# Wade v. United States

> United States Court of Federal Claims · February 5, 2018

URL: https://www.frixlaw.com/law-library/cases/4242281

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** February 5, 2018
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Marian Blank Horn
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

ORIGINAL
lfn tbe Wniteb ~tates QCourt of jfeberal QCiaims
No. 17-1007C FILED
Filed: February 5, 2018
FEB - 5 2018
* * * * * * * * * * * * * * * * * ** U.S. COURT OF
TANYA V. WADE,
* FEDERAL CLAIMS
*
Plaintiff, *
* Motion to Dismiss; Reemployed
v. * Annuitant; Employment; Contract;
* Appointment.
UNITED STATES,
*
Defendant. *
*
* * * * ****** * *** ** ***

Tanya V. Wade, QIQ se, Havre de Grace, MD.

Alison S. Vicks, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C. , for defendant. With her were
Lisa L. Donahue, Assistant Director, Commercial Litigation Branch , Department of
Justice, Robert E. Kirschman, Jr. , Director, Commercial Litigation Branch, Department
of Justice, and Chad A. Readier, Acting Assistant Attorney General. Of counsel was
Yolanda McCray Jones, United States Army Litigation Division, Civilian Personnel
Branch , Fort Belvoir, VA.

OPINION

HORN, J.

In the above-captioned case, pro se plaintiff Tanya V. Wade filed a complaint in
this court alleging that the defendant, United States, acting by and through the United
States Army Research Laboratory (ARL), breached an express or implied-in-fact contract
between the United States and plaintiff. Ms. Wade alleges that her agreement with the
ARL "stipulated" that, following her retirement from the ARL, she would return to the ARL
to work as a reemployed annuitant for two years on a part-time basis. According to Ms.
Wade, the "ARL decided to not honor the approved agreement, which ultimately resulted
in a breach of contract." (emphasis in original). Ms. Wade seeks to recover $118,070.00
in monetary damages, which Ms. Wade states "is equivalent to the total amount of money
that was stipulated in the formal agreement, i.e. , the 2-year, part-time, annual salary of
$59,035. dollars [sic]," plus interest.

7016 3010 DODD 430B 3 B4 6
FINDINGS OF FACT

Ms. Wade's most recent duty location, prior to her retirement after thirty-six years
of government service, was at the Weapons and Materials Research Directorate
(WMRD), a Directorate within the ARL, where she was an "Administrative Officer for Dr.
Patrick J. Baker, Director of Weapons and Materials Research .... " Defendant states
that Ms. Wade's position as an administrative officer was classified as a "DJ-0341-03,
Category II" position, which, according to defendant, is the equivalent of a general
schedule grade thirteen (GS-13) position. In the spring of 2015, Ms. Wade states that she
informed her immediate supervisor, the then-Director of WMRD, Dr. Baker, of her intent
to retire "due to my Mother's poor health." During this discussion, Ms. Wade alleges that
Dr. Baker asked plaintiff if she was interested in returning to the ARL after she retired to
work part-time as a reemployed annuitant for two years. 1 Ms. Wade claims that she
informed Dr. Baker that she was interested in working part-time as a reemployed
annuitant, and that Dr. Baker "instructed me to prepare the required documentation (the
reemployed annuitant request) for him to sign and forward to Dr. [Thomas] Russell,
Director of ARL, for approval." The reemployed annuitant request, which Ms. Wade
attached to her complaint, appears to have consisted of the following three documents: a
form titled "Re-employed Annuitant Request," a form titled "REQUEST FOR CIVILIAN
HIRE," and a form titled "EMPLOYMENT OF ANNUITANTS - CHECKLIST FOR
MANAGERS." (capitalization in original).

