Harrison v. United States , 120 Fed. Cl. 533 ( 2015 )

3111 the fiEIniteiJ States Qtuurt of erheral dilating
No.14-705C
Filed: March 19, 2015
* * * * * 'k * * * * 'k * * * * i
* US 0
NICHOLAS HARRISON, * FED ALURT OF
Plaintiff, *
* m S_e_ Plaintiff; Lack of Subject
v. * Matter Jurisdiction; Presidential
* Management Fellows Program.
UNITED STATES, *
Defendant. *
* * * * * * * "k * 'k * * * * *
Nicholas Harrison, Washington, D.C., mse plaintiff.
Alexis J. Echols, Trial Attorney, with whom were Benjamin C. Mizer, Acting
Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Donald E.
Kinner, Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC. for the defendant. Of counsel, Karen H.
Holzen, Trial Attorney, United States Small Business Administration.
0 P | N IO N
HORNI J.
FINDINGS OF FACT
m g plaintiff Nicholas Harrison1 filed a complaint in this court. As the basis for
this court’s jurisdiction, plaintiff cites the Tucker Act, 28 U.S.C. § 1491 (2012) and
asserts “employment rights in contract.” In his complaint, plaintiff states that he “was
induced to take a position with the US. Small Business Administration [SBA] as part of
the Presidential Management Fellows Program [PMF Program]." Plaintiff indicates he
“was offered the position on June 20, 2013 pending a satisfactory background check,”
and he accepted the position on June 25, 2013, the same day his background check
1 Plaintiff represents to the court that he is “a licensed attorney in the State of
Oklahoma.” Therefore, although Mr. Harrison filed his complaint pm E, his complaint
and allegations can be judged by the standards due to filings by a licensed attorney,
and not under the more liberal standards applicable to a non-attorney m $. See
Haines v. Kerner, 404 US. 519, 520—21, Lefig denied, 405 US. 948 (1972).
Regardless, under either standard, as determined below, plaintiff’s complaint does not
properly allege claims for which there is jurisdiction in this court.
was completed. In the documents plaintiff submitted to the court, there are two letters,
identified by plaintiff as offer letters. The first letter was from Kia P. Wyche, a Human
Resources Specialist at the SBA, to plaintiff, dated June 25, 2013, congratulating him
on his “selection to the excepted service position of, Veteran Affairs Specialist
(Presidential Management Fellow) for Veterans Business Development within the US.
Small Business Administration (SBA) in Washington, DC" The Wyche letter concludes
by providing a phone number to plaintiff should he “have any questions concerning your
appointment,” and providing “[b]est wishes in your new appointment." Plaintiff contends
in his response to the court's Order to produce supporting documents that he “cannot
vouch for the accuracy of this document as the one received, executed, and returned to
the agency was different.” The Wyche letter was produced by the SBA Office of Human
Resources, in accordance with the court’s Order.
The second letter to plaintiff, which plaintiff indicates was the letter he received,
was from Bridget Bean, Chief Human Capital Officer at the SBA, and was dated June
20, 2013. This second letter indicated “[y]ou are being considered for a Presidential
Management Fellows position" and that the “offer is tentative pending the approval of
your preliminary employment security paperwork.” The Bean letter further indicated that
the “Presidential Management Fellows position is an excepted service appointment[2]”
(emphasis in original) and that “[u]pon entrance on duty, your appointment will be
subject to the successfully [sic] completion of a two-year probationary period, a two year
Individual Development Plan (IDP), and a background character investigation that will
be conducted by the Office of Personnel Management.” The Bean letter stated that
“[u]pon your acceptance of this offer, an effective date of your appointment will be
established.” The copy of the Bean letter in the record provides at the bottom, “I accept
the above offer” and the place designated for signature reflects the plaintiff’s written
signature.3 it appears from subsequent email correspondence between plaintiff and Ms.
Wyche, also included in the record, that, on June 20, 2013, plaintiff emailed back to Ms.
Wyche a copy of this second letter. From the record, it appears Mr. Harrison sent Ms.
2 Section 2103 of Title 5 of the United States Code indicates that “[t]or the purpose of
this title, the ‘excepted service’ consists of those civil service positions which are not in
the competitive service or the Senior Executive Service.” 5 U.S.C. § 2103 (2012).
Section 213.101 of Title 5 of the Code of Federal Regulations (CFR) defines “excepted
service” as:
the meaning given that term by section 2103 of title 5, United States Code,
and includes all positions in the executive branch of the Federal
Government which are specifically excepted from the competitive service
by or pursuant to statute, by the President, or by the Office of Personnel
Management, and which are not in the Senior Executive Service.
5 C.F.R. § 213.101 (2013).
3 As reflected in the Bean letter, and as plaintiff indicates, plaintiff “incorrectly dated” the
Bean letter, next to plaintiff’s signature, as May 20, 2013.
2
court challenges jurisdiction or plaintiff’s claim for relief, however, the plaintiff cannot
rely merely on allegations in the complaint, but must instead bring forth relevant,
competent proof to establish jurisdiction. McNutt v. Gen. Motors Acceptance Corp. of
M, 298 US. 178, 189 (1936); E E Land v. Dollar, 330 US. 731, 735 n. 4 (1947);
Re holds v. Arm _. & Air Force mob-Sew“ 846 F.2d 746, 747 (Fed. Cir. 1988); Catellus
Dev. (39le v. United States, 31 Fed. Cl. 399, 404—05 (1994).
The Tucker Act grants jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon
the Constitution, or any Act of Congress or any regulation of an executive
department, or upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases not sounding in
tort.
28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, the Tucker
Act waives sovereign immunity to allow jurisdiction over claims against the United
States (1) founded on an express or implied contract with the United States, (2) seeking
a refund from a prior payment made to the government, or (3) based on federal
constitutional, statutory, or regulatory law mandating compensation by the federal
government for damages sustained. E United States v. Navajo Nation, 556 US. 287,
289—90 (2009); United States v. Mitchell, 463 US. 206, 216 (1983); §e_e als_o Greenlee
Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir.), 1W9 fl fig en banc
denied (Fed. Cir. 2007), in. denied, 552 US. 1142 (2008); Palmer v. United States,
168 F.3d 1310, 1314 (Fed. Cir. 1999).
“Not every claim invoking the Constitution, a federal statute, or a regulation is
cognizable under the Tucker Act. The claim must be one for money damages against
the United States . . . United States v. Mitchell, 463 US. at 216; E w United
States v. White Mountain Apache Tribe, 537 US. 465, 472 (2003); Smith v. United
States, 709 F.3d 1114, 1116 (Fed. Cir.), in. denied, 134 S. Ct. 259 (2013);
,BfladioShack Corp. v. United States, 566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s
Mushroom -..S.erv.. Inc. v. United States, 521 F.3d at 1343 (“[P]laintiff must . . . identify a
substantive source of law that creates the right to recovery of money damages against
the United States”). In Ontario Power Generation Inc. v. United States, the United
States Court of Appeals for the Federal Circuit identified three types of monetary claims
for which jurisdiction is lodged in the United States Court of Federal Claims. The court
wrote:
The underlying monetary claims are of three types. . . . First, claims
alleging the existence of a contract between the plaintiff and the
government fall within the Tucker Act's waiver. . . . Second, the Tucker
Act’s waiver encompasses claims where “the plaintiff has paid money over
to the Government, directly or in effect, and seeks return of all or part of
that sum.” Eastport S.S. |Corp. v. United States, 178 Ct. Cl. 599, 605—06,]
11
372 F.2d [1002,] 1007—08 [(1967)] (describing illegal exaction claims as
claims “in which ‘the Government has the citizen’s money in its pocket’”
(quoting Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580
(1954)) . . . . Third, the Court of Federal Claims has jurisdiction over those
claims where “money has not been paid but the plaintiff asserts that he is
nevertheless entitled to a payment from the treasury.” Eastport SS, 372
F.2d at 1007. Claims in this third category, where no payment has been
made to the government, either directly or in effect, require that the
“particular provision of law relied upon grants the claimant, expressly or by
implication, a right to be paid a certain sum.” ld_.; fifl |United States v.
|Testan, 424 US. [392,] 401-02 [1976] (“Where the United States is the
defendant and the plaintiff is not suing for money improperly exacted or
retained, the basis of the federal claim—whether it be the Constitution, a
statute, or a regulation-does not create a cause of action for money
damages unless, as the Court of Claims has stated, that basis ‘in itself. . .
can fairly be interpreted as mandating compensation by the Federal
Government for the damage sustained.” (quoting Eastport SS, 372 F.2d
at 1009)). This category is commonly referred to as claims brought under
a “money-mandating” statute.
