The Portland Mint v. United States

In the United States Court of Federal Claims
No. 20-518C
Filed: June 11, 2022
Reissued for Publication: June 28, 20221
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THE PORTLAND MINT, *
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Plaintiff, *
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v.
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THE UNITED STATES, *
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Defendant. *
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Lee Vartan, Chiesa Shahinian & Giantomasi PC, West Orange, N.J., for plaintiff.
Alison S. Vicks, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With her were
Deborah A. Bynum, Assistant Director, Commercial Litigation Branch, Patricia M.
McCarthy, Director, Commercial Litigation Branch, and Brian M. Boynton, Principal
Deputy Attorney General, Civil Division. Apryl Whitaker, United States Mint, of counsel.
OPINION
HORN, J.
FINDINGS OF FACT
Plaintiff, the Portland Mint, filed an initial complaint in the United States Court of
Federal Claims, followed by an amended complaint and a second amended complaint.
At issue before the court is defendant’s motion to dismiss plaintiff’s second amended
complaint. In the second amended complaint, plaintiff claims jurisdiction under the Tucker
Act, 28 U.S.C. § 1491(a)(1) (2018). According to plaintiff, the claims in the second
amended complaint are “founded upon the Constitution, a regulation of an executive
department, and upon an implied contract with the United States.” In plaintiff’s second
amended complaint, plaintiff asserts five counts: (1) a regulatory violation for failure to
1This Opinion was issued under seal on June 11, 2022. The parties were given the
opportunity to propose possible redactions, but no redactions were proposed. The original
Opinion is hereby unsealed and reissued without redaction.
make payments pursuant to the Redemption Program established in 31 C.F.R. § 100.11;
(2) a breach of an implied-in-fact contract between plaintiff and the United States Mint
(U.S. Mint); (3) a breach of the implied duty of good faith and fair dealing between plaintiff
and the U.S. Mint; (4) a taking without just compensation in violation of the Takings Clause
of the Fifth Amendment of the United States Constitution; and (5) a claim for Equal Access
to Justice Act (EAJA) payments in the event plaintiff is found to be the prevailing party.
Plaintiff seeks $8,510,250.00, according to plaintiff, “for the mutilated coins” the U.S. Mint
“accepted and redeemed.”
In Count One of plaintiff’s second amended complaint, “Violation of Federal
Regulation,” plaintiff alleges that the U.S. Mint “agreed to accept, and did accept from the
Portland Mint, a total of approximately 425,100 pounds of dimes, quarters, and half-
dollars, and 1,819 pounds of nickels,” with a “total approximate value” of “$8.51 million,”
an amount less precise than in plaintiff’s prayer for relief of $8,510,250.00 in its second
amended complaint. Plaintiff further alleges that U.S. Mint employees “accepted the
Portland Mint’s shipment, redeemed it, and melted it,” that the U.S. Mint “used the melted
shipment to manufacture new coin roll,” that “[t]he shipment contained genuine, mutilated
U.S. coins,” and that plaintiff “has suffered economic damages” because of the U.S. Mint’s
refusal to pay for plaintiff’s shipment. According to plaintiff’s second amended complaint,
the failure of the U.S. Mint to pay the Portland Mint after having accepted and melted
down the coins, and, according to plaintiff, having “redeemed” the coins, amounts to a
violation of the U.S. Mint’s regulations, which is actionable in this court.
In Count Two, “Breach of Implied Contract,” plaintiff alleges that plaintiff and the
U.S. Mint “demonstrated a mutual intent to contract,” whereby plaintiff “offered to deliver
an agreed-upon number of mutilated coins to the [U.S.] Mint, and the [U.S.] Mint agreed
to accept that agreed-upon number of mutilated coins at Olin Brass on August 1 and 2,
2018.” (alterations added). Plaintiff further alleges that “the communications and actions”
by Anthony Holmes, Jr., the Materials Handler Supervisor at the U.S. Mint, demonstrated
that “arranging and contracting for the delivery of mutilated coins was an integral part of
Mr. Holmes’s duties as a supervisor,” and that “the [U.S.] Mint agreed to pay the Portland
Mint for the value of the coins” by accepting delivery. (alteration added). According to
plaintiff’s second amended complaint, the failure by the U.S. Mint to pay following this
alleged acceptance of plaintiff’s coins constitutes breach of an implied-in-fact contract.
In Count Three, “Breach of Implied Duty of Good Faith and Fair Dealing,” plaintiff
alleges that the U.S. Mint “refused to pay the Portland Mint for the property the [U.S.] Mint
accepted and redeemed,” and that “the [U.S.] Mint has attempted to justify its breach of
contract by declaring ‘counterfeit’ what it already determined to be genuine when it
redeemed the Portland Mint’s shipment and used it to manufacture new coin roll.”
(alterations added). Plaintiff argues that the U.S. Mint has “destroy[ed] the Portland Mint’s
reasonable expectations of the fruits of the contract,” and, thereby, breached the implied
duty of good faith and fair dealing. (alteration added).
In Count Four, “Violation of Fifth Amendment Takings Clause,” plaintiff alleges that
the U.S. Mint “accepted, redeemed and melted” plaintiff’s August 2018 shipment of coins,
but has not “paid the Portland Mint for the redeemed and melted coins,” “returned the
coins to the Portland Mint,” or “provided the Portland Mint with anything of value for
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accepting and taking its property.” According to plaintiff’s second amended complaint, the
U.S. Mint’s actions represent a “permanent impairment of the Portland Mint’s property”
which “constitutes a taking without just compensation in violation of the Fifth Amendment.”
In Count Five, “Equal Access to Justice Act,” plaintiff argues that the Equal Access
to Justice Act, 28 U.S.C. § 2412 (2018), entitles plaintiff to reasonable attorney’s fees and
expenses if plaintiff is the prevailing party, unless the defendant’s position is found to be
“‘substantially justified.’”
Plaintiff’s original and first amended complaints had asserted a number of claims
which were not within the jurisdiction of the United States Court of Federal Claims. The
successive complaints filed by plaintiff dropped some of those alleged grounds for relief,
leaving the allegations in the second amended complaint for consideration by the court
after defendant filed its motion to dismiss for lack of subject matter jurisdiction pursuant
to Rule 12(b)(1) (2020) of the Rules of the United States Court of Federal Claims (RCFC)
and for failure to state a claim pursuant to RCFC 12(b)(6).
In its second amended complaint, plaintiff describes itself as an “off-sort coin
processor” servicing “banks, armored carriers, and coin kiosk companies,” among other
businesses, “across several states and countries.” According to the second amended
complaint, since 2012, plaintiff “has redeemed approximately 21 shipments of mutilated
coins through the Redemption Program, and been paid approximately $229,632 by the
[U.S.] Mint.” (alteration added). As noted above, plaintiff claims $8,510,250.00 as the
value of the mutilated coins plaintiff submitted to the U.S. Mint. According to plaintiff’s
second amended complaint, plaintiff “aggregates mutilated U.S. coins, separates them
by alloy, and bulk redeems them through the Redemption Program.” Plaintiff indicates
that a portion of the coins at issue in this case were “imported,” that plaintiff “buys coins
from international companies,” and that the coins plaintiff “sought to redeem were from
both domestic and foreign sources.” There is no evidence in the public record currently
before the court, however, which specifies the origin of all of the coins plaintiff submitted
to the U.S. Mint in the above captioned case.
The parties both agree that the U.S. Mint ”is the nation’s sole manufacturer of
legal tender coinage and is responsible for producing and circulating coinage for the
nation to conduct its trade and commerce.” According to plaintiff’s second amended
complaint, the U.S. Mint began operating the Mutilated Coin Redemption Program (the
Redemption Program) in 1911, and the parties both agree that the U.S. Mint suspended
the Redemption Program in November 2015. The parties both agree that the U.S. Mint
resumed operation of the Redemption Program in January 2018. According to
defendant’s motion to dismiss the second amended complaint, the Redemption Program
was suspended for a second time in July 2019 and has remained suspended.2
2 On May 5, 2021, the U.S. Mint published a Notice of Proposed Rulemaking indicating
its intent to resume the Redemption Program under revised regulations. See 86 Fed. Reg.
23,877, 23,879-80 (May 5, 2021) (to be codified at 31 C.F.R. pt. 100). Public comments
closed on the Notice as of July 6, 2021, see id. at 23,877, and as of the date of this
Opinion, the Redemption Program had not resumed.
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The Redemption Program allowed individuals and businesses to submit “bent and
partial U.S. coins” and “redeem” them for payment at a rate established by regulation, at
the time of the activity in this case: $4.5359 per pound for nickels and $20.00 per pound
for dimes, quarters, and half-dollars. See 31 C.F.R. § 100.11(d) (2021). Plaintiff alleges
that “[t]he [U.S.] Mint would melt the redeemed coins and use them to manufacture new
coin roll.” (alterations added). While for much of the Redemption Program’s history only
small shipments of coins were accepted, plaintiff alleges that beginning in about 1999,
“businesses began to redeem a higher volume of mutilated coins with many of the coins
originating from overseas, including China.”
According to plaintiff’s second amended complaint, in March 2015, the United
States brought “a civil asset forfeiture action against three businesses that the
government alleged were bulk redeeming counterfeit mutilated coins.” Plaintiff was not
among the parties to the civil asset forfeiture action, but plaintiff alleges “[i]n a seemingly
coordinated response to the civil asset forfeiture complaint, the Department of Homeland
Security detained mutilated coin shipments at the ports, including three of the Portland
Mint’s shipments.” (alteration added). The Portland Mint and unidentified “others” brought
suit as co-plaintiffs against the United States Department of Homeland Security (DHS) on
October 29, 2015, seeking the release of the plaintiffs’ detained coin shipments. After the
Redemption Program was suspended in November 2015, the plaintiffs also “challeng[ed]
the suspension of the Redemption Program” by the U.S. Mint. (alteration added).
According to the second amended complaint filed in this court, during the 2015 litigation,
“the Portland Mint obtained laboratory reports from DHS evaluating samples from the
[Portland Mint’s] detained shipments.” (alteration added). Plaintiff alleges that the
“laboratory reports compared the composition of coins from the [Portland Mint’s] detained
shipments to the composition of coins in circulation” and concluded that the detained
coins’ “‘weights and alloy compositions are indistinguishable from standard currency.’”
(alteration added). The detained coins that were the subject of the 2015 lawsuit brought
by the Portland Mint and other plaintiffs were ultimately released to the plaintiffs in that
case, however, at that time, the Portland Mint was unable to submit the returned coins
due to the ongoing suspension of the Redemption Program. Plaintiff ultimately submitted
the coins involved in the 2015 litigation as part of its August 2018 submission to the U.S.
Mint which is the submission at issue in the above captioned case.
According to the U.S. Mint’s website and plaintiff’s second amended complaint, the
U.S. Mint resumed the Redemption Program in January 2018. See United States Mint
Resumes Mutilated Coin Redemption Program, UNITED STATES MINT (Jan. 23, 2018),
https://www.usmint.gov/news/press-releases/united-states-mint-resumes-mutilated-
coin-redemption-program; see also Exchange of Coin, 82 Fed. Reg. 60,309 (Dec. 20,
2017) (revising Treasury regulations governing the Redemption Program effective
January 19, 2018). Therefore, in January 2018, plaintiff indicates that it applied to
participate in the resumed Redemption Program. In its second amended complaint,
plaintiff alleges that in response to plaintiff’s January 2018 application on May 8, 2018,
the U.S. Mint sent a “Deficiency Notification Letter” seeking “‘sufficient information to
demonstrate that the source(s) of Portland’s mutilated coins uses adequate controls to
ensure genuine U.S. coinage and prevent contamination.’” According to plaintiff’s second
amended complaint, Adam Youngs, president of the Portland Mint, responded to the U.S.
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Mint and in his response indicated “that the coins he sought to redeem were from both
domestic and foreign sources. He acknowledged that the bulk of the coins were in fact
from a foreign source, and provided the name, address, and telephone number for that
foreign source.” Mr. Youngs’ response is not included in the public record before the court.
Further, according to plaintiff’s second amended complaint, on June 29, 2018, the
Materials Handler Supervisor at the U.S. Mint, Mr. Holmes, informed plaintiff that its
application to participate in the program had been approved. Mr. Holmes’ message,
however, is not included in the public record before the court.
Plaintiff alleges that plaintiff’s 2018 application to participate in the Redemption
Program specified that plaintiff would deliver “409,427 pounds of dimes, quarters, half-
dollars, and Susan B. Anthony dollars, and 2,400 pounds of nickels” to the U.S. Mint.
According to plaintiff’s second amended complaint, the U.S. Mint’s “Mr. Holmes asked
Mr. Youngs, ‘Are your coins ready for shipment?’ and ‘How many trucks will you have
ready for the melt?’” Also according to plaintiff’s second amended complaint, after
confirming that plaintiff’s coins were ready for shipment, the U.S. Mint “scheduled the
Portland Mint’s melt for August 1 and 2, 2018 at the Olin Brass foundry in Illinois.”
According to plaintiff’s second amended complaint,
[a]pproximately one week prior to the scheduled melt, Mr. Youngs
confirmed in writing with Mr. Holmes that the Portland Mint would be
sending 11 trucks to Olin Brass, and revised, slightly, the total shipment size
to include 425,100 pounds of dimes, quarters, and half-dollars, and 1,819
pounds of nickels. The total approximate value of the Portland Mint’s
shipment was $8.51 million.
