`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`AMERICAN BANKERS ASSOCIATION,
`WASHINGTON FEDERAL, N.A., INDIVIDUALLY
`AND ON BEHALF OF ALL OTHERS SIMILARLY
`SITUATED,
`Plaintiffs-Appellants
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`______________________
`
`2018-1341
`______________________
`
`Appeal from the United States Court of Federal Claims
`in No. 1:17-cv-0194-SGB, Senior Judge Susan G. Braden.
`______________________
`
`Decided: August 8, 2019
`______________________
`
` STEPHEN JOSEPH OBERMEIER, Wiley Rein LLP, Wash-
`ington, DC, argued for plaintiffs-appellants. Also repre-
`sented by CLAIRE J. EVANS, MICHAEL E. TONER.
`
`ERIC PETER BRUSKIN, Commercial Litigation Branch,
`
`Civil Division, United States Department of Justice, Wash-
`ington, DC, argued for defendant-appellee. Also repre-
`sented by JOSEPH H. HUNT, ROBERT E. KIRSCHMAN, JR.,
`KENNETH M. DINTZER, CLAUDIA BURKE; KATHERINE H.
`
`

`

`
`
` 2
`
` AMERICAN BANKERS v. UNITED STATES
`
`WHEATLEY, Board of Governors of the Federal Reserve Sys-
`tem, Washington, DC.
`______________________
`
`Before WALLACH, CHEN, and HUGHES, Circuit Judges.
`HUGHES, Circuit Judge.
`This case arises out of legislation amending the statu-
`tory rate for dividend payments on Federal Reserve Bank
`stock. The Federal Reserve Act of 1913 set the dividend
`rate at six percent per year, which remained in effect until
`Congress amended the dividend provision in 2016. The
`amendment effectively reduced the dividend rate for cer-
`tain stockholder banks from the fixed six percent rate to a
`lower variable rate. American Bankers Association and
`Washington Federal, N.A. sued the United States in the
`Court of Federal Claims, arguing that banks who sub-
`scribed to Reserve Bank stock before the amendment are
`entitled to dividends at the six percent rate. The complaint
`alleged that, by paying dividends at the amended statutory
`rate, the United States breached a contractual duty or, in
`the alternative, effected a Fifth Amendment taking. The
`trial court dismissed the complaint under Rules of the U.S.
`Court of Federal Claims 12(b)(6) for failure to state a claim.
`American Bankers and Washington Federal now appeal.
`Because the complaint does not allege facts establishing
`the existence of a contract or an unconstitutional taking,
`we affirm.
`
`I
`A.
`We begin with a brief overview of the Federal Reserve
`System and its statutory origins. The Federal Reserve Act
`
`

`

`AMERICAN BANKERS v. UNITED STATES
`
`3
`
`of 1913, Pub. L. No. 63−43, ch. 6, 38 Stat. 251 (1913),1 es-
`tablished a system to oversee banking operations and pro-
`mote greater economic stability. The Federal Reserve
`System includes the Federal Reserve Board of Governors,
`see id., §§ 10−11, 38 Stat. 260–63, and twelve regional Re-
`serve Banks, see id. § 2, 38 Stat. 251–52. The Board exer-
`cises broad regulatory supervision over the Reserve Banks,
`which serve as banks to the U.S. government and to com-
`mercial banks who are members of the Federal Reserve
`System.
`The Act sets forth the conditions under which commer-
`cial banks may join the Federal Reserve System. One of
`the conditions of membership is that member banks must
`“subscribe” to the stock of their regional Reserve Bank in
`an amount “equal to six per centum of the paid-up capital
`stock and surplus of [the] applicant bank . . . .” § 5, 38 Stat.
`257. Every national bank2 is required to join the system
`and subscribe to Reserve Bank stock. § 2, 38 Stat 252.
`Other financial institutions, such as state banks, are per-
`mitted but not required to apply for membership and sub-
`scribe to stock. § 9, 38 Stat. 259.
`Reserve Bank stock is “divided into shares of $100,”
`which “shall not be transferred or hypothecated.” § 5, 38
`Stat. 257. From 1913 to 2015, the Act provided that “the
`stockholders of the [Reserve] bank shall be entitled to
`
`
`1 The Federal Reserve Act is codified as amended in
`scattered sections of Chapter 3 of Title 12 of the United
`States Code. See 12 U.S.C. §§ 221−522. This opinion cites
`to the original 1913 Act, which is the same as the current
`version except where otherwise noted.
`2 A national bank refers to a commercial bank char-
`tered by the federal government under the National Bank
`Act. See 12 U.S.C. § 21 et seq.
`
`

