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No. 13-248 C FILED (Filed February 12, 2014) FEB 12 2014
UNPUBLISHED U.S. COURT OF FEDERALCLAIMS t
MARY V, MILLER TT]RNER,
Pro Se Plaintffi Contract; Pro Se Complaint; Motion to Dismiss for Lack of Subject Matter Jurisdiction, RCFC 12(bXl). THE T]NITED STATES,
Defendant. * t * * {. * *,t * {< * r< {< * * * * * * {. *
Mary V. Miller Turner, Philadelphia, PA, pro se.
Lauren S. Moore, United States Department of Justice, with whom were Stuart F. Delery, Assistant Attorney General, Bryant G. Snee, Acting Director, Scott D. Austin, Assistant Director, Washington, DC, for defendant. Gabriel A. Hindin, Office of the Comptroller of the Currency, Washington, DC, of counsel.
OPINION
BUSH, Senior Judge.
Now pending before the court is defendant's motion to dismiss plaintiff Mary Miller Turner's pro se amended complaint for lack of subject matter jurisdiction pursuant to Rule l2(bxl) of the Rules of the United States Court of Federal Claims (RCFC). Defendant's motion has been fully briefed and is ripe for a decision by the court. For the reasons discussed below, the court concludes that it lacks jurisdiction over Ms. Tumer's claim and therefore grants defendant's motion to dismiss.
BACKGROUNDI
ln pro se amended complaint filed August 5,2013, Ms. Tumer alleges her that the Department of the Treasury, Office of the Comptroller of the Cunency (the OCC) owes her a wire transfer in the amount of $1,850,000.00 pursuant to an implied-in-fact contract between Ms. Turner and the OCC. Ms. Tumer alleges that the OCC is in breach ofthat alleged contract, and requests that this court "[c]ompel the [OCC] to release a wire, which represents personal property of the Plaintiff, for the total sum of $ 1,850,000.00 USD to her [bank] account . . . in accord[ance] with the jurisdiction of the court as described in 28 U.S.C. $ 1491." Am. Compl. at 1.2 Additionally, she requests an award of"interest . . . at the reasonable rate of 3.68% which would accrue [at] an annual rate of $68,080.00." 1d lT I I .
The government, in its motion to dismiss, aptly summarizes the salient factual allegations set forth in Ms. Tumer's amended complaint:
Ms. Tumer alleges that the OCC "contacted [her] and informed her that a wire directed to her was within their possession and requested the completion of an Application for Clearance on Legitimacy of Funds." Am. Compl. '||f 1. Ms. Tumer alleges that she complied with the OCC's request, completed the application, and wired the required fee of $420.00 to the appropriate account. Id. Thereafter, Ms. Turner alleges, the OCC notified her "that the International Monetarv Fund [MF)
'/ The facts recited here, taken from plaintiffs amended complaint and the parties' submissions in connection with defendant's motion to dismiss, are undisputed unless otherwise indicated.
2/ Ms. Tumer filed her original complaint on April 8, 2013. The govemment moved to dismiss the complaint for lack ofsubject matter jurisdiction pursuant to RCFC l2(b)(l) on July 8, 2013, asserting that plaintiff failed to allege any money-mandating source of law sufficient to confer jurisdiction on this court. Rather than respond to the govemment's motion to dismiss, plaintiff instead filed a motion to amend her complaint, which the court granted on August 5, 201 3 while simultaneously denying defendant's motion to dismiss as moot. put a stop order on the wire for payment ofCurrency Fluctuation Charges in the amount of $3,700.00." 1d Ms. Turner states that the OCC provided her with a letter from the IMF, stating that she was entitled to receive $1,8[5]0,000.00 after the $3,700.00 payment was made. Id. Ms. Turner asserts that she made the $3,700.00 payment, received a receipt for the payment from the OCC, but that Timothy Long, "Assistant Deputy Chief Council" at the OCC, failed to forward this payment to the IMF. lld.ln3. Ms. Turner states that "Mr. Timothy Long's refusal to pay the IMF the $3,700.00 placed the [OCC] in breach of the implied[-]in-fact contract and is liable for the damage[] that the Plaintiff has sustained due to his negligence and attempt to hold the Plaintiff responsible for the outstanding fee as stated in the fraudulent case against the Plaintiff." [1d] Ms. Tumer alleges that Mr. Long's failure to forward her payment to the IMF to remove the [stop order] "places the [OCC] in breach of the implied-in-fact contract." Udl fl 10.