(alteration added). Mr. Youngs’ message is not included in the public record before the
court. Plaintiff alleges that “part of the shipment” submitted in August 2018 were the coins
that had previously been detained and were the subject of the 2015 lawsuit. Plaintiff does
not indicate what portion of the August 2018 shipment was composed of the coins from
the 2015 lawsuit, but alleges that “the total value of those released shipments [in the 2015
lawsuit] was approximately $550,000.” (alteration added). Plaintiff also alleges that the
Department of Homeland Security “had concluded” that the previously-detained coins
“were genuine.” Further, according to plaintiff’s second amended complaint, “Mr. Youngs
informed Mr. Holmes that he would accompany the shipment to ensure that the melt
proceeded smoothly,” that “Mr. Holmes voiced no objection, and put Mr. Youngs in direct
contact with a representative from Olin Brass.” Also, according to plaintiff’s second
amended complaint, one day before the scheduled melt, however, Mr. Youngs was
informed by Thomas Browne, another employee of the U.S. Mint, that Mr. Youngs “could
not be present for the melt.” Therefore, according to plaintiff’s second amended
complaint, neither Mr. Youngs nor any other representative of plaintiff was present when
the melt of plaintiff’s coins allegedly occurred.
According to plaintiff’s second amended complaint, and uncontroverted by
defendant, plaintiff’s coins were delivered to and received by the U.S. Mint at Olin Brass
foundry on August 1 and 2, 2018. Plaintiff alleges in its second amended complaint that
its mutilated coins were “melted by the [U.S.] Mint on August 1 and 2, 2018 at Olin Brass.”
(alteration added). Further, according to plaintiff’s second amended complaint, after
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completion of the melt, Mr. Youngs met with U.S. Mint employees, Mr. Holmes and Mr.
Browne, who allegedly “specifically stated” to Mr. Youngs “that the coins redeemed by
the Portland Mint were without issue” and “encouraged the Portland Mint to redeem
additional mutilated coins through the Redemption Program.” Plaintiff’s second amended
complaint also alleges that Mr. Holmes and Mr. Browne assured Mr. Youngs that plaintiff
“would receive payment for its redeemed shipment in 4-6 weeks.”
Plaintiff’s second amended complaint states that at the time when the melt
supposedly occurred, in August 2018, plaintiff believed that its entire shipment had been
melted, and that the U.S. Mint did not indicate to plaintiff at that time whether the U.S.
Mint had retained any of the submitted coins. Plaintiff alleges that “the Portland Mint’s
shipment was accepted, processed, and melted by the [U.S.] Mint on August 1 and
August 2, 2018 at Olin Brass. Messrs. Holmes and Browne specifically said so. There
was nothing for the [U.S.] Mint to test.” (alterations added). At the oral argument on
defendant’s motion to dismiss, Apryl Whitaker, counsel for the U.S. Mint, stated that she
could “affirmatively confirm that we [the U.S. Mint] have retained the samples” from
plaintiff’s submission to the Redemption Program. (alteration added). Ms. Whitaker’s
statement at the oral argument indicates that some of plaintiff’s mutilated coins were not
melted on August 1 and 2, 2018, although the amount of the coins retained by the
government is not indicated in the public record before the court.
Plaintiff additionally alleges in its second amended complaint that at the time of the
melt, the U.S. Mint “used the melted shipment to manufacture new coin roll.” Defendant
does not agree that the U.S. Mint’s alleged use of plaintiff’s coins occurred at the time of
the melt, and refers only to “purported use” or “potential use” of the coins by the U.S. Mint.
Defendant also argues that the “redemption” of plaintiff’s coins never occurred because
“redemption,” according to defendant, “is a legal conclusion reached by the [U.S.] Mint
pursuant to its examination of the submission and application of the regulations, including
any prohibitions on redemption.” (alteration added).
According to plaintiff’s second amended complaint and uncontroverted by
defendant, plaintiff has not received payment for the August 2018 shipment of the coins.
In the second amended complaint, plaintiff alleges that “[f]or months, Mr. Youngs
contacted the [U.S.] Mint to inquire about payment. His inquiries either went unanswered
or were met with indecipherable responses.” (alteration added). Plaintiff’s second
amended complaint recites three responses allegedly received from the U.S. Mint:
a. On September 10, 2018, Mr. Youngs was told: “At this time, the United
States Mint is still evaluating the coins for final receipts.”
b. On September 20, 2018, Mr. Youngs was told: “At this time, we cannot
provide additional information or a timeline. When there is a change in
status, we will contact you.”
c. On October 23, 2018, the response from the Mint was identical to its
response a month earlier: “[T]he United States Mint is still evaluating the
coins for final receipts. We will contact you upon completion of our
evaluation.”
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(alteration in original). According to plaintiff, none of these responses from the U.S. Mint
disclosed information about tests being conducted on plaintiff’s coins or the results of any
such tests.
According to plaintiff’s second amended complaint, “[e]xasperated by the [U.S]
Mint’s refusal to meaningfully respond, Mr. Youngs enlisted the help of one of his United
States senators, Senator Ron Wyden. On or about March 14, 2019, Senator Wyden
contacted the [U.S.] Mint on behalf of Mr. Youngs.” (alterations added). Also, according
to the second amended complaint, on April 18, 2019, the U.S. Mint’s Associate Director
for Manufacturing, David Croft, responded to Senator Wyden stating: “‘Preliminary testing
of the materials submitted by the Portland Mint has identified technical anomalies that
have required additional, detailed testing to ensure they are appropriate for redemption.
That testing is ongoing.’” The response to Senator Wyden is not included in the public
record before the court. In its second amended complaint, plaintiff indicates that Mr.
Croft’s answer to Senator Wyden is “demonstrably false” because plaintiff’s entire
“shipment was accepted processed, and melted by the [U.S.] Mint,” such that “[t]here was
nothing for the [U.S.] Mint to test,” because “there were no anomalies in the Portland
Mint’s shipment,” and because “[i]f the Portland Mint’s shipment was determined to be
counterfeit or in any way problematic, it would not have been melted at Olin Brass.”
(alterations added).
On March 13, 2020, more than nineteen months after plaintiff’s shipment had been
delivered to the U.S. Mint at Olin Brass foundry, plaintiff claims the Portland Mint sent Mr.
Croft a “‘Notice of Claim and Demand for Decision by Contracting Officer’” in which
plaintiff alleges it “informed the [U.S.] Mint of the facts underlying its $8.51 million claim –
facts that had been well known to the [U.S.] Mint for over 19 months – and attached
relevant documents, including relevant correspondence between the [U.S.] Mint and the
Portland Mint.” (alterations added). Neither plaintiff’s Notice of Claim and Demand for
Decision, nor the alleged supporting documents are included in the public record currently
before the court. Plaintiff further alleges in its second amended complaint that the Chief
Counsel for the U.S. Mint, John Schorn, responded in a letter dated April 7, 2020, writing:
The United States Mint is still reviewing the Portland Mint’s August 2018
submission to the Mutilated Coin Redemption Program and has not made
a final decision. . . . [P]reliminary testing of the materials submitted by the
Portland Mint identified technical anomalies that have required additional,
detailed testing to ensure the material is appropriate for redemption. These
anomalies are still being reviewed and investigated.
(ellipsis and alteration in original). The Chief Counsel’s letter is not included in the public
record before the court. According to plaintiff’s second amended complaint, as of April
2020, the U.S. Mint had provided no detailed information on the metallurgical content of
plaintiff’s submitted coins or the nature of the tests being conducted on plaintiff’s August
2018 submission.
Plaintiff ultimately received an undated letter from the U.S. Mint, in which the U.S.
Mint notified plaintiff of the U.S. Mint’s “official determination” finding plaintiff’s submission
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was counterfeit and denying “redemption” of plaintiff’s coins.3 The U.S. Mint’s denial letter
also was filed with the court by both plaintiff and defendant. Plaintiff’s second amended
complaint quotes the denial letter with respect to the testing of plaintiff’s August 2018 coin
submission. In the denial letter, the U.S. Mint stated, in part, that it had conducted
“physical analysis, chemical analysis, and electromagnetic testing” on a “representative
subsample” of “101 representative quarters and 102 representative dimes,” taken from a
“representative sample” of plaintiff’s shipment “consist[ing] of 4,205 coins (2,038 quarters,
2,073 dimes, and 94 other pieces),” weighing “approximately 35 pounds” out of the
“approximately 425,095 pounds of mutilated coin material” submitted by plaintiff.
(alteration added). The U.S. Mint’s denial letter concluded:
the coins you submitted in August 2018 were counterfeit. Based on this
finding, and pursuant to 31 C.F.R. § 100.11(c)(6)(i)-(iii) and 31 C.F.R. §
100.11(c)(7), the United States Mint denies redemption of The Portland
Mint’s material submitted to the Mutilated Coin Redemption Program in
August 2018. Counterfeit coins are per se contraband, and will not be
returned to the holder. See 18 U.S.C. § 492. All rights are reserved for the
government to take appropriate legal action.
Should you wish to appeal this denial of redemption, you may submit a
written appeal within 30 days of receipt of the decision. The appeal should
include any and all relevant information as to why the decision should be
overturned. The written statement should be sent via email to:
David Croft
Associate Director for Manufacturing
United States Mint
david.croft@usmint.treas.gov
with a copy to:
John Schorn, Esq.
Chief Counsel
United States Mint
john.schorn@usmint.treas.gov
If no appeal is received within the specified timeframe, the decision
becomes final.
(capitalization and emphasis in original). The denial letter was signed by Richard
Robidoux, Division Chief, Engineering, at the U.S. Mint.
In the record before the court, defendant submitted a redacted copy of the U.S.
Mint’s Standard Operating Procedures (SOP) for the Redemption Program, dated
January 17, 2020. The SOP is unredacted with respect to the Redemption Program
3 Defendant has not provided an explanation for the considerable length of time between
plaintiff’s August 1 and 2, 2018 submission of the coins to the Redemption Program and
the U.S. Mint’s letter denying redemption, received by plaintiff on December 30, 2020.
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appeals process. The SOP, to the extent that it was filed on the court’s electronic filing
system, provides under the heading “6.9.3 Participant Appeal Process:”
6.9.3.1 If the Participant application to submit mutilated coin is rejected or if
the Participant’s mutilated coin shipment is rejected following inspection
then Participant is informed by the Analyst (see 6.8.1) that they may submit
a written appeal of the rejection within 30 days of receipt of the decision. If
the Participant has sufficient information or explanation, the rejection
decision can be modified.
6.9.3.2 The Participant submits the appeal including any and all relevant
information as to why the rejection should be overturned through written
statement to MutilatedCoin@usmint.treas.gov or USPS to the Mutilated
Coin Program at the following address:
United States Mint
Attn: Mutilated Coin Redemption Program/Manufacturing Directorate
801 9th Street, N.W.
Washington, DC 20220
6.9.4 The Analyst notifies the Participant that their appeal has been
received and
6.9.5 The Associate Director of Manufacturing reviews the Participant’
appeal and determines if the reasoning is sufficient to overturn the decision.
6.9.6 If the Associate Director modifies the decision, the process continues
depending on where the process was stopped.
6.9.7 If the Associate Director does not modify the decision, see subsection
. . . .[4]
(emphasis and capitalization in original; alteration added).
On January 25, 2021, plaintiff sent a letter to David Croft, Associate Director for
Manufacturing at the U.S. Mint, appealing the U.S. Mint’s denial of redemption. Plaintiff’s
appeal letter asserted that “all but an exceedingly small[5] sample of the Portland Mint’s
shipment was melted in August 2018 and used to manufacture new coin roll.” Plaintiff
challenged the results of the U.S. Mint’s testing, arguing that “[t]he Official Determination
4The redacted copy of the SOP submitted to the court abruptly ends its description of the
appeals process at the word “subsection,” and does not indicate whether there are further
steps to the Redemption Program’s appeals process.
5 While the government indicated at oral argument that the U.S. Mint had retained a
sample of plaintiff’s coin submission, and that it continues to retain a sample of an
undetermined size. The public record before the court does not indicate the size of the
government’s retained coins, however, as noted above, it does indicate the amount of the
sample tested by the U.S. Mint following the August 1 and 2, 2018 coin submission.
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is a thinly-veiled attempt to bolster the Government’s pending motion [to dismiss].”
(alterations added).
While plaintiff’s administrative appeal was pending at the U.S. Mint, plaintiff sent a
letter to the U.S. Mint dated March 2, 2021, which both plaintiff and defendant filed with
the court, requesting discovery regarding “the test results and any associated report that
supports the conclusions reached in the December 2020 determination letter” denying
redemption and on “the fate of the Portland Mint’s coins.” The letter specifically asked
“[w]ere the supposedly ‘counterfeit’ coins used to manufacture new coin roll?” (alteration
added). Plaintiff’s request for information was denied by Sheila Barnett, an attorney for
the U.S. Mint, in a letter, dated March 4, 2021, which also was filed with the court by both
plaintiff and defendant. The letter from Ms. Barnett explained that “[t]he U.S. Mint’s
process, as governed by its policy, is an informal adjudication and does not provide that
discovery requests may be propounded on the U.S. Mint or that the U.S. Mint will respond
to requests from participants for its internal documents.” (alteration added). The authority
cited for the U.S. Mint’s administrative appeals process was the U.S. Mint’s SOP. As of
the filing of this Opinion, the U.S. Mint has not disclosed to plaintiff the specific results of
the tests conducted on plaintiff’s coins, including the metallurgical content of plaintiff’s
coins. The U.S. Mint also has not disclosed to plaintiff whether the plaintiff’s coins were
used in the manufacture of new coin roll following the August 2018 melt.
