Boyd v. United States ( 2023 )

In the United States Court of Federal Claims
No. 22-1473C
(Filed: April 27, 2023)
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JOHN BOYD, JR., et al., *
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Plaintiffs, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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OPINION AND ORDER
Plaintiffs, John Boyd, Jr., Kara Boyd, Lester Bonner, and Princess Williams
individually and on behalf of a class of socially disadvantaged farmers (“SDFs”) 1 filed a
complaint alleging breach of contract by the United States (“the Government”) arising
from the Inflation Reduction Act (“IRA”), Pub. L. No. 117-169. The Government now
moves the Court, pursuant to Rule 12(b)(6) of the Rules of the United States Court of
Federal Claims (“RCFC”), to dismiss the complaint for failure to state a claim upon
which relief can be granted on the grounds that Plaintiffs’ complaint fails to establish all
of the essential elements of contract formation. Plaintiffs filed their Response to the
Government’s Motion to Dismiss on April 7, 2023. ECF No. 15. The Court finds it
unnecessary for the Government to file its Reply.
For the reasons set forth below, the Government’s Motion to Dismiss is hereby
GRANTED.
I. Background
This case pertains to two sections of the American Rescue Plan Act of 2021
(“ARPA”), Pub. L. No. 117-2, §§ 1005-1006, 135 Stat. 4, 12-14 (2021), and Executive
actions by the Department of Agriculture’s (“USDA”) Farm Service Agency (“FSA”).
ARPA § 1005 directed the Secretary of Agriculture (“Secretary”) to “provide a payment
in an amount up to 120 percent of the outstanding indebtedness of each socially
disadvantaged farmer or rancher” as of January 1, 2021, on certain loans “made” or
“guaranteed” by the Secretary (“FSA loans”). ARPA § 1005(a)(2); see also 7 U.S.C. §
Plaintiffs’ complaint states that this class is defined in §§ 1005–1006 of the
1
American Rescue Plan Act (“ARPA”), Pub. L. No. 117-2.
1
2279(a)(5). To facilitate implementation of § 1005, USDA created form FSA-2601 to
provide eligible SDFs with notice of an opportunity to “accept,” “discuss,” or decline
“the ARPA payment” pursuant to ARPA § 1005. See Compl. ¶ 35; see also Compl. Ex. 1
at 1-3. SDFs had to return form FSA-2601 if they wished to certify their eligibility,
accept FSA’s benefit calculations, and request payment. See Compl. Ex. 1 at 1-3. The
FSA-2601 states that the information requested on the form “will be used” by FSA “in
order to process the customer’s request for payment according to ARPA and applicable
regulations,” and that a “failure to furnish the requested information may result in a
determination that FSA cannot process the customer’s request for payment.” Compl. Ex.
1 at 3.
ARPA § 1006 established a variety of programs and funding to address
longstanding inequities for socially disadvantaged borrowers. Compl. ¶ 3. One of those
programs directed the Secretary “to provide financial assistance” to certain SDFs who
“suffered related adverse actions or past discrimination or bias in Department of
Agriculture programs, as determined by the Secretary.” ARPA § 1006(b)(5); Compl. ¶
75. Congress appropriated not less than $50.5 million for this purpose. Id. § 1006(a),
1006(b)(5); Compl. ¶ 75.
Congress subsequently passed the Inflation Reduction Act of 2022 (“IRA”),
which repealed ARPA § 1005 and amended ARPA § 1006. Pub. L. No. 117-169, §§
22007-08, 136 Stat. 1818, 2021-23 (2022); see Compl. ¶ 58. Specifically, the IRA
repealed ARPA § 1005, which authorized USDA to make payments to certain SDFs with
FSA loans. Pub. L. No. 117-169, § 22008, 136 Stat. 1818, 2021-23 (2022). The IRA
also deleted the references in ARPA § 1006(b)(5) to “socially disadvantaged” farmers
and broadened § 1006(b)(5) program eligibility to all farmers, while increasing the
program funding from $50.5 million to $2.2 billion. Id. § 22007.
The four named Plaintiffs in this putative class action allege that they are SDFs.
