114 Fed. Cl. 124

Fed. Cl.

2014

COASTAL ENVIRONMENTAL GROUP, INC., Plaintiff, v. The UNITED STATES, Defendant.

No. 13-71C

United States Court of Federal Claims.

January 6, 2014

Filed Under Seal: December 16, 2013; Reissued for Publication: January 6, 2014 *

acknowledged that the forested wetlands at issue matured. Compl. ¶¶ 45-46. Therefore, it is reasonable to infer that the Army Corps breached the Final Agreement by not fairly and reasonably considering an adjustment to the credits at that time. Of course, the underlying factual issue of whether the Army Corp acted reasonably cannot be decided on a motion to dismiss. See, e.g., TrinCo Inv. Co v. United States, 722 F.3d 1375, 1380 (Fed.Cir.2013) (“To avoid dismissal under [RCFC] 12(b)(6), a party need only plead ... with facts sufficient to nudge ‘claims across the line from conceivable to plausible.‘” (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955)). Although the word “may” appears to give the Army Corps’ discretion in adjusting the credit composition, that does not relieve the Army Corps from its obligation to issue credits, and the text of the Final Agreement does not state an “opinion or intention.” Cf. Nat‘l By-Prods., 405 F.2d at 1264 (“[F]or a government representation to be binding as a contractual obligation, it must have been in the form of an undertaking rather than a mere prediction or statement of opinion or intention.“).

Therefore, whether the Army Corps denied the Bank‘s request for a credit adjustment is a factual inquiry that cannot be decided on a motion to dismiss. See Bradley v. Chiron Corp., 136 F.3d 1317, 1321 (Fed. Cir.1998) (When ruling on a motion to dismiss under Rule 12(b)(6), “factual statements in the complaint are accepted as true ... [and dismissal] is proper only when, on the complainant‘s version of the facts, the premises of a cognizable claim have not been stated.“). The Complaint alleges that the August 24, 2012 email contains that denial. Compl. ¶ 49. The August 24, 2012 email states that the Army Corps does not support “issuing additional credit to the bank merely because the project ... is an ecological success.” Compl. Ex. E at 1. To the extent that the Army Corps suggested other ways in which the Bank could generate additional credits, that is beside the point. Compl. Ex. E at 1 (“Additional compensatory mitigation credits could be generated from this site through additional real estate protection.“).

The August 24, 2012 email evidences that the Army Corps denied the Bank‘s request to issue credits, and, therefore, is sufficient to overcome the Government‘s Motion To Dismiss.

Finally, although the Government argues that $10,000 per credit of damages (Compl. ¶ 51) is speculative, this is not grounds for dismissal.

IV. CONCLUSION.

For these reasons, the Government‘s July 24, 2013 Motion To Dismiss is denied. The court will contact the parties to convene a status conference to discuss discovery and a trial date.

IT IS SO ORDERED.

MARGARET M. SWEENEY

Judge

* This reissued Opinion and Order incorporates the agreed-to redaction proposed by the parties on January 2, 2014. The redaction is indicated with a bracketed ellipsis (“[...]“).

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