The stated purpose of Ms. Tumer's amended complaint is, among other things, to compel the OCC to release a monetary wire transfer, which she alleges represents her personal property, in the sum of $1,850,000.00. Am. Compl. tl 11. She claims that she made the appropriate payment to the IMF, but that, instead of the release ofthe wire as guaranteed by the IMF, she received a receipt for a partial payment with a balance due of $15,859.00. [Id.) u 2. Ms. Turner's amended complaint alleges that she entered into an implied-in-fact contract with the OCC . . . that provides this Court with jurisdiction to entertain her claim seeking an order requiring the OCC to release the monetary sum that she requests. Ms. Turner asserts that, because Mr. Timothy Long, an employee at the OCC, breached the alleged implied-in-fact contract, she is owed money damages in the amount of $1,850,000.00.
Def.'s Mot. at 3-4, 9-10.3
In support of these allegations, Ms. Turner filed an appendix in which she included copies of several documents purporting to be official OCC documents.a Included in Ms. Turner's appendix is a document purporting to be an OCC "Payment Voucher" dated March 5,2013 and allegedly prepared by Mr. Long. Compl. App. A-3. This document purports to authorize an "[e]xpress swift wire transfer of inheritance sum of $1,850,000.00" to Ms. Tumer, and is ostensibly approved by an individual named "Clarence Frank." .Id In addition, Ms. Turner includes in her appendix a document titled "Application for Clearance on Legitimacy of Funds," which she allegedly submitted at the OCC's behest on or about February 20,2013, id. at A-1, as well as documents purporting to be OCC- issued "[r]eceipt[s]" reflecting payments of $420.00 and $3,700.00 allegedly made by Ms. Turner in or about March 2013, id. at A-2, A-8. Finally, Ms. Turner includes a photocopy of an OCC identification card purportedly belonging to Mr. Long. Id. at A-15.
Defendant filed a motion to dismiss the amended complaint on September 16,2013. In its motion, the govemment argues that this court lacks subject matter jurisdiction over plaintiff s claim because plaintiff has not suffrciently alleged the existence ofa contract between herself and the United States. Plaintiff filed her response on December 18,2013, and the government filed its reply on January 16, 2014.
r/ Although not necessarily germane to the government's pending motion to dismiss, the court notes that, by Ms. Tumer's own admission, this is not the first time plaintiff has submitted payments in the thousands of dollars in the hope of receiving a wire transfer in the millions of dollars. In her amended complaint, Ms. Tumer alleges that, in 2007, she "purchased a Judicial Clearance Certificate (JCC) for the sum of $1,200.00" 1o receive a wire transfer of $1,800,000.00 from the Nigerian govemment. Am. Compl. !J 5. Ms. Tumer apparently never received that wire, however, as it was "not released due to a stop order by Abbey Bank in London." 1d
a/ Ms. Tumer filed her appendix on April 8, 20t 3 along with her original complaint. She did not file an appendix to her amended complaint. Thus, all references to Ms. Tumer's appendix referto the appendix filed onApril 8,2013. The court will henceforth refer to Ms. Tumer's appendix as "Compl. App." DISCUSSION
l. Pro Se Litigants
The court acknowledges that Ms. Tumer is proceedingpro se, and is "not expected to frame issues with the precision of a common law pleading." Roche v. United States Postal 9eru.,828 F.2d I 555, 1558 (Fed. Cir. 1987). Pro se plaintiffs are entitled to a liberal construction oftheir pleadings. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (requiring that allegations contained in a pro se complaint be held to "less stringent standards than formal pleadings drafted by lawyers"). Accordingly, the court has examined the amended complaint and briefs thoroughly and has attempted to discem all of plaintiff s legal arguments.)
il. RCFC l2(bxf) Motions to Dismiss
The relevant issue in a motion to dismiss under RCFC l2(bXl) "'is not whether a plaintiff wilt ultimately prevail but whether the claimant is entitled to offer evidence to support the claims."' Pattonv. United States,64 Fed. C|.768, 773 (2005) (quoting Scheuer v. Rhodes,4l6 U.S. 232,236 (1974), abrogated on other grounds by Harlow v. Fitzgerald,4sT U.S. 800 (1982). In considering the issue of subject matter jurisdiction, this court must presume all undisputed factual allegations to be true and construe all reasonable inferences in favor ofthe plaintiff. Scheuer,416 U.S. at236; Reynolds v. Army & Air Force Exch. Serv., 846F.2d746,747 (Fed. Cir. 1988) (citations omitted).