Compl. ¶¶ 1, 19-22. Two of the four named plaintiffs, Ms. Williams and Mr. Bonner,
allege that they submitted the FSA-2601 form requesting financial assistance payments
pursuant to ARPA § 1005 and that submission of the form gave rise to an express or an
implied-in-fact contract. Compl. ¶¶ 24-57, 97-108. They further allege in Counts I and II
of the complaint that these purported contracts were breached when they did not receive
any assistance payments and when Congress repealed ARPA § 1005 in the IRA. Compl.
¶¶ 58-62.
The remaining two Plaintiffs, Mr. and Mrs. Boyd (“the Boyds”), allege that they
“lobbied” President Joseph Biden and Senator Cory Booker with an “offer” not to sue the
Government on discrimination claims in exchange for enactment of ARPA § 1006, that
Congress “accepted” this offer and entered into an implied-in-fact contract with them by
enacting this section, and that Congress breached this purported “contract” by amending
the section. Compl. ¶¶ 11-12, 63-80, 109-114.
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II. Standard of Review
To survive a motion to dismiss for failure to state a claim under RCFC 12(b)(6),
the complaint must have sufficient “facial plausibility” to “allow [] the court to draw the
reasonable inference that the defendant is liable.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A plaintiff’s factual allegations must “raise a right to relief above the speculative
level” and cross “the line from conceivable to plausible.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007)
The Federal Circuit has reiterated that “[i]n ruling on a 12(b)(6) motion to
dismiss, the court must accept as true the complaint’s undisputed factual allegations and
should construe them in a light most favorable to the plaintiff.” Cambridge v. United
States, 558 F.3d 1331, 1335 (Fed. Cir. 2009); see also Bank of Guam v. United States,
578 F.3d 1318, 1326 (Fed. Cir. 2009), cert. denied, 561 U.S. 1006, 130 S. Ct. 3468, 177
L. Ed. 2d 1056 (2010). Courts, however, are “not bound to accept as true a legal
conclusion couched as a factual allegation.” Acceptance Ins. Co. v. United States, 583
F.3d 849, 853 (Fed. Cir. 2009) (quoting Twombly, 550 U.S. at 555).
To satisfy its burden at the pleadings stage, a plaintiff asserting a breach of
contract claim must allege well-pleaded facts that, if taken as true, would establish all
four elements of contract formation: “(1) mutuality of intent to contract; (2) lack of
ambiguity in offer and acceptance; (3) consideration; and (4) a government
representative having actual authority to bind the United States.” See, e.g., Am. Bankers
Ass’n v. United States, 932 F.3d 1375, 1381-82 (Fed. Cir. 2019) (quoting Anderson v.
United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003)). A plaintiff asserting an implied-
in-fact contract must establish the same elements as an express contract. Id. at 1381;
Schism v. United States, 316 F.3d 1259, 1278 (Fed. Cir. 2002).
III. Discussion
a. In Counts I and II of Plaintiffs’ complaint, Plaintiffs fail to satisfy
their burden to state a plausible claim for breach of contract.
In Counts I and II, Ms. Williams and Mr. Bonner allege that they submitted the
FSA-2601 form requesting financial assistance payments under ARPA § 1005 and that
submission of this form gave rise to an express or implied-in-fact contract. Compl. ¶¶
24-57, 97-108. They further allege that these contracts were breached when they did not
receive any assistance payments and when Congress repealed ARPA § 1005 in the IRA.
Compl. ¶¶ 58-62.
The Government argues in its motion that Counts I and II of Plaintiffs’ complaint
should be dismissed because Plaintiffs’ factual allegations do not state a plausible claim
that they formed any contract with the United States. The Government further contends
that Plaintiffs do not properly allege any of the essential elements of contract formation.
This Court agrees. Plaintiffs do not allege the existence of any unambiguous
expression by government officials of an intent to enter into a contract with them as
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program participants. Am. Bankers, 932 F.3d at 1381-82 (quoting Anderson, 344 F.3d at
1353) (“To satisfy its burden to prove such a mutuality of intent, a plaintiff must show,
by objective evidence, the existence of an offer and a reciprocal acceptance.”). Although
Ms. Williams and Mr. Bonner allege that FSA officials entered into contracts with them
as part of the statutory scheme under § 1005, the ARPA § 1005 program does not contain
any language showing the Government’s intent to contract. Instead, the program reflects
Congress’ intent only to “declare[] a policy to be pursued until the legislature shall ordain
otherwise,” not an intent “to create private contractual or vested rights.” Am. Bankers,
932 F.3d at 1381 (quoting Nat’l R.R. Passenger Corp. v. Atchison Topeka & Santa Fe Ry.
Co., 470 U.S. 451, 465-66 (1985)).