On May 29, 2015, Dr. Baker initialed Ms. Wade's Request for Civilian Hire form
and signed her Employment of Annuitants Checklist for Managers form. The Request for
Civilian Hire form stated that "Ms. Wade's extensive knowledge and experience make her
a vital asset to the OD, WMRD," and provided that "[i]f approved, Ms. Wade would return
to work for WMRD effective 11 January 2016, as a part-time re-employed annuitant on a
time-limited appointment (NTE 2087 hours/2-years part-time)." The "Position Grade, Cost
and GS Equivalency for Pay Banded Positions" section of the Request for Civilian Hire
form indicated that the request was for a "DJ-0341-03, cat [category] 2; the annual cost
is $59,035. and equivalent to GS-13." The Request for Civilian Hire form also stated that
"WMRD is reviewing the Directorate's current administrative/clerical needs and
developing a plan to address future requirements. WMRD is realigning the WMRD, Office
of the Director's, government positions in order to begin addressing the current shortfalls
and start strategizing future needs." Additionally, the Employment of Annuitants Checklist
for Managers form indicated that Ms. Wade would be "filling [a] critical need of short
duration" and providing "mentorship and oversight on various critical
administrative/clerical matters .... " Thereafter, the documents supporting Ms. Wade's
reemployed annuitant request were forwarded to Dr. Thomas Russell, the then-Director
of the ARL, who, on June 16, 2015, initialed Ms. Wade's Request for Civilian Hire form
and signed Ms. Wade's Re-employed Annuitant Request form. Ms. Wade's Re-employed

1 Department of Defense Instruction Number 1400.25, Volume 300, which governs
employment of federal civilian annuitants by the Department of Defense, defines an
annuitant as an "individual receiving an annuity from any retirement system or who meets
all requirements for entitlement to an annuity and has submitted a claim for retirement."
See Dep't of Def. Instruction, No. 1400.25, Vol. 300, at 1-2 (Dec. 10, 2008).
2
Annuitant Request form provided that the purpose of the Re-employed Annuitant Request
form was "[t]o obtain re-employed annuitant approval." Dr. Russell indicated on the Re-
employed Annuitant Request form that his recommendation was to "[r]ecommend
approval" and checked a box on the Re-employed Annuitant Request form which
indicated that he "[a]pproved" the request. Ms. Wade alleges that "[o]nce Dr. Russell
approved the request, I believed the agreement was valid and binding," and Ms. Wade
further alleges that she did not seek any other employment opportunities because she
expected to return to the ARL as a reemployment annuitant following her retirement.

According to defendant, however, for the ARL to rehire a federal employee as a
reemployed annuitant, the ARL must first complete multiple steps "[p]ursuant to internal
ARL procedures .... "2 First, according to defendant, a "reemployed annuitant request
package," which "consists of the annuitant's resume, the position description, and a
justification which defines the unique or specialized skills that the annuitant possesses
that are critical to the organization's mission," must be prepared for review by both the
Director of the relevant Directorate within the ARL and the Director of the ARL. If the
Directors approve the reemployed annuitant request documentation, "ARL management
may then submit" a request for personnel action (RPA) to the ARL's Civilian Personnel
Advisory Center, which "initiate[s] recruitment for a position that needs to be filled."
Defendant states that "[r]ecruitment for a reemployed annuitant must first clear the
Department of Defense Priority Placement Program (PPP) list, the Reemployed Priority
List (RPL), and the lnteragency Career Transition Assistance Program (ICTAP) list."3 If a
qualified applicant appears on the PPP, RPL, or ICTAP lists, defendant maintains that the
selecting official must select that applicant. If an individual does not appear on the PPP,
RPL, or ICTAP lists, "the reemployed annuitant is deemed to have cleared the ICTAP,
PPP, and RPL lists." After the reemployed annuitant has "cleared" the three lists, a "salary

2Neither plaintiff nor defendant has submitted to this court a written copy of the "internal
ARL procedures" governing the ARL's hiring of reemployed annuitants. Rather, when
detailing the ARL's internal procedures, defendant cites to a declaration signed by
Deborah Jean Thacker, a lead human resources specialist for the Aberdeen Proving
Ground Civilian Personnel Advisory Center, and a declaration signed by Stephanie Koch,
an associate director for corporate development for the ARL.
3 Defendant, describes the PPP, RPL, and ICTAP lists as follows:

The PPP is a mandatory placement program used to match eligible well
qualified employees, most of whom are subject to displacement, with vacant
positions throughout the Department of Defense. The Reemployment
Priority List is the mechanism agencies use to give reemployment
consideration to their former competitive service employees separated by
reduction in force or fully recovered from a compensable injury after more
than one year. The ICTAP is a process by which employees who have been
involuntarily separated may receive selection priority for jobs in agencies
other than the one in which they were previously employed.

