); see also
Delioo v. SunTrust Mortq.. Inc., 668 S.E.2d 245, 246 (Ga. 2008) (,'For more than a
century, it has been recognized that a purchaser of land in this state 'is charged with
notice of every fact shown by the records, and is presumed to know every other fact
which an examination suggested by the records would have disclosed."') (quoting
Talmadqe Bros. & Co. v. Interstate Btdq. & Loan Assn., 31 S.E. 618 (Ga. 1898)). The
1 992 security deed mnveying the Nathan Lane property from American National
Financial, lnc. to the McKinneys was recorded on December 22, 1gg2 and re-recorded
on February 10, 1993. Plaintiff claims that, although the security deed was filed in
1992, it did not give her constructive notice when she purchased the property in 1996
because "the Attorney's Affidavit . . . was notarized but not signed. . . . Georgia law
provides that a patently defective document in the transfer of property does not give
constructive notice to a bonafide [sic] purchaser." plaintiff appears to be referring to the
"closing Attorney's Affidavit" attached to the 1992 security deed. The 1992 security
deed was signed by Harold s. McKinney, Helen A. McKinney, and an "additional'
witness, and had been notarized, meeting all the requirements of Georgia code g 4414-33 (2012). Even if the 1992 security deed was "defective" due to a missing signature
on the closing attorney's affidavit, that defect was corrected on February 10, 1993,
when the security deed was re-recorded "to add the signature of the closing attomey to
the closing attorney's affidavit." A valid security deed was, therefore, in place well
before plaintiff claims to have established her interest in the property in 1996. Plaintiff
also has acknowledged that, at the time she allegedly purchased the Nathan Lane
property from william A. Brown, Jr. in 1996, "Brown said the property was to stay in the
McKinney's name . . . until Plaintiffs mortgage was paid otr." wnen plaintiff aliegedly
purchased the Nathan Lane property from Mr. Brown, she at least had constructive, if
not actual, notice of the McKinney's ownership interest.

In addition, there was a warranty deed for the Nathan Lane property, purporting
to convey the property from Howard s. and Helen A. McKinney to william A. Brown, Jrwhich was dated september26, 1996 and signed by Debra June McKinneycarter,,as
attorney-in-fact" for Mr. and Mrs. McKinney. The warranty deed between the
McKinneys and Mr. Brown was recorded in cobb county, Georgii on october 30, 2009.
By contrast, the warranty deed between Mr. Brown and Ms. Vasko, dated september
27, 1996, was never recorded. when the foreclosure proceedings were iniiiated in
November 2011, therefore, Ms. Vasko also had notice that Mr. Brown had a potential
ownership interest in the Nathan Lane property, whereas the instrument which allegedly
created her interest in the property had never been properly recorded.
Under Georgia law, in November 2011, when the Bank of oklahoma foreclosed
the
foreclosure sale to the secretary of Veterans Affairs was completed, plaintiff became a

on the Nathan Lane property and transferred the property to the VA, once

tenantatsufferance. See,e.q.,Bellamvv.F.D.l.C.,512S.E.2d671,675(Ga.Ct.App.
18

1999) (citations omitted) ("Where former owners of real property remain in possession

after a foreclosure sale, they become tenants at sufferance."). The Secretary of
Veterans Affairs was then able to begin a proceeding against any holdover tenant,
which was accomplished on January 10,2012. See Ga. Code Ann. S 44-7-50 (2012).
Plaintiff received notice of the proceeding and alleges that she appeared at two
hearings before the Cobb County Magistrate Court before the writ of possession in favor
of defendant was signed on March 2,2012. After the writ was signed, defendant's
counsel notified the court that plaintiff intended to appeal, and the court entered an
Order allowing plaintiff to remain pending the appeal, but requiring plaintiff to pay renr
into the court pursuant to Georgia statute g 44-7-54. Plaintiff, however, only paid rent to
the court once in March 2012, and violated the Order of the Georgia court when she
failed to make an April 2012 payment, and did not file a timely appeal. Accordingly, on
April 13, 2012, the Magistrate court ordered that plaintiff was "no longer entitled to
possession" of the Nathan Lane property and that the Secretary of Veterans Affarrs was
"entitled to enforce the writ of Possession," and remove plaintiff from the premises.
Plaintiff, therefore, cannot establish a legally cognizable property interest in the Nathan
Lane, Austell, Georgia property.