`

`
`
` 4
`
` AMERICAN BANKERS v. UNITED STATES
`
`receive an annual dividend of six per centum on the paid-
`in capital stock . . . .” § 7, 38 Stat 258.
`On December 4, 2015, Congress passed the Fixing
`America’s Surface Transportation Act (FAST Act), which
`authorized substantial appropriations for surface trans-
`portation infrastructure. See Pub. L. No. 114–94, 129 Stat.
`1312. The FAST Act included an amendment to the statu-
`tory dividend rate for Reserve Bank stock owned by mem-
`ber banks with consolidated assets of more than $10
`billion. Under the amended dividend provision, these
`banks would receive a variable dividend rate equal to the
`lesser of: (1) the rate of the 10-year Treasury note or (2) six
`percent. See § 32203, 129 Stat. 1739 (codified as amended
`at 12 U.S.C. § 289(a)(1)).
`
`B.
`Prior to 2013, Washington Federal operated as a feder-
`ally chartered savings and loan association. On May 29,
`2013, Washington Federal received approval from the Of-
`fice of the Comptroller of the Currency to convert to a na-
`tional bank, contingent on, inter alia, Washington Federal
`applying for membership in the Federal Reserve System.
`On July 8, 2013, Washington Federal submitted an ap-
`plication for Reserve Bank stock to the Reserve Bank of
`San Francisco (BSF). A letter from BSF, dated July 17,
`2013, informed Washington Federal that its application
`and payment for stock had been processed and enclosed an
`Advice of Holdings for 479,610 shares of BSF stock. The
`letter further noted that “[d]ividends are paid at the statu-
`tory rate of 6 percent per annum, or $1.50 per share semi-
`annually.” J.A. 65.
`From 2013 to 2015, Washington Federal received divi-
`dend payments on its stock at a rate of six percent per year.
`After the FAST Act took effect on January 1, 2016, Wash-
`ington Federal received dividends at the rate of the 10-year
`Treasury note. In 2016, Washington Federal received
`
`

`

`AMERICAN BANKERS v. UNITED STATES
`
`5
`
`dividends totaling $502,471.53, reflecting an annual rate of
`approximately two percent.
`
`C.
`Washington Federal and American Bankers Associa-
`tion3 filed a complaint against the United States in the
`Court of Federal Claims on February 9, 2017.4 The com-
`plaint alleged that, by paying dividends at a rate lower
`than six percent in 2016, the government breached a con-
`tractual duty to member banks that subscribed to Reserve
`Bank stock before December 4, 2015. The complaint also
`asserted, in the alternative, that the government’s conduct
`effected a Fifth Amendment taking.
`The government filed a motion to dismiss for lack of
`standing under RCFC 12(b)(1) and failure to state a claim
`under RCFC 12(b)(6). The Court of Federal Claims deter-
`mined that American Bankers failed to meet the require-
`ments for associational standing because the damages
`requested would require individualized proof for each asso-
`ciation member. The court found that Washington Federal
`had standing but dismissed all counts of the complaint un-
`der RCFC 12(b)(6) for failure to state a claim. Washington
`Federal and American Bankers now appeal the court’s dis-
`missal of the claims and its standing determination. We
`have jurisdiction under 28 U.S.C. § 1295(a)(3).
`
`
`3 American Bankers Association is a national trade
`association for the banking industry. Its members include
`Washington Federal, as well as other banks affected by the
`amendment to the dividend rate, i.e., member banks with
`more than $10 billion in consolidated assets.
`4 The complaint was subsequently amended on April
`14, 2017. This opinion refers to the amended complaint
`unless otherwise stated.
`
`