(internal citations omitted).
3
memo and, as necessary, justification documentation" is prepared for review by the ARL
Director. If the Director of ARL approves the salary memorandum, defendant states that
the Civilian Personnel Advisory Center may extend a tentative offer to the reemployed
annuitant applicant. Ms. Wade, who states that she has "extensive knowledge and
experience with the ARL hiring process as well as the Civilian Personnel Classification
Process," does not indicate in her filings with this court that she disputes the ARL's hiring
process as described by defendant. Indeed, in her complaint Ms. Wade acknowledges
that she needed to clear the PPP, the RPL, and the ICTAP lists before the Civilian
Personnel Advisory Center "was ready to extend me the formal offer which I fully intended
to accept."

On December 1, 2015, Ms. Wade states that, after more than thirty-six years of
government service, she retired from her position with the ARL and indicates that "I retired
with an approved agreement in hand and I firmly believed I would return to work on a 2-
year, part-time position once the personnel action was processed and there were no
priority placement matches." Beginning on December 15, 2015, Ms. Wade exchanged a
series of text messages with a person Ms. Wade alleges to have been Stephanie Koch,
who was an associate director of WMRD at that time, regarding a reemployed annuitant
position with the ARL. Over the next three weeks, Ms. Koch sent several text messages
to Ms. Wade requesting her resume, as the "CPAC [Civilian Personnel Advisory Center]
needs it for quals." In the declaration signed by Ms. Koch, Ms. Koch states that, on
January 4, 2016, she submitted Ms. Wade's RPA to the Civilian Personnel Advisory
Center "for processing and initiation of the recruitment process."

On January 28, 2016, Ms. Koch received an email message from Ms. Thacker,
who, at that time, was a representative of the Civilian Personnel Advisory Center, which
stated that "ICTAP, PPP and RPL are all clear for Tanya's [plaintiff's] placement. Please
provide me with a salary memo so I can proceed with the tentative job offer." Ms. Koch
replied to Ms. Thacker's email message that same day and stated "[p]lease hold on this
action, we were given some news at the Director's meeting yesterday that may change
our requirement." On February 1, 2016, Ms. Koch informed Ms. Thacker via email
message that

Last week we found out that we would be given an additional HR specialist.
Given this person's arrival and Warren we aren't sure we have the funding
or the need for this part-time position. I spoke with ARL HQ and they
suggested we query the other Directorates on their needs before making a
final decision on how to proceed. I will be in touch.

During the next few weeks, note entries in Ms. Wade's "electronic personnel file," which
was maintained by the ARL and submitted to the court by Ms. Wade, indicate that ARL
management was discussing whether any of the Directorates within the ARL had a need
for a part-time reemployed annuitant with Ms. Wade's skill set.

One month after Ms. Koch's email to Ms. Thacker, on March 1, 2016, Ms. Koch
sent another email message to Ms. Thacker stating that the other Directorates within the

4
ARL had declined the opportunity to hire Ms. Wade as a part-time reemployed annuitant.
On March 3, 2016, Ms. Koch met with Dave Lyon, the then-Acting Director of WMRD, to
discuss an alternative course of action regarding Ms. Wade's employment. In her
declaration, Ms. Koch states that during her meeting with Mr. Lyon she "identified a critical
shortfall in accomplishing ARL's Open Campus mission and we concluded that the
plaintiff had the necessary skills to perform that mission until ARL could permanently fill
the position." The position supporting the ARL's Open Campus mission, however, was a
DJ-0341-03, category I position, rather than a DJ-0341-03, category II position, and had
a lower annual salary than the DJ-0341-03, category II position.