Plaintiff also fails to establish that the government took the property in question
for a public use. To prevail in a takings claim, a plaintiff must show that the government
took a private property interest for public use without just compensation. See Adams v.
United States, 391 F.3d al 1218; Arbelaez v. United States, 94 Fed. Cl. at 762.,
Gahaqan v. United states ,72 Fed. cl. at 162. Although plaintiff tries to suggest a public
use when she claims that, "[t]he taking is part of the Cobb County neighborhood
stabilization project," plaintiff ultimately acknowledges in her later reply that the
government did not take her property for a public use, when she states that: "plaintiff
has no concrete information establishing the reason Defendant acquired her propeny
. . . . There is a presumption that the mere taking by the Government is for public use
. . . . At this point any prior statement by Plaintiff regarding public use has proved not
true." Without even alleging, much less establishing, a public use, plaintiff cannot
establish a takings claim under the Fifih Amendment.
In "Plaintiffs First Supplemental Pleading," plaintiff also claims that,,[t]he taking
possessions of Plaintiff and Plaintiffs family in the house and their damage is a taking
of
deserving just compensation." Plaintiff claims this personal property included a,,GE
Profile [stove] and such items as bookshelves, dishwasher, faucets, and [a] variety of
other items kept in the house." Plaintiff also claims that "Defendant's obstruction of
accessibility to Plaintiffs and Plaintiffs possessions is
taking deserving just
compensation." Plaintiff asserts that "during . . . Eviction #2 [the October 19, 2012
evictionl Defendant failed to put Plaintiffs family's possessions in areas wherein
Plaintiff s family could remove them." Plaintiff further asserts that, "[i]t was evident from
discussion with Defendant's agents that Plaintiff's family's possessions were being kept
for their own use and profit. Defendant refused to allow plaintiff her possessions when
she asked for them." Although plaintiff states that she "is not claiming a tort,', plaintiff
concedes in her March 7, 2013 filing that the alleged actions by defendant were not in

a

19

the nature of a taking, but a conversion, and, therefore, a tort claim, not within the
jurisdiction of this court.

In addition, many of the items of "personal property'' plaintiff identifies

as
allegedly taken by defendant appear to be fixtures to the real property. Georgia law
states that, "[a]nything which is intended to remain permanenily in its place even if it is
not actually attached to the land is a fixture which constitutes a part of the realty and
passes with it." Ga. Code Ann. S 44-1-6(a) (2012); see also Ga. Code Ann. S 44-12(a)(2) (2012) (definition of real estate includes "[a]ll things permanenfly attached to
land or to the buildings thereon"). In determining if personal property is a fixture
intended to remain permanently with the real property, Georgia courts consider "'the
circumstances under which the article was placed upon the realty, the uses to which it is
adapted, and the parties who are at issue . . . ."' State v. Dvson, gl S.E.2d 217,219
(Ga. Ct. App. 195a) (quoting Wolff v. Sampson, 51 S-E. 33S (ca 190S); Consotidated
Warehouse Co. v. Smith, 1 89 S. E. 724 (Ga. Ct. App. 1 937)); see also Buroee r,. Attrens
Prod. credit Ass'n, 15 s.E.2d 526 (ca. ct. App. 1941) (furnace and its appliances
installed in basement were determined to be part of the realty to which it was attached).
The security deed conveying property also may identify items that are to remain with the
property. see consolidated warehouse co. v. Smith, 1s9 s.E. at 726 (citing wolff v.
9,ampson,51 S.E. at335). In plaintiffscase,the 1992 securitydeed entered into bythMcKinneys specifically included "all fixtures now or hereafter attached to or used in
connection with the premises herein described and in addition thereto the following
described household appliances, which are, and shall be deemed to be, fixtures ano a
part of the realty . . .: range/oven, fan/hood, [and] dishwasher." In exercising the right to
repossess the property located at 1721 Nathan Lane, defendant appears also to have
had the right to repossess the fixtures to that property, and to the extent it would be
considered a taking, plaintiff has not demonstrated a legally cognizable property
interest, nor that the government took the property for a public use.