`

`
`
` 6
`
` AMERICAN BANKERS v. UNITED STATES
`
`II
` We review de novo whether the Court of Federal
`Claims properly dismissed a complaint for failure to state
`a claim upon which relief may be granted. Frankel v.
`United States, 842 F.3d 1246, 1249 (Fed. Cir. 2016). To
`avoid dismissal under RCFC 12(b)(6), a plaintiff “must al-
`lege facts ‘plausibly suggesting (not merely consistent
`with)’ a showing of entitlement to relief.” Acceptance Ins.
`Cos., Inc. v. United States, 583 F.3d 849, 853 (Fed. Cir.
`2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
`557 (2007)). “A claim has facial plausibility when the plain-
`tiff pleads factual content that allows the court to draw the
`reasonable inference that the defendant is liable for the
`misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
`(2009). 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.
`Id.
`
`For the reasons set forth below, we conclude that the
`trial court did not err in dismissing Washington Federal’s
`breach of contract and takings claims under RCFC
`12(b)(6).5
`
`A.
`First, we address Washington Federal’s breach of con-
`tract claim. The complaint asserts that the government
`breached an implied-in-fact or express contract with Wash-
`ington Federal by paying dividends at a rate lower than six
`percent in 2016. Washington Federal alleges that an im-
`plied-in-fact contract exists because the Federal Reserve
`Act constitutes an offer by the government, which
`
`5 We need not reach American Bankers’ standing ar-
`gument because American Bankers’ allegations are the
`same as Washington Federal’s and would thus share the
`same flaws regardless of our outcome.
`
`

`

`AMERICAN BANKERS v. UNITED STATES
`
`7
`
`Washington Federal accepted by submitting its application
`and payment for Reserve Bank stock. Alternatively, Wash-
`ington Federal contends that an express contract was
`formed based on its application for stock, which was a con-
`tractual offer that the government accepted by approving
`the application and issuing stock.
`There are four requirements to form a contract binding
`upon the government: “(1) mutuality of intent to contract;
`(2) lack of ambiguity in offer and acceptance; (3) consider-
`ation; and (4) a government representative having actual
`authority to bind the United States in contract.” Anderson
`v. United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003).
`These requirements apply to both express and implied-in-
`fact contracts. Id. at 1353 n.3. “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.” Id.
`For both its implied-in-fact and express contract theo-
`ries, Washington Federal relies largely on the Federal Re-
`serve Act as evidence of the government’s intent to
`contract. Under its implied-in-fact contract theory, the Act
`was an offer to contract; under its express contract theory,
`the Act was an invitation to receive offers to contract. Un-
`der either theory of contract formation, Washington Fed-
`eral argues that the Act contemplates a contractual
`agreement between member banks and the government.
`Because Washington Federal failed to allege facts estab-
`lishing the existence of a contract with the government, we
`determine that the trial court did not err in dismissing this
`claim.
`
`1.
`“[A]bsent some clear indication that the legislature in-
`tends to bind itself contractually, the presumption is that
`‘a law is not intended to create private contractual or
`vested rights but merely declares a policy to be pursued
`until the legislature shall ordain otherwise.’” Nat’l R.R.
`
`

`

`
`
` 8
`
` AMERICAN BANKERS v. UNITED STATES
`
`Passenger Corp. v. Atchison Topeka & Santa Fe Ry. Co.,
`470 U.S. 451, 465–66 (1985) (quoting with alterations
`Dodge v. Bd. of Educ., 302 U.S. 74, 79 (1937)). This “well-
`established presumption” reflects a recognition that “the
`principal function of a legislature is not to make contracts,
`but to make laws that establish the policy of the state.” Id.
`And “[p]olicies, unlike contracts, are inherently subject to
`revision and repeal . . . .” Id.
`To overcome the presumption, there must be a “clear
`indication” that the legislature intended to create contrac-
`tual rights enforceable against the government. Id. at
`465−66. The Supreme Court has recognized evidence of an
`intent to contract where a statute “provide[s] for the execu-
`tion of a written contract on behalf of the United States” or
`“speak[s] of a contract” with the United States. Id. at 467
`(emphasis in original); see also Dodge, 302 U.S. at 78; Indi-
`ana ex rel. Anderson v. Brand, 303 U.S. 95, 105 (1938). For
`example, in Hall v. Wisconsin, 103 U.S. 5 (1880), the stat-
`ute provided for a geological, mineralogical, and agricul-
`tural survey to be carried out by commissioners appointed
`by the governor. Id. at 5–6. The statutory text directed the
`governor to “make a written contract with each of the com-
`missioners . . . expressly stipulating and setting forth the
`nature and extent of the services to be rendered by each,
`and the compensation therefor . . . .” Id. at 8–9. Likewise,
`in Indiana ex rel. Anderson, the Court found that Indiana’s
`Teachers’ Tenure Law contemplated contracts binding on
`the state, noting that “[t]he title of the act is couched in
`terms of contract” and the text “speaks of the making and
`canceling of indefinite contracts” between teachers and
`school districts. 303 U.S. at 105.
`In finding that a statute or regulation constitutes an
`offer to enter into a unilateral contract, courts have also
`relied on explicit references to contractual undertakings.
`For example, in Radium Mines, Inc. v. United States, 153
`F. Supp. 403 (Ct. Cl. 1957), the regulation at issue included
`a section entitled “Purchase Contract,” which stated that,
`
`