Also on March 3, 2016, Ms. Wade received a phone call from Ms. Koch, during
which Ms. Koch informed Ms. Wade that a different strategic hiring plan had been
implemented by the ARL, and that the position Ms. Wade originally had applied for was
no longer available. Ms. Wade alleges Ms. Koch then offered her a "DJ-02 position
supporting Steve Taulbee and the duties included outreach and preparing invitational
orders for all of Steve's visitors." Defendant, however, asserts that Ms. Koch offered Ms.
Wade a DJ-0341-03, category I position during the March 3, 2016 phone call. Defendant
also asserts that, on March 4, 2016, Ms. Wade sent an email message to Ms. Koch
requesting additional information regarding the alternate position proposed by Ms. Koch,
to which Ms. Koch responded by sending Ms. Wade "a detailed email" providing more
information about the DJ-0341-03, category I position and explaining why the original
position and level of employment were no longer available. Initially, Ms. Wade states she
"was willing to consider this lower graded position" and states that she sent an email
message to Ms. Koch requesting a position description for the proposed DJ-0341-03,
category I position. In response, Ms. Koch informed Ms. Wade that the ARL's policy now
required that a "corporate position description" be used for all new administrative hires,
and that "she would initiate another RPA [request for personnel action] once the hiring
request and position description were approved." In an email message dated March 15,
2016, Ms. Wade informed Ms. Koch that she "tried to be understanding of the situation
and was previously willing to accept the next lower graded position (DJ-03, Cat [category]
1). Now things have changed again (changes/requirements regarding corporate PDs
[position descriptions]). I believe the best thing for me to do is to seek legal advice." On
March 22, 2016, Ms. Koch responded, via email message, to Ms. Wade and requested
that Ms. Wade contact her by noon on March 28, 2016 if she was still interested in the
DJ-0341-03, category I position. Ms. Wade did not respond to Ms. Koch's email message.

From March 2016 to May 2016, Ms. Wade alleges to have emailed other
individuals at the ARL, including Michael Zoltoski, who was serving as the then-Acting
Director of the ARL, regarding the DJ-0341-03, category II position, which Ms. Wade
believed she was to have received following her retirement from the ARL. On May 2,
2016, Mr. Zoltoski sent an email message to Ms. Wade, which provided:

Tanya,

I'm in receipt of your 11 April 2016 email and I want to clarify a few matters
and propose a path forward. Dr. Russell approved a reemployed annuitant

5
request. The approval paved the way to submit the RPA to CPAC [Civilian
Personnel Advisory Center] to process the request, clear PPP and ICTP,
and if no matches, then extend the job offer. Between the time the request
was approved by Dr. Russell, and the RPA was submitted to CPAC, the
requirement changed such that the DJ-03 Cat [category] II position was no
longer needed. As a result, you were asked if you were interested in the DJ-
03 Cat I position.

While I understand your frustration, there was never a formal offer extended
by CPAC, because the requirement changed. The "approved agreement"
you refer to is simply Dr. Russell's approval to pursue a reemployed
annuitant position. Once there was a determination that the position was no
longer needed, an attempt was made to find an alternate position that may
interest you.

The void we need to fill right now is for a DJ-03 Cat I (part time) working
STEM and Outreach with the WMRD Outreach team. If you are interested in
that position, please let me know by email by 8 May 2016. As you know, if
you are interested, PPP and ICTAP will have to be cleared before a formal
offer is extended by the CPAC.

On May 3, 2016, Ms. Wade sent an email message to Mr. Zoltoski stating that "due
to the impact this situation has had on my life, I really have no choice but to continue
pursuing other avenues and will do so until I have exhausted every possible option." Ms.
Wade also indicated in her email message to Mr. Zoltoski that she had "filed a formal
complaint with the Office of Special Counsel (OSC) based on gross
mismanagement .... "Thereafter, defendant states that Mr. Zoltoski directed Ms. Thacker
to "formally cancel the RPA for the original Category II reemployed annuitant position,"
and it was formally canceled on May 26, 2016. Defendant asserts that an "RPA for the
Category I position was never submitted because Ms. Wade did not indicate ongoing
interest in that position."

Ms. Wade states that she filed her first complaint "based on Gross
Mismanagement" with the Office of Special Counsel on "22 April 2014."4 According to Ms.
Wade, by letter dated October 28, 2016, the Office of Special Counsel informed her that
"they were not taking any actions and were closing the complaint." Prior to the Office of
Special Counsel's resolution of Ms. Wade's first complaint, on June 7, 2016, Ms. Wade
states that she filed a second complaint with the Office of Special Counsel "based on
Prohibited Personnel Practices." The Office of Special Counsel notified Ms. Wade by
letter dated August 24, 2016 that its inquiry into her second complaint was being closed.
Ms. Wade maintains that she "appealed" the Office of Special Counsel's August 24, 2016
decision, and that the Office of Special Counsel sent another letter to Ms. Wade on August