Ontario Power Generation Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004);
§_e§al& Twp. of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).
In somewhat overlapping, and sometimes inconsistent, statements, plaintiff
asserts that his complaint sufficiently alleges an express contract and “the existence of
‘an implied contract’ created by ‘the nature of the Presidential Management Fellows
Program, the de facto practices of the US. Small Business Administration, and the
repeated assurances offered by his office and by the agency’s human resources
personnel.” In addition, plaintiff asserts that he has “provided evidence of the existence
of an implied-in—fact contract (probably even an express contract) in the attachments to
Plaintiff’s Response to Court’s Order to Produce Supporting Documents.” (emphasis in
original). As noted above, plaintiff argues that, because the agency is required by
regulation to execute a written Participant Agreement, OPM Form 1301 with each PMF
participant that clearly identifies expectations of the position, plaintiff has sufficiently
alleged the existence of an express contract. He further argues that, regardless, the
generic “boilerplate language of OPM Form 1301 can be construed as an implied-in-fact
contract.” Plaintiff also contends there is evidence of an implied-in-fact contract between
the parties, and points to the OPM website, the letters from the SBA to plaintiff, and
“[t]he conduct of both parties . . . the Plaintiff showing up at the agency and performing
his assigned duties each day, the agency making regular payments every two weeks,
and both parties creating an Individual Development Plan." Defendant, however, argues
that “there is no evidence of a contract between Mr. Harrison and the Government,” and
that plaintiff’s complaint “does not allege the elements necessary to establish the
existence of either an express or implied-in-fact contract with the United States” and
“does not allege any conduct of the parties or circumstances whatsoever that
demonstrate a meeting of the minds with an intent to contract.”
12
According to long established precedent decided in the United States Court of
Appeals for the Federal Circuit, “there is a ‘well-established principle that, absent
specific legislation, federal employees derive the benefits and emoluments of their
positions from appointment rather than from any contractual or quasi-contractual
relationship with the government.” Hamlet v. United States, 63 F.3d 1097, 1101 (Fed.
Cir.) (quoting Chu v. United States, 773 F.2d 1226, 1229 (Fed. Cir. 1985)), fig denied
fl e_n m suggestion declined (Fed. Cir. 1995), _ce_rt. denied, 517 U.S. 1155 (1996);
fl alfi Doe v. United States, 513 F.3d 1348, 1355 (Fed. Cir. 2008) (“To the extent that
the appellants seek to enforce their employment rights under the FLSA or Title 5
through a breach of contract claim, the Court of Federal Claims correctly dismissed that
claim for lack of subject matter jurisdiction because, as federal employees, the
appellants ‘derive the benefits and emoluments of their positions from appointment
rather than from any contractual or quasi-contractual relationship with the government.”’
(quoting Chu v. United States, 773 F.2d at 1229)); Adams v. United States, 391 F.3d
1212, 1221 (Fed. Cir. 2004) (“Like all federal employees, Appellants served by
appointment. The terms of their employment and compensation, consequently, were
governed exclusively by statute, not contract”), c_e_rL denied, 546 U.S. 811 (2005);
Collier v. United States, 379 F.3d 1330, 1332 (Fed. Cir. 2004) (“As an appointed
employee, Mr. Collier did not have an employment contract with the government, and
did not acquire such a contract through his job description or performance plan”); Kania
v. United States, 227 Ct. Cl. 458, 464—65, 650 F.2d 264, 268 (“Thus it has long been
held that the rights of civilian and military public employees against the government do
not turn on contract doctrines but are matters of legal status even where compacts are
made”), cert. denied, 454 U.S. 895 (1981).
Likewise, judges of this court have frequently indicated that, “it is presumed that
‘absent specific legislation, federal employees derive the benefits and emoluments of
their positions from appointment rather than from any contractual or quasi-contractual
relationship with the government."’ Charnetski v. United States, 111 Fed. Cl. 185, 188
(2013) (quoting Chu v. United States, 773 F.2d at 1229); E aLsg Piper v. United
States, 90 Fed. Cl. 498, 503 (2009), a_ff’g, 374 F. App’x 957 (Fed. Cir. 2010), in.
denied, 131 S. Ct. 936 (2011); Anderson v. United States, 64 Fed. Cl. 759, 762 (2005)
(“If the plaintiffs are appointed employees, with no contractual aspects to their
employment relationship, their case must be dismissed for lack of subject matter
jurisdiction”); Calvin v. United States, 63 Fed. Cl. 468, 472 (2005) (“In other words,
there is a ‘presumption that federal employees hold their positions pursuant to
appointment[ ] rather than by contract.” (quoting Collier v. United States, 56 Fed. Cl.
354, 357 (2003), m, 379 F.3d 1330 (Fed. Cir. 2004))) (alteration in Calvin v. United
States); Berg v. United States, 27 Fed. Cl. 96, 100 (1992) (“The contract liability
enforceable under the Tucker Act does not extend to every agreement, understanding,
or compact entered into by the Government. It is well established that the rights of
civilian and military public employees against the Government do not turn on contract
doctrines, but are matters of legal status") (citations omitted); Darden v. United States,
18 Cl. Ct. 855, 859 (1989) (finding that the most that can be said about plaintiff's job
description as a Grade 5 personnel clerk “is that plaintiff was apprised of her
13
forthcoming responsibilities and the salary to which she was entitled for the
performance of those duties. It may very well have created certain procedural rights, but
under no circumstance may it be viewed as giving rise to a contractual relationship
sufficient to create jurisdiction under the Tucker Act.”).
The Federal Circuit summarized the status of a federal employee who holds an
appointment as follows:
federal workers sen/e by appointment, and their rights are therefore a
matter of legal status even where compacts are made. In other words,
their entitlement to pay and benefits must be determined by reference to
the statutes and regulations governing [compensation], rather than to
ordinary contract principles. Though a distinction between appointment
and contact may sound dissonant in a regime accustomed to the principle
that the employment relationship has its ultimate basis in contract, the
distinction nevertheless prevails in government service. Applying these
doctrines, courts have consistently refused to give effect to government-
fostered expectations that, had they arisen in the private sector, might well
have formed the basis for a contract or an estoppel. These cases have
involved, inter alia, promises of appointment to a particular grade or step
level, promises of promotion upon satisfaction of certain conditions,
promises of extra compensation in exchange for extra services, and
promises of other employment benefits.
Adams v. United States, 391 F.3d at 1221 (quoting Kizas v. Webster, 707 F.2d 524, 535
(DC Cir. 1983), cert. denied, 464 US. 1042 (1984)) (alteration in Adams v. United
States).
A federal employee’s “relationship with the Government cannot be
simultaneously governed by both an appointment and a contract.” Charnetski v. United
States, 111 Fed. Cl. at 188 (quoting Collier v. United States, 56 Fed. Cl. at 356); fi
a_lsg Piper v. United States, 90 Fed. Cl. at 503; Calvin v. United States, 63 Fed. Cl. at
472 (“While the Supreme Court has not explicitly held that employment by appointment
and by contract are mutually exclusive, its reasoning implies such a principle, and
courts have interpreted |Army and Air Force Exchange Serv. v.] Sheehan[, 456 US.
728 (1982)] and like precedents to require mutual exclusivity”). In Anderson v. United
States, plaintiffs argued “that at least some aspects of their employment are governed
by contract, and they assert that they can simultaneously be party to both types of
relationships.” Anderson v. United States, 64 Fed Cl. at 762. (emphasis in original). The
Anderson court, however, rejected this argument, finding that “[t]his proposition has
been repeatedly rejected both by the Federal Circuit and the Court of Federal Claims."