`

`AMERICAN BANKERS v. UNITED STATES
`
`9
`
`if a sample of uranium delivered to the Commission
`“meet[s] the conditions of this section, the Commission will
`forward to the person making the offer a form of contract
`containing applicable terms and conditions ready for his
`acceptance.” Id. at 405. Similarly, the statutory provision
`in Grav v. United States, 14 Cl. Ct. 390 (1988), aff’d, 886
`F.2d 1305 (Fed. Cir. 1989), provided that “[t]he Secretary
`shall offer to enter into a contract” with milk producers. Id.
`at 392.
`In contrast, the Supreme Court determined in Dodge
`that the Miller Law did not clearly express the govern-
`ment’s intent to contract. 302 U.S. at 80. As originally en-
`acted, the Miller Law established a compulsory retirement
`age for public school teachers and provided for the payment
`of annuities to retired teachers. Id. at 76. The law stated
`that teachers “who served in the public schools of such city
`for twenty or more years prior to such retirement, shall be
`paid the sum of fifteen hundred dollars ($1,500.00) annu-
`ally and for life from the date of such retirement . . . .” Id.
`Nearly ten years after it was passed, the Miller Law was
`amended to reduce annuity payments to $500 for all retired
`teachers, including those who had retired prior to the
`amendment. Id. at 77. The teachers who filed suit against
`the Board of Education argued that they were contractu-
`ally entitled to annuity payments at $1,500 because the
`Miller Law constituted an offer to contract, which they had
`accepted by remaining in service for at least twenty years.
`Id. at 77. The Supreme Court rejected this argument, con-
`cluding that neither the statutory language nor the circum-
`stances of enactment indicated a legislative intent to create
`binding contractual obligations. Id. at 79−81.
`2.
`To determine whether a statute gives rise to a contrac-
`tual obligation, we first look to the language of the statute.
`See Dodge, 302 U.S. at 78; Nat’l R.R., 470 U.S. at 466. The
`language of the Federal Reserve Act is devoid of the
`
`

`

`
`
` 10
`
` AMERICAN BANKERS v. UNITED STATES
`
`traditional indicia of a contractual undertaking. The Act
`does not “speak of a contract” between Reserve Banks and
`member banks; nor does it “provide for the execution of a
`written contract on behalf of the United States.” See Nat’l
`R.R., 470 U.S. at 467. Rather, the Act sets forth a regula-
`tory system, in which member banks are granted certain
`“powers and privileges” and are subject to specified “duties,
`liabilities, and regulations.” § 8, 38 Stat. 259. Among the
`duties, member banks are “required . . . to subscribe to the
`capital stock” of their regional Reserve Bank. § 2, 38 Stat.
`252. Among the privileges, banks “shall be entitled to re-
`ceive an annual dividend of six per centum on the paid-in
`capital stock. . . .” § 7, 38 Stat. 258.
`Washington Federal urges us to discern contractual in-
`tent from the terms “subscribe” and “subscription,” which
`it contends are “contractual terms of art in the context of
`stock offerings. . . .” Appellant’s Op. Br. 31; see also id. at
`32−33. But we must interpret the language in the context
`in which it is written. In the context of a regulatory stat-
`ute, we will not infer a contractual undertaking “absent ‘an
`adequate expression of an actual intent’ of the State to bind
`itself. . . .” Nat’l R.R., 470 U.S. at 466–67 (quoting Wis. &
`Mich. Ry. Co. v. Powers, 191 U.S. 379, 386–87 (1903)). And
`the use of terminology that carries contractual connota-
`tions when used in the private sector does not, on its own,
`establish such intent. For example, in Dodge, the Supreme
`Court rejected appellants’ argument that “annuity” is “ter-
`minology based on contract” that reflected the legislature’s
`intent to establish contractual rights. 302 U.S. at 81. Like-
`wise, we find that the subscription language in the Federal
`Reserve Act does not unequivocally express the govern-
`ment’s intent to bind itself in contract.
`Washington Federal further argues that the govern-
`ment’s intent to contract is evident from the exchange of
`obligations between member banks and Reserve Banks.
`According to Washington Federal, the Act contemplates an
`agreement that Reserve Banks will pay member banks an
`
`