4The court notes that the date on which Ms. Wade alleges to have filed her first complaint
with the Office of Special Counsel may be incorrect or the filing is not relevant to this case,
as Ms. Wade did not retire from the ARL until December 2015.
6
31, 2016, informing Ms. Wade "that they had not changed their initial finding and the
complaint was closed." Subsequently, Ms. Wade filed an Individual Right of Action (IRA)
with the Merit Systems Protection Board (MSPB) on September 29, 2016. See Wade v.
Dep't of the Army, No. PH-1221-17-0003-W-1, 2016 WL 6837554 (M.S.P.B. Nov. 14,
2016). On November 14, 2016, the MSPB issued a decision dismissing Ms. Wade's IRA
for lack of jurisdiction. !Q_,_ Ms. Wade did not appeal the MSPB's decision.

On November 22, 2016, Ms. Wade asserts that she "sent a letter to MG [Major
General] Cedric T. Wins, Commander, Research, Development, and Engineering
Command (RDECOM), which is ARL's higher headquarters." Ms. Wade alleges that the
"purpose of my letter to MG Wins was to make him aware of everything that had occurred
in hopes that he would intervene and resolve the matter." According to Ms. Wade, "MG
Wins asked his Inspector General (IG) to look into the matter," and, on March 6, 2017,
"the RDECOM IG sent me a letter informing me that they were not taking any further
action."

Thereafter, on July 26, 2017, plaintiff filed her complaint in the above-captioned
case in this court. In her complaint, plaintiff asserts that she had entered into "a formally
approved Reemployed Annuitant Agreement" with the ARL and claims that the
reemployed annuitant agreement between plaintiff and defendant "stipulated" that plaintiff
would return to the ARL in January 2016 to begin working "for 2-years, part-time, on a
noncompetitive position." Plaintiff contends that the "ARL breached this agreement
(expressed [sic] contract) when they prevented the Civilian Personnel from extending me
the formal offer and then closed the action on 26 May 2016." Plaintiff also argues that "I
was NOT under an appointment when the breach of expressed [sic] contract occurred
thus allowing the contract laws that apply to non-government entities, to apply to me."
(capitalization in original). Plaintiff asserts that she made major life decisions based on
what she considered the parties' agreement, and that the decisions she made were
"irreversible" and "adversely affected" her life. Plaintiff seeks monetary damages totaling
$118,070.00 for the lost salary she allegedly would have received had she served as a
reemployed annuitant in a DJ-0341-03, category II position with the ARL for two years.
Plaintiff contends that the Tucker Act, 28 U.S.C. § 1491(a)(1) (2012), provides this court
with jurisdiction to "decide claims based on an expressed [sic] or implied-in-fact contract,"
and that the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101 (2012) et seq., also provides
this court with jurisdiction over her claim.

Defendant filed a motion to dismiss plaintiff's complaint for lack of subject matter
jurisdiction and for failure to state a claim, pursuant to Rule 12(b)(1) and Rule 12(b)(6)
(2017) of the Rules of the United States Court of Federal Claims (RCFC), respectively,
and attached an appendix which included declarations signed by Ms. Thacker and Ms.
Koch. Defendant asserts that this court lacks jurisdiction over plaintiff's complaint
because neither the Tucker Act nor the CDA provide this court with jurisdiction to
adjudicate plaintiff's claims. Defendant argues that plaintiff's complaint should be
dismissed for failure to state a claim because plaintiff cannot establish the existence of
an employment contract between the plaintiff and the United States. Defendant also

7
argues that this court lacks jurisdiction over plaintiff's complaint because the position Ms.
Wade sought to obtain was an appointed position. According to defendant:

Consequently, if a job offer had been extended to Ms. Wade, and she had
accepted, then her subsequent employment type as an appointee could
have been terminated at any point, and she would have been precluded
from bringing a breach of contract action against the United States
Government under the Tucker Act.

Defendant argues "[e]mployment pursuant to an appointment precludes a breach of
contract action against the United States." Plaintiff responds that she did have a contract
with the federal government because Dr. Russell approved her reemployed annuitant
request documentation and that she "was not under appointment when the breach
contract [sic) occurred."