Anderson v. United States, 64 Fed. Cl. at 762—63. Ultimately, the Anderson court held,
therefore, that “[t]he law is clear on this point: the plaintiffs cannot be both government
employees and contractual employees; the two are mutually exclusive.” Anderson v.
United States, 64 Fed. Cl. at 762—63.
14
Moreover, “a presumption exists that federal employees serve by appointment,
not by contract.” Anderson v. United States, 64 Fed. Cl. at 762; E ali Chu v. United
States, 773 F.2d at 1229 (“[A]bsent specific legislation, federal employees derive the
benefits and emoluments of their positions from appointment rather than from any
contractual or quasi-contractual relationship with the government”); Calvin v. United
States, 63 Fed. Cl. at 472 (“In other words, there is a ‘presumption that federal
employees hold their positions pursuant to appointment[ ] rather than by contract.”
(quoting Collier v. United States, 56 Fed. Cl. at 357)) (alteration in Calvin v. United
States). In other words, if plaintiff’s claim is based on a breach of contract theory and his
“employment was by ‘appointment,’ a breach of contract action against the government
would be precluded.” Hamlet v. United States, 63 F.3d at 1101 (citations omitted); se_e
@ Piper v. United States, 90 Fed. Cl. at 503; Calvin v. United States, 63 Fed. Cl. at
473.
Although a contract between the government and an individual employee is
possible, it must be specifically spelled out as a contract by a person having authority to
enter into a contract. ,S_e_e Lama v. UnitedStates, 227 Ct. Cl. at 465, 650 F.2d at 268;
E w United States v. Hopkins, 427 US. 123, 128—30 (1976); Walton v. United
States, 213 Ct. Cl. 755, 756 (1977). As a general proposition:
[T]he law requires that a Government agent who purports to enter into or
ratify a contractual agreement that is to bind the United States have actual
authority to do so. fl Trauma Serv. Group v. United States, 104 F.3d
1321, 1325 (Fed. Cir. 1997). The corollary is that any party entering into
an agreement with the Government accepts the risk of correctly
ascertaining the authority of the agents who purport to act for the
Government . . . .
Monarch Assurance P.L.C. v. United States, 244 F.3d 1356, 1360 (Fed. Cir.), reh’g m
reh’g fl banc denied (Fed. Cir. 2001).
The key issue in the present case is whether Mr. Harrison’s employment was
governed by appointment or by contract. When determining whether a government
employee is serving by contract or appointment, the court looks to the relevant
statutory language and implementing regulations, as well as to the hiring documents.
E Hamlet v. United States, 63 F.3d at 1101; Charnetski v. United States, 111 Fed. Cl.
at 188; Piper v. United States, 90 Fed. Cl. at 503; Calvin v. United States, 63 Fed. Cl. at
472. In Calvin v. United States, the Transportation Security Administration gave written
offers of conditional employment to the plaintiffs which contained salaries and positions.
Calvin v. United States, 63 Fed. Cl. at 470—71. The Calvin plaintiffs brought a breach of
contract claim after failing to receive the listed salaries and positions. 53 i_d_. The court
looked to the applicable statute and held that it allowed plaintiffs’ employment to be
governed either by appointment or contract. _S_e§ id_. at 472. The Calvin court then turned
to the hiring documents, which included an Office of Personnel Management Standard
Notification of Personnel Action Form, SF-50, and an “Appointment Affidavit.” E at 473.
The Calvin court held, in light of this evidence, and “the principle that ‘federal employees
15
do not have contractual relationships with the government, barring an explicit
agreement to the contrary executed by a federal officer who has authority to contract,’
Darden v. United Stags; 18 Cl. Ct. 855, 859 (1989), plaintiffs are appointees and their
claims of breach of employment contract are precluded.” Calvin v. United States, 63
Fed. Cl. at 473.
In the case currently before the court, plaintiff has failed to demonstrate that he
served by contract, and not by appointment. S_ee_ Anderson v. United States, 64 Fed. CI.
at 762. In fact, the regulatory language and relevant hiring documents indicate that
plaintiff’s employment was by appointment, and not by contract. The PMF Program
operates under the auspices of the Pathways Program. The Pathways Program was
created by Executive Order 13562 on December 27, 2010 and is regulated by the Office
of Personnel Management (OPM). Section 362 of Title 5 of the CFR elaborates on the
terms of the Pathways Program, se_e 5 C.F.R. § 362 (2013), and CFR sections 362.401
through 362.409 specifically govern the PMF Program, including the administration of
the program, and the evaluation, selection, and termination of its participants. fl
generally, 5 C.F.R. §§ 362.401—409 (2013). The regulatory language establishes that
Presidential Management Fellows, such as plaintiff, are employed by appointment.
Section 362.401 defines a “Presidential Management Fellow (PMF) or Fe/IOW’ as “an
individual appointed, at the GS—9, GS—11, or 68—12 level (or equivalent under a non-
GS pay and classification system such as the Federal Wage System), in the excepted
service under §213.3402(c) of this chapter.” 5 C.F.R. § 362.401 (emphasis in original).
Indeed, section 362.404(a)(2) mandates that “[a]n agency must appoint a PMF using
the excepted service appointing authority provided by §213.3402(c) of this chapter.” 5
C.F.R. § 362.404(a)(2). Section 213.3402(c) of Title 5 of the CFR also provides that, for
positions in the PMF Program:
Appointments under this authority may not exceed 2 years except as
provided in subpart D of part 362 of this chapter. Agencies may make
initial appointments of Fellows at the GS—09, GS—11, or 68—12 level (or
equivalent under another pay and classification system such as the FWS
[Federal Wage System]), depending on the candidates’ qualifications and
the positions’ requirements. Appointments must be made in accordance
with the provisions of subpart D of part 362 of this chapter.
5 CFR § 213.3402(c) (2013). The court notes the repeated use of the word
“appointment” in the above quotations from the applicable regulations.
Even the documents that plaintiff submitted to the court further document and
establish that plaintiff’s employment was by appointment, not contract. In plaintiff's own
filing introducing documents for submission to this court, plaintiff references that his
filing includes the “actual documents that the Plaintiff signed on July 1, 2013 upon his
appointment to the federal service.” Moreover, the documents also are replete with
references to the PMF position as an appointment. For instance, the PMF Program
website references the position as a “two-year appointment.” The letter from Ms. Wyche
of the SBA references the position as an “excepted service position," and explains that
16
“[y]ou must provide proof of citizenship in order to be appointed to this position,” and
“[f]ailure to provide proof of citizenship will result in a delay in your appointment.” The
Wyche letter concludes by providing plaintiff the SBA contact information “[i]f you have
any questions concerning your appointment” and by offering plaintiff “[b]est wishes in
your new appointment.” The letter from the SBA’s Ms. Bean, which plaintiff indicates he
received and appears to have signed, explicitly states that the position is by
appointment: “The Presidential Management Fellows position is an excepted service
appointment.” (emphasis in original). The Bean letter explained that “[u]pon entrance on
duty, your appointment will be subject to the successfully [sic] completion of a two—year
probationary period . . . [,]” and “[u]pon your acceptance of this offer, an effective date of
your appointment will be established.” The “PRESIDENTIAL MANAGEMENT
FELLOWS PROGRAM Guide for Agencies” described at length instructions for
agencies regarding appointing PMF Fellows, including the entirety of Chapter 4, titled
“AGENCY SELECTION AND APPOINTMENT,” which explained, in depth, instructions
for “Appointment Eligibility,” “Application of Hiring Preferences,” “Appointing
Fellows,” “Hiring Incentives,” “Appointment mflsions and Defgrrals,” and
“Recording the Appointment,” under the regulations governing the PMF Program at 5
C.F.R. § 362. (all emphasis and capitalization in original). The “Pathways Programs
Memorandum of Understanding” between OPM and SBA provided that “Section
362.103 of 5 Code of Federal Regulations (CFR) authorized agencies to make
appointments to positions placed in the excepted sen/ice, pursuant to the Pathways
Programs.” Moreover, the Memorandum of Understanding instructed that, regarding
“Extension of a Recent Graduates or Presidential Management Fellows Program
Appointment (PMF)” (emphasis in original), “Appointments for the SBA Pathways
Recent Graduates Program are one year and for PMFs, two years. SBA acknowledges
that circumstances may arise that impact the appointment period requirement.”