`

`AMERICAN BANKERS v. UNITED STATES
`
`11
`
`annual dividend of six percent in exchange for member
`banks’ subscription to Reserve Bank stock. The language
`and structure of the Act, however, do not reflect a bar-
`gained-for quid pro quo between two parties. The dividend
`rate is set forth in an entirely different section than the
`provisions governing stock subscription. Compare § 7, 38
`Stat. 258, with § 2, 38 Stat. 251−52, and § 5, 38 Stat. 257–
`58. Moreover, the Act does not frame dividend payments
`as a contractual obligation of the Reserve Banks. Rather,
`the six percent dividend is described as a benefit that mem-
`ber banks “shall be entitled to receive.” § 7, 38 Stat. 258.
`And a statute does not create contractual obligations
`merely by setting forth “benefits to those who comply with
`its conditions.” Wis. & Mich, Ry. Co., 191 U.S. at 387. In-
`deed, in Dodge, the statutory language provided that teach-
`ers who retired after serving twenty or more years in the
`public schools “shall be paid the sum of fifteen hundred dol-
`lars ($1,500.00) annually and for life from the date of such
`retirement . . . .” 302 U.S. at 76 (emphasis added). Yet the
`Supreme Court declined to find that the teachers’ rights to
`$1,500 annuity payments vested upon meeting the statu-
`tory conditions. Id. at 77, 79−81. Similarly, we conclude
`that the Federal Reserve Act does not demonstrate the gov-
`ernment’s clear intent to confer vested contractual rights
`on each member bank who complies with the stock sub-
`scription requirement.
`The circumstances surrounding the passage of the Fed-
`eral Reserve Act and its legislative history offer further
`support. See Nat’l R.R., 470 U.S. at 468. The Federal Re-
`serve Act was passed in 1913 in response to ongoing insta-
`bility within the financial sector, which had given rise to a
`series of banking crises in the preceding decades. See H.R.
`Rep. No. 63-69, at 3−5 (1913). One of the deficiencies of the
`banking system at the time was that it “fail[ed] to afford
`any safeguard against panics and commercial stringencies
`or any means of alleviating them.” Id. at 6.
`
`

`

`
`
` 12
`
` AMERICAN BANKERS v. UNITED STATES
`
`Congress created the Federal Reserve System to pre-
`vent and contain the financial disruption caused by bank
`failures. The Reserve Banks were intended to serve as
`lenders of last resort by maintaining a reserve of liquid cap-
`ital “ready for use in protecting the banks of any section of
`the country and for enabling them to go on meeting their
`obligations instead of suspending payments, as so often in
`the past.” Id. at 11; see also id. at 19−22. To provide the
`funds for this reserve, Congress established the require-
`ment that member banks subscribe to Reserve Bank stock.
`Id. at 16−17, 20−21. Thus, the origins of the subscription
`requirement reflect a regulatory effort to promote stability
`in the banking system through collaboration, rather than
`a collection of private contractual undertakings.
`Statements in the legislative history bear this out. For
`example, the House Report accompanying the bill later
`passed as the Federal Reserve Act, expressed the view that
`“banking institutions which desire to be known by the
`name ‘national’ should be required, and can well afford, to
`take upon themselves the responsibilities involved in joint
`or federated organization.” Id. at 16. Likewise, the Senate
`Report stated that the Reserve Banks were “not intended
`to be merely money-making banks,” but “guardians of the
`public welfare, primarily safeguarding the member banks,
`protecting their reserves, safeguarding their credit, [and]
`protecting them from panic or financial stringency. . . .” S.
`Rep. No. 63-133, at 10 (1913). Although the proposed leg-
`islation was to provide member banks with a return on the
`use of their funds, the Senate Report noted that “the sta-
`bility of the business of the bank, and the peace of mind it
`will give to the bankers in having freedom from constant
`anxiety, would more than compensate them, even if the fi-
`nancial advantages did not do so.” Id. at 12.
`Accordingly, we discern no “clear indication” of the gov-
`ernment’s intent to contract in either the language of the
`Federal Reserve Act or the circumstances under which it
`was passed.
`
`