DISCUSSION

The court recognizes that plaintiff is proceeding pro se, without the assistance of
counsel. When determining whether a complaint filed by a filQ se plaintiff is sufficient to
invoke review by a court, pro se plaintiffs are entitled to liberal construction of their
pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations
contained in a prose complaint be held to "less stringent standards than formal pleadings
drafted by lawyers"), reh'g denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551
U.S. 89, 94 (2007); Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v. Gamble, 429
U.S. 97, 106 (1976), reh'g denied, 429 U.S. 1066 (1977); Matthews v. United States, 750
F.3d 1320, 1322 (Fed. Cir. 2014); Diamond v. United States, 115 Fed. Cl. 516, 524, aff'd,
603 F. App'x 947 (Fed. Cir.), cert. denied, 135 S. Ct. 1909 (2015). "However, "'[t)here is
no duty on the part of the trial court to create a claim which [the plaintiff] has not spelled
out in his [or her] pleading.""' Lengen v. United States, 100 Fed. Cl. 317, 328 (2011)
(alterations in original) (quoting Scogin v. United States, 33 Fed. Cl. 285, 293 (1995)
(quoting Clark v. Nat'I Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see
also Bussie v. United States, 96 Fed. Cl. 89, 94, aff'd, 443 F. App'x 542 (Fed. Cir. 2011 );
Minehan v. United States, 75 Fed. Cl. 249, 253 (2007). "While a prose plaintiff is held to
a less stringent standard than that of a plaintiff represented by an attorney, the filQ se
plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by a
preponderance of the evidence." Riles v. United States, 93 Fed. Cl. 163, 165 (2010) (citing
Hughes v. Rowe, 449 U.S. at 9; and Taylor v. United States, 303 F.3d 1357, 1359 (Fed.
Cir.) ("Plaintiff bears the burden of showing jurisdiction by a preponderance of the
evidence."), reh'g and reh'g en bane denied (Fed. Cir. 2002)); see also Shelkofsky v.
United States, 119 Fed. Cl. 133, 139 (2014) ("[W]hile the court may excuse ambiguities
in a pro se plaintiff's complaint, the court 'does not excuse [a complaint's) failures."'
(quoting Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995)); Harris v. United
States, 113 Fed. Cl. 290, 292 (2013) ("Although plaintiff's pleadings are held to a less
stringent standard, such leniency 'with respect to mere formalities does not relieve the
burden to meet jurisdictional requirements.'" (quoting Minehan v. United States, 75 Fed.
Cl. at 253)).

8
The defendant has challenged this court's subject matter jurisdiction over plaintiff's
complaint because the position plaintiff sought with the ARL was to be an appointive
position, for which no contract could have come into existence, leaving no possibility for
a breach of contract action. "Subject-matter jurisdiction may be challenged at any time by
the parties or by the court sua sponte." Folden v. United States, 379 F.3d 1344, 1354
(Fed. Cir. 2004) (citing Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir.
1998)). The Tucker Act, 28 U.S.C. § 1491, 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. See United States v. Navajo Nation, 556 U.S. 287, 289-90 (2009);
United States v. Mitchell, 463 U.S. 206, 216 (1983); see also Alvarado Hosp., LLC v.
Price, 868 F.3d 983, 991 (Fed. Cir. 2017); Greenlee Cnty., Ariz. v. United States, 487
F.3d 871, 875 (Fed. Cir.), reh'g and reh'g en bane denied (Fed. Cir. 2007), cert. denied,
552 U.S. 1142 (2008); Palmerv. 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 U.S. at 216; see also United States v. White
Mountain Apache Tribe, 537 U.S. 465, 472 (2003); Smith v. United States, 709 F.3d 1114,
1116 (Fed. Cir.), cert. denied, 134 S. Ct. 259 (2013); RadioShack Corp. v. United States,
566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick's Mushroom Serv .. Inc. v. United States, 521
F.3d 1338, 1343 (Fed. Cir. 2008) ("[P]laintiff must ... identify a substantive source of law
that creates the right to recovery of money damages against the United States."); Golden
v. United States, 118 Fed. Cl. 764, 768 (2014). 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,] 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

9
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 S.S., 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." J..\:L; see also [United States v. ]Testan, 424 U.S.
[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 S.S., 372 F.2d at 1009)). This category is
commonly referred to as claims brought under a "money-mandating"
statute.