Where the court's jurisdiction is challenged, the plaintiffbears the burden of establishing subject matter j urisdiction by a preponderance ofthe evidence and by presenting competent proof. Alder Tenace, Inc. v. United States, 16l F.3d 1372, 1377 (Fed. Cir. 1998) (citing McNutt v. Gen. Motors Acceptance Corp. of lnd.,298 5/ In this regard, the court notes that plaintiff submitted on January 2 4,2014 a document titled "Request to Include the Declaratory Statement of Lucinda MP Umiamaka into the Record." The Clerk's Office stated that this submission was defective because no provision ofthe court's rules allow for the filing of such a document. The matter was referred to the undersigned for a ruling. On February 6,2014,ihe court granted plaintiff s request and deemed the submission to be filed as a motion for leave to include Ms. Umiamaka's declaration as an enclosure to plaintiff s response to defendant's motion to dismiss. In rendering a decision on defendant's motion to dismiss, the court has considered each of plaintiff s submissions, including the document submitted by Ms. Tumer on January 24, 2014 and filed on February 6, 2014. U.S. 178, 189 (1936)); Reynolds,846F.2d at 748 (citations omitted). If the plaintiff fails to meet its burden, and jurisdiction is therefore found to be lacking, the court must dismiss the action. RCFC l2(hX3).
In considering a motion to dismiss for lack of subject matter jurisdiction which challenges the truth ofjurisdictional facts alleged in the complaint, the court may make findings of fact pertinent to its jurisdiction. Feteiro v. United States, 350 F.3d 1318, 1324 (Fed. Cir. 2003) (citing Moyer v. United States, 190 F.3d I 3 14, 1 3 I 8 (Fed. Cir. 1999), and Reynolds, 846 F.2d at 7 47); Rocovich v. United States,933 F.2d 991,993 (Fed. Cir. 1991) ("In determining whether a motion to dismiss should be granted, the Claims Court may find it necessary to inquire into jurisdictional facts that are disputed."). In making findings of fact pertinent to its jurisdiction, the court is not restricted to the face of the pleadings, but may review evidence extrinsic to the pleadings, including declarations or affidavits. Rocovich, 933 F.2d at 994 (citing Land v. Dollar, 330 U.S. 731, 735 n.4 (1947), and Reyno lds, 846 F .2d at 7 47 ).
I[. Tucker Act Jurisdiction
Pursuant to the Tucker Act, the United States Court of Federal Claims has jurisdiction "to render judgment upon any claim against the United States founded either upon the Constitution, or any Act ofCongress or any regulation ofan 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. $ 1a91(a)(1) (2012). The Tucker Act, however, "does not create any substantive right enforceable against the United States for money damages" but "merely confers jurisdiction upon it whenever the substantive right exists." United States v. Testan, 424 U.S. 392, 398 (1976) (citation omitted). A plaintiff coming before this court, therefore, must identiff a separate provision of law conferring a substantive right for money damages against the United States. Todd v. United States,386 F.3d 1091, 1094 (Fed. Cir.2004)(citingTestan,424U.S. at 398).
Here, the money-mandating source of law identified by plaintiff is an alleged implied-in-fact contract with the OCC pursuant to which Ms. Tumer claims she is owed a wire transfer in the amount of $1.850.000.00. See Am. Compl. fl'1T 3, 8, 10-11. An implied-in-fact contract is "'an agreement . . . founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct ofthe parties showing, in the light ofthe surrounding circumstances, their tacit understanding. "' Barrett Refining Corp. v. United States,242F.3d 1055, 1059 (Fed. Cir. 2001) (quoting Balt. & Ohio R.R. Co. v. United States,26l U.S. 592, 597 (1923)). This court, under the Tucker Act, has jurisdiction over claims against the United States for breach of implied-in-fact contracts. See, e.g.,Hanlinv. UnitedStates,2l4F.3dl3l9,l32l (Fed. Cir.2000) (citingGouldv. unitedstates,67F.3d925,929 (Fed. Cir. 1995));Lewisv. United States, 70 F.3d 597, 603 (Fed. Cir. 1995).