On March 15, 2021, the U.S. Mint sent a letter to plaintiff, signed by Mr. Croft, filed
with the court the next day by defendant, which reaffirmed the official determination that
plaintiff’s shipment had included “counterfeit” coin, and which denied plaintiff’s
administrative appeal. Plaintiff refers to the letter in its second amended complaint,
although plaintiff did not file the U.S. Mint’s letter denying plaintiff’s administrative appeal
with the court. Thereafter, the court ordered the parties to consider and respond to the
court regarding the following questions:
(1) whether or not plaintiff wishes to file a complaint in a United States
District Court regarding any possible Administrative Procedure Act claims
challenging the final decision of the United States Mint, issued on March 15,
2021 by David Croft, the Associate Director of Manufacturing for the United
States Mint, that rejected The Portland Mint’s January 25, 2021 appeal, and,
if so, in which United States District Court; (2) an analysis of each of the
counts listed in plaintiff’s amended complaint as to which counts should be
dismissed for lack of jurisdiction and why; and (3) an analysis of which
counts are properly within the jurisdiction of this court and could be retained
by the court, even if certain counts are appropriate for transfer or other
related claims are brought in a different court, based on the issues in the
amended complaint currently before this court, and why.
In compliance with the court’s Order, plaintiff filed a status report reasserting its position
that the court should retain jurisdiction over most of its counts, with the exception of
plaintiff’s equitable estoppel and declaratory judgment claims. Subsequently, on May 14,
2021, plaintiff voluntarily dismissed its claims for equitable estoppel and declaratory
judgment, which had been included in the original and first amended complaints. On June
7, 2021 plaintiff filed its second amended complaint. In response, defendant filed its
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motion to dismiss the second amended complaint. With the exception of background
facts, such as how the Redemption Program operated, the history of the submission of
plaintiff’s coin shipment, and the descriptions of plaintiff’s written submissions and
responses, defendant challenges plaintiff’s allegations in the second amended complaint.
According to defendant, plaintiff’s claim that its coins have been “redeemed” “is not a
factual allegation that needs to be taken as true,” and plaintiff’s allegations only “illustrate
that it participated in a regulatory program through which its submission was denied.”
Defendant argues that the court lacks jurisdiction over all of plaintiff’s claims because
“Portland’s claims, which challenge the lawfulness of the U.S. Mint’s denial of payment
and thus challenge the U.S. Mint’s regulatory process and its final determination, are not
properly before this Court.” According to defendant, “Portland’s claim for a regulatory
violation must be dismissed for lack of jurisdiction,” and, in the alternative, that Count One
“must also be dismissed for failure to state a claim because the U.S. Mint’s refusal to
redeem coins for a lawful reason under the regulations does not equate to a violation of
those regulations.” With respect to Count Two, defendant argues that “Portland’s claim
for relief is based on an implied-in-law contract and must be dismissed for lack of
jurisdiction.” Defendant also argues that plaintiff has “failed to establish the formation of
a contract between the U.S. Mint and Portland, warranting dismissal of its contract
claims.” With respect to Count Three, defendant argues that “Portland fails to sufficiently
allege its cause of action for breach of implied duty of good faith and fair dealing.” With
respect to Count Four, defendant also argues that plaintiff’s “takings claim must be
dismissed” on the basis that “voluntary delivery of its materials to the [U.S. Mint] program
does not equate to Government appropriation.” (alteration added). With respect to Count
Five, defendant argues that “Portland’s EAJA claim is premature and must be dismissed.”
Plaintiff filed a response to defendant’s motion to dismiss in which plaintiff
reiterates that the court has jurisdiction over all its claims and that the second amended
complaint contains sufficient factual allegations to support plaintiff’s claims. Specifically,
plaintiff reasserts that this court is required to “‘assume that all undisputed facts alleged
in the complaint are true and draw all reasonable inferences in the non-movant’s favor.’”
(quoting Wade v. United States, 136 Fed. Cl. 232, 242 (2018)). Plaintiff further argues
that this court has jurisdiction over plaintiff’s claims because, rather than challenging the
lawfulness of the U.S. Mint’s regulatory process, plaintiff asks this court to interpret the
meaning of “redeem” within the context of 31 C.F.R. § 100.11 and determine if the U.S.
Mint violated the regulation by failing to pay for plaintiff’s coins.
In its reply in support of its motion to dismiss, defendant reiterates that this court
is not required to accept plaintiff’s “legal conclusions couched as factual allegations” at
the dismissal stage of the proceedings, including “Portland’s unsupported conclusion that
‘redemption’ is governed by physical delivery, receipt, and melting of a submission,
because the facts do not support that conclusion, and the conclusion is further undercut
by the regulations governing redemption.” Additionally, defendant maintains that plaintiff
has failed to allege the existence of the necessary elements of a contract with the
government. Defendant also asserts that plaintiff’s taking claim must fail as “the only
reason the [U.S.] Mint had possession of Portland’s submission at all was because
Portland willingly delivered it to the [U.S.] Mint, for participation in its regulatory program,”
(alterations added), and in any event, plaintiff “does not have a cognizable property
11
interest” because its property was determined to be counterfeit by the U.S. Mint. After
briefing, the court held oral argument on defendant’s motion to dismiss plaintiff’s second
amended complaint.
DISCUSSION
Defendant argues that plaintiff’s claims in the second amended complaint for a
“Violation of Federal Regulation,” for a breach of implied contract, for a breach of the
implied duty of good faith and fair dealing, and for a taking must be dismissed for lack of
subject matter jurisdiction and, in the alternative, that plaintiff’s claims must be dismissed
for failure to state a claim.6 Addressing subject matter jurisdiction first, “[s]ubject-matter
jurisdiction may be challenged at any time by the parties or by the court sua sponte.”
Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (quoting Fanning, Phillips
& Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)), reh’g and reh’g en banc denied
(Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); see also St. Bernard Parish Gov’t v.
United States, 916 F.3d 987, 992-93 (Fed. Cir. 2019) (“[T]he court must address
jurisdictional issues, even sua sponte, whenever those issues come to the court’s
attention, whether raised by a party or not, and even if the parties affirmatively urge the
court to exercise jurisdiction over the case.” (citing Foster v. Chatman, 136 S. Ct. 1737,
1745 (2016)); Int’l Elec. Tech. Corp. v. Hughes Aircraft Co., 476 F.3d 1329, 1330 (Fed.
Cir. 2007); Haddad v. United States, 152 Fed. Cl. 1, 16 (2021); Fanelli v. United States,
146 Fed. Cl. 462, 466 (2020). The Tucker Act, 28 U.S.C. § 1491, grants jurisdiction to this
court as follows:
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.
28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, the Tucker
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. Navajo Nation, 556 U.S. 287, 289-90 (2009);
see also Me. Cmty. Health Options v. United States, 140 S. Ct. 1308, 1327-28 (2020);
United States v. Mitchell, 463 U.S. 206, 216 (1983); Sanford Health Plan v. United States,
969 F.3d 1370, 1378 (Fed. Cir. 2020); Alvarado Hosp., LLC v. Price, 868 F.3d 983, 991
(Fed. Cir. 2017); Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir.),
reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied, 552 U.S. 1142 (2008);
Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999); Gulley v. United States,
150 Fed. Cl. 405, 411 (2020); Kuntz v. United States, 141 Fed. Cl. 713, 717 (2019). “Not
every claim invoking the Constitution, a federal statute, or a regulation is cognizable under
the Tucker Act. The claim must be one for money damages against the United States
6 Discussion of plaintiff’s EAJA claim is at the end of this Opinion and can only succeed
if plaintiff succeeds on at least portions of its substantive claims.
12
. . . .” United States v. Mitchell, 463 U.S. at 216; see also United States v. White Mountain
Apache Tribe, 537 U.S. 465, 472 (2003); N.Y. & Presbyterian Hosp. v. United States, 881
F.3d 877, 881 (Fed. Cir. 2018); Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir.),
cert. denied, 571 U.S. 945 (2013); RadioShack Corp. v. United States, 566 F.3d 1358,
1360 (Fed. Cir. 2009); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343
(Fed. Cir. 2008) (“[P]laintiff must . . . identify a substantive source of law that creates the
right to recovery of money damages against the United States.”); Olson v. United States,
152 Fed. Cl. 33, 40-41 (2021); Jackson v. United States, 143 Fed. Cl. 242, 245 (2019),
appeal dismissed, No. 2019-2213, 2020 WL 8254415 (Fed. Cir. Jan. 29, 2020). In Ontario
Power Generation, Inc. v. United States, the United States Court of Appeals for the
Federal Circuit identified three types of monetary claims for which jurisdiction is lodged in
the United States Court of Federal Claims. The Ontario Power Generation, Inc. court
wrote:
The underlying monetary claims are of three types. . . . First, claims alleging
the existence of a contract between the plaintiff and the government fall
within the Tucker Act’s waiver . . . . Second, the Tucker Act’s waiver
encompasses claims where “the plaintiff has paid money over to the
Government, directly or in effect, and seeks return of all or part of that sum.”
Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d
[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims “in
which ‘the Government has the citizen’s money in its pocket’” (quoting
Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) . . . .
Third, the Court of Federal Claims has jurisdiction over those claims where
“money has not been paid but the plaintiff asserts that he is nevertheless
entitled to a payment from the treasury.” Eastport S.S., 372 F.2d at 1007.
Claims in this third category, where no payment has been made to the
government, either directly or in effect, require that the “particular provision
of law relied upon grants the claimant, expressly or by implication, a right to
be paid a certain sum.” Id.; see also [United States v. ]Testan, 424 U.S.
[392,] 401-02 [(1976)] (“Where the United States is the defendant and the
plaintiff is not suing for money improperly exacted or retained, the basis of
the federal claim-whether it be the Constitution, a statute, or a regulation-
does not create a cause of action for money damages unless, as the Court
of Claims has stated, that basis ‘in itself . . . can fairly be interpreted as
mandating compensation by the Federal Government for the damage
sustained.’” (quoting Eastport S.S., 372 F.2d at 1009)). This category is
commonly referred to as claims brought under a “money-mandating”
statute.
Ont. Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see
also Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005); Twp.
of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).
To prove that a statute or regulation is money-mandating, a plaintiff must
demonstrate that an independent source of substantive law relied upon “‘can fairly be
interpreted as mandating compensation by the Federal Government.’” United States v.
Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. at 400); see
13
also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United States v.
Mitchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed.
Cir. 2008), cert. denied, 555 U.S. 1153 (2009); Szuggar v. United States, 145 Fed. Cl.
331, 335 (2019). The source of law granting monetary relief must be distinct from the
Tucker Act itself. See United States v. Navajo Nation, 556 U.S. at 290 (The Tucker Act
does not create “substantive rights; [it is simply a] jurisdictional provision[] that operate[s]
to waive sovereign immunity for claims premised on other sources of law (e.g., statutes
or contracts).”); see also Me. Cmty. Health Options v. United States, 140 S. Ct. at 1327-
28. “‘If the statute is not money-mandating, the Court of Federal Claims lacks jurisdiction,
and the dismissal should be for lack of subject matter jurisdiction.’” Jan’s Helicopter Serv.,
Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee
Cnty., Ariz. v. United States, 487 F.3d at 876); see also N.Y. & Presbyterian Hosp. v.
United States, 881 F.3d at 881; Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir.
2005) (noting that the absence of a money-mandating source is “fatal to the court’s
jurisdiction under the Tucker Act”); Olson v. United States, 152 Fed. Cl. at 41; Downey v.
United States, 147 Fed. Cl. 171, 175 (2020) (“And so, to pursue a substantive right against
the United States under the Tucker Act, a plaintiff must identify and plead a money-
mandating constitutional provision, statute, or regulation.” (citing Cabral v. United States,
317 F. App’x 979, 981 (Fed. Cir. 2008))); Jackson v. United States, 143 Fed. Cl. at 245
(“If the claim is not based on a ‘money-mandating’ source of law, then it lies beyond the
jurisdiction of this Court.” (citing Metz v. United States, 466 F.3d 991, 997 (Fed. Cir.
2006)).
“Determination of jurisdiction starts with the complaint, which must be well-pleaded
in that it must state the necessary elements of the plaintiff’s claim, independent of any
defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.)
(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9-10 (1983)),
reh’g denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97
Fed. Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed.
Cl. 710, 713 (2010). A plaintiff need only state in the complaint “a short and plain
statement of the grounds for the court’s jurisdiction,” and “a short and plain statement of
the claim showing that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2021); Fed. R.
Civ. P. 8(a)(1), (2) (2022); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57, 570 (2007)). To properly state a claim
for relief, “[c]onclusory allegations of law and unwarranted inferences of fact do not suffice
to support a claim.” Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see
also McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J.,
concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice
and Procedure § 1286 (3d ed. 2004)); “A plaintiff’s factual allegations must ‘raise a right
to relief above the speculative level’ and cross ‘the line from conceivable to plausible.’”
Three S Consulting v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. at 555), aff’d, 562 F. App’x 964 (Fed. Cir.), reh’g denied (Fed. Cir.
2014); see also Hale v. United States, 143 Fed. Cl. at 190. As stated in Ashcroft v. Iqbal,
“[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements
of a cause of action will not do.’ 550 U.S. at 555. Nor does a complaint suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S.
at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555).
14
In addition to arguing that Counts One, Two, Three, and Four must be dismissed
for lack of subject matter jurisdiction, defendant also argues that all plaintiff’s claims must
be dismissed for failure to state a claim. When examining what must be pled in order to
state a claim, 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); see also Bell Atl.