Torts Claim

_ To the extent that plaintiff may request relief from conduct sounding in tort by
federal officials with reference to damage or unavailability to her of her personar
property, the Tucker Act expressly excludes tort claims, including those committed by
federal officials, from the jurisdiction of the United States court of Federal claims. see
28 U.S.C. S 1a91(a)(1); see also Keene Corp. v. United States, 508 U.S. 2OO, 214
(1993); Rick's Mushroom Serv.. Inc. v. United States, S2l F.3d 1338, 1343 (Fed. Cir.
2008); Alves v. United States, 133 F.3d 1454, 1459 (Fed. Cir. 1998); Brown v. United
States, 105 F.3d 621,623 (Fed. Cir.), reh'q denied (Fed. Cir. tOOZ;; @
Bancorp v. United States, 15 F.3d 1066, 1070 n.B (Fed. Cir. 1994), rchS dent"o,
banc suqqestion declined (Fed. Cir.), cert. denied, 513 U.S. 961 (1994); Hamper "n
v.
United States, 97 Fed. C|.235,238, affd,429 F. App'x 995 (Fed. Cir.2011), cert.
gg+ed, 132 S. Ct. 1105 (2012); Woodson v. United States, 89 Fed. Ct. 640, 650 (2009)r
McCu.llouqh v. United States,76 Fed. Cl. 1,3 (2006), appeal dismissed,23O F. App,i
0.15 (Fed Cir.), reh'q denied (Fed. Cir.), cert. denied, SS2 U.S. iOsO (2007); Aqee v.
United states, 72 Fed. cl. 284,290 (2006); Zhenoxinq v. united states, 71 F;d. ct732, 739, atfd, 2O4 F. App'x BBb (Fed. Cir.), reh'q denied (Fed. Cir. 2006). tt is wetl
20

established that "'subject-matter jurisdiction, because it involves a court's power to hear
a case, can never be forfeited or waived."' Arbauoh v. Y & H Corp., 546 U.S. 500, S14
(2006) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)). "[F]ederat courts
have an independent obligation to ensure that they do not exceed the scope of their
jurisdiction, and therefore they must raise and decide jurisdictional questions that the
parties either overlook or elect not to press." Henderson ex rel. Henderson v. shinseki,
131 S. Ct. 1197,1202 (2011); see also Hertz Coro. v. Friend, 130 S. Ct. 1181, 1193
(2010) ("courts have an independent obligation to determine whether subject-matter
jurisdiction exists, even when no party challenges it." (citing Arbauqh v. y & H Corp.,
546 U.S. at 514)); Special Devices. Inc. v. OEA. Inc.,269 F.3d 1340, 1342 (Fed. Cir.
2001) ('tAl court has a duty to inquire into its jurisdiction to hear and decide a case."
(citing Johannsen v. Pav Less Druq Stores N.W.. Inc.,91B F.2d 160, 161 (Fed. Cir.
1990))); View Enq'o, Inc. v. Robotic Vision Svs.. Inc., 115 F.3d 962, 963 (Fed. Cir.
1997) ("[c]ourts must always look to their jurisdiction, whether the parties raise the
issue or not."). Therefore, jurisdiction does not arise in this court for any claim by
plaintiff of tortious mnduct.

Due Process Claim
In addition, plaintiff alleges a due process claim in "plaintiffs First supplemental
Pleading." Plaintiff asserts that the "[d]ispossessory denies Plaintiff her constitutionally
protected rights," apparently in reference to the state court removal proceeding. Plaintiff
alleges:

[T]he remand back to the state level of the Cobb County Magistrate Court
effectuating Eviction #2 is illegal . . . . The due process violations continue
with J. Pannell [Judge Pannell of the U.S. District Court of the Northern
District of Georgial . . . the magistrate court of the initial dispossessory
action was without jurisdiction . . . [and] [p]roper service for the foreclosure
was lacking.

Plaintiff also mixes allegations of her takings claim and a due process claim
when discussing the monthly payments she made to Mr. Brown, allegedly, in excnange
for residing at the Nathan Lane property, stating that "[p]laintiff kepton paying for the
mortgage, thinking the house was hers, when in reality plaintiff was just paying off the
VA loan, to the benefit of Defendant. Plaintiff claims that this offends due proc-ess ano
is a taking." The mortgage payments in question were made to Mr. Brown, who in turn
paid, or failed to pay, the Bank of Oklahoma, not the United States. None of the
payments were made to the VA. Nor was the foreclosure by the Bank of oklahoma a
taking. "[F]oreclosure by a private lender of a mortgage in a federal mortgage guaranty
program does not involve federal action sufficient to invoke the due process clause of
the Fifth Amendment." Rank v. Nimmo,677 F.2d 692,702 (9th Cir. 1982) (citing
Warren v. Gov't Nat'l Mortq. Ass'n,611 F.2d 1229, 1232 (Bth Cir.), cert. denied, 449
U.S. 847 (1980); Roberts v. Cameron-Brown Co., 556 F.2d 356, 358-60 lStn Or. tSZZ);
Fitzqerald v. Cleland,498 F. Supp. 341, 348-49 (D. Maine, 1980), affd in pg[, rev'd jn
oart, 650 F.2d 360 (1st cir. 1981)). Refening to her claims collectively, plaintiff states:
21

This Court continues to have subject matter jurisdiction pursuant to the
Tucker Act, 28 U.S.C. S 1491, as the claims set forth herein are founded
in the Constitution, or an Act of Congress, or regulation of the executive
department, or upon express or implied contract with the United States, for
unliquidated damages not sounding in tort.