Nevertheless, a claim founded upon an implied-in-fact contact must be well-pleaded to confer jurisdiction upon this court. See, e.g., Bank of Guam v. United States,578 F.3d 1318, 1325 (Fed. Cir. 2009) (stating that "[a] well pleaded allegation ofa breach of either an express or implied-in-fact contract is sufficient to overcome challenges to jurisdiction" (citing Trauma Sen. Grp. v. Unites States, 104 F.3d 1321,1325 (Fed. Cir. 1997))). The required elements of an implied-in- fact contract with the United States are: (l) mutuality of intent to contract; (2) consideration; (3) lack of ambiguity in offer and acceptance; and (4) actual authority of a government representative to bind the government in contract. Lewis,70 F.3d at 600 (intemal quotation marks omitted) (citing City of El Centro v. United States,922F.2d 816, 820 (Fed. Cir. 1990)).
A plaintiffs failure to allege facts supporting each ofthe required elements of an implied-in-fact contract requires dismissal for lack of subject matter jurisdiction. See, e.g., Crewzers Fire Crew Transp., Inc. v. United S/dler, No. 2013-5104,2014 WL 463780, at *3 (Fed. Cir. Feb. 6,2014) (holding that plaintiff "failed to present a nonfrivolous allegation that the [blanket purchase agreements] at issue here are binding contracts" because the purchase agreements "reflect illusory promises that do not impose obligations on either parly"); Girling Health Sys., Inc. v. United States, 949 F.2d 1145, | 147 (Fed. Cir. I 99 I ) (affi rming the RCFC 12(bX1) dismissal of plaintiffs implied-in-fact contract claim based on an alleged promise by the govemment contained in Internal Revenue Service Form 2553 because the form's language "manifests no intent to be bound" and plaintiff "made no allegation suggesting that the United States received the consideration necessary to form a binding contract") (citations omitted); Twp. of Saddle Brook v. United States,104 Fed. Cl. 101, ll0 (2012) (dismissing implied-in-fact contract claim for lack of subject matter jurisdiction because plaintiffs amended complaint "fails to establish the elements necessary to demonstrate the existence ofan implied-in-fact contract, such as a mutual intent to contract and an exchange of consideration," and "provides nothing more than bald assertions that the [Army] Corps [of Engineers] made an agreement with plaintiff') (citations omitted); Gravatt v. United States, 100 Fed. Cl. 279,287 (2011) (dismissing implied-in-fact contract claim for lack ofsubject matter jurisdiction because "[p]laintiff has not pleaded any of the elements ofan implied-in-fact contract, rendering his allegation of such a contract frivolous" and, "[i]ndeed, all of plaintiffs allegations are nonsensical"); Ryan v. United States,57 Fed. C|.731,733-34 (2003) (dismissing implied-in-fact contract claim for lack of subject matter jurisdiction because plaintiffs "do not attempt to allege the elements of an implied-in-fact contract," and therefore "[i]t is not clear what plaintiffs' alleged implied-in-fact contract provides"), appeal dismissed sub nom. Ryan v. Naval Aviation Museum Found.,83 F. App'x 335 (Fed. Cir. 2003); Vanderbeekv. United States,41 Fed. Cl.545,547 (1998) (dismissing express and implied-in-fact contract claims for lack of subject matter jurisdiction because the plaintiffs pleadings "show that there was no unambiguous acceptance of plaintiff s terms," "indicate no mutuality of intent," and "cannot be read to create a contract with the government").
Additionally, when the moving party has challenged the truth of jurisdictional facts bearing on the existence ofan implied-in-fact contract with the United States, the court may make findings of fact pertinent to the existence of such a contract, and may review evidence extrinsic to the pleadings in order to make such findings. See, e.g., Cent. Freight Lines, Inc. v. United States, 87 Fed. Cl. 104, 109 (2009) (Central Freigfu) (dismissing plaintiff subcontractor's express and implied-in-fact contract claims for lack of subject matter jurisdiction because, based upon the court's review of bills of lading filed by the subcontractor as well as a declaration filed by the government, the subcontractor "has not presented evidence sufficient to establish that [the prime contractor] had actual authority to bind the United States in contract" (citing City of El Centro,922F.2d at 820)).