In addition, plaintiff’s Standard Form 50, “NOTIFICATION OF PERSONNEL
ACTION,” (capitalization in original), effective July 1, 2013, and issued by the SBA upon
plaintiff’s hiring, also demonstrates that the plaintiff’s employment was by appointment.
Plaintiff's Standard Form 50 upon hiring indicated that he was appointed to the
excepted service, that his appointment was intended to continue for two years, but that
“IF PERFORMANCE IS NOT SATISFACTORY OR YOU FAIL TO SATISFACTORILY
COMPLETE PROGRAM, EMPLOYMENT WILL BE TERMINATED. APPOINTMENT IS
SUBJECT TO COMPLETION OF ONE YEAR TRIAL PERIOD BEGINNING 07/01/13.”
(capitalization in original). Moreover, as further stated in the Standard Form 50 for
plaintiff’s hiring, it appears plaintiff executed an appointment affidavit on 7/1/2013. E
Piper v. United States, 90 Fed. Cl. at 505 (“[T]he language of the SF—50 [Standard
Form 50] explicitly reflects the appointive nature of plaintiff’s employment”); Calvin v.
United States, 63 Fed. Cl. at 473 (The Standard Form 50 “has been considered one ‘of
the usual indicia of civil service status.” (quoting Horner v. Acosta, 803 F.2d 687, 694
(Fed. Cir. 1986)). Finally, the June 11, 2014 termination letter also references plaintiff’s
employment as an appointment and provides: “On July 1, 2013, you received an
Excepted Service appointment as a Veterans Affairs Specialist, GS-1101-11, step 1, in
the US. Small Business Administration, Office of Veterans Affairs. Your appointment
17
was subject to the successful completion of a two-year trial period beginning July 1,
2013.”
Plaintiff alleges in his response to the court’s request for supporting documents
that he had not seen the Standard Form 50 when he was hired, titled Notification of
Personnel Action. Plaintiff’s claim, however, even if correct, does not render the
Standard Form 50 invalid. The court finds persuasive the reasoning in Piper v. United
States, in which a judge of this court found:
According to the procedures adopted by the OPM, agencies are required
to provide newly hired employees with a copy of the SF—50 reflecting their
appointment. US. Office of Personnel Mgmt., Guide to Processing
Personnel Actions §§ 1—3(b)(1), 4—7 (2009), http://www.opm.gov/feddata
/gppa/gppa.asp. However, as the United States Court of Appeals for the
Federal Circuit noted in Hardy v. Merit Systems Protection Board, an
SF—50 “is merely an administrative record of the accomplished action.” 13
F.3d 1571, 1575 (Fed. Cir. 1994). Thus, the issuance and receipt of an
SF—50 is not the linchpin to federal employment. See Grigsby v. US.
Dep’t of Commerce, 729 F.2d 772, 775 (Fed. Cir. 1984) (noting that “while
an employee’s appointment cannot exist without execution of the
appropriate appointment form,” the execution of such a form is not “a
controlling or sufficient element of the appointment”). In the present case,
assuming plaintiff is correct that he did not receive the appointive SF—50,
the facts demonstrate that the TSA’s failure to provide plaintiff with the
form did not preclude plaintiff from beginning work or receiving pay.
Therefore, it is logical to presume that the TSA actually issued the SF—50,
even if it did not provide a copy of it to plaintiff. Cf. U.S. Postal Serv. v.
Gregory, 534 US. 1, 10, 122 S. Ct. 431, 151 L. Ed. 2d 323 (2001) (noting
that “a presumption of regularity attaches to the actions of Government
agencies”). Accordingly, the fact that plaintiff did not receive a copy of the
SF—50 does not render the SF—50 invalid.
Piper v. United States, 90 Fed. Cl. at 507. Similarly, Mr. Harrison began and continued
to work at and accept pay from the SBA for the length of his employment, until
terminated.
In his response to defendant’s motion to dismiss, plaintiff argues that “the agency
is required by 5 CFR § 362.106 to ‘execute a written Participant Agreement with each
Pathways Participant that clearly identifies expectations,” (quoting 5 CFR. § 362.106
(2013)), and this Participant Agreement creates an implied-in-fact, if not an express,
contract. Although neither defendant nor plaintiff submitted the actual Participant
Agreement to the court, plaintiff alleges he signed such an agreement with the SBA. As
noted above, plaintiff instead submitted a generic Participant Agreement, pulled from
the PMF website, and argues that the language and provisions “should be substantially
similar to the document that was executed by the Plaintiff and his supervisor.” Upon
review, the court finds that the language of the generic Participant Agreement actually
18
further supports the appointive nature of plaintiff’s employment. The document explicitly
references and cites to the regulations governing the PMF Program, explaining for
instance that “[o]ne of the regulatory requirements is for a Pathways participant to enter
into a Participant Agreement with the hiring agency" per section 362.106 and that “[t]his
agreement fulfills the regulatory requirements.”7 The generic Participant Agreement also
explicitly refers to appointment in numerous places, including referencing “the
appointing agency,” indicating that “[u]pon appointment, the Fellow should work with
their Supervisor on identifying assignment of a Mentor,” and requesting the “Appointee’s
Full Name,” “Appointing Agency/Sub-Agency,” and “Appointment Date(s).” (emphasis
in original). The Participant Agreement also provides one section for the “appointing
agency” to enter any additional agency requirements for a participant’s eligibility for
conversion to a term or permanent position and another section for “Other
Program\Appointment Requirements (if any),” as well as requests signatures for the
Fellow to acknowledge “that as a condition of employment, a Fellow’s appointment
expires at the end of the 2-year fellowship.” (emphasis in original). Thus, the language
of the Participant Agreement, not only fails to rebut the presumption that plaintiff was
“appointed to” his position, but actually further supports the court’s conclusion that the
plaintiff’s employment was by appointment, not by contract. SQ Hamlet v. United
States, 63 F.3d at 1102 (“Nothing in the record rebuts the presumption that a federal
employee is employed by appointment and not by contract or quasi-contract").
Similarly, nothing in the record supports plaintiff’s allegations that an express, implied-
in-fact, or option contract came into existence regarding his employment, as opposed to
his appointment as a Presidential Management Fellow.
Moreover, even if plaintiff’s employment could be considered contractual in
nature, which it was not, this court would still lack jurisdiction over plaintiff’s breach of
contract claims. To have privity of contract with the United States government, and,
therefore, invoke the jurisdiction of the United States Court of Federal Claims for a
breach of contract claim, plaintiff “must show that either an express or implied-in-fact
contract underlies [the] claim.” Trauma Serv. Grp. v. United States, 104 F.3d at 1325.
“For there to be an express contract, the parties must have intended to be bound and
must have expressed their intention in a manner capable of understanding. A definite
offer and an unconditional acceptance must be established.” Russell Corp. v. United
States, 210 Ct. Cl. 596, 606, 537 F.2d 474, 481 (1976), in. denied, 429 US. 1073
(1977). lmplied-in-fact contracts are agreements ““‘founded upon a meeting of the
minds, which, although not embodied in an express contract, is inferred, as a fact, from
conduct of the parties showing, in the light of the surrounding circumstances, their tacit
understanding.""’ Trauma Serv. Grp. v. United States, 104 F.3d at 1325 (quoting
Hercules Inc. v. United States, 516 US. 417, 424 (1996) (quoting Balt. & Ohio R.R. Co.
v. United States, 261 US. 592, 597 (1923))); fl {3159 Kam-Almaz v. United States, 682
F.3d 1364, 1368 (Fed. Cir. 2012); Bank of Guam v. United States, 578 F.3d 1318, 1329
(Fed. Cir), fig flth’g e_n banc denied (Fed. Cir. 2009), c_eg denied, 561 US. 1006
(2010) (citing Trauma Serv. Grp. v. United States, 104 F.3d at 1326); Bay View. lnc. v.