ARPA § 1005 directs the Secretary “to provide a payment in an amount up to 120
percent of the outstanding indebtedness of each socially disadvantaged farmer or rancher
as of January 1, 2021, to pay off the loan directly or to the socially disadvantaged farmer
or rancher (or a combination of both), on” FSA loans. Pub. L. No. 117-2, §§ 1005-1006,
135 Stat. 4, 12-14 (2021). The text of § 1005 does not have any requirement that SDFs
provide anything in exchange for a payment by the Government. See id. Further, the
statute has no mention of contracts to be negotiated or consideration to be exchanged in
this financial assistance program. See id. Thus, Plaintiffs’ complaint fails to show that
the Government intended to create binding contractual obligations under ARPA § 1005.
See Am. Bankers, 932 F.3d at 1382 (quoting Nat'l R.R., 470 U.S. at 466-67) (When
analyzing a statutory program for the Government’s intent to contract, courts “will not
infer a contractual undertaking ‘absent “an adequate expression of an actual intent.”’).
Plaintiffs further argue that the terms of the FSA-2601 form show the
Government’s intent to contract and the existence of a valid offer and acceptance, but this
argument also fails. 2 Ms. Williams and Mr. Bonner allege that the FSA-2601 form is an
“offer” from the Government which they accepted by signing and returning them to FSA.
Compl. ¶¶ 4-6, 35-42. The FSA-2601 form states, however, that the SDF recipients were
“eligible for payment” under ARPA § 1005, and the form “will be used” by FSA “in
order to process the” SDF’s “request for payment according to ARPA and applicable
regulations.” Compl. Ex. 1 at 3. Communications from the Government of this sort are
not offers that form a binding contract upon filling in the blanks of a Government-
prepared form. See XP Vehicles, Inc. v. United States, 121 Fed. Cl. 770, 787 (2015)
(quoting Girling Health Sys., Inc. v. United States, 22 Cl. Ct. 66, 71-72 (1990)) (“It is
well recognized that ‘mere solicitations, invitations[,] or instructions from the
[g]overnment are not offers to contract that bind the [g]overnment upon [a] plaintiff’s
completion of a form, even when the solicitations, invitations or instructions are
embodied in a statute or regulation.’”); Tree Farm Dev. Corp. v. United States, 585 F.2d
493, 500 (Ct. Cl. 1978) (explaining that “invitations by the [g]overnment to file
applications do not necessarily equal an operative offer, the acceptance of which will
2
Plaintiffs offer the same allegations to support both mutuality of intent and the
existence of an offer and acceptance.
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result in a binding contract”). 3 Rather, from the face of the document, it appears that the
FSA-2601 form is a notice of program eligibility and the means by which SDFs could
certify their eligibility and request financial assistance under ARPA § 1005. See Compl.
Ex. 1 at 1 (describing the FSA-2601 form as an “informational notice,” notifying the
borrower that “FSA records show . . . that you are eligible for payment”); see id.
(including an eligibility certification under the option to “accept the ARPA payment as
calculated by FSA.”). This is not an unambiguous offer to enter into a binding contract. 4
In sum, the plain language of ARPA § 1005 and the FSA documents all show that
the FSA-2601 form was part of FSA’s administrative action to facilitate Congress’
mandate to provide financial assistance to SDFs. Thus, contrary to Plaintiffs’ allegations,
the FSA-2601 form is not an unequivocal offer to form an express or implied contract.
Additionally, Plaintiffs’ claims fail for lack of consideration. Ms. Williams and
Mr. Bonner allege that the Government “induce[d]” SDFs to accept the Government’s
payment calculations as provided in the FSA-2601 forms and to “waive” their right to
challenge the Government’s calculations. Compl. ¶ 41. The FSA-2601 form, however,
expressly provided SDFs with the option (“Option 2”) to meet with FSA officials, either
by phone or in person, to “disagree with the calculation,” identify “an error,” or “disagree
with the payment distribution,” without waiving any right to request payment. Compl.
Ex. 1 at 3. SDFs also had options to “accept” FSA’s payment calculations (“Option 1”)
or to decline to receive a payment altogether (“Option 3”). Compl. Ex. 1 at 1, 3. The
SDFs were free to select any of the three options, and they did not provide any
consideration to the agency regardless of their selection of option 1, 2 or 3. See id.