IV. Analysis
In suppo( of its motion to dismiss, the government first argues that "[t]he amended complaint contains insufficient allegations to reasonably be construed as alleging the existence of an express or implied contract." Def.'s Mot. at 11. Specifically, defendant contends that "Ms. Turner does not allege that there existed any of the elements ofa contract between the parties." 1d. Second, defendant argues that'the factual assertions contained in Ms. Turner's amended complaint are patently inaccurate, and . . . thus their patent inaccuracy is another reason that the amended complaint does not support the existence of a contract." 1d In support of its second argument, the govemment attaches to its motion the declarations of two OCC employees: Patricia Pointer, Deputy Compholler for Human Resources; and Vicki Parkhurst, Director of Accounting in the Office of Management, Financial Management. Def.'s Mot. App. at 1-5.
Ms. Pointer states in her declaration that she is "authorized to access OCC employee records" in her position as Deputy Comptroller for Human Resources, and that her review ofsuch records revealed that the OCC has never employed an individual by the name of "Clarence Frank." Def.'s Mot. App. at 1, Pointer Decl. fl L Additionally, Ms. Pointer states that although OCC records "show that an individual named Timothy Long was an employee of the agency," they also show that "Mr. Long never held the position 'Assistant Depufy Chief Council' or 'Assistant Deputy Chief Counsel' while employed at the OCC," that Mr. Long "was never employed as an attomey with the OCC," and that Mr. Long's "date of separation from the OCC was July 1, 201 l" - i.e., nearly two years before the alleged contract was formed. Id. at l-2, Pointer Decl.'|[[ 3. Ms. Pointer further states that she has "personal knowledge ofMr. Long's appearance" and that the document purporting to be a photocopy of Mr. Long's OCC identification card, which plaintiff includes in her appendix, "is not apicture of Mr. Long." Id. at2, Pointer Decl. fl 4. Finally, Ms. Pointer avers that she has personal knowledge of the "typical format of OCC government identification cards," and that "the OCC govemment identification card . . . [included in Ms. Turner's appendix] is not the typical format for OCC government identification cards." Id., Pointer Decl. '!f 5.
Ms. Parkhurst states that, as Director of Accounting, she is "responsible for overseeing the OCC's financial management and financial resources, which includes managing the OCC's operational accounting functions for disbursements and collections," and therefore she has "knowledge of the OCC's financial practices and procedures." Def.'s Mot. App. at 3-4, Parkhurst Decl. tf 2. Ms. Parkhurst states that "[t]he OCC is an independent bureau of the U.S. Department of the Treasury with primary supervisory responsibility over national banks under the National Bank Act of 1864" and, as such, "is charged with ensuring that the banks and savings associations that it regulates operate in a safe and sound manner and in compliance with the laws requiring fair treatment of their customers and fair access to credit and financial products." Id. at3, Parkhurst Decl. fl I (citing 12 U.S.C. $ l(a) (2012)). Ms. Parkhurst avers that, contrary to the allegations in the amended complaint, the OCC "does not possess wire transfers directed to U.S. Citizens nor does it make and/or request payments on behalf of U.S. Citizens to release wire transfers." Id. at 4, Parkhurst Decl. !f 3. Additionally, Ms. Parkhurst states that the OCC "does not communicate with the Intemational Monetary Fund (IMF) on behalf of U.S. Citizens, nor does the OCC transfer payments on behalf of U.S. Citizens to the IMF." 1d, Parkhurst Decl. tf 4. Finally, Ms. Parkhurst asserts that she reviewed the documents included in Ms. Turner's appendix which purport to be official OCC documents and concludes, "[t]o the best of [her] knowledge, [that] these documents are not created by, or used by, the OCC as part of the agency's financial practices and procedures ." Id., Parkhurst Decl. fl 5.