United States, 278 F.3d 1259, 1265—66 (Fed. Cir. 2001), reh’g fig reh’g fl banc
'7 In the regulations, a “Pathways Participant” is defined as “any individual appointed
under a Pathways Program." 5 C.F.R. § 362.102 (2013) (emphasis in original).
19
denied, 285 F.3d 1035 (Fed. Cir.), gr; denied, 537 US. 826 (2002); Westlands Water
Dist. v. Un_ited States, 109 Fed. CI. 177, 203 (2013); Peninsula Grp. Capital Corp. v..
United States, 93 Fed. CI. 720, 728 (2010) (citing Balt. & Ohio R.R. Co. v. Uhited,
States, 261 US. at 597), appeal dismissed, 454 F. App’x 900 (Fed. Cir. 2011); Russell
Corp. v. United States, 210 Ct. CI. at 609, 537 F.2d at 482. Such an agreement will not
be implied “unless the meeting of minds was indicated by some intelligible conduct, act
or sign.” Balt. & Ohio R.R. Co. v. United States, 261 US. at 598; slew Russell Corp.
__v. United States, 210 Ct. CI. at 609, 537 F.2d at 48..
Plaintiff’s complaint fails to show that “the meeting of minds was indicated by
some intelligible conduct, act or sign” as to the length of the fellowship for the entirety of
a two year or longer period. E Balt. & Ohio R.R. Co. v. United States, 261 US. at
598. To the contrary, the regulations and the hiring documents that plaintiff submitted to
the court reflect that the position was clearly for a trial period and could be terminated
by the agency. Nothing in the regulations mandates or suggests that plaintiff’s
appointment was required to continue for a specific duration. Section 362.105(g) of Title
5 of the CFR, covering all Pathway Programs, including the PMF program, states
regarding the length of appointments that “[e]xcept as provided in subpart B, Recent
Graduate and PMF appointments under this authority may not exceed 2 years plus any
agency-approved extension of up to 120 days.” 5 C.F.R. § 362.105(g) (2013). This
section sets a maximum, and does not guarantee a full two year appointment.
Regarding termination, the regulations state “[a]n agency may terminate a Pathways
Participant for reasons including misconduct, poor performance, or suitability under the
provisions of this chapter.” 5 C.F.R. § 362.105(h). Likewise, the specific PMF Program
regulations at subpart D of part 362 provide that “[a]n agency may make 2-year
appointments to the PMF Program,” and the “agency must appoint a PMF using the
excepted service appointing authority provided by § 213.3402(c) of this chapter." 5
C.F.R. § 362.404(a)(1)—(2). Section 213.3402(c) states that, for appointments under the
PMF program, “[a]ppointments under this authority may not exceed 2 years except as
provided in subpart D of part 362 of this chapter,” and “[a]ppointments must be made in
accordance with the provisions of subpart D of part 362 of this chapter.” 5 C.F.R. §
213.3402(c). The PMF Program regulations also state that “[t]he duration of the PMF
appointment in the excepted service is a trial period,” 5 C.F.R.
§ 362.404(d), and that “[a]n agency may terminate a Fellow for reasons related to
misconduct, poor performance, or suitability,” 5 C.F.R. § 362.408(a)(1).
Furthermore, the hiring documents expressly reflect that the position was for a
trial period and could be terminated by the agency. The Standard Form 50 upon
plaintiff’s hiring provided that his appointment was intended to continue for two years,
but that “IF PERFORMANCE IS NOT SATISFACTORY OR YOU FAIL TO
SATISFACTORILY COMPLETE PROGRAM, EMPLOYMENT WILL BE TERMINATED.
APPOINTMENT IS SUBJECT TO COMPLETION OF ONE YEAR TRIAL PERIOD
BEGINNING 07/01/13." (capitalization in original). The June 11, 2014 termination letter
summarized and provided, in relevant part:
20
Wyche an email on June 20, 2013, with the subject line “Re: SBA Offer Letter (PMF),”
that indicates: “Here is the acceptance letter.”
The record reflects that, thereafter, the SBA issued a United States Office of
Personnel Management (OPM) Standard Form 50, Notification of Personnel Action
(Standard Form 50) on July 1, 2013, with respect to plaintiff’s appointment to his
position at the SBA. This Standard Form 50 provided that Mr. Harrison was appointed to
“EXC APPT" under the legal authority of “SCH [Schedule] D, 213.3402(C).”4 The
remarks in this Standard Form 50 indicated “APPOINTMENT AFFIDAVIT EXECUTED:
7/1/2013” and that:
THIS APPOINTMENT IS INTENDED TO CONTINUE FOR TWO YEARS.
UPON SATISFACTORY COMPLETION OF 2—YEAR TRIAL PERIOD,
YOU WILL BE NONCOMPETITIVELY CONVERTED TO CAREER-
CONDITIONAL OR CAREER APPOINTMENT. IF PERFORMANCE IS
NOT SATISFACTORY OR YOU FAIL TO SATISFACTORILY COMPLETE
PROGRAM, EMPLOYMENT WILL BE TERMINATED. APPOINTMENT IS
SUBJECT TO COMPLETION OF ONE YEAR TRIAL PERIOD
BEGINNING 07/01/13.
(all capitalization in original). Regarding this Standard Form 50, plaintiff asserts in his
response to the court’s order to produce supporting documents that plaintiff had not
previously seen this document before it was produced by the agency in the proceedings
before this court.
Plaintiff alleges in his complaint that the PMF Program is:
not a typical federal employment arrangement, but it is more of a
“bargained for exchange” where an agency secures access to the best
and brightest graduate / professional degree candidates who would not
othenNise consider federal service (the top two-tenths of one percent of
the hiring pool) in return for various inducements.
4 PMF Fellows are appointed pursuant to section 213.3402(c) of Title 5 of the CFR,
which provides that, for PMF Program positions:
Appointments under this authority may not exceed 2 years except as
provided in subpart D of part 362 of this chapter. Agencies may make
initial appointments of Fellows at the GS—09, GS—11, or GS—12 [General
Schedule] level (or equivalent under another pay and classification system
such as the FWS [Federal Wage System]), depending on the candidates’
qualifications and the positions’ requirements. Appointments must be
made in accordance with the provisions of subpart D of part 362 of this
chapter.
5 C.F.R § 213.3402(c) (2013).
Your appointment was subject to the successful completion of a two-year
trial period beginning July 1, 2013. The trial period is the final step in the
examination process of an employee. It is the time in which an employee
has the opportunity to demonstrate, through actual performance and/or
conduct, their fitness or qualifications for continued employment.
The June 11, 2014 letter continues:
During this trial period, it has been determined that your continued
employment does not promote the efficiency of the service. Therefore, in
accordance with Title 5 of the Code of Federal Regulations §315.804, you
are hereby notified that your employment with the US. Small Business
Administration (SBA) is being terminated effective close of business
Friday, June 13, 2014 for unacceptable conduct.
(emphasis in original).
The record also reflects a Standard Form 52 “REQUEST FOR PERSONNEL
ACTION," which requested “TERMINATION” of plaintiff with effective date of June 13,
2014. (all capitalization in original). The Standard Form 52 indicated the reason as
“Terminated during probationary period,” and cited the legal authority for termination as
“Reg 315.804 Mix,” 5 C.F.R. § 315.804 (2014). In addition, the record contains a
Standard Form 50, titled “NOTIFICATION OF PERSONNEL ACTION," which similarly
indicated that the “Nature of Action” is “TERM [Termination] DURING PROB/TRIAL
PERIOD" with effective date of June 13, 2014 and similarly cited “REG 315.804 MIX,”
5 C.F.R. § 315.804, as the relevant legal authority. (all capitalization in original).
The June 11, 2014 letter, the Standard Form 52 and the Standard Form 50 in the
record regarding plaintiff’s termination cite to section 315.804 of Title 5 of the CFR,
which covers “Termination of probationers for unsatisfactory performance or
conduct,” (emphasis in original), and provides:
(a) Subject to § 315.803(b), when an agency decides to terminate an
employee serving a probationary or trial period because his work
performance or conduct during this period fails to demonstrate his fitness
or his qualifications for continued employment, it shall terminate his
services by notifying him in writing as to why he is being separated and
the effective date of the action. The information in the notice as to why the
employee is being terminated shall, as a minimum, consist of the agency’s
conclusions as to the inadequacies of his performance or conduct.