Indeed, the FSA-2601 form does not include the word “waiver” or any other release
3
Ms. Williams and Mr. Bonner also focus upon the terms “offer” and
“acceptance” in FSA’s Notice of Funds Availability published in the Federal Register,
and they label these statements as an offer and acceptance of a contract. Compl. ¶¶ 43,
49; Notice of Funds Availability; ARPA Section 1005, 86 Fed. Reg. 28,329 (Dep’t of
Agriculture May 26, 2021). But to form a contract, there must be an unambiguous offer
and acceptance, not merely a use of those terms. See, e.g., Am. Bankers, 932 F.3d at
1382.
4
Ms. Williams also alleges that she spoke to an unidentified “FSA representative”
about “her FSA-2601,” who “informed” her “that selecting Option 1 would lock her into
the U.S. Government’s payment calculation” and “that selecting Option 1 was in” her
“best interests.” Compl. ¶ 50. However, Ms. Williams does not allege that the “FSA
representative” with whom she spoke ever made an offer or ever offered something
different from what was set forth in the FSA-2601. See id. Rather, Plaintiffs admit that
FSA representatives were “not authorized to create or modify the [FSA-2601] offer letter
which includes the payment calculation worksheet.” Id. ¶ 49. Accordingly, any oral
statements made to Ms. Williams by an FSA representative cannot be construed as
modifying the FSA-2601 form into an unambiguous offer to contract.
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language. 5 See id. Thus, it is manifest from the face of the FSA-2601 form that the
Government did not bargain for, or receive, any consideration from SDFs arising from or
depending upon the option they selected on the FSA-2601 form.
Plaintiffs also argue that they provided consideration by accepting “the fastest and
most efficient form of relief and maintained or expanded their farming operations,
supporting the U.S. Government’s pandemic response and recovery efforts.” Compl. ¶
99. This allegation of consideration, however, is not sufficient for several reasons. First,
there is also no indication in ARPA § 1005 or the FSA-2601 form that option one (to
“accept” FSA’s payment calculations) is the “fastest and most efficient form of relief,”
nor do the documents state that the purpose of the FSA payment is to support “the U.S.
Government’s pandemic response and recovery efforts.” See generally, Compl. Ex. 1 at
1-3; ARPA § 1005. In addition, Ms. Williams and Mr. Bonner do not allege that they
promised to devote the § 1005 payment proceeds to maintaining or expanding their
farming operations, and in any event such a promise was not a requirement to receive
financial assistance under § 1005. Moreover, merely accepting payment from another
party is not a mutual exchange of consideration. Thus, Plaintiffs did not sufficiently
allege that they provided consideration in exchange for receiving a statutory payment in
accordance with the eligibility criteria and calculation formula proscribed by Congress in
ARPA § 1005.
Finally, Plaintiffs’ complaint fails to allege well-pleaded facts showing that a
government official had actual authority to contract with them. In the complaint, Ms.
Williams and Mr. Bonner allege that the “U.S. Government representatives on whose
conduct Relief Plaintiffs and the other Relief Class members relied had actual authority
to bind the U.S. Government in contract stemming from § 1005 of ARPA.” Compl. ¶ 99.
In this case, however, no official was conferred with contracting authority by
ARPA § 1005. See 6601 Dorchester Inv. Grp., LLC v. United States, 154 Fed. Cl. 685,
692 (2021) (citations omitted) (“In order for a government representative to bind the
United States in contract, he [or she] must have actual authority; apparent authority will
not suffice to bind the government by acts of its agents.”). ARPA § 1005 does not
include any language authorizing USDA (or FSA) to enter into contracts on behalf of the
United States as part of that “farm loan assistance” program. See generally, ARPA §
5
Plaintiffs argue in their response that they waived their right to appeal or
challenge the Government’s calculation of their ARPA payment because selecting Option
1 required them to “accept the ARPA payment as calculated by FSA.” Compl. Ex. 1 at 2.
The FSA Form however does not indicate any waiver of a right to appeal. In fact, the
form gives SDFs under Option 1 an option to appeal: “If at least one, but not all, required
signatures are received within 60 days of the date of this notification, the socially
disadvantaged borrowers who have not signed will be notified of their appeal rights. If an
appeal is not requested with 30 days, FSA will process the payment as described in this
notice.” Compl. Ex. 1 at 2. Further, the form even provides Option 2 “to discuss” the
notice with the local FSA office “before making a decision,” thus allowing an SDF to
discuss the notice and then select Option 1, if desired. Compl. Ex. 1 at 2.