Corp. v. Twombly, 550 U.S. at 555. The United States Supreme Court has stated:
While a complaint attacked by Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, ibid. [Conley v. Gibson, 355 U.S. 41, 47
(1957)]; Sanjuan v. American Bd. Of Psychiatry and Neurology, Inc., 40
F.3d 247, 251 (C.A.7 1994), a plaintiff’s obligation to provide the “grounds”
of his “entitlement 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 §1216 pp. 235-236 (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.g., Swierkiewicz v. Sorema N.A.,
535 U.S. 506, 508 n.1 (2002); Nietzke v. Williams, 490 U.S. 319, 327 (1989)
(“Rule 12(b)(6) 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 well-pleaded 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
that relief that is plausible on its face.
Bell Atl. Corp. v. Twombly, 550 U.S. at 555-56, 570 (footnote and other citations omitted;
omissions in original); see also Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v.
Twombly, 550 U.S. at 555-57, 570); First Mortg. Corp. v. United States, 1961 F.3d 1331,
1339 (Fed. Cir. 2020); Am. Bankers Ass’n v. United States, 932 F.3d 1375, 1380 (Fed.
Cir. 2019); Frankel v. United States, 842 F.3d 1246, 1249 (Fed. Cir. 2016); A&D Auto
Sales, Inc. v. United States, 748 F.3d 1142, 1157 (Fed. Cir. 2014); Bell/Heery v. United
States, 739 F.3d 1324, 1330 (Fed. Cir.), reh’g and reh’g en banc denied, (Fed. Cir. 2014);
Kam-Almaz v. United States, 682 F.3d 1364, 1367 (Fed. Cir. 2012) (“The facts as alleged
‘must be enough to raise a right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).’” (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. at 557)); Totes-lsotoner Corp. v. United States, 594 F.3d
1346, 1354-55 (Fed. Cir.), cert. denied, 562 U.S. 830 (2010); Bank of Guam v. United
States, 578 F.3d 1318, 1326 (Fed. Cir.) (“In 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. Twombly, 550 U.S. at 557)),
reh’g and reh’g en banc denied (Fed. Cir. 2009), cert. denied, 561 U.S. 1006 (2010);
Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009) (“[A] plaintiff must
15
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. Twombly, 550 U.S. at
570)); Cary 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
upon which the claim is based, but enough facts to state a claim to relief that is plausible
on its face.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 570)), reh’g denied (Fed.
Cir.), cert. denied, 557 U.S. 937 (2009); Christen v. United States, 133 Fed. Cl. 226, 229
(2017); Christian v. United States, 131 Fed. Cl. 134, 144 (2017); Vargas v. United States,
114 Fed. Cl. 226, 232 (2014); Fredericksburg Non-Profit Hous. Corp. v. United States,
113 Fed. Cl. 244, 253 (2013), aff’d, 579 F. App’x 1004 (Fed. Cir. 2014); Peninsula Grp.
Capital Corp. v. United States, 93 Fed. Cl. 720, 726-27 (2010); Legal Aid Soc’y of N.Y. v.
United States, 92 Fed. Cl. 285, 292, 298 n.14 (2010).
When deciding a case based on a failure to state a claim, the court “must accept
as true the factual allegations in the complaint.” Engage Learning, Inc. v. Salazar, 660
F.3d 1346, 1355 (Fed. Cir. 2011); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(“In addition, when ruling on a defendant’s motion to dismiss, a judge must accept as true
all of the factual allegations contained in the complaint.” (citing Bell Atl. Corp. v. Twombly,
550 U.S. at 555–56 (citing Swierkiewicz v. Sorema N.A., 534 U.S. at 508 n.1))); Scheuer
v. Rhodes, 416 U.S. at 236 (“Moreover, it is well established that, in passing on a motion
to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for
failure to state a cause of action, the allegations of the complaint should be construed
favorably to the pleader.”), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S.
800 (1982), recognized by Davis v. Scherer, 468 U.S. 183, 190 (1984); Am. Bankers
Ass’n v. United States, 932 F.3d at 1380 (“In reviewing a motion to dismiss, we accept as
true the complaint’s well-pled factual allegations; however, we are not required to accept
the asserted legal conclusions.” (citing Ashcroft v. Iqbal, 556 U.S. at 678)); Harris v.
United States, 868 F.3d 1376, 1379 (Fed. Cir. 2017) (citing Call Henry, Inc. v. United
States, 855 F.3d 1348, 1354 (Fed. Cir. 2017)); United Pac. Ins. Co. v. United States, 464
F.3d 1325, 1327–28 (Fed. Cir. 2006); Samish Indian Nation v. United States, 419 F.3d at
1364; Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed. Cir.), reh’g and
reh’g en banc denied (Fed. Cir. 2002), cert. denied, 538 U.S. 906 (2003).
As indicated above, defendant has asserted a number of grounds for dismissing
each of the counts of plaintiff’s second amended complaint. First, defendant argues
Portland erroneously conflates delivery of its submission to the foundry, and
subsequent melt, with ultimate redemption, or the payment from the U.S.
Mint of money in exchange for a submission of genuine, lawful U.S.
currency. This error underlies all of Portland’s causes of action. For
instance, in Portland’s first count alleging a regulatory violation, Portland
contends that the U.S. Mint redeemed its submission upon delivery of the
submission to the foundry (including the subsequent melt and purported use
of the metal to make new coin roll), and from that point on, the U.S. Mint’s
failure to issue payment was a breach of the regulations. . . . Likewise,
Portland’s breach of contract claim is premised on U.S. Mint’s purported
agreement to “redeem” Portland’s submission at delivery, . . . as is its claim
16
for breach of the implied duty of good faith and fair dealing, . . . and
Portland’s takings claim is premised on its view that its submission was
“redeemed” at time of delivery to the foundry.
(italics in original; internal citations omitted). Defendant claims that
redemption is a legal conclusion reached by the U.S. Mint at the conclusion
of its regulatory process, and the delivery of a submission to the program
does not mean the submission is redeemed. Instead, redemption is
governed by the regulations, under which the U.S. Mint examines
submissions for possible redemption and may redeem submissions at the
end of its examination, if none of the reasons for denial of redemption are
present.
Further, defendant emphasizes that “the [U.S.] Mint must deny redemption when ‘[a]
submission, or any portion of a submission, demonstrates a pattern of intentional
mutilation or an attempt to defraud the United States,’” (emphasis in original; second
alteration in original) (quoting 31 C.F.R. § 100.11(c)(6)(i)), as well as in cases in which
“‘criminal activity’” or “‘a material misrepresentation of facts’” are apparent in the
submission. (quoting 31 C.F.R. § 100.11(c)(6)(ii)-(iii)).7 Moreover, defendant, citing 18
U.S.C. § 492 (2018), indicates “[t]he U.S. Mint has no authority to redeem counterfeit
coins, which result from criminal activity and are contraband per se.” (emphasis in
original).
Defendant also argues that “the U.S. Mint’s determination that the submission is
not redeemable is agency action undertaken pursuant to its regulations and internal policy
and evidences no violation of the governing regulations or policy.” Therefore, according
to defendant, all of plaintiff’s “claims, which challenge the lawfulness of the U.S. Mint’s
denial of payment and, thus, challenge the U.S. Mint’s regulatory process and its final
determination, are not properly before this Court.” Defendant also argues that plaintiff’s
claims are properly characterized as “claims for relief pursuant to section 706 of the
Administrative Procedure Act,” and that the court should dismiss plaintiff’s claims because
the court lacks “jurisdiction to evaluate the lawfulness of the U.S Mint’s regulations, its
internal policy, or the determination that it made pursuant to its regulations.” Defendant
further argues that this court does not “possess jurisdiction to determine whether the U.S.
Mint acted unreasonably or failed to follow its own regulations in relation to Portland’s
submission, or to order specific performance.” In sum, defendant contends that these
arguments, regarding the definition of “redemption” in the regulations governing the
Redemption Program and the characterization of plaintiff’s claims as seeking relief under
the Administrative Procedure Act, not only support defendant’s arguments to dismiss
Count One of plaintiff’s second amended complaint for lack of subject matter jurisdiction,
7The regulation at 31 C.F.R. § 100.11(c)(6)(i), states that when “[a] submission, or any
portion of a submission, demonstrates a pattern of intentional mutilation or an attempt to
defraud the United States,” there will be no redemption, indicating that even a small
portion of fraudulent coinage would prevent payment for an entire shipment. See 31
C.F.R. § 100.11(c)(6)(i) (alteration added).
17
but also are relevant to dismissing Counts Two, Three, and Four of plaintiff’s second
amended complaint for lack of jurisdiction.
The statute at 31 U.S.C. § 321 provides, in relevant part, that “[t]he Secretary of
the Treasury shall . . . mint coins, engrave and print currency and security documents,
and refine and assay bullion, and may strike medals . . . .” 31 U.S.C. § 321(a)(4) (2018)
(alteration and ellipses added). The statute at 31 U.S.C. § 5120 further provides: “The
Secretary of the Treasury shall melt obsolete and worn United States coins withdrawn
from circulation. The Secretary may use the metal from melting the coins for reminting or
may sell the metal.” 31 U.S.C. § 5120(a)(1) (2018).8 The regulation governing the
Redemption Program is set out at 31 C.F.R. § 100.11, and provides, in part: “Lawfully
held bent or partial coins of the United States may be submitted to the United States Mint
for examination in accordance with the provisions in this subpart. Any submission under
this subpart shall be deemed an acceptance of all provisions of this subpart.” 31 C.F.R.
§ 100.11(a). Paragraph (c) of 31 C.F.R. § 100.11 is titled the “Redemption process” and
states a number of requirements for prospective participants in the regulatory program:
(1) Depending on submission amount and frequency, participants may be
subject to a certification process by the United States Mint. The established
annual weight threshold and details about the participant certification
process will be published on the United States Mint's website. If certification
is required, it must be done prior to submission.
(2) All submissions for review shall include an estimate of the value of the
coins and an explanation of how the submission came to be bent or partial.
The submission should also contain the bank account number and routing
number for a checking or savings account at a bank or other financial
institution (such as a mutual fund, brokerage firm, or credit union) in the
United States.
(3) Participants may be required to provide documentation for how the
participant came into custody of the bent or partial coins.
(4) The United States Mint reserves the right to test samples from any
submission to authenticate the material. The size of the sample will be
8 Although 31 U.S.C. § 321 is cited in 31 C.F.R. § 100.11 as the “authority” for the
Redemption Program, the Federal Register notices establishing and revising the
Redemption Program state that “[t]he Treasury Regulations appearing at 31 CFR part
100, subpart C,” including 31 C.F.R. § 100.11, “are promulgated under 31 U.S.C. 5120,
and relate to the exchange of uncurrent, bent, partial, fused, and mixed coins.” Exchange
of Coin, 86 Fed. Reg. 23,877, 23,877 (May 5, 2021) (alteration added); Exchange of Coin,
82 Fed. Reg. 60,309, 60,309 (Dec. 20, 2017); see also Suspension of Bent and Partial
Coin Exchange by United States Mint, 84 Fed. Reg. 35,181, 35,181 (Jul. 22, 2019)
(“Under the authority of 31 U.S.C. [§] 5120, the United States Mint established a program
by which the public could exchange bent and partial coins for reimbursement.” (alteration
added)).
18
limited to the amount necessary for authentication. Testing may result in
partial or complete destruction of the sample.
(5) The United States Mint reserves the right to conduct site visits for
participants over a certain volume threshold to verify information provided
to the United States Mint.
(6) No redemption will be made when:
(i) A submission, or any portion of a submission, demonstrates a
pattern of intentional mutilation or an attempt to defraud the United
States;
(ii) A submission appears to be part of, or intended to further, any
criminal activity;
(iii) A submission contains a material misrepresentation of facts;
(iv) Material presented is not identifiable as United States coins. In
such instances, the participant will be notified to retrieve the entire
submission, at the participant's sole expense, within 30 days. If the
submission is not retrieved in a timely manner, the entire submission
will be treated as voluntarily abandoned property, pursuant to 41
CFR 102–41.80, and will be retained or disposed of by the United
States Mint;
(v) A submission contains any contaminant that could render the
coins unsuitable for coinage metal. In such instances, the participant
will be notified to retrieve the entire submission, at the participant's
sole expense, within 30 days. If the submission is not retrieved in a
timely manner, the entire submission will be treated as voluntarily
abandoned property, pursuant to 41 CFR 102–41.80, and will be
retained or disposed of by the United States Mint; or
(vi) A submission contains more than a nominal amount of uncurrent
coins. In such instances, the participant may be notified to retrieve
the entire submission, at the participant's sole expense, within 30
days. If the submission is not retrieved in a timely manner, the entire
submission will be treated as voluntarily abandoned property,
pursuant to 41 CFR 102–41.80, and will be retained or disposed of
by the United States Mint.
(7) The Director of the United States Mint, or designee, shall have final
authority with respect to all aspects of redemptions of bent or partial coin
submissions.
31 C.F.R. § 100.11(c). In paragraph (d), “Redemption rates,” the regulation further
establishes the amounts to be paid per pound of redeemed coinage:
(1) Generally. Participants shall separate bent or partial coins by the
denomination categories listed below in lots of at least one pound for each
19
denomination category. The United States Mint will redeem bent or partial
coins on the basis of their weight and denomination at the following rates:
(i) One-Cent Coins: $1.4585 per pound.
(ii) 5-Cent Coins: $4.5359 per pound.
(iii) Dime, Quarter-Dollar, and Half-Dollar Coins: $20.00 per pound.
(iv) $1 Coins: $20.00 per pound.
Id. § 100.11(d)(1).