`

`AMERICAN BANKERS v. UNITED STATES
`
`13
`
`The additional evidence on which Washington Federal
`relies, primarily for its express contract theory, does noth-
`ing to remedy this deficiency. For example, the July 17,
`2013 letter from the BSF merely states that Washington
`Federal’s application and payment have been processed
`and informs Washington Federal of some of the obligations
`and benefits associated with membership in the Federal
`Reserve System. Washington Federal points to the letter’s
`statement that “[d]ividends are paid at the statutory rate
`of 6 percent per annum, or $1.50 per share semi-annually.”
`J.A. 65. But this is simply a statement of policy based on
`the statutory dividend rate in effect at the time, not the
`language of a promise or contractual undertaking. See
`Chattler v. United States, 632 F.3d 1324, 1330 (Fed. Cir.
`2011) (“[T]he obligation of the government, if it is to be held
`liable, must be stated in the form of an undertaking, not as
`a mere prediction or statement of opinion or intention.
`Likewise statements of information or definition are not
`statements of obligation.” (internal citations and quotation
`marks omitted)).
`Because Washington Federal did not plead facts suffi-
`cient to establish the government’s intent to contract, the
`complaint fails to state a plausible claim for breach of con-
`tract. Accordingly, this claim was properly dismissed.6
`
`
`6 Washington Federal’s claim for breach of implied
`duty of good faith and fair dealing likewise depends on the
`existence of a valid contract. See Centex Corp. v. United
`States, 395 F.3d 1283, 1304 (Fed. Cir. 2005) (“The covenant
`of good faith and fair dealing is an implied duty that each
`party to a contract owes to its contracting partner.”).
`Therefore, this claim was also properly dismissed.
`
`

`

`
`
` 14
`
` AMERICAN BANKERS v. UNITED STATES
`
`B.
`We now turn to Washington Federal’s Fifth Amend-
`ment takings claim. The complaint sets forth two takings
`theories: (1) by enacting the FAST Act, the government de-
`prived Washington Federal of its “property interest[] in the
`promised six percent dividend,” J.A. 57 ¶ 92; and (2) by
`paying dividends at a rate lower than six percent, the gov-
`ernment effected “a taking of [Washington Federal’s] capi-
`tal investment[] in Federal Reserve Bank stock without
`just compensation in the form of a market return on the
`invested capital,” J.A. 57 ¶ 93. Under either theory, Wash-
`ington Federal failed to state a plausible takings claim.
`To state a claim for a taking under the Fifth Amend-
`ment, a plaintiff must identify a legally cognizable property
`interest. Tex. State Bank v. United States, 423 F.3d 1370,
`1378 (Fed. Cir. 2005). “The Constitution neither creates
`nor defines the scope of property interests compensable un-
`der the Fifth Amendment.” Conti v. United States, 291
`F.3d 1334, 1340 (Fed. Cir. 2002) (citing Bd. of Regents of
`State Colls. v. Roth, 408 U.S. 564, 577 (1972)). Property
`interests arise from “existing rules and understandings
`and background principles derived from an independent
`source, such as state, federal, or common law. . . .” Air Peg-
`asus of D.C., Inc. v. United States, 424 F.3d 1206, 1213
`(Fed. Cir. 2005) (internal quotation marks omitted). To
`support a takings claim, a property interest must be more
`than a “mere unilateral expectation or an abstract need.”
`Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S.
`155, 161 (1980).
` Under its first takings theory, Washington Federal as-
`serts a property interest in its “contractual and statutory
`rights to receive a six percent dividend on Federal Reserve
`Bank stock . . . .” J.A. 57 ¶ 90. While contract rights are a
`form of property that may be compensable under the Fifth
`Amendment, see Cienega Gardens v. United States, 331
`F.3d 1319, 1329–30 (Fed. Cir. 2003), the complaint does not
`
`