(b) Probation ends when the employee completes his or her scheduled
tour of duty on the day before the anniversary date of the employee’s
appointment. For example when the last workday is a Friday and the
anniversary date is the following Monday, the probationer must be
separated before the end of the tour of duty on Friday since Friday would
21
be the last day the employee actually has to demonstrate fitness for
further employment.
5 C.F.R. § 315.804 (2014).
As discussed above, a federal employee’s “relationship with the Government
cannot be simultaneously governed by both an appointment and a contract.” Charnetski
v. United States, 111 Fed. CI. at 188 (quoting Collier v. United States, 56 Fed. CI. at
356); see @ Piper v. United States, 90 Fed. CI. at 503; Calvin v. United States, 63
Fed. CI. at 472, 474. The applicable regulations and plaintiff’s hiring documents make
clear that the nature of Mr. Harrison’s employment was by appointment, not by contract.
Because plaintiff’s employment was by appointment, and not by contract, the court does
not have subject-matter jurisdiction over plaintiff’s claims of breach of an express,
implied-in—fact, or option contract.
Plaintiff also alleges in his complaint that “[t]he Defendant’s termination of the
Plaintiff to avoid providing the other inducements that he was offered as part of the two-
year program constitutes a breach of the implied covenant of good faith and fair
dealing.” Because plaintiff’s employment was by appointment, no contract came into
existence, and plaintiff’s breach of the implied covenant of good faith and fair dealing
claim also must fail. E Scott Timber Co. v. United States, 692 F.3d 1365, 1372 (Fed.
Cir. 2012) (“‘[B]ecause the existence of th[e] covenant [of good faith and fair dealing]
depends on the existence of an underlying contractual relationship, there is no claim for
a breach of this covenant where a valid contract has not yet been formed.” (quoting
Mountain Highlands, LLC v. Hendricks, 616 F.3d 1167, 1171 (10th Cir. 2010))), mg
w r_eh_’g fl banc denied, 499 F. App’x 973 (Fed. Cir. 2013) (alterations added); fl
a_|§<_) Night Vision Corp. v. United States, 68 Fed. CI. 368, 389 (2005) (“Clearly, the case
has at its predicate the existence of a valid, mutually assented-to contract, for which a
covenant arises that proscribes the government from interfering with reasonable
expectations flowing from that particular contract”), m, 469 F.3d 1369 (Fed. Cir.
2006), in. denied, 550 US. 934 (2007).
Finally, plaintiff has requested “a hearing so that the Court may hear oral
arguments on the motion prior to rendering a decision.” Trial judges are given broad
discretion to control and manage their dockets, including with respect to procedural
matters. Si, 1;, Amado v. Microsoft Corp, 517 F.3d 1353, 1358 (Fed. Cir. 2008)
(citing Nolan v. de Baca, 603 F.2d 810, 812 (10th Cir. 1979), fig denied, 446 US. 956
(1980)); Nuttiwwa N. .tr'iti .e- 151-35 .8 .8: Feed: trig" reéigfl'fs (Bit-43H if. inf?! Trade
Comm’n, 224 F.3d 1356, 1360 (Fed. Cir. 2000). “[T]he parties’ right to be heard may be
fulfilled by the court’s review of the briefs and supporting affidavits and materials
submitted to the court.” Geear v. Boulder Cmty. Hosp., 844 F.2d 764, 766 (10th Cir.),
in. denied, 488 US. 927 (1988); g m Toguero v. |.N.S., 956 F.2d 193, 196 n.4
(9th Cir. 1992) (“It is well-settled that oral argument is not necessary to satisfy due
process"); Lake at Las Vegas Investors Grp. v. Pac. Malibu Dev. Corp, 933 F.2d 724,
729 (9th Cir.) (affirming the trial court and discussing the court’s interpretation of a local
District Court rule, finding no prejudicial error based on the denial of oral argument in a
22
summary judgment motion because the party “had the opportunity to apprise the district
court of any arguments it believed supported its position . . . ."), Lefig denied (9th Cir.
1991), E denied, 503 U.S. 920 (1992). Therefore, a trial court is not required to hold
a hearing, but may do so if the court believes the hearing would assist the court to
resolve the case. The decision of whether or not to hold oral argument is made in each
case, based on the filings and issues raised in that particular case. In the above
captioned case, the court does not believe holding oral argument on the defendant’s
motion to dismiss is necessary to help the court to reach its decision. As such, the court
denies plaintiff’s request for a hearing.
CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss for lack of subject
matter jurisdiction is, hereby, GRANTED. Plaintiff’s complaint is DISMISSED, without
prejudice. The Clerk of the Court shall enter JUDGMENT consistent with this opinion.
IT IS SO ORDERED.
MARIAN BLANK HORN
Judge
23
Plaintiff also states:
Under the program, a Presidential Management Fellow essentially agrees
to work for an agency as a paid intern for about a year and the agency
agrees to bring the fellow in at a higher grade, to provide extensive
education and training, and to pay for one or two other internships with
different offices / agencies in the federal government during the second
year — after which the Presidential Management Fellow is eligible for a
non-competitive conversion to a permanent position, usually at one of the
agencies he or she has worked for.
Furthermore, in his complaint, plaintiff outlines the “inducements” he alleges were
offered to him as part of the PMF Program, including:
(a) Initial employment in a 68-11 position on a career ladder track with
eligibility for promotion to 68-12 at the end of one year and eligibility for
conversion to a permanent GS-13 position at the end of two years. (higher
grade)
(b) Eighty hours of formal classroom training during each year of the
fellowship. (education and training)
(0) At least one external developmental assignment of 4 to 6 months and
“a reasonable amount of time during work hours for other PMF activities,
as appropriate, such as rotational assignments of 1 to 6 months in other
occupations or functional areas.” (one or two other internships with
different offices / agencies)
(e) [sic] 10 paid federal holidays, 6 hours of paid annual leave and 4 hours
of paid sick leave each pay period, and 15 days of paid military leave each
year
Plaintiff also asserts that throughout his fellowship, he
raised his concern that he was not being given the opportunity to do the
developmental and rotational assignments and the formal classroom
training, but he was repeatedly reassured by both, his office and human
resources personnel, that the agency would come through during the
second year of the fellowship and it was normal to “front-load” the
fellowship with work in the assigned office.
Plaintiff states that he “even raised the concern that he might be fired after performing
all of the work and he was reassured by the Associate Administrator, ‘Do you think l
would let that happen.’” Plaintiff contends that “[a]t his office’s request, the Plaintiff also
traveled extensively and deferred taking any leave or comp time during the first year —
accruing about 65 hours of comp time and 135 hours of leave.” Plaintiff alleges that “[a]s
late as June 10, 2014, the Plaintiff was still being asked by his office to push back the
developmental and rotational assignments and the formal classroom training — to
continue to work for the office through January 1, 2015 because they still couldn’t afford
to lose him yet.”