The United States Court of Appeals for the Federal Circuit, however, has held
that this court does not possess jurisdiction to consider claims arising under the Due
Process clauses of the Fifth and Fourteenth Amendments to the United states
constitution. see crocker v. united states, 12s F.3d 147s, 1476 (Fed. cir. 1997)
(citing LeBlanc v. United States, 50 F.3d 102s, 1o2B (Fed. cir. 1995) (no jurisdiction
over a due process violation under the Fifth and Fourteenth Amendments)); see also In
(Fed.
ry- Xed-Slalcg, 463 F.3d 1328, 1335 n.5provide Cir.) ("[B]ecause the Due procesi
clause is not money-mandating, it may not
the basis for jurisdiction under the
Tucker Act."), reh'o and reh'o en banc denied (Fed. cir. 2006), cert. denied, 552 u.s.
940 (2007); Acadia Tech.. Inc. v. United States, 458 F.3d 1327,1334 (Fed, Cir. 2006);
collins.,v. United states,67 F.3d 284,2a9 (Fed. cir.) ("[T]he due process clause ooes
not obligate the government to pay money damages."), reh'q deniec 1red. cir. 1995);
Mullenberq v. unite
,857 F.2d 770,773 (Fed. cir. 19sB) (finding that the Due
Process clauses "do not trigger Tucker Act jurisdiction in the courts"); Murrav v. United
states, 817 F.2d 1580, 1583 (Fed. cir. 1987) (noting that the Fifth Amendnrent's Due

Process clause does not include language mandating the payment of money damages);
HA q-V--UIXed SIA!qS, 104 Fed. C|.287,291 n.5 (2012); Hamoet v. United States, 97
Fed. Cl. 235,238, affd, 429 F. App'x 995 (Fed. Cn.2011), ect djSrnAseO. rS2 S. Ct.
'1105 (2012); McCullouqh v. United States, 76 Fed. Ct. 1, 4 (2006) (.tNleither the Fifth
Amendment Due Process clause . . . nor the privileges and lmmunitiei ilause provides
a basis for jurisdiction in this courl because the Fifth Amendment is not a source that
mandates the payment of money to plaintiff."); Smith v. United States, TOg F.3d 1114,
1116 (Fed. cir. 2013) ("The law is well seftled that the Due process clauses of both the
Fifth and Fourteenth Amendments do not mandate the payment of money and thus do
not provide a cause of action under the Tucker Act." (citing LeBlanc v. Uniied States, 50
F.3d at 1028)). Due process claims "must be heard in District courti' Karn-Almaz v.
United states,96 Fed. c|.84,89 (2011)(citing Acadia Tech.. Inc. v. united states,458
F.3d at 1334), aff d, 682 F.3d 1364 (Fed. Cir. 2O12); see
!e!4pej_t_!rri!gllrg!a!cs
"t"S
97 Fed. cl. at 238. Therefore, to the extent that plaintiff is atternptingfr raise
allegations of due process violations, no such cause of action can be brou-ght in this
court.

while the United states court of Federal claims possesses jurisdiction over
breach of contract and takings claims, considering plaintiffs allegationi as true for the
purposes of the motion to dismiss and drawing all reasonable inferences in favor of
plaintiff, the court finds that plaintiff has failed to state a claim for which relief can be
granted with regard to both her breach of contract and her various takings claims. In
addition, this court does not have jurisdiction to entertain plaintiffs tort oidue process
claims.

22

F

CONCLUSION
For the foregoing reasons, plaintiff has rrct alleged a breach of contract claim or a
takings daim upon which relief can be granted, nor is there jurisdiction in this couft to
address plaintiffs tort or due process daims. Therefore, the court GRANTS
defendant's motion to dismiss. Plaintiffls complaint is DISMISSED, with prejudice. The
Glerk of the Court sfrall enter JUDGMENT consistent with this opinion.

IT IS SO ORDERED.

ARIAN BLANK HORN

Judge

23