Ont. Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see
also Twp. of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).

To prove that a statute or regulation is money-mandating, a plaintiff must
demonstrate that an independent source of substantive law relied upon "'can fairly be
interpreted as mandating compensation by the Federal Government."' United States v.
Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. 392, 400
(1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United
States v. Mitchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374,
1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting
monetary relief must be distinct from the Tucker Act itself. See United States v. Navajo
Nation, 556 U.S. at 290 (The Tucker Act does not create "substantive rights; [it is simply
a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims
premised on other sources of law (e.g., statutes or contracts)."). "'If the statute is not
money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal
should be for lack of subject matter jurisdiction."' Jan's Helicopter Serv., Inc. v. Fed.
Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v.
United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir.
2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction under
the Tucker Act."); Price v. United States, 133 Fed. Cl. 128, 130 (2017); Peoples v. United
States, 87 Fed. Cl. 553, 565-66 (2009).

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. See Erickson
v. Pardus, 551 U.S. at 94 ("[W]hen 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 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A.,

10
534 U.S. 506, 508 n.1 (2002)))); Fid. & Guar. Ins. Underwriters Inc. v. United States, 805
F.3d 1082, 1084 (Fed. Cir. 2015); Trusted Integration, Inc. v. United States, 659 F.3d
1159, 1163 (Fed. Cir. 2011).

"Determination of jurisdiction 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. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), reh'g
denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.
Cl. 203, 208 (2011 ); Gonzalez-Mccaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 71 O,
713 (2010). 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) (2017); Fed. R. Civ. P. 8(a)(1), (2)
(2017); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citing Bell All. Corp. v.
Twombly, 550 U.S. at 555-57, 570. To properly state a claim for relief, "[c]onclusory
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 also 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)); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) ("[C]onclusory
allegations unsupported by any factual assertions will not withstand a motion to dismiss."),
aff'd, 460 U.S. 325 (1983). "A plaintiff's factual allegations must 'raise a right to relief
above the speculative level' and cross 'the line from conceivable to plausible."' Three S
Consulting v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting Bell All. Corp. v.
Twombly, 550 U.S. at 555), aff'd, 562 F. App'x 964 (Fed. Cir.), reh'g denied (Fed. Cir.
2014). As stated in Ashcroft v. Iqbal, "[a] pleading that offers 'labels and conclusions' or
'a formulaic recitation of the elements of a cause of action will not do.' 550 U.S. at 555.
Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual
enhancement."' Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell All. Corp. v. Twombly,
550 U.S. at 555).

Regarding the case currently before the court, the United States Court of Appeals
for the Federal Circuit has held that "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)), reh'g denied
and en bane suggestion declined (Fed. Cir. 1995), cert. denied, 517 U.S. 1155 (1996).
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); see also Piperv. United States,
90 Fed. Cl. 498, 503 (2009), aff'd, 374 F. App'x 957 (Fed. Cir. 2010), cert. 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,

11
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), aff'd, 379 F.3d 1330 (Fed.
Cir. 2004))) (alteration in Calvin v. United States); Berrv 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." (citation
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 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 further summarized the status of a federal employee who holds
an appointment as follows:

[F]ederal workers serve 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 a/ia, 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 1212, 1221 (Fed. Cir. 2004) (quoting Kizas v. Webster,
707 F.2d 524, 535 (D.C. Cir. 1983), cert. denied, 464 U.S. 1042 (1984)) (alteration in
original).

Defendant accurately points out that 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); see also 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[,

12
456 U.S. 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 (citing Collier v. United States, 379 F.3d
1330, 1332 (Fed. Cir. 2004)). Ultimately, the Anderson court held 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; see also Hamlet v. United States, 63 F.3d at 1101; Collier v. United States, 56
Fed. Cl. at 357 (citing Darden v. United States, 18 Cl. Ct. at 859; and House v. United
States, 14 Cl. Ct. 32, 36 (1987)).