According to plaintiff, “[o]n June 13, 2014, the office terminated the Plaintiff to
avoid providing the other inducements that he was offered as part of the two-year
program" and, “[a]t the time of his firing, the Plaintiff had 54 weeks remaining on his
fellowship.” Plaintiff asserts that:
The other inducements that the Plaintiff should have received constitute
the 54 weeks remaining on his fellowship:
(a) The Plaintiff had accumulated approximately 65 hours of comp time
and 135 hours of leave. (5 weeks)
(b) The Plaintiff was scheduled to go on about 120 hours of military leave
to fulfill his National Guard obligations on the following week. (3 weeks)
(0) The Plaintiff was still owed 40 hours of formal classroom training during
the first year and he would have required an additional 80 hours of formal
classroom training during the second year. (3 weeks)
(d) The Plaintiff would have been gone for 6 — 8 months for the
developmental and rotational assignments during the second year. (34
weeks)
(e) The Plaintiff would have accumulated 150 hours of leave during the
second year. (4 weeks)
(f) The Plaintiff would have accumulated 120 hours of military leave during
the second year. (3 weeks)
(9) There are 10 federal holidays during the year. (2 weeks)
Among the documents plaintiff submitted to the court was a copy of a United
States OPM Standard Form 52, titled “REQUEST FOR PERSONNEL ACTION,”
(emphasis and capitalization in original), which stated, “Actions Requested,”
“TERMINATION.” (capitalization in original). The document also indicated the reason as
“[t]erminated during probationary period.” A copy of a Standard Form 50, Notification of
Personnel Action, in the record, issued with respect to plaintiff’s termination, provided
that the action was “TERM DURING PROB/TRIAL PERIOD” and cited the legal
authority as “REG 315.804 MIX.”5 (all capitalization in original). In addition, the record
5 Section 315.804 of Title 5 of the CFR covers “Termination of probationers for
unsatisfactow performance or conduct," (emphasis in original), and provides:
(a) Subject to § 315.803(b), when an agency decides to terminate an
employee serving a probationary or trial period because his work
performance or conduct during this period fails to demonstrate his fitness
or his qualifications for continued employment, it shall terminate his
services by notifying him in writing as to why he is being separated and
the effective date of the action. The information in the notice as to why the
employee is being terminated shall, as a minimum, consist of the agency’s
conclusions as to the inadequacies of his performance or conduct.
includes a letter, dated June 11, 2014, from the SBA’s Barbara E. Carson, Deputy
Associate Administrator of the Office of Veterans Business Development, to Mr.
Harrison. The letter provides, in relevant part:
On July 1, 2013, you received an Excepted Service appointment as a
Veterans Affairs Specialist, GS-1101-11, step 1, in the US. Small
Business Administration, Office of Veterans Affairs. Your appointment was
subject to the successful completion of a two-year trial period beginning
July 1, 2013. The trial period is the final step in the examination process of
an employee. It is the time in which an employee has the opportunity to
demonstrate, through actual performance and/or conduct, their fitness or
qualifications for continued employment.
During this trial period, it has been determined that your continued
employment does not promote the efficiency of the service. Therefore, in
accordance with Title 5 of the Code of Federal Regulations §315.804, you
are hereby notified that your employment with the US. Small Business
Administration (SBA) is being terminated effective close of business
Friday, June 13, 2014 for unacceptable conduct.
(emphasis in original). The June 11, 2014 letter informed plaintiff regarding his right to
appeal the termination action and stated:
You have the right to appeal this action to the Merit Systems Protection
Board (MSPB) within 30 calendar days of the effective date of this
termination if you believe that you were terminated for partisan political
reasons or because of your marital status. In addition, you may appeal to
the Board if you believe that the proper procedures for terminating a
probationary employee have not been followed. The procedures for filing
an appeal with MSPB are attached to this letter or/and may be viewed at
www.mspbgov.
Moreover, the June 11, 2014 letter informed plaintiff that:
You have the right to contact an Equal Employment Opportunity counselor
and to file a complaint through the discrimination process within 45 days of
termination if you believe that you are being terminated because of race,
(b) Probation ends when the employee completes his or her scheduled
tour of duty on the day before the anniversary date of the employee’s
appointment. For example when the last workday is a Friday and the
anniversary date is the following Monday, the probationer must be
separated before the end of the tour of duty on Friday since Friday would
be the last day the employee actually has to demonstrate fitness for
further employment.
5 C.F.R. § 315.804 (2014).
color, religion, national origin, disability, age, or in retaliation for your
previous participation in the EEO process.
The June 11, 2014 letter also provided, “[flor further information as to your rights, you
may contact Mr. Stevie Gray, Lead Human Resources Specialist (ER/LR) in the
Workforce Relations Branch, Office of Human Resources Solutions” and provided Mr.
Gray’s contact information. In conclusion, the June 11, 2014 letter instructed: “Please
sign the acknowledgement of receipt below. Your signature does not indicate
agreement with this action; it only represents receipt of this notice on the date signed
with the attached enclosures.” The copy of the June 11, 2014 letter in the record before
the court appears to contain Mr. Harrison’s signature after “Acknowledge [sic] of
Receipt” and, next to his signature, the date “6/11/2014.”
In his complaint in this court, plaintiff alleges that the United States Government
entered into an “implied contract for the duration of the two-year fellowship” based on
“[t]he nature of the Presidential Management Fellows Program, the de facto practices of
the US. Small Business Administration, and the repeated assurances offered by his
office and by the agency’s human resources personnel . . . Plaintiff further alleges that
his “substantial performance during the first year creates an option contract requiring
the US. Small Business Administration to hold open the promise of continued
employment for the remainder of the fellowship.” Plaintiff also claims that the
“Defendant’s termination of the Plaintiff to avoid providing the other inducements that he
was offered as part of the two-year program constitutes a breach of the implied
covenant of good faith and fair dealing.” Finally, plaintiff seeks to rely on the equitable
doctrine of promissory estoppel, arguing
[t]he inducements that the Plaintiff was offered as part of the Presidential
Management Fellows Program and the assurances offered by the US.
Small Business Administration caused the Plaintiff to change his position
substantially to the Defendant’s benefit (triggering promissory estoppel)
and injustice can only be avoided by enforcing the promised inducements
remaining under the fellowship.[6]
Plaintiff requests relief in the form of a “judgment against the Defendant” and
asks that “the Court compels [sic] the US. Small Business Administration to provide
inducements that the Plaintiff was offered as part of the Presidential Management
Fellows Program,” including, in part, to “[r]einstate the Plaintiff in the Presidential
Management Fellows Program for the 54 weeks remaining on his fellowship,” provide
back pay, restore certain compensatory and other time, provide plaintiff with formal
classroom training, and allow plaintiff to set up developmental rotational assignments
with other agencies. Alternatively, plaintiff requests “monetary damages against the
6 From the parties’ filings, it appears that plaintiff has initiated other actions seeking to
resolve his termination and related matters, in addition to filing the above captioned
case in this court. Plaintiff indicates that he “filed a whistleblower complaint with the
Office of Special Counsel” and “also filed a complaint with the Government
Accountability Office for numerous waste, fraud, and abuse issues.”
7
US. Small Business Administration in the amount of $121,764.68 . . . Plaintiff also
requests attorney’s fees, costs, and “all such other relief as the Court deems proper.”
Defendant filed a motion to dismiss plaintiff’s complaint, arguing that, pursuant to
Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC) (2014),
the Court does not possess subject matter jurisdiction to entertain plaintiff’s claims
“[b]ecause there is no evidence of a contract between Mr. Harrison and the
Government.” Defendant contends that plaintiff’s complaint “does not allege the
elements necessary to establish the existence of either an express or implied-in-fact
contract with the United States” and “does not allege any conduct of the parties or
circumstances whatsoever that demonstrate a meeting of the minds with an intent to
contract." According to defendant, “[e]ven assuming the facts as alleged by Mr. Harrison
are true for the purpose of this motion, his claim should fail because he holds his
Federal employment position pursuant to appointment and not pursuant to contract.”
Defendant argues that, if plaintiff was alleging that “the PMF Program, through its
incentives and trial appointment, created a binding contract, his argument is rejected by
this Court’s holding in Federico v. United States, 70 Fed. Cl. 378 (2006)." Therefore,
defendant argues plaintiff is precluded by his federal employee status from bringing a
contract claim related to his employment. Finally, according to defendant, if the court
construes the benefits and expectations set forth by statute and regulation for the PMF
Program as constituting promises sufficient to establish an implied-in-law contract, the
court also does not have jurisdiction over those claims.
Plaintiff filed a response to defendant’s motion to dismiss, in which plaintiff,
apparently trying to refer to this court, “concedes that the Court of Federal Appeals [sic]
apparently has no jurisdiction over implied-in-law contracts and claims for promissory
estoppel and that several of the causes of action listed in the initial complaint may fall
into some of these categories.” Notwithstanding, plaintiff contends that he has
“asserted, more generally, the existence of an implied contract created by the nature of
the Presidential Management Fellows Program, the de facto practices of the US. Small
Business Administration, and the repeated assurances offered by his office and by the
agency’s human resources personnel,” (citations omitted), as well as that he has
“provided evidence of the existence of an implied-in-fact contract (probably even an
express contract) in the attachments to Plaintiff’s Response to Court’s Order to Produce
Supporting Documents.” (emphasis in original). Plaintiff argues he has sufficiently
alleged the existence of an express contract because the agency is required by
regulation to execute a written Participant Agreement, OPM Form 1301 (Participant
Agreement) with each PMF participant that clearly identifies expectations of the
position. In the above captioned case, however, neither the plaintiff nor the defendant
was able to produce for the court a signed PMF Participant Agreement for plaintiff.