The meaning of the term “redemption” in the applicable regulation is critical to
examining plaintiff’s claims as plaintiff uses the term “redeem” or variations thereon
frequently in its filings in this court. The language of the regulation at 31 C.F.R. § 100.11indicates that before the “redemption” process is complete, submitted mutilated coins may
be subject to the U.S. Mint’s testing process as part of the authorized Redemption
Program.9 The regulation invites “bent or partial coins” to “be submitted . . . for
examination . . . .” 31 C.F.R. § 100.11(a) (ellipses added). The “examination”
contemplated in paragraph (a) is part of the Redemption Program elaborated in
paragraph (c), as the “Mint reserves the right to test samples from any submission.” Id. §
100.11(c)(4). The regulation at subparagraph (c)(6) lists six reasons for which “[n]o
redemption will be made,” including “demonstrat[ing] a pattern of intentional mutilation or
an attempt to defraud the United States;” “appear[ing] to be a part of, or intended to
further, any criminal activity;” “contain[ing] a material misrepresentation of facts;” being
“not identifiable as United States coins;” “contain[ing] any contaminant that could render
the coins unsuitable for coinage metal;” and “contain[ing] more than a nominal amount of
uncurrent coins.” Id. § 100.11(c)(6) (alterations added). The letter in which the U.S. Mint
denied redemption of plaintiff’s mutilated coin shipment stated that the denial of
redemption was “pursuant to 31 C.F.R. § 100.11(c)(6)(i)-(iii) and 31 C.F.R. §
100.11(c)(7),” however, the denial letter did not explain how subparagraphs (i), (ii), and
(iii), representing the first three reasons for denying redemption, applied to plaintiff’s
submission.10 The provisions of 31 C.F.R. § 100.11 indicate that redemption of a
participant’s submission to the Redemption Program is not complete, as plaintiff claims,
merely by the U.S. Mint “accepting, melting, and using them [the coins] to manufacture
new coin roll.” (alterations added). Indeed, the regulation at 31 C.F.R. § 100.11 does not
refer to “melting” or “using” the coins submitted in the context of redemption. Instead, the
9 The parties confirmed at oral argument, consistent with the court’s research, that
“redemption” in the context of the Redemption Program is not further defined in any
statute or regulation.
10 While subparagraphs (iv), (v), and (vi) provide for the submitter to be notified to retrieve
its unredeemed coinage, the subparagraphs cited by the U.S. Mint in the denial letter, (i),
(ii), and (iii), do not provide for any return of an unredeemed submission to the submitter.
See 31 C.F.R. § 100.11(c)(6). Subsection 31 C.F.R. § 100.11(c)(7) provides that “[t]he
Director of the United States Mint, or designee, shall have final authority with respect to
all aspects of redemptions of bent or partial coins submissions.” (alteration added).
20
regulation details an examination process to which all submissions may be subject, and
provides for the denial of redemption in certain circumstances, including the possible
examination and testing of samples, because, as noted above, “[t]he United States Mint
reserves the right to test samples from any submission to authenticate the material.” See
31 C.F.R. § 100.11(c)(4) (alteration added).
Although the language and meaning of the implementing regulation are plain as to
the purpose of the Redemption Program and the authority of the U.S. Mint to test
submissions of mutilated coins, plaintiff argues that this court should understand
“redemption,” not according to the terms of the regulation at 31 C.F.R. § 100.11, but
according to the “‘ordinary, contemporary, common meaning’” of the word “redemption,”
which plaintiff argues “‘may be properly informed by the use of dictionaries.’” (quoting
McGee v. Peake, 511 F.3d 1352, 1356 (Fed. Cir. 2008) (internal quotations omitted)).
According to plaintiff, two generalized dictionary definitions are better suited to inform the
meaning of “redemption” than the plain words of the applicable regulation. Plaintiff states:
Black’s Law Dictionary defines “redemption” as “[t]he act or an instance of
reclaiming or regaining possession by paying a specific price.” Black’s Law
Dictionary (11th ed. 2019). Merriam-Webster defines “redemption” as “the
act, process, or an instance of redeeming,” [Redemption, MERRIAM-
WEBSTER (Jun. 3, 2022), https://www.merriam-
webster.com/dictionary/redemption] and “redeem” as “to buy back:
repurchase.” [Redeem, MERRIAM-WEBSTER (May 30, 2022), https://www.merriam-
webster.com/dictionary/redeem] The government asks the Court to ignore
these definitions and define “redemption” in 31 C.F.R. § 100.11, at this
preliminary stage of the proceedings, as permitting the [U.S.] Mint to obtain
something for nothing; to realize substantial benefit at no cost.
(alterations added).
Plaintiff argues that “the government’s proposed definition of ‘redeem’ would also
lead to the absurd.” The authority which plaintiff cites for the prohibition on “absurd”
readings is Timex V.I., Inc. v. United States, 157 F.3d 879, 885-86 (Fed. Cir. 1998). In
Timex V.I., Inc., the Federal Circuit considered “statutory benefits” found at “paragraph
(h) of note 5 of the Additional U.S. Notes to Chapter 91 of Section XVIII of the Harmonized
Tariff Schedule of the United States (Supp. I 1995),” in which “by its terms the statutory
provision provides a rebate for wages paid by watch manufacturers in the insular
possessions in any given year.” Id. at 880-81. The Timex V.I., Inc. court explained that,
according to the statute, “[t]he Secretaries of the U.S. Department of Commerce and the
U.S. Department of Interior” determined “that the statute requires that the applicant be a
‘producer’ in the year in which the certificate is issued, i.e., in the following year,” the year
after the wages to be rebated were paid. Id. at 881 (alteration added).
In Timex V.I., Inc., the Federal Circuit determined that
Commerce’s ‘following-year producer’ requirement is contrary to the
character of the rebate program created by Congress. By definition and
common usage, a rebate is “a retroactive abatement . . . usu. as
consideration for a specified volume of business.” Webster’s Third New
21
International Dictionary 1892 (1986); see also Webster's II New College
Dictionary 924 (1995) (defining rebate as “a return of part of a price paid” or
“a deduction from an amount charged”). As such, rebates are commonly
issued after the price is paid.
Timex V.I., Inc. v. United States, 157 F.3d at 884-85 (ellipsis in original). The court in
Timex V.I., Inc. used the dictionary definitions above to demonstrate the agency’s use of
rebate was contrary to the purpose of the statute. See id. Plaintiff in the above captioned
case uses dictionary definitions that are plainly inapposite to the purpose of the
Redemption Program and the statute at 31 U.S.C. § 5120. The statute requires “melt[ing]
obsolete and worn United States coins withdrawn from circulation,” a very different
circumstance than the “[t]he act or an instance of reclaiming or regaining possession by
paying a specific price,” or “the act, process, or an instance of redeeming,” plaintiff uses
as support for its definition of redemption. (alterations added). Moreover, the U.S. Mint
process in reviewing the coins provided by plaintiff during the redemption process was
consistent with the purpose of the statute and the regulation at 31 C.F.R. § 100.11.
The Federal Circuit in Timex V.I., Inc. also determined that “Commerce’s
‘following-year producer’ requirement violates the canon that a statutory construction that
causes absurd results is to be avoided if at all possible.” Id. at 886 (citing Haggar Co. v.
Helvering, 308 U.S. 389, 394 (1940)). The Timex V.I., Inc. court noted, “[u]nder
Commerce's statutory construction, a watch manufacturer that stays a few days into the
new year (perhaps as few as one day) may qualify for a rebate certificate,” for the prior
year, but “a manufacturer that leaves at or just before the end of the preceding year does
not.” Id. (alteration added). The Federal Circuit continued:
Commerce’s inability to make sense of its statutory construction is
understandable, because it makes no sense. The result is nonsensical not
merely because that, under Commerce’s construction, a manufacturer that
stays a few more days into the new year qualifies, whereas one that does
not stay a few additional days does not qualify; here there is the additional
fact that the ‘following-year producer’ requirement serves no useful
purpose.
Id. (footnote omitted). The Federal Circuit concluded:
The present case provides a perfect example. Timex did not have notice of
Commerce’s ‘following-year producer’ requirement. The requirement is not
contained in the statute, it is not contained in Commerce's regulations, and
it is not expressed in any binding published policy guidance or official
opinion. If Timex had been placed on notice, in all likelihood it would have
decided (like any sensible business entity) to keep quiet about its plans to
leave and instead stay on a few days into January, 1996. Or, worse yet,
Timex would have closed its doors early in 1995, so as not to pay substantial
wages for which it would not receive a rebate. Either way, Congress’s intent
is not served.
Secondly, the ‘following-year producer’ requirement bears no relationship
to the benefit provided to the watch manufacturer by Congress’s rebate
22
program. Regardless of how long the manufacturer stays into the new year,
the benefit is the same because the amount of the rebate certificate is, by
statute, based only on the amount of wages paid during the preceding year.
Imposing a requirement that does not affect the amount of the rebate and
that does not meaningfully promote the watch industry in the insular
possessions is contrary to Congress’s purpose.
Quite simply, Commerce’s ‘following-year producer’ requirement serves no
useful purpose. Instead, Commerce’s statutory construction frustrates
Congress’s intent, encourages undesirable behavior, and produces absurd
results. Such statutory construction is to be avoided, not rubber-stamped
under the mistaken notion that it is ‘reasonable’ and thus somehow binding
on the court.
Id. at 886-87 (citing Haggar Co. v. Helvering, 308 U.S. at 394). Despite plaintiff’s claim
“the government’s proposed definition of ‘redeem’ would also lead to the absurd,” citing
to Timex V.I., Inc., the court notes that the foregoing demonstrates how different the
situation in Timex V.I., Inc. is from the above captioned case.
The Redemption Program under 31 C.F.R. § 100.11 is designed to ensure that
only authentic currency is redeemed, including by examination and testing procedures.
The statute at 31 U.S.C. § 5120, pursuant to which the regulation is promulgated, directs
the Secretary of the Treasury to “melt obsolete and worn United States coins” and to “use
the metal from melting the coins for reminting or” to “sell the metal.” 31 U.S.C. §
5120(a)(1). The statute does not promote melting down counterfeit United States coins,
or coins other than genuine United States coins into new coins, and allows for a testing
program to ensure this does not occur. The regulation at 31 C.F.R. § 100.11 provides for
the testing and examination of submitted coins as an integral part of the “Redemption
process,” to ensure authenticity and prevent the United States from “redeeming” other
than authentic coins. See 31 C.F.R. § 100.11(c)(4). The regulation at 31 C.F.R. §
100.11(c)(4), as applied to the facts of the above captioned case, serves Congress’
purpose by ensuring that only genuine United States coins are paid for and melted down
for reminting. See Timex V.I., Inc. v. United States, 157 F.3d at 886. Further, requiring
testing of the mutilated coin submissions prior to redemption “bears [a] relationship to
th[at] benefit,” id. (alterations added), by proactively discouraging those who might
otherwise submit counterfeit coins or coins other than authentic United States coins from
receiving payment and by incentivizing only those submitting authentic United States
coins to seek to participate in the Redemption Program. See id. Plaintiff’s dictionary
definitions and arguments ignore the promulgated regulations issued by the U.S. Mint
which allow the U.S. Mint to test to determine whether any coins submitted are authentic
and genuine prior to payment. Although by no means condoning the length of time the
U.S. Mint took in this case to process plaintiff’s coins, respond to plaintiff’s inquiries and
claims, and to decide plaintiff’s appeal, plaintiff’s argument against defining “redemption”
in the context of 31 U.S.C. § 5120, 31 C.F.R. § 100.11, or other applicable regulations,
including the U.S. Mint’s exercise of its discretion to examine and test plaintiff’s coins is
“absurd.” See Timex, V.I., Inc. v. United States, 157 F.3d at 886. To the extent that the
counts in plaintiff’s second amended complaint depend on the conclusion that plaintiff’s
23
coins were “redeemed” within the meaning of the Redemption Program’s regulations,
plaintiff’s causes of action fail.
Specifically regarding Count One of plaintiff’s second amended complaint,
defendant argues that the claim described by plaintiff as a “Violation of Federal
Regulation,” must be dismissed for lack of jurisdiction, because “redemption” must be
conducted within the legal parameters of the context of the program described in 31
C.F.R. § 100.11, which includes the examination process. Defendant states regarding
Count One that “the gravamen of Portland’s challenge is that the U.S. Mint’s process is
unlawful,” and that “[t]he Court does not possess jurisdiction over this claim and it must
be dismissed.” (alteration added) (citing Russell v. United States, 78 Fed. Cl. 281, 288
(2007)). In response, plaintiff argues:
Count 1 has always been about the definition of “redeem” in 31 C.F.R. §
100.11. If the Court finds that the government “redeemed” TPM’s [the
Portland Mint’s] coins by accepting, melting, and using them, then TPM is
owed $8.51 million under the regulations, regardless of whether the Mint’s
“process” was lawful or unlawful. Likewise, if the Court finds that
“redemption” did not take place, then the regulation does not mandate
payment to TPM, regardless of whether the Mint’s “internal policy” was good
or bad. Count 1 does not allege that the [U.S.] Mint should have redeemed
TPM’s coins; it alleges that it did redeem TPM’s coins.
(emphasis in original; alteration added). Plaintiff also asserts that this court “has
jurisdiction to interpret a money-mandating regulation and award money damages when
required by that regulation; that is the Court’s very purpose.” The relevant statutes and
regulations demonstrate, however, that the Redemption Program was administered by
the U.S. Mint, and that plaintiff sought to and voluntarily participated in that program. The
U.S. Mint had discretion to accept or not accept submissions of coinage from plaintiff and
other possible participants in the Redemption Program. The statutes and regulation at
issue in this case do not mandate payment to plaintiff just for submitting coinage to the
U.S. Mint, and payment depends on a participant such as plaintiff meeting the conditions
of the “Redemption process” stated in the regulation at 31 C.F.R. § 100.11. The plaintiff
accepted the terms of the U.S. Mint’s program, including the possibility of having plaintiff’s
coins tested and potential forfeiture of the coins if any or all of the coins submitted are not
in compliance with the conditions of the program. See id. § 100.11(a).
