Vasko v. United States

NOTE: This disposition is nonprecedential.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
______________________
CAROL ANN VASKO, of Marietta, Georgia, pro se.
L. MISHA PREHEIM, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for defendant-
appellee. With him on the brief were STUART F. DELERY,
Assistant Attorney General, ROBERT E. KIRSCHMAN, JR.,
Director, and KENNETH M. DINTZER, Assistant Director.
______________________
Before DYK, TARANTO, and CHEN, Circuit Judges.
2 VASKO v. US
PER CURIAM.
After the government evicted her from her home, Car-
ol 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 claims. Because Ms. Vasko has not identified
reversible error in the Court of Federal Claims’ determi-
nation that she did not plead facts plausibly suggesting
an entitlement to relief on either claim, we affirm.
BACKGROUND
This dispute 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 pur-
chased 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
eligible 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 attorney’s affidavit.” Resp.
App. 58. On the same day, an assignment of the Security
Deed was recorded: the original lender, “[f]or value re-
ceived,” transferred “all its right, title and interest” in the
property to the Bank of Oklahoma. Resp. App. 64.
The McKinneys’ debt was in arrears as of 2011, and
as a result, the Bank of Oklahoma foreclosed on the
VASKO v. US 3
Nathan Lane property. On November 8, 2011, the Bank
of Oklahoma transferred the property to the Secretary of
Veterans Affairs under the terms of the VA’s home-loan
guaranty. On January 10, 2012, the Secretary initiated
an eviction action against anyone living at the property.
Ms. Vasko lived there at the time, having done so contin-
uously, she claims, since 1996. During the eviction pro-
ceeding, the court handling the eviction issued an order
requiring Ms. Vasko to pay her usual monthly rent into
the court. The order told Ms. Vasko that her failure to
make a payment would result in her eviction “without
further hearing.” Ms. Vasko made one payment to the
court, but failed to timely make any other payments. On
April 13, 2012, the court ordered Ms. Vasko to leave the
property.
As to her interest in the property, Ms. Vasko initially
claimed that she “purchased” the property from a William
Brown in August 1996, though she admits that the trans-
action was never recorded with the relevant county rec-
ords office. Mr. Brown, she claimed, had purchased the
property from the McKinneys the day before he sold it to
her. According to Ms. Vasko, her purchase agreement
with Mr. Brown listed her “[s]ole responsibility with the
Property” as paying him $600 each month. Br. of Appel-
lant 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. at 2, and therefore could not have conveyed it to
her. She now relies on the contention that she acquired
ownership through adverse possession.
After the government evicted her, Ms. Vasko sued the
United States in the Court of Federal Claims. She alleged
that the government breached an oral contract that she
had made with the attorney representing the government
in the eviction proceeding. She claimed that the attorney,
who worked at a private law firm, told her that she could
stay at the property as long as she paid $600 each month.
4 VASKO v. US
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 Federal Claims
granted the government’s motion to dismiss for failure 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 Claims Rule 12(b)(6). Id. (The court also
held that it lacked jurisdiction over certain other claims
that are not raised here. Id.) Regarding the contract
claim, the court concluded, first, that Ms. Vasko did not
allege facts suggesting that the private attorney repre-
senting 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 216–17. Regarding the taking claim, the court
concluded that Ms. Vasko had (at least) constructive
notice of the recorded Security Deed, which prevented her
from acquiring 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. App. 24. Ms.
Vasko timely appealed here, raising only the contract
VASKO v. US 5
claim and taking claim. 1 We have jurisdiction under 28
U.S.C. § 1295(a)(3).
DISCUSSION
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 infer-
ences 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), to avoid dismissal for failure to state a
claim, “a complaint must allege facts ‘plausibly suggesting
(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 assump-
tion 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. “To form an agreement
1 In her brief in this court, Ms. Vasko asserts in
passing that 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.
6 VASKO v. US
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 in contract.” Anderson v. Unit-
ed States, 344 F.3d 1343, 1353 (Fed. Cir. 2003). The
Court of Federal Claims focused primarily on the fourth
factor, as to which it concluded that “there is no indication
in the record that [the private attorney who represented
the government in the eviction proceeding] had authority
to authorize plaintiff to remain on the property indefinite-
ly.” Vasko, 112 Fed. Cl. at 216–17. We see no error in
that 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 government, apparent authori-
ty 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 implied 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 proper-
ty indefinitely or, indeed, at all.
Given the legal requirements for government con-
tracting, Ms. Vasko’s allegations about the private attor-
ney do not state a plausible basis for inferring authority
on his part to bind the government to the contract she
alleges. “Authority to bind the government may be im-
plied 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 gov-
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 Claims correctly deter-
mined 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. 2004). 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 pos-
session of the property. The court, considering both
contentions, 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. On appeal, she presents only the adverse-
possession argument, see Br. of Appellant 2, which the
Court of Federal Claims rejected on the ground that she
had at least constructive 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’ de-
termination that, 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):
8 VASKO v. US
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.
Ga. Code Ann. § 44-5-176. Under this statute, there can
be no adverse possession if Ms. Vasko had actual 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 argues that the December 22, 1992 record-
ing 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
designated for the closing attorney. There is no dispute,
however, that the recorded deed “was 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—
that 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 the “Closing Attorney’s Affidavit” defeats the construc-
tive 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 the
VASKO 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 the Security Deed itself, which was not
defective, failed to provide constructive notice: it was
attested to by an official witness and an unofficial witness
and then “duly filed, recorded, and indexed on the appro-
priate county land records.” Ga. Code Ann. § 44-14-33; see
also Wells Fargo Bank, N.A. v. Gordon, 292 Ga. 474, 475,
749 S.E.2d 368, 370 (2013) (“The recording of a properly
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 constructive notice. In these circum-
stances, under Georgia law adverse possession could not
run “in favor” of Ms. Vasko and “against” either the
original lender or the Bank of Oklahoma, see 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 “house-
hold 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.
CONCLUSION
For the foregoing reasons, we affirm the judgment of
the Court of Federal Claims.
No Costs.
10 VASKO v. US
AFFIRMED