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1005. Given that Congress included specific contracting authority in many ARPA
sections but omitted it from § 1005, Congress presumably “intended a difference in
meaning” and did not intend for USDA (or FSA) officials to enter into contracts when
making statutory payments under § 1005. Maine Cmty. Health Options v. United States,
140 S. Ct. 1308, 1323 (2020) (quoting Digital Realty Trust, Inc. v. Somers, 138 S. Ct.
767, 777 (2018)); see, e.g., ARPA §§ 2703(b), 9815, 9815, 3301(b) 5004(b)(1); 6003(a),
9401. The complaint fails to allege well-pleaded facts showing that a government official
had actual authority to contract with them, and thus Counts I and II fail for this additional
and independent reason.
Because Plaintiffs do not allege well-pleaded facts that, if taken as true, establish
all four elements of contract formation, Plaintiffs fail to satisfy their burden
to state a plausible claim for breach of contract. See Twombly, 550 U.S. at 570 (If
plaintiffs “have not nudged their claims across the line from conceivable to plausible,
their complaint must be dismissed.”). Accordingly, this Court GRANTS the
Government’s Motion to Dismiss Counts I and II.
b. In Count III of Plaintiffs’ complaint, Plaintiffs fail to satisfy their
burden to state a plausible claim for breach of implied contract.
In Count III of the complaint, the Boyds allege that they “lobbied” President
Joseph Biden, Senator Cory Booker, and other unidentified “Government officials” with
an “offer” not to sue the Government on discrimination claims in exchange for enactment
of a provision in ARPA, “which directed USDA ‘to provide financial assistance to
socially disadvantaged farmers, ranchers, or forest landowners that are former farm loan
borrowers that suffered related adverse actions or past discrimination or bias in [USDA]
programs,’ in an amount exceeding $50,000,000.” Compl. ¶ 69-75 (quoting ARPA §
1006(b)(5)). Plaintiffs further allege that Congress “accepted” this offer and entered into
an implied-in-fact contract with them by enacting this provision in ARPA § 1006(b)(5).
Id. ¶ 75 (quoting ARPA § 1006(b)(5)). Finally, Plaintiffs allege that Congress breached
this purported “contract” by amending ARPA § 1006, such that “relief is no longer set
aside for SDFs,” and now “relief is available for any “farmers, ranchers, or forest
landowners determined to have experienced discrimination . . . in [USDA] farm lending
programs.” Compl. ¶¶ 77-78 (quoting IRA § 22007); see also Compl. ¶¶ 63-80, 109-114.
In its motion, the Government contends that Count III should be dismissed for
failure to state a plausible claim for breach of an implied-in-fact contract. Further, the
Government argues that these allegations do not establish mutuality of intent to contract,
an unambiguous offer and acceptance, or consideration.
This Court agrees. First, Plaintiffs fail to show a mutuality of intent to contract.
There is a presumption that Congress does not intend to bind itself contractually when
passing a public law, and there is no clear indication that Congress intended to enter into
an implied-in-fact contract with the Boyds by enacting ARPA § 1006. See Am. Bankers,
932 F.3d at 1381 (quoting Nat’l R.R. Passenger Corp. v. Atchison Topeka & Santa Fe Ry.
Co., 470 U.S. 451, 465-66 (1985)) (“‘[A]bsent some clear indication that the legislature
intends to bind itself contractually, the presumption is that a law is not intended to create
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private contractual or vested rights but merely declares a policy to be pursued until the
legislature shall ordain otherwise.’”). In order to “overcome the presumption, there must
be a ‘clear indication’ that the legislature intended to create contractual rights enforceable
against the government.” Id. The text of the ARPA section at issue, however, does not
contain any reference to a contract:
The Secretary of Agriculture shall use . . . not less than 5 percent of the total
amount of funding provided under subsection (a) [$1,010,000,000] to
provide financial assistance to socially disadvantaged farmers, ranchers, or
forest landowners that are former farm loan borrowers that suffered related
adverse actions or past discrimination or bias in Department of Agriculture
programs, as determined by the Secretary.