Plaintiff’s Count One indeed appears to challenge the statutory, regulatory, and
administrative processes established for the Redemption Program for testing, and to seek
review of the agency decision to deny “redemption,” after plaintiff sought to participate in,
and submitted coins to the Redemption Program by voluntarily delivering its coins to the
U.S. Mint. To the extent plaintiff alleges a violation of the U.S. Mint’s administrative
procedures, the Court of Federal Claims lacks jurisdiction over administrative procedure
claims. See Martinez v. United States, 333 F.3d 1295, 1313 (Fed. Cir. 2003) (“[T]he Court
of Federal Claims lacks APA jurisdiction.” (citing Murphy v. United States, 993 F.2d 871,
874 (Fed. Cir. 1993) (“[T]he Claims Court has no authority to invoke the APA.”)), cert.
denied, 540 U.S. 1177 (2004); see also Delano Farms Co. v. Cal. Table Grapes Comm’n,
655 F.3d 1337, 1348 (Fed. Cir. 2011) (“[T]he immunity waiver cannot serve as a
24
‘backdoor’ to use the APA to obtain what would amount to concurrent district court
jurisdiction over a monetary claim that could be brought in the Court of Federal Claims.”);
Albino v. United States, 104 Fed. Cl. 801, 815 (2012) (citing Martinez v. United States,
333 F.3d at 1303, 1314). As such, the “Federal district courts—not the Court of Federal
Claims—are the proper fora for APA actions.” Stroughter v. United States, 89 Fed. Cl.
755, 762-63 (2009) (citing 5 U.S.C. § 703 (2006); Lion Raisins, Inc. v. United States, 416
F.3d 1356, 1370 n.11 (Fed. Cir. 2005)); see also Crocker v. United States, 125 F.3d 1475,
1476 (Fed. Cir. 1997) (affirming the United States Court of Federal Claims holding “that
it lacks the general federal question jurisdiction of the district courts, which would allow it
to review the agency's actions and to grant relief pursuant to the Administrative Procedure
Act, 5 U.S.C. § § 701-706 (1994)”); HCIC Enters., LLC v. United States, 147 Fed. Cl. 118,
126 (2020) (quoting Stroughter v. United States, 89 Fed. Cl. at 763 (“The APA does not
authorize an award of money damages, 5 U.S.C. § 702 (providing for judicial review of
actions ‘seeking relief other than money damages’) and, in any event, it is well-
established that ‘[f]ederal district courts—not the Court of Federal Claims—are the proper
fora for APA actions.’”)); Allen v. United States, 140 Fed. Cl. 550, 563 (2018) (citing
Stroughter v. United States, 89 Fed. Cl. at 763); Amber Res. Co. v. United States, 68
Fed. Cl. 535, 544 (2005), aff’d, 538 F.3d 1358 (Fed. Cir.), reh’g and reh’g en banc denied
(Fed. Cir. 2008) (“In the absence of a contrary statute, a challenge to administrative
discretion can only be reviewed in district court pursuant to the APA.”). Plaintiff’s
challenges in Count One of the second amended complaint to the U.S. Mint’s procedures
raise APA challenges which fall outside this court’s jurisdiction.
The statute at 31 U.S.C. § 5120(a)(1) and regulation at 31 C.F.R. § 100.11 leave
discretion to the agency to decide when a coinage submission should be tested, prior to
being considered “redeemed” and for which payment should or should not be made to
those who have asked to join in the benefits of the Redemption Program. Count One of
plaintiff’s second amended complaint speaks directly to the U.S. Mint’s established
procedures. Therefore, plaintiff’s Count One is dismissed.
Alternatively, defendant argues that Count One of the second amended complaint
“must also be dismissed for failure to state a claim because the U.S. Mint’s refusal to
redeem coins for a lawful reason under the regulations does not equate to a violation of
those regulations.” Defendant states that “Portland erroneously conflates” the delivery of
its coin submission with the concept of “redemption” and that the denial of plaintiff’s claim
“is the result of the U.S. Mint applying its regulations, not a breach of them.”
In its response to defendant’s motion to dismiss the second amended complaint,
plaintiff does not specifically address the arguments made by defendant with respect to
dismissing Count One for failure to state a claim. In the second amended complaint,
however, plaintiff alleges that the U.S. Mint’s official determination that plaintiff’s
submission was counterfeit “was pure litigation stratagem,” as part of “a concerted effort
to hide a simple truth from Plaintiff” that “Defendant redeemed Plaintiff’s coins,” and
plaintiff argues that the U.S. Mint’s official determination merely “call[s] ‘counterfeit’ what
it previously determined was genuine.” (alteration added). As indicated above, plaintiff’s
second amended complaint alleges that when Mr. Youngs met with the U.S. Mint
employees, Mr. Holmes and Mr. Browne “specifically stated that the coins redeemed by
the Portland Mint were without issue” and plaintiff “would receive payment for its
25
redeemed shipment in 4-6 weeks.” Admittedly, plaintiff is at a disadvantage because the
U.S. Mint has refused, based on the U.S. Mint’s procedures that it was not required to
turn over to the plaintiff the meteorological analysis report upon which defendant bases
its assertion of the unacceptability of the coins plaintiff submitted, seeking rather first to
adjudicate the case on jurisdiction and failure to state a claim grounds.11 Plaintiff’s
response to defendant’s motion to dismiss tries to create an alternative to what is really
at the heart of Count One of plaintiff’s second amended complaint, an APA claim. Plaintiff
states, “[t]he Court can interpret 31 C.F.R. § 100.11,” and that “[t]o address Plaintiff’s
allegations, the Court need only interpret the [U.S.] Mint’s regulations, not adjudicate the
[U.S.] Mint’s process.” (alterations added). Plaintiff, however, has not identified actions
taken by the U.S. Mint that were inconsistent with the applicable regulation when it opted
to test plaintiff’s coin submission to authenticate the coinage. See 31 C.F.R.
§ 100.11(c)(4). Moreover, acceptance into the Redemption Program by the U.S. Mint was
discretionary, and dependent on plaintiff complying with the applicable regulatory
program conditions, including testing. See id. The regulation at 31 C.F.R. § 100.11indicates that the U.S. Mint was under no obligation to make a payment to plaintiff prior
to making a determination that plaintiff’s voluntarily submitted coinage was, in fact,
genuine and of U.S. origin, and failure of the U.S. Mint upon submission by plaintiff of its
coins to pay did not constitute a deviation from the governing regulation. Accordingly,
plaintiff’s “Violation of Federal Regulation” challenge to the U.S. Mint’s administrative
process in Count One of the second amended complaint also fails to state a claim over
which this court can take jurisdiction.
In Count Two of plaintiff’s second amended complaint, plaintiff alleges a breach of
an “implied contract” by the United States. Plaintiff states:
92. The essential terms of the implied contract[12] were found in the [U.S.]
Mint’s own regulations, which state that the [U.S.] Mint will pay for mutilated
coins it accepts and redeems at the rates specified in the regulations. See
31 C.F.R. § 100.11(d).
93. As demonstrated by the communications and actions of Anthony
11 At oral argument, plaintiff’s counsel of record confirmed that plaintiff had not received
data reflecting the results of the U.S. Mint’s testing of plaintiff’s coins. Plaintiff’s counsel
stated further:
I think that’s another critical piece of all of this because, again, now three
years removed from the melt, we still don’t even know how the [U.S.] Mint
came to the determinations it did. They tested a few hundred coins, Your
Honor, according to their own letters, and extrapolated from those few
hundred coins to 427,000 pounds.
(alteration added).
12 With the exception of one use of the specific legal term “implied-in-fact contract,”
plaintiff’s second amended complaint claims that a nonspecific “implied contract” existed.
Only in plaintiff’s response to defendant’s motion to dismiss does plaintiff frequently refer
to its claim as one of “implied-in-fact contract.”
26
Holmes, Jr. and other [U.S.] Mint employees, arranging and contracting for
the delivery of mutilated coins was an integral part of Mr. Holmes’s duties
as a supervisor employed by the [U.S.] Mint.
94. The Portland Mint provided consideration by delivering the mutilated
coins to Olin Brass on August 1 and 2, 2018 as instructed by the [U.S.] Mint.
95. The [U.S.] Mint accepted the delivery, and redeemed the mutilated coins
delivered by the Portland Mint. In doing so, the [U.S.] Mint agreed to pay
the Portland Mint for the value of the coins that the [U.S.] Mint accepted and
redeemed, approximately $8.51 million.
(alterations added).
In addition to arguing for the dismissal of all of plaintiff’s claims on the basis that
plaintiff’s coins were never “redeemed” within the meaning of 31 C.F.R. § 100.11,
defendant separately argues that the court should dismiss Count Two of plaintiff’s second
amended complaint for lack of jurisdiction on the grounds that plaintiff has alleged the
existence of a contract implied-in-law, not a contract implied-in-fact.
With respect to defendant’s arguments to dismiss Count Two for lack of
jurisdiction, defendant argues that plaintiff’s “assertions are classic allegations of an
implied-in-law contract over which this Court does not possess jurisdiction.” The Federal
Circuit has explained:
While the Tucker Act does cover “implied contract[s],” the Supreme Court
has long held that the scope of the Tucker Act's waiver of sovereign
immunity “extends only to contracts either express or implied in fact, and
not to claims on contracts implied in law.” Hercules Inc. v. United States,
516 U.S. 417, 423, 116 S. Ct. 981, 134 L. Ed. 2d 47 (1996). Generally
speaking, implied-in-law contracts “impose duties that are deemed to arise
by operation of law” in order to prevent an injustice, whereas implied-in-fact
contracts are “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 light of the surrounding circumstances, their tacit
understanding.” City of Cincinnati v. United States, 153 F.3d 1375, 1377
(Fed. Cir. 1998) (quoting Baltimore & Ohio R.R. v. United States, 261 U.S.
592, 597, 43 S. Ct. 425, 67 L. Ed. 816 (1923)).
Lumbermens Mut. Cas. Co. v. United States, 654 F.3d 1305, 1316 (Fed. Cir. 2011). As
the United States Court of Claims, in Russell Corp. v. United States, 537 F.2d 494, 210
Ct. Cl. 596 (1976), stated:
Implied-in-fact contracts differ from contracts implied in law (quasi-
contracts), where a duty is imposed by operation of law without regard to
the intent of the parties. Such arrangements are treated as contracts for the
purposes of remedy only. This court, of course, has no jurisdiction to render
judgment against the United States based upon a contract implied in law.
Id. at 609; see also Int’l Data Prods. Corp. v. United States, 492 F.3d 1317, 1325 (Fed.
Cir. 2007) (“The Court of Federal Claims, however, lacks jurisdiction over contracts
27
implied in law.”); Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1325 (Fed. Cir.
1997) (“Jurisdiction based on contract ‘extends only to contracts either express or implied
in fact, and not to claims on contracts implied in law.’” (quoting Hercules, Inc. v. United
States, 516 U.S. 417, 423 (1996))); Baha v. United States, 144 Fed. Cl. 500, 507 (2019)
(“To the extent [plaintiff] contends that there is a controlling implied-in-law contract, this
court lacks jurisdiction over such a claim.” (alteration added).). Moreover, “[a]n agency’s
performance of its regulatory or sovereign functions does not create contractual
obligations.” D & N Bank v. United States, 331 F.3d 1374, 1378-79 (Fed. Cir. 2003)
(alteration added).
Defendant describes plaintiff’s allegation in its second amended complaint that
“[t]he essential terms of the implied contract were found in the [U.S.] Mint’s own
regulations,” as demonstrating that because plaintiff “bases its implied contract claim on
the terms of the regulations and the duties arising therefrom,” plaintiff “is alleging that it
had a contract implied-in-law with the U.S. Mint.” (alteration added). Defendant further
argues that “[p]laintiff’s allegations only identify actions on the part of both parties that
arise by operation of law,” which defendant argues demonstrates “that Portland was
participating in a regulatory program, not establishing a contract with the [U.S.] Mint.”
(alterations added). Defendant argues, therefore, that because the United States Court
of Federal Claims does not have jurisdiction to adjudicate claims based on contracts
implied-in-law, plaintiff’s Count Two “must be dismissed for lack of jurisdiction.”
Plaintiff, in its response to defendant’s motion to dismiss, argues that defendant
“grossly mischaracterizes the allegations contained in the SAC [second amended
complaint].” (alterations added). Plaintiff’s response to defendant’s implied-in-law contract
argument is simply to assert that it has demonstrated the elements of a contract, as
plaintiff refers to “objective evidence of the government’s intent” and the “objective actions
of the parties, namely TPM’s [the Portland Mint’s] delivery of mutilated coins to the [U.S.]
Mint, the [U.S.] Mint’s acceptance and redemption of those coins to manufacture new
coin roll, and TPM’s [the Portland Mint’s] communications with [U.S.] Mint employees.”
(emphasis in original; alterations added). Plaintiff also states, without explanation, that
“the SAC [second amended complaint] plausibly alleges negotiations between the parties
regarding the delivery and redemption of TPM’s [the Portland Mint’s] shipment,”
(alterations added), although no reference to negotiations appears in plaintiff’s second
amended complaint. Plaintiff’s response does not address plaintiff’s own contradictory
allegation in the second amended complaint that “[t]he essential terms of the implied
contract were found in the [U.S.] Mint’s own regulations,” (alteration added), which
appears to concede that the actions which plaintiff alleges were taken by U.S. Mint
personnel and by plaintiff were in accordance with the regulation at 31 C.F.R. § 100.11.