Plaintiff offered an unsigned, generic, PMF Participant Agreement pulled from the PMF
Website and indicated “[i]ts provisions should be substantially similar to the document
that was executed by the Plaintiff and his supervisor.” Plaintiff contends that, regardless,
“the boilerplate language of OPM Form 1301 can be construed as an implied-in-fact
contract.” Plaintiff also points to OPM’s website, the letters from the SBA to plaintiff, and
“[t]he conduct of both parties . . . the Plaintiff showing up at the agency and performing
his assigned duties each day, the agency making regular payments every two weeks,
and both parties creating an Individual Development Plan” as evidence of an implied-in-
fact contract between the parties.
DISCUSSION
I“
It is well established that subject-matter jurisdiction, because it involves a
court’s power to hear a case, can never be forfeited or waived.’” Arbaugh v. Y & H
Corp., 546 US. 500, 514 (2006) (quoting United States v. Cotton, 535 US. 625, 630
(2002)). “[F]edera| courts have an independent obligation to ensure that they do not
exceed the scope of their jurisdiction, and therefore they must raise and decide
jurisdictional questions that the parties either overlook or elect not to press.” Henderson
___ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011); fig fig Gonzalez v.
Thaler, 132 S. Ct. 641, 648' (2012) (“When a requirement goes to subject-matter
jurisdiction, courts are obligated to consider sua sponte issues that the parties have
disclaimed or have not presented"); Hertz Corp. v. Friend, 559 US. 77, 94 (2010)
(“Courts have an independent obligation to determine whether subject-matter
jurisdiction exists, even when no party challenges it.” (citing Arbaugh v. Y & H Corp.,
546 US. at 514)); .5: eat I_. Geyices... Inc.- v. (DEA. the, 269 F.3d 1340, 1342 (Fed. Cir.
2001) (“[A] court has a duty to inquire into its jurisdiction to hear and decide a case."
(citing Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed. Cir.
1990))); View Eng’g, Inc. v. Robotic Vision Sys, Inc., 115 F.3d 962, 963 (Fed. Cir.
1997) (“[C]ourts must always look to their jurisdiction, whether the parties raise the
issue or not”). “Objections to a tribunal’s jurisdiction can be raised at any time, even by
a party that once conceded the tribunal’s subject-matter jurisdiction over the
controversy.” Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817, 824 (2013); _sge asp
Arbaugh v. Y & H Corp., 546 US. at 506 (“The objection that a federal court lacks
subject-matter jurisdiction . . . may be raised by a party, or by a court on its own
initiative, at any stage in the litigation, even after trial and the entry ofjudgment.”); Cent.
Pines Land Co. L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed. Cir. 2012) (“An
objection to a court’s subject matter jurisdiction can be raised by any party or the court
at any stage of litigation, including after trial and the entry ofjudgment.” (citing Arbaugh
v. Y & H Corp., 546 US. at 506—07)); Rick’s Mushroom Serv. Inc. v. United States, 521
F.3d 1338, 1346 (Fed. Cir. 2008) (“[A]ny party may challenge, or the court may raise
sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp., 546
US. at 506; Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), Mg m fig
fl banc denied (Fed. Cir. 2004), gem denied, 545 US. 1127 (2005); and Farming,
Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v. United States,
97 Fed. CI. 71, 76, appeal dismissed, 425 F. App’x 902 (Fed. Cir. 2011). In fact,
“[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponte, even
where . . . neither party has raised this issue.” Metabolite Labs, Inc. v. Lab. Corp. of
Am. Holdings, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods., Inc. v. Mead Corp.,
134 F.3d 1481, 1485 (Fed. Cir.), reh’g denied and en banc suggestion declined (Fed.
Cir.), cert. denied, 525 us. 826 (1998)), reh’g—aLd_reh’g g banc denied (Fed. Cir.
2004), cert. granted i_n fill sub. nom Lag. Corp. of Am. Holdin--s-v-..Metabolite Labs...
m, 546 US. 975 (2005), cert. dismissed fi improvidently granted, 548 US. 124'
(2006); sge alfl Avid Identification Sys, Inc. v. Crystal Import Corp., 603 F.3d 967, 971
9
(Fed. Cir.) (“This court must always determine for itself whether it has jurisdiction to
hear the case before it, even when the parties do not raise or contest the issue”), reh’g
m reh’g fl banc denied, 614 F.3d 1330 (Fed. Cir. 2010), cert. denied, 131 S. Ct. 909(2011).
Pursuant to the RCFC and the Federal Rules of Civil Procedure, a plaintiff need
only state in the complaint “a short and plain statement of the grounds for the court’s
jurisdiction,” and “a short and plain statement of the claim showing that the pleader is
entitled to relief.” RCFC 8(a)(1), (2) (2014); Fed. R. Civ. P. 8(a)(1), (2) (2015); fig alfi
Ash-croft v. lgbgj, 556 US. 662, 677—78 (2009) (citing Bell Atl. Corp. v. Twombly, 550
US. 544, 555—57, 570 (2007)). “Determination ofjurisdiction starts with the complaint,
which must be well-pleaded in that it must state the necessary elements of the plaintiff's
claim, independent of any defense that may be interposed.” Holley v. United States, 124
F.3d 1462, 1465 (Fed. Cir.) (citing Franchise Tax Bd. v. Cnstr... Laborers Vacation
Trust, 463 US. 1 (1983)), ih’g denied (Fed. Cir. 1997); E flKlamath Tribe Cla_ims
Comm. v. United States, 97 Fed. Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp.,_
Inc. v. United States, 93 Fed. Cl. 710, 713 (2010). “Conclusory allegations of law and
unwarranted inferences of fact do not suffice to support a claim.” Bradley v. Chiron
Corp, 136 F.3d 1317, 1322 (Fed. Cir. 1998); see alfi McZeal v. Sprint Nextel Corp.,
501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in part)
(quoting C. Wright and A. Miller, Federal Practice and Procedure § 1286 (3d ed. 2004)).
“A plaintiff’s factual allegations must ‘raise a right to relief above the speculative level’
and cross ‘the line from conceivable to plausible.” Three 8 Consulting v. United States,
104 Fed. Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550 US. at 555), m,
562 F. App’x 964 (Fed. Cir.), fig denied (Fed. Cir. 2014), As stated in Ashcroft v.
l_q_b_a;l, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’ 550 US. at 555. Nor does a complaint suffice
if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.” Ashcroft v..
m, 556 US. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 US. at 555). '
When deciding a case based on a lack of subject matter jurisdiction or for failure
to state a claim, this court must assume that all undisputed facts alleged in the
complaint are true and must draw all reasonable inferences in the non-movant’s favor.
fl Erickson v. Pardus, 551 US. 89, 94 (2007) (“In addition, when ruling on a
defendant’s motion to dismiss, a judge must accept as true all of the factual allegations
contained in the complaint.” (citing Bell Atl. Corp. v. Twombly, 550 US. at 555—56
(citing Swierkiewicz v. Sorema N. A., 534 US. 506, 508 n.1 (2002)))); Scheuer v.
Rhodes, 416 US. 232, 236 (1974) ("Moreover, it is well established that, in passing on
a motion to dismiss, whether on the ground of lack ofjurisdiction over the subject matter
or for failure to state a cause of action, the allegations of the complaint should be
construed favorably to the pleader."), abrogated % other grounds by Harlow v.
Fitzgerald, 457 US. 800 (1982), recognized by Davis v. Scherer, 468 US. 183, 190
(1984); United Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327—28 (Fed. Cir. 2006);
Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005); Boise
Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed. Cir.), ih’g _an_d Mg g
5am denied (Fed. Cir. 2002), fl denied, 538 US. 906 (2003). If a defendant or the
10