ARPA § 1006(b)(5). This provision of ARPA does not contain a “clear indication” that
Congress intended to create enforceable contractual rights against the Government. See
Am. Bankers, 932 F.3d at 1381 (quoting Nat’l R.R., 470 U.S. at 465-66). 6 Thus,
Plaintiffs’ allegations of their participation in the legislative process are not sufficient.
See Bay View, Inc. v. United States, 278 F.3d 1259, 1266 (Fed. Cir. 2001). Accordingly,
Plaintiffs fail to overcome the presumption that the enactment of ARPA § 1006(b)(5) did
not create an implied-in-fact contract with them. See Am. Bankers, 932 F.3d at 1381.
The Boyds’ claim also fails for lack of an unambiguous offer and acceptance.
The complaint alleges the Boyds “communicated that, if the U.S. Government provided
relief in ARPA for SDFs who had suffered USDA discrimination in the past, then they
would not pursue such relief via litigation.” Compl. ¶ 72. Plaintiffs further allege that
“[t]he Boyds made this offer clear in their conversations with government officials,
including Senator Cory Booker and President Biden.” Id. ¶ 73. Finally, Plaintiffs allege
in the complaint that the Boyds “did not litigate meritorious discrimination claims they
could have brought against the U.S. Government” in “reliance” on ARPA § 1006. Id. ¶
76.
The Boyds’ purported offer is vague and nonspecific. Plaintiffs do not allege the
particular claims that they chose not to litigate against the Government, or that their offer
included a guarantee that they would receive any amount of compensation within any
particular amount of time. In the absence of such facts, Plaintiffs alleged offer is not
sufficient to satisfy the requirements of an offer. See Petrini v. United States, 19 Cl. Ct.
41, 45 (1989) (“Lack of ambiguity in offer and acceptance must be established if a
contract is to exist.”).
The allegation that Congress accepted a contract through the enactment of §
1006(b)(5) is similarly ambiguous. Plaintiffs do not allege that Congress knew about
their purported offer, and the ARPA section at issue does not refer to the Boyds or any
6
The legislative text similarly does not refer to any contractual undertakings by
SDFs or refer to a mutual exchange of consideration with SDFs as a precondition for
receiving this “financial assistance.” See ARPA § 1006(b)(5).
8
purported offer. See ARPA § 1006(b)(5). Moreover, the ARPA section at issue did not
specify any amount of compensation for Plaintiffs or any SDF, leaving it for “the
Secretary” to “determine” the amount of any “financial assistance” for each eligible SDF.
ARPA § 1006(b)(5). The ARPA section at issue also did not specify the total amount of
compensation for all SDFs – Congress authorized the Secretary to provide financial
assistance for SDFs totaling anywhere from $50.5 to $808 million, a wide range of
discretion. Id. § 1006(a)-(b). Under these circumstances, Congress’ enactment of ARPA
§ 1006(b)(5) cannot be construed as an unambiguous acceptance of a contractual offer.
Finally, Count III of Plaintiffs’ complaint also fails for lack of consideration. See
Crewzers Fire Crew Transp., Inc. v. United States, 741 F.3d 1380,1382 (Fed. Cir. 2014).
Plaintiffs do not make any well-pleaded allegations indicating that they offered to waive
a previously unasserted discrimination claim, nor did ARPA § 1006(b)(5) extinguish any
legal right that they might have possessed prior to its enactment. See ARPA §
1006(b)(5). Accordingly, Plaintiffs remained free to litigate any previously unasserted
discrimination claims notwithstanding the enactment of ARPA. See id.; see also
Crewzers, 741 F.3d at 1383 (quoting Ridge Runner Forestry v. Veneman, 287 F.3d 1058,
1062 (Fed. Cir. 2002)) (“It is axiomatic that a valid contract cannot be based upon the
illusory promise of one party”).
Because Plaintiffs do not allege well-pleaded facts that, if taken as true, establish
all the necessary elements to establish an implied-in-fact contract, Plaintiffs fail to state a
plausible claim for breach of an implied-in-fact contract. See Am. Bankers, 932 F.3d at
1381-82. Accordingly, the Court GRANTS the Government’s Motion to Dismiss Count
III.
IV. Conclusion
For the above reasons, this Court GRANTS the Government’s Motion to Dismiss
the entire complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which
relief can be granted. The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
s/ Edward J. Damich
EDWARD J. DAMICH
Senior Judge
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