Accordingly, plaintiff’s own complaint appears to indicate that, if duties existed between
the parties, those duties existed by operation of the regulation at 31 C.F.R. § 100.11, or
by operation of statute, not because of any contractual agreement, negotiated or
otherwise. The actions of the U.S. Mint’s personnel are attributable to the U.S. Mint’s
“performance of its regulatory or sovereign functions” in its administration of the
Redemption Program, which “does not create contractual obligations.” D & N Bank v.
United States, 331 F.3d at 1378-79. For this reason, plaintiff’s contract claims in Count
Two of plaintiff’s second amended complaint must be dismissed for lack of jurisdiction.
28
In the alternative, defendant argues that the court should dismiss plaintiff’s Count
Two for failure to state a claim, because plaintiff’s allegations do not demonstrate the
elements of an implied-in-fact contract with the government. Defendant states “[n]one of
its [plaintiff’s] allegations support a finding that an implied-in-fact contract was formed.”
(alterations added). An implied-in-fact contract is an agreement “‘“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 surrounding
circumstances, their tacit understanding.”’” Trauma Serv. Grp. v. United States, 104 F.3d
at 1325 (quoting Hercules, Inc. v. United States, 516 U.S. at 424 (quoting Balt. & Ohio
R.R. Co. v. United States, 261 U.S. 592, 597 (1923))); see also Bitmanagement Software
GmBH v. United States, 989 F.3d 938, 946 (Fed. Cir. 2021); Kam-Almaz v. United States,
682 F.3d at 1368; Bank of Guam v. United States, 578 F.3d 1318, 1329 (Fed. Cir.) (citing
Trauma Serv. Grp. v. United States, 104 F.3d at 1326), reh’g and reh’g en banc denied
(Fed. Cir. 2009), cert. denied, 561 U.S. 1006 (2010); Bay View, Inc. v. United States, 278
F.3d 1259, 1265-66 (Fed. Cir. 2001), reh’g and reh’g en banc denied, 285 F.3d 1035(Fed. Cir.), cert. denied, 537 U.S. 826 (2002); XP Vehicles, Inc. v. United States, 121
Fed. Cl. 770, 781 (2015); Westlands Water Dist. v. United States, 109 Fed. Cl. 177, 203
(2013); Peninsula Grp. Capital Corp. v. United States, 93 Fed. Cl. 720, 728 (2010) (citing
Balt. & Ohio R.R. Co. v. United States, 261 U.S. at 597; and Russell Corp. v. United
States, 537 F.2d 474, 210 Ct. Cl. at 609), appeal dismissed, 454 F. App’x 900 (Fed. Cir.
2011). 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.
The elements for both express and implied contracts with the United States are
identical. See Night Vision Corp. v. United States, 469 F.3d 1369, 1375 (Fed. Cir. 2006)
(“The elements of an implied-in-fact contract are the same as those of an oral express
contract.”), cert. denied, 550 U.S. 934 (2007); Hanlin v. United States, 316 F.3d 1325,
1328 (Fed. Cir. 2003) (“Thus, the requirements for an implied-in-fact contract are the
same as for an express contract; only the nature of the evidence differs.”); City of
Cincinnati v. United States, 153 F.3d 1375, 1377 (Fed. Cir. 1998). The required elements
to demonstrate an express or implied contract are: “(1) mutuality of intent to contract; (2)
consideration; and, (3) lack of ambiguity in offer and acceptance.” Night Vision Corp. v.
United States, 469 F.3d at 1375; see also Columbus Reg’l Hosp. v. United States, 990
F.3d 1330, 1339 (Fed. Cir. 2021); Bank of Guam v. United States, 578 F.3d at 1326(quoting Trauma Serv. Grp. v. United States, 104 F.3d at 1325); Yifrach v. United States,
145 Fed. Cl. 691, 698 (2019), aff’d, 825 F. App’x 899 (Fed. Cir. 2020).
When the United States is a party to an alleged express or implied-in-fact contract,
“a fourth requirement is added: The government representative whose conduct is relied
upon must have actual authority to bind the government in contract.” City of Cincinnati v.
United States, 153 F.3d at 1377 (quoting City of El Centro v. United States, 922 F.2d 816,
820 (Fed. Cir. 1990), cert. denied, 501 U.S. 1230 (1991)); see Columbus Reg’l Hosp. v.
United States, 990 F.3d at 1339; Trauma Serv. Grp. v. United States, 104 F.3d at 1325;
Total Med. Mgmt. v. United States, 104 F.3d 1314, 1319 (Fed. Cir. 1997) (citing
Thermalon Indus. v. United States, 34 Fed. Cl. 411, 414 (1995)). As a general proposition,
“[t]he law requires that a Government agent who purports to enter into or ratify a
29
contractual agreement that is to bind the United States have actual authority to do so.”
Monarch Assurance P.L.C. v. United States, 244 F.3d 1356, 1360 (Fed. Cir.), reh’g and
reh’g en banc denied (Fed. Cir. 2001) (citing Trauma Serv. Grp. v. United States, 104
F.3d at 1325). “The corollary is that any party entering into an agreement with the
Government accepts the risk of correctly ascertaining the authority of the agents who
purport to act for the Government . . . .” Id. (citing Federal Crop Ins. Corp. v. Merrill, 332
U.S. 380, 384 (1947)); see also Snyder & Assocs. Acquisitions LLC v. United States, 133
Fed. Cl. 120, 126 (2017).
Defendant also argues that the allegations in plaintiff’s second amended complaint
do not establish actual authority on the part of any government official which was sufficient
to enter into a contract, including Mr. Holmes, the Materials Handler Supervisor at the
U.S. Mint with whom Mr. Youngs had multiple interactions. According to defendant, the
representations plaintiff alleges were made by Mr. Holmes to plaintiff did not result in a
binding contract with the government. Plaintiff argues, however, that “Mr. Holmes’s
authority to contract on behalf of the government may be implied from his
‘communications and actions.’” Plaintiff emphasizes that Mr. Holmes communicated the
approval of plaintiff’s application to participate in the Redemption Program; that Mr.
Holmes coordinated delivery of plaintiff’s coins; that Mr. Holmes “specifically stated that
the coins redeemed by the Portland Mint were without issue,” and that Mr. Holmes told
plaintiff to expect “payment for its redeemed shipment in 4-6 weeks.” Based on the
allegations in the second amended complaint, plaintiff argues that Mr. Holmes “had the
implied actual authority to bind the government to the contract between TPM [the Portland
Mint] and the [U.S.] Mint.” (emphasis in original; alterations added).
Rejecting plaintiff’s theory of “implied actual authority” to contract in this case,
defendant states that “at most, Portland alleges apparent authority to contract on the part
of Mr. Holmes, the U.S. Mint employee who received Portland’s submission, but apparent
authority is not enough to sustain Portland’s claim.” According to defendant, “[f]ailure to
establish that a Government agent had actual authority to contract is fatal to Portland’s
contract claim.” (alteration added). Defendant argues that “Portland does not reference
the laws and regulations governing the U.S. Mint’s redemption program as the basis for
its claim that Mr. Holmes had actual authority,” but rather “Portland’s allegations show
that it appeared to Portland that Mr. Holmes had contracting authority because he
communicated with Portland about delivery of its [plaintiff’s] coin submission, received the
delivery, and told Portland when payments for redemption usually issue.” (emphasis in
original; alteration added). Defendant further states that “taking Portland’s allegations at
face value, the most that Portland alleges is that Mr. Holmes had apparent authority, and
then only to accept delivery of a submission to the redemption program, not even to form
a contract.” (emphasis in original). Therefore, defendant argues that “Portland has failed
to adequately allege that Mr. Holmes had actual authority to contract to redeem coins”
submitted by plaintiff, or implied actual authority to do so, and plaintiff’s Count Two must
be dismissed.
In Liberty Ammunition, Inc. v. United States, 835 F.3d 1388 (Fed. Cir. 2016), the
Federal Circuit explained:
30
A Government agent must have actual authority to bind the Government to
a contract. Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1325 (Fed.
Cir. 1997). Although apparent authority—which exists when an agent with
no actual authority holds himself out to have such authority to another’s
detriment—can generally bind a principal, the Government is immune to
actions of its agents who merely possess apparent authority. Our past
cases have elaborated on the precept that there must be actual authority
for an agent to bind the Government:
It is a well recognized principle of procurement law that the
contracting officer, as agent of the executive department, has only
that authority actually conferred upon him by statute or regulation. . .
. The government is not bound by its agents acting beyond their
authority and contrary to regulation. A contractor who enters into an
arrangement with an agent of the government bears the risk that the
agent is acting outside the bounds of his authority, even when the
agent himself was unaware of the limitations on his authority.
CACI, Inc. v. Stone, 990 F.2d 1233, 1236 (Fed. Cir. 1993) (internal citations
omitted); see also H. Landau & Co. v. United States, 886 F.2d 322, 324
(Fed. Cir. 1989) (“[A]pparent authority will not suffice to hold the government
bound by the acts of its agents.”).
Liberty Ammunition, Inc. v. United States, 835 F.3d at 1401-02 (italics in original); see
also Winter v. Cath-dr Balti Joint Venture, 497 F.3d 1339, 1344 (Fed. Cir. 2007) (“Where
a party contracts with the government, apparent authority of the government’s agent to
modify the contract is not sufficient; an agent must have actual authority to bind the
government.”); Doe v. United States, 100 F.3d 1576, 1584 (Fed. Cir. 1996) (“Absent
actual authority on the part of the Government's agent to bind the Government in contract,
no binding contract can exist, regardless of the agent's representations.”). “Whatever the
form in which the Government functions, anyone entering into an arrangement with the
Government takes the risk of having accurately ascertained 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. at 384. When determining whether plaintiff has pled “facts sufficient to
allege that the Government agent had actual authority to bind the Government to a
contract,” “[p]laintiff’s subjective belief is irrelevant.” Doe v. United States, 95 Fed. Cl. 546,
583 (2010) (alteration added) (citing Harbert/Lummus Agrifuels Projects, 142 F.3d 1429,
1432 (Fed. Cir. 1998)). “An employee of the Government has implied actual authority to
enter an agreement only when that authority is an ‘integral part of the duties assigned to
[the] government employee.’” Liberty Ammunition, Inc. v. United States, 835 F.3d at 1402
(alteration in original) (quoting H. Landau & Co. v. United States, 886 F.2d at 324 (internal
quotation marks omitted)). A government employee’s “[a]uthority [to contract] is integral
‘when the government employee could not perform his or her assigned tasks without such
authority.’” Id. (alterations added) (quoting Flexfab, LLC v. United States, 62 Fed. Cl. 139,
148 (2004), aff’d, 424 F.3d 1254 (Fed. Cir. 2005)).
The “communications and actions” attributed by plaintiff to Mr. Holmes and relied
on by plaintiff establish only that Mr. Holmes may have had a role in assisting plaintiff’s
31
participation in the Redemption Program and relaying information about plaintiff’s
participation in that program. Plaintiff’s allegations, however, fall well short of indicating
that Mr. Holmes had actual contracting authority on behalf of the government. According
to plaintiff’s allegations regarding Mr. Holmes’ role at the U.S. Mint, contracting authority
was not “an ‘integral part’” of his duties, as Mr. Holmes’ duties of supervising plaintiff’s
participation in the Redemption Program and relaying information did not require that Mr.
Holmes possess contracting authority. Id. (quoting H. Landau & Co. v. United States, 835
F.3d at 1402). Moreover, even if plaintiff believed that Mr. Holmes had contracting
authority, “[p]laintiff’s subjective belief is irrelevant,” and neither Mr. Holmes nor officials
at the U.S. Mint represented that Mr. Holmes had contracting authority. See Doe v. United
States, 95 Fed. Cl. at 583. Additionally, plaintiff bore “the risk of having accurately
ascertained” Mr. Holmes’ authority to contract, yet plaintiff did not provide any
documentation or allegation of actual authority on the part of Mr. Holmes. See Fed. Crop
Ins. Corp. v. Merrill, 332 U.S. at 384. Accordingly, plaintiff’s second amended complaint
fails to establish that Mr. Holmes had actual authority to contract on behalf of the
government, and, therefore, plaintiff’s Count Two must be dismissed for failure to state a
claim.
In Count Three of plaintiff’s second amended complaint, plaintiff alleges a breach
of the implied covenant of good faith and fair dealing. As noted above, defendant argues
that Count Three must be dismissed for lack of jurisdiction as one of plaintiff’s claims that
“challenge the lawfulness of the U.S. Mint’s denial of payment,” although defendant does
not make independent arguments to dismiss Count Three for lack of jurisdiction.
Defendant further argues that, because plaintiff has failed to allege facts sufficient to
establish the existence of a contract, the court also must dismiss plaintiff’s Count Three
for failure to state a claim. The Federal Circuit has explained that “‘the existence of th[e]
covenant [of good faith and fair dealing] depends on the existence of an underlying
contractual relationship’” and, therefore, “‘there is no claim for breach of this covenant
where a valid contract has not yet been formed.’” Scott Timber Co. v. United States, 692
F.3d 1365, 1372 (Fed. Cir. 2012) (alterations in original) (quoting Mounter Highlands, LLC
v. Hendricks, 616 F.3d 1167, 1171 (10th Cir. 2010)); see also Brenes v. United States,
152 Fed. Cl. 365, 370 (2021); Yifrach v. United States, 145 Fed. Cl. at 707 n.9; Sigma
Constr., Inc. v. United States, 113 Fed. Cl. 13, 24 (2013). Because the court has
determined that the plaintiff has not alleged sufficient facts to demonstrate the existence
of a contract, there can be no breach of the implied covenant of good faith and fair dealing
in the case currently before the court. Accordingly, the court dismisses plaintiff’s Count
Three for failure to state a claim.