Relying upon Ms. Pointer's and Ms. Parkhurst's declarations, defendant argues that "Ms. Turner's assertions regarding Mr. Long's involvement with her claim are patently false and inaccurate, and do not support her claim that a contract was entered into between herself and the OCC." Def.'s Mot. at 13. The govemment further contends that the "Payment Voucher" purportedly prepared by Mr. Long and approved by "Clarence Frank" is a "counterfeit," and therefore "any assertion with respect to a purported 'Clarence Frank' does not support Ms. Turner's allegation that the parties entered into a contract, express or implied." Id at 13-14. Furthermore, based upon Ms. Parkhurst's conclusion that the documents included in Ms. Turner's appendix which purport to be official OCC documents were, in fact, "not created by, or used by, the OCC as part of the agency's financial practices and procedures," defendant argues that such documents "cannot support Ms. Tumer's claim that the parties entered into a contract, express or implied." 1d at 14. Finally, relying upon Ms. Parkhurst's attestation that the OCC "does not possess wire transfers directed to U.S. Citizens" and "does not communicate with the [IMF] on behalf of U.S. Citizens . . . [or] transfer payments on behalf of U.S. Citizens to the IMF," the government maintains that "Ms. Turner's assertions with respect to communications between the OCC and the IMF are at best inaccurate and at worst the product of fraud." Id. at 15. For these reasons, defendant contends that "the amended complaint cannot be read to create a contract between Ms. Tumer and the Govemment" and must therefore be dismissed for lack of subject matter jurisdiction. Id. at 16.
l0 In her response to the govemment's motion to dismiss, Ms. Tumer does not challenge Ms. Pointer's and Ms, Parkhurst's declarations except to claim, without any factual or legal support, that "[i]t has to be agreed that the picture [of Mr. Long on the purported photocopy of Mr. Long's OCC identification cardl does not appear to be fraudulently prepared and appears very authentic." Pl.'s Resp. at 12. Plaintiffspends the bulk of her response describing, for the first time, e-mail correspondence she allegedly exchanged with an OCC employee named 'Aida Carter Plaza," who Ms. Turner claims promised that a wire in the amount of $1,850,000.00 would be deposited in Ms. Tumer's bank account if Ms. Tumer would submit certain documentation and direct payments of $420.00 and $3,700.00 to bank accounts held by individuals named "Ronald Lustow" and "Lucinda MP Umiamaka," respectively .' Id. at 1 -8, I I - 14. Plaintiff sets forth the text ofthese alleged e-mails in her response. Id. at l-8. The e-mails each purport to be sent from the address "p.carter@occcentral.org," and contain the closing salutation "Yours in Service" followed by the signature of "Aida Carter Plaza, Director for Bank Information Technology, Office of the Comptroller of the Currency." 1d Plaintiff contends that the e-mails, together with her submission of the requested documentation and payments of$420.00 and $3,700.00, established an implied-in-fact contract with the United States:
[T]he Plaintiff has shown that she received a series of emails from Mrs. Aida Carter Plaza, in which she offered to release a pa1'rnent to the Plaintiff s account upon the receipt of a promissory note and the retum of a completed Application for Legitimacy on Funds which cost the Plaintiff $420. This offer was made to the Plaintiff to enable her to receive funds that were housed in their possession but in her name to avoid confiscation by the US Government. . . . Consideration was given with the payment of the $420 which was made into the account of Mr. Ronald Lustow as directed by Mrs. Aida Carter Plaza as well as the payment of the $3,700.00 which OCC stated would be forwarded to the
o/ Although Ms. Tumer's allegations concerning her alleged communications with "Aida Carkr Plaza" appear in her response brief, rather than in the amended complaint, in view of Ms. Tumer's pro se status t}re court will treat such allegations as having been properly set forth in the amended comolaint.
ll Intemational Monetary Fund for the fulfillment of the Assurance Letter.
Id. aI 14-15.
The government replies that "Ms. Turner's assertions with respect to communications with Ms. Plaza are factually erroneous and patently false." Def.'s Reply at 4. In support ofthis argument, defendant offers the declaration ofAida Plaza Carter, Director of Bank Information Technology at the OCC. Id. Ex. A. Ms. Carter states that she has never met or corresponded with Ms. Turner and did not write the e-mails referenced in Ms. Tumer's response. 1d flfl 3-8. Ms. Carter further asserts that she never uses the closing salutation "Yours in Service," never signs her name as "Aida Carter Plaza," and never uses the e-mail address "p.carter@occcentral.org." Id. nll 5-7. Additionally, she states that the "domain name" used in the e-mails referenced in Ms. Turner's response ("@occcentral.org") is not used by any OCC personnel. 1d t[ 8 ("[T]o the best of my knowledge, OCC e-mail addresses never contain the domain name 'occcentral.org.' Instead, . . . [they] contain the domain name '@occ.treas.gov. "').