`

`AMERICAN BANKERS v. UNITED STATES
`
`15
`
`establish that Washington Federal had a contractual right
`to a six percent dividend, see supra Section II.A.2. Thus,
`the trial court properly dismissed the contract-based tak-
`ings claim.
`Likewise, Washington Federal has not alleged a legally
`cognizable property interest arising from its “statutory
`rights” under the Federal Reserve Act. Absent independ-
`ent evidence of a contractual undertaking, a statutory en-
`titlement “creates no vested right.” Dodge, 302 U.S. at 79.
`Because “Congress at all times retains the ability to amend
`statutes, a power which inheres in its authority to legislate,
`Congress at all times retains the right to revoke legisla-
`tively created entitlements.” Members of Peanut Quota
`Holders Ass’n, Inc. v. United States, 421 F.3d 1323, 1335
`(Fed. Cir. 2005). Indeed, in this case, Congress “expressly
`reserved” its “right to amend, alter, or repeal” any provi-
`sion of the Federal Reserve Act. See § 30, 38 Stat. 275
`(1913), renumbered § 31, Pub. L. No. 95−630, title I, § 101,
`92 Stat. 3641 (1978). Washington Federal emphasizes
`that, prior to the FAST Act, the six percent dividend rate
`had remained unchanged for over 100 years. But Wash-
`ington Federal’s “unilateral expectation” that Congress
`would not exercise its right to amend the dividend provi-
`sion going forward does not give rise to a compensable
`property interest under the Fifth Amendment. See Webb’s,
`449 U.S. 161; Peanut Quota Holders, 421 F.3d at 1334
`(“[Appellants] have no legally protected right against the
`government’s making changes in the underlying [regula-
`tory] program and no right to compensation for the loss in
`value resulting from the changes.”).
`Washington Federal’s alternative takings theory con-
`templates a taking of its underlying capital investment in
`Reserve Bank stock without just compensation.7 This
`
`7 The trial court did not directly address this alter-
`native takings theory. Washington Federal contends that
`
`

`

`
`
` 16
`
` AMERICAN BANKERS v. UNITED STATES
`
`claim also fails. Washington Federal’s initial subscription
`of stock was part of its voluntary participation in a regula-
`tory scheme, and we have held that “enforceable rights suf-
`ficient to support a taking claim against the United States
`cannot arise in an area voluntarily entered into and one
`which, from the start, is subject to pervasive Government
`control.” Mitchell Arms, Inc. v. United States, 7 F.3d 212,
`216 (Fed. Cir. 1993) (internal quotation marks omitted); see
`also Commonwealth Edison Co. v. United States, 271 F.3d
`1327, 1339 (Fed. Cir. 2001) (“[R]egulatory actions requiring
`the payment of money are not takings.”). Furthermore, un-
`der the Federal Reserve Act, Washington Federal can sur-
`render its stock and obtain a refund of its paid-in capital.
`See 12 U.S.C. §§ 287, 321. Thus, the requirement that
`member banks subscribe to reserve bank stock under the
`Federal Reserve Act does not constitute a regulatory tak-
`ing.
`
`
`remand is necessary for the trial court to rule on this issue
`in the first instance. We conclude, however, that principles
`of judicial economy counsel against remand, and whether
`Washington Federal has adequately stated a claim under
`its alternative takings theory is an issue amenable to reso-
`lution for the first time on appeal. See Glaxo Grp. Ltd. v.
`TorPharm, Inc., 153 F.3d 1366, 1371 (Fed. Cir. 1998) (not-
`ing that “an appellate court may choose to decide [an] issue
`even if not passed on by the trial court” where the issue “is
`one of law” and “has been fully vetted by the parties on ap-
`peal”); Singleton v. Wulff, 428 U.S. 106, 121 (1976) (“The
`matter of what questions may be taken up and resolved for
`the first time on appeal is one left primarily to the discre-
`tion of the courts of appeals, to be exercised on the facts of
`individual cases.”).
`
`

`

`AMERICAN BANKERS v. UNITED STATES
`
`17
`
`Because the complaint fails to allege facts sufficient to
`support a taking under the Fifth Amendment, the trial
`court properly dismissed this claim under RCFC 12(b)(6).
`III
`For the foregoing reasons, we conclude that the com-
`
`plaint fails to state a claim upon which relief may be
`granted. Thus, we affirm the trial court’s grant of the gov-
`ernment’s motion to dismiss Washington Federal’s claims
`under RCFC 12(b)(6).
`AFFIRMED
`
`
`
`