In Count Four of plaintiff’s second amended complaint, plaintiff alleges a violation
of the Takings Clause of the Fifth Amendment to the United States Constitution and
claims entitlement to just compensation thereunder. Plaintiff alleges that the actions of
the U.S. Mint constituted a taking of its property, coinage which was submitted to the U.S.
Mint for processing in the Redemption Program, and that defendant failed to pay just
compensation for the coins received. Plaintiff argues that “the takings violation took place
not when TPM [the Portland Mint] delivered mutilated coins to the government, but rather
when the government melted the coins and converted the property to public use (i.e., the
manufacture of new coins) without compensation to TPM [the Portland Mint].” (alterations
32
added). At no point in plaintiff’s filings in this court does plaintiff allege that plaintiff’s
submission to the Redemption Program was not voluntary.
In addition to arguing that Count Four, along with Counts One, Two, and Three,
must be dismissed for lack of subject matter jurisdiction as a challenge to the U.S. Mint’s
administrative process, defendant also argues that Count Four must be dismissed for
failure to state a claim. 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
provision 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.’” Ark.
Game & Fish Comm'n v. United States, 568 U.S. 23, 31 (2018) (quoting Armstrong v.
United States, 364 U.S. 40, 49 (1960)); see also Palazzolo v. Rhode Island, 533 U.S.
606, 618 (2001) (quoting Armstrong v. United States, 364 U.S. at 49), abrogated on other
grounds by Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), recognized by Hageland
Aviation Servs., Inc. v. Harms, 210 P.3d 444 (Alaska 2009)); Penn Cent. Transp. Co. v.
City of New York, 438 U.S. 104, 123-24 (1978); Lingle v. Chevron U.S.A. Inc., 544 U.S.
at 536; E. Enters. v. Apfel, 524 U.S. 498, 522 (1998); Pumpelly v. Green Bay & Miss.
Canal Co., 80 U.S. (13 Wall.) 166, 179 (1871) (citing principles which 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”); Reoforce, Inc. v. United States, 853 F.3d 1249,
1265 (Fed. Cir.), cert. denied, 138 S. Ct. 517 (2017); Rose Acre Farm, Inc. v. United
States, 559 F.3d 1260, 1266 (2009); Janowsky v. United States, 133 F.3d 888, 892 (Fed.
Cir. 1998); Res. Invs., Inc. v. United States, 85 Fed. Cl. 447, 469-70 (2009).
To succeed under the Fifth Amendment Takings Clause, a plaintiff must show that
the government took a private property interest for public use without just compensation.
See Dimare Fresh, Inc. v. United States, 808 F.3d 1301, 1306 (Fed. Cir. 2015) (stating
that the “‘classic taking’” is one in which the government directly appropriates private
property for its own use (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning
Agency, 535 U.S. 302, 324 (2002)), cert. denied, 579 U.S. 902 (2016); 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, 762 (2010); Gahagan v. United States, 72 Fed. Cl. 157,
162 (2006). The government 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 United States Court of Appeals for the Federal Circuit has established a two-
part test to determine whether government actions amount to a taking of private property
under the Fifth Amendment. See Casitas Mun. Water Dist. v. United States, 708 F.3d
1340, 1348 (Fed. Cir. 2013); Klamath Irr. Dist. v. United States, 635 F.3d 505, 511 (Fed.
Cir. 2011); Am. Pelagic Fishing Co. v. United States, 379 F.3d 1363, 1372 (Fed. Cir.)
(citing M & J Coal Co. v. United States, 47 F.3d 1148, 1153-54 (Fed. Cir.), cert. denied,
516 U.S. 808 (1995)) reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1139(2005). A court first determines whether a plaintiff possesses a cognizable property
interest in the subject of the alleged taking. See Loretto v. Teleprompter Manhattan CATV
Corp., 458 U.S. 419, 435 (1982) (citing United States v. Gen. Motors Corp., 323 U.S. 37333
(1945)); see also McCutchen v. United States, 14 F.4th 1355, 1364 (Fed. Cir. 2021)
(quoting Huntleigh USA Corp. v. United States, 525 F.3d 1370, 1377 (Fed. Cir.), cert.
denied, (2008)); Welty v. United States, 926 F.3d 1319, 1323-24 (Fed. Cir. 2019) (“To
maintain a cognizable claim for a Fifth Amendment taking, a plaintiff must establish that
he possessed an enforceable property right.” (citing Lucas v. S.C. Coastal Council, 505
U.S. 1003, 1014-19 (1992))); Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372
(“‘It is axiomatic that only persons with a valid property interest at the time of the taking
are entitled to compensation.’” (quoting Wyatt v. United States, 271 F.3d 1090, 1096 (Fed.
Cir. 2001), cert. denied, 353 U.S. 1077 (2002); and citing Cavin v. United States, 956
F.2d 1131, 1134 (Fed. Cir. 1992))); Air Pegasus of D.C., Inc. v. United States, 424 F.3d
1206, 1213 (Fed. Cir.) (stating that the court does not address the second step “without
first identifying a cognizable property interest” (citing Am. Pelagic Fishing Co. v. United
States, 379 F.3d at 1381; and Conti v. United States, 291 F.3d 1334, 1340 (Fed. Cir.
2002))), reh’g denied and reh’g en banc denied (Fed. Cir. 2005); Karuk Tribe of Cal. v.
Ammon, 209 F.3d 1366, 1374-75 (Fed. Cir.), reh’g denied and en banc suggestion denied
(Fed. Cir. 2000), cert. denied, 532 U.S. 941 (2001). “If the claimant fails to demonstrate
the existence of a legally cognizable property interest, the courts [sic] task is at an end.”
Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (citing Maritrans Inc. v. United
States, 342 F.3d 1344, 1352 (Fed. Cir. 2003); and M & J Coal Co. v. United States, 47
F.3d at 1154); see also Hearts Bluff Game Ranch, Inc. v. United States, 669 F.3d 1326,
1329 (Fed. Cir.) (citing Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372), cert.
denied, 567 U.S. 917 (2012).
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 that property interest.’” Huntleigh USA Corp. v. United States, 525
F.3d at 1378 (quoting Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372). In this
case, there is no challenge that the coinage submitted to the U.S. Mint was not the
plaintiff’s property as alleged in plaintiff’s second amended complaint.
Defendant argues that plaintiff’s Count Four, alleging a Fifth Amendment takings
claim, must be dismissed because plaintiff sought to and voluntarily participated in the
Redemption Program when it submitted its mutilated coins to the U.S. Mint pursuant to
the regulatory Redemption Program for processing. Therefore, according to defendant,
plaintiff fails to state a claim that a taking has occurred. Defendant argues that “[i]t is
axiomatic that a voluntary transfer of property is not a taking.” (alteration added) (citing
Love Terminal Partners, L.P. v. United States, 889 F.3d 1331, 1348-49 (Fed. Cir. 2018),
cert. denied, 139 S. Ct. 2744 (2019)).13
13 In Love Terminal Partners, the Federal Circuit also relied on Williamson County
Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 194-95
(1985), to hold that “[i]t is axiomatic that property is not taken without just compensation
in violation of the Fifth Amendment when the act that allegedly effects a taking
incorporates a provision to receive just compensation.” Love Terminal Partners, L.P. v.
United States, 889 F.3d at 1349 (alteration added). The Supreme Court overruled
Williamson County in Knick v. Township of Scott, Pennsylvania, 139 S. Ct. 2162, 2179
(2019). The holding of the Federal Circuit in Love Terminal Partners which relied on
34
Defendant relies on the Federal Circuit’s decision in Love Terminal Partners, L.P.
v. United States for its argument that plaintiff’s voluntary submission to the Redemption
Program “does not equate to Government appropriation.” In its response, plaintiff argues
that two cases involving contracts with the government, Prudential Insurance Co. of
America v. United States, 801 F.2d 1295 (Fed. Cir. 1986), and System Fuels, Inc. v.
United States, 65 Fed. Cl. 163 (2005), illustrate that “[c]ourts have expressly recognized
that when a party delivers property or grants a right to the government with expectation
of payment pursuant to a contract or otherwise, and the government fails to pay, the party
may assert a claim under the Takings Clause.” (alteration added).
As an initial matter, plaintiff’s reliance on Prudential Insurance Co. of America v.
United States and System Fuels, Inc. v. United States is misplaced, because both cases
recognize the possibility of taking liability for property voluntarily delivered or rights
granted to the government only in the context of an existing express contract with the
government and as an alternative to a breach of contract claim. See Prudential Ins. Co.
of Am. v. United States, 801 F.2d at 1300 n.13; Sys. Fuels, Inc. v. United States, 65 Fed.
Cl. at 172-73. As discussed above, plaintiff has not alleged the existence of an express
contract with the U.S. Mint under which plaintiff’s coins were submitted, and plaintiff
cannot claim “an expectation of payment” under an express contract it has not alleged in
order to support its claim for a taking.
Moreover, as the Supreme Court and the Federal Circuit have held, a voluntary
transfer of property does not effect a cognizable Fifth Amendment taking claim. See Yee
v. Escondido, 503 U.S. 519, 527 (1992) (holding that a taking is only effected “if the
government authorizes a compelled invasion of property”); FCC v. Fla. Power Corp., 480
U.S. 245, 252 (1987); Love Terminal Partners, L.P. v. United States, 889 F.3d at 1348
(“Acquisition of plaintiffs’ property through negotiation could not constitute a taking
because any property transfer would be voluntary.”); Norman v. United States, 429 F.3d
1081, 1089 (Fed. Cir. 2005) (“To the extent that appellants' claim of loss of possession is
predicated on the transfer of title, we have already concluded that that transfer was
voluntary and therefore not a proper basis on which to premise a takings claim.”). Based
on the allegations contained in the second amended complaint, the arguments made in
the parties’ briefs, and the public record before the court, it is uncontested in the case
currently before the court that plaintiff’s submission of its mutilated coins to the U.S. Mint
was voluntary when plaintiff sought to participate in the Redemption Program. Plaintiff
applied to join the Redemption Program upon resumption of the program in January 2018,
and voluntarily delivered the coins to the U.S. Mint for inclusion in the Redemption
Program. Accordingly, due to the voluntary nature of plaintiff’s submission, plaintiff cannot
now claim that the U.S. Mint’s acceptance of plaintiff’s coins, voluntarily submitted by
plaintiff, effected a taking. In sum, plaintiff has not alleged sufficient facts to support a
Williamson County is distinct from the Federal Circuit’s holding in Love Terminal Partners
that a voluntary transfer of property does not effect a taking, at issue in the above
captioned case, and the Supreme Court’s overruling of Williamson County does not
disturb that holding in Love Terminal Partners. See Love Terminal Partners, L.P. v. United
States, 889 F.3d at 1348-49.
35
taking claim in this court, and Court Four of plaintiff’s complaint must be dismissed for
failure to state a claim.
Finally, defendant argues that plaintiff’s Count Five, “Equal Access to Justice Act,”
seeking EAJA attorney’s fees and expenses, was premature because “[t]his Court has
not made a ruling on the merits in this case, nor has it issued a final judgment.” (alteration
added). Plaintiff, in its response to defendant’s motion to dismiss, “acknowledges that its
claim pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, is contingent on this
Court’s determination that TPM [the Portland Mint] is a ‘prevailing party’ within the
meaning of the statute.” (alteration added). As the Federal Circuit indicated, EAJA is a
fee-shifting statute that allows a party which prevails in a civil action against the
government to recover attorney’s fees and costs. See Robinson v. O’Rourke, 891 F.3d
976, 980 (Fed. Cir. 2018); Gurley v. Peake, 528 F.3d 1322, 1326 (Fed. Cir. 2008); Davis
v. Nicholson, 475 F.3d 1360, 1363 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir.
2007). The Supreme Court has stated the requirements for an award of attorney’s fees
pursuant to EAJA:
(1) that the claimant be a “prevailing party”; (2) that the Government's
position was not “substantially justified”; (3) that no “special circumstances
make an award unjust”; and, (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), that
any fee application be submitted to the court within 30 days of final judgment
in the action and be supported by an itemized statement.
Comm’r, I.N.S. v. Jean, 496 U.S. 154, 158 (1990) (quotations omitted); see also
Scarborough v. Principi, 541 U.S. 401 408 (2004) (quoting the eligibility criteria at 28
U.S.C. § 2412(d)); Smith v. McDonough, 995 F.3d 1338, 1344 (Fed. Cir. 2021) (“In
general, the EAJA requires an award of fees, including reasonable attorney fees and
expenses, to a prevailing party upon proper application, unless the Government’s
contrary position was substantially justified, or special circumstances make an award
unjust.”); Libas, Ltd. v. United States, 314 F.3d 1362, 1365 (Fed. Cir. 2003). Because the
court has determined that the other four counts of plaintiff’s second amended complaint
must be dismissed, plaintiff cannot satisfy the “prevailing party” requirement to be eligible
for recovery of attorneys’ fees. See 28 U.S.C. § 2412. Accordingly, the court also
dismisses plaintiff’s Count Five claim seeking EAJA attorney’s fees and expenses for
failure to state a claim.
CONCLUSION
For the reasons stated above, defendant’s motion to dismiss the second amended
complaint for lack of subject matter jurisdiction and for failure to state a claim is
GRANTED. Plaintiff’s second amended complaint is DISMISSED. The Clerk of the Court
shall enter JUDGMENT consistent with this Opinion.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
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