The court must agree with defendant that Ms. Turner has failed to present a non-frivolous allegation of an implied-in-fact contract with the United States. The first and most fundamental flaw in the amended complaint is the complete absence of any factual allegations as to the basis for the OCC's alleged promise to pay Ms. Turner $1,850,000.00 in exchange for a few thousand dollars. Ms. Tumer fails to allege any facts demonstrating any plausible reason for such an uneven (and unbelievable) bargain. Nor does Ms. Turner offer any bases upon which to establish the OCC's authority to strike such a bargain in the first instance. Indeed, the statute authorizing the creation of the OCC, which Ms. Parkhurst references in her declaration, see Def.'s Mot. App. at 3, Parkhurst Decl. fl 1, provides that the OCC's purpose and mission is to charter, regulate, and supervise national banks - ,?ol to serve as an intermediary between the IMF and individual U.S. citizens or to hold funds on behalf of individual U.S. citizens. See 12U.S.C. g l(a) ("There is established in the Department of the Treasury a bureau to be known as the 'Office of the Comptroller of the Currency' which is charged with assuring the safety and soundness of, and compliance with laws and regulations, fair access to financial services, and fair treatment of customers by, the institutions and other persons subjectto itsjurisdiction;');Cent. Nat'l Bankof Mattoonv. U.S. Dep'tof Treasury,
12 912F.2d897,905 (7th Cir. 1990) ("The Comptrollerofthe Currency. .. has comprehensive authority over national banks. He charters them; he audits them; he enforces the laws relating to them; in short he is charged by the national banking laws with the execution of all laws of the United States relating to the organization, operation, regulation and supervision of national banks.") (citations and intemal quotation marks omitted); First Nat'l Bank of Lamarque v. Smith, 610 F .2d 1258, 1263-65 (5th Cir. 1980). Plaintiff fails to allege any facts demonstrating that the OCC, as part of its organizational mission and statutory mandate, holds funds directed to, or requests payments on behalf of, individual U.S. citizens. Nor does Ms. Tumer allege any facts demonstrating that the OCC communicates with, let alone transfers payments to, the IMF on behalf of individual U.S. citizens.
Furthermore, the "offer" Ms. Tumer alleges was made to her lacks the requisite definiteness to form the basis ofa binding contract. "As a threshold condition for contract formation, there must be an objective manifestation of voluntary, mutual assent." Anderson v. United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003) (citingRestatement (Second) ofContracts $ 18 (1981). A contractual offer is characterized by "'the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.'" Id. (quoting Reslatement (Second) of Contracts $ 24). ln her amended complaint, Ms. Tumer alleges that the OCC "contacted [her] and informed her that a wire directed to her was within their possession and requested the completion of an Application for Clearance on Legitimacy of Funds" as well as the payment of $420.00, then subsequently notified her "that the [IMF] put a stop order on the wire" to be lifted upon further payment of"Currency Fluctuation Charges in the amount of $3,700.00." Am. Compl. !f 1. In her response to the government's motion to dismiss, Ms. Tumer makes additional allegations that she "received correspondence from . . . Mrs. Aida C. Plaza . . . on February 10, 2013 . . . which informed her that a payment [to her] was stopped due to non-compliance with the US Patriot Act," and that she "received additional information on February 15,2013 informing her that the matter was under investigation and a Proof of Legitimacy of Funds was required [in order to release the paymentl." Pl.'s Resp. at 1-2. Plaintiff s allegations in this regard are ambiguous as well as implausible, and fail to demonstrate any intention on the part of the OCC to enter into a contract for the pavment of $1.850.000.00 to Ms. Turner.
IJ Additionally, plaintiff makes no allegations suggesting that anyone at the OCC acted with authority to bind the government in contract vis-d-vis Ms. Tumer. Plaintiff alleges in her amended complaint that unspecified OCC personnel "contacted [her] and informed her that a wire directed to her was within their possession." See Am. Compl. tf 1 . Although Ms. Tumer elsewhere identifies Timothy Long and "Aida Carter Plaza" as the OCC personnel with whom she communicated regarding the alleged wire transfer, she offers no allegations as to how these fwo individuals possessed authority to promise Ms. Turner a payment of $ 1,850,000.00.
Finally, Ms. Turner fails to allege that she provided any consideration for the OCC's alleged promise to pay her $1,850,000.00. This court and its predecessor have stated that "'in the context of govemment contracts . . . consideration must render a benefit to the govemment, and not merely a detriment to the contractor."' Quiman, S.A. de C.V. v. United States,39 Fed. Cl. 171,179 (1997) (quoting Metzger, Shadyac & Schwarz v. United States, 12 Cl. Ct.602,605 (1987)), aff'd, 178 F.3d 13 13 (Fed. Cir. 1999). Here, Ms. Turner's alleged actions provided no benefit to the government. Although plaintiff contends that her payments of $420.00 and $3,700.00 constitute sufficient consideration to support the existence of a contract, see Pl.'s Resp. at 15, the amended complaint describes these payments simply as "required fee[s]" necessary to effectuate the release ofthe funds allegedly due Ms. Tumer, see Am. Compl. flfl 1, 7. Ms. Turner has failed to plead any facts suggesting that her alleged payments of$420.00 and $3,700.00 provided any benefit to the government, and therefore has failed to demonstrate any exchange ofconsideration necessary to form a binding contuact.
Plaintiffs failure to present a non-frivolous allegation ofan implied-in-fact contract becomes all the more apparent when one considers the declarations of Ms. Pointer, Ms. Parkhurst, and Ms. Carter. As noted supra, when the moving party has challenged the truth ofjurisdictional facts bearing on the existence ofan implied-in-fact contract with the United States, the court may make findings of fact pertinent to the existence ofsuch a contract. See, e.g., Central Freighl, 87 Fed. Cl. at 109. Furthermore, in making findings of fact pertinent to its jurisdiction, the court is not limited to the pleadings but may consider extrinsic evidence such as declarations. See id.; Rocovich,933 F .2d at 994 (citations omitted). Here, by offering the declarations of Ms. Pointer, Ms. Parkhurst, and Ms. Carter, defendant has challenged the truth ofjurisdictional facts alleged by Ms. Turner. Based upon
t4 those declarations, the court finds that the individuals with whom Ms. Turner allegedly corresponded were not OCC personnel, and therefore were not vested with the requisite authority to bind the United States in contract.?
Having failed to allege facts which would support any of the required elements of an implied-in-fact contract, Ms. Tumer cannot identify any money- mandating source entitling her to the relief she seeks, and therefore has failed to demonstrate this court's jurisdiction over her claim. Plaintiff s amended complaint must therefore be dismissed pursuant to RCFC 12(bXl) for lack of subject matter iurisdiction.
CONCLUSION
For all of the foregoing reasons, the court concludes that Ms. Tumer has failed to demonstrate any basis for the court's jurisdiction. Her amended complaint must therefore be dismissed pursuant to RCFC 12(b)(1). Accordingly, it is hereby ORDERED that
(l) Defendant's Motion to Dismiss, filed September 16,2013, is GRANTED;
7/ The court also notes that the amended complaint alludes to the supposed "negligence" of OCC personnel. ,See Am. Compl. jlfl 3 ("Mr. Timothy Long's refusal to pay the IMF the $3,700.00 placed the Comptroller ofthe Currency in breach ofthe implied in-fact contract and is Iiable for the damage[s] that the Plaintiffhas sustained due to his negligence . . . ."), I I ("The wire was not received due to the negligence ofthe Office ofthe Comptroller ofthe Currency and the refusal to make payment ofthe $3,700.00 to the IMF to remove the stop order to release her wire . . . ."). To the extent that the amended complaint could be construed as claiming that the government acted negligently - a claim which sounds in tort - the court lacks jurisdiction over any such claim. See 28 U.S.C. $ 1 9l(a)(1) (confening jurisdiction "to renderjudgment upon any claim against the United States founded either upon the Constitution, or any Act ofCongress or any regulation ofan 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") (emphasis added); Shearin v. United States,992 F .2d I I 95, I 197 (Fed. Cir. I 993) ("lt is well settled that the United States Court of Federal Claims Iacks - and its predecessor the United States Claims Court lacked - jurisdiction to entertain tort claims." (citing 28 U.S.C. $ la9l(a)(l) (1988))); Burttv. United States, lT6 Ct. Cl. 310, 313-14 (1966) ("[A] party cannot bring a tortious claim within this court's jurisdiction by framing it in implied contract.") (citation omitted).
15 The Clerk's Office is directed to ENTER final judgment in favor of defendant DISMISSING the amended complaint without prejudice; and
/?) Each party shall bear its own costs.
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