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. See 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. The statute at 5 U.S.C. § 3323,
titled "Automatic separations; reappointment; reemployment of annuitants," provides that
an annuitant "is not barred by reason of his retired status from employment in an
appointive position for which the annuitant is qualified. An annuitant so reemployed ...
serves at the will of the appointing authority." (emphasis added). Additionally, as the
defendant notes, "[r]eemployed annuitants are appointed by reinstatement pursuant to 5
C.F.R. §315.401," which provides that "an agency may appoint by reinstatement to a
competitive service position a person who previously was employed under career or
career-conditional appointment (or equivalent)." 5 (emphasis added). Plaintiff also cites
Department of Defense Instruction Number 1400.25, Volume 300, which "[e]stablishes
and implements policy, assigns responsibilities, and provides procedures for employment
of Federal civilian annuitants in the Department of Defense." The Instruction states
"[r]employed annuitant shall be used as needed, to support mission requirements and to
help meet the Department's workforce planning challenges. This authority to appoint
annuitants shall not be used to solely benefit an annuitant." Dep't of Def. Instruction, No.
1400.25, Vol. 300, at 3 (Dec. 10, 2008) (emphasis added). The Department of Defense
Instruction also provides that "[a]nnuitants should be hired to meet critical mission needs.
Such appointments should be carefully considered keeping in mind the Department's
need to ensure a steady pipeline of leadership talent." !.9.., (emphasis added). Additionally,
the Department of Defense Instruction states that "[a]ppointment of annuitants shall be
consistent with all applicable laws and regulations .... Reemployed annuitants shall
continue to receive full annuity and salary upon appointment and shall not be considered
employees for the purposes of subchapter Ill of chapter 83 or of chapter 84 of [Title 5 of

5 Reinstatement is defined as "the noncompetitive reemployment for service as a career
or career-conditional employee of a person formerly employed in the competitive service
who had a competitive status or was serving probation when he was separated from the
service." 5 C.F.R. § 210.102 (2018).

13
the United States Code] . . . . " !!;l (emphasis added). The Department of Defense
Instruction also provides that "[r]eemployed annuitants serve at the will of the appointing
authority pursuant to section 3323(b)(1) [of Title 5 of the United States Code]." )!;l
(emphasis added).

Additionally, the Request for Civilian Hire form included in plaintiff's reemployed
annuitant request documentation provided that the position plaintiff was seeking to obtain
was a "[t]ime limited appointment," and "[i]f approved, Ms. Wade would return to work for
WMRD . . . as a part-time re-employed annuitant on a time-limited appointment."
(emphasis added). The language of the relevant statute, regulation, Department of
Defense Instruction, and the reemployed annuitant request documentation clearly
indicate that the reemployed annuitant position, which plaintiff sought to obtain, was to be
an appointive position if the ARL's employment process were completed, which in this
case it was not. See Piper v. United States, 90 Fed. Cl. at 505 (determining that the
plaintiff in Piper v. United States, who was a reemployed annuitant, held an appointive
position when the relevant statutes used the words "employ," "appoint," and "appointed").

Because plaintiff was seeking to obtain an appointive position with the ARL,
plaintiff's claim that defendant allegedly breached either an express or implied-in-fact
contract between defendant and plaintiff must fail. In Adams v. United States, the United
States Court of Appeals for the Federal Circuit explained:

Appellants served by appointment. The terms of their employment and
compensation, consequently, were governed exclusively by statute, not
contract. They had not, and could not have, entered into any separate
agreement with the Government, express or implied, for additional overtime
compensation beyond that to which they were entitled by the applicable
statute.

Adams v. United States, 391 F.3d at 1221; see Collier v. United States, 56 Fed. Cl. at
357 ("Plaintiff alternatively argues that he was appointed to the GS-15 position by an
implied-in-fact contract. This argument is rejected for the same reasons. If appointments
and contracts are mutually exclusive, then surely a person cannot be 'appointed' to a
position by an implied-in-fact contract."); Darden v. United States, 18 Cl. Ct. at 859
(dismissing the plaintiff's claim for breach of an express or implied contract for lack of
jurisdiction when the plaintiff held an appointive position); see also Boston v. United
States, 43 Fed. Cl. 220, 225 (1999) ("Although this Court generally possesses subject
matter jurisdiction over contracts implied-in-fact, such is not the case for claims asserted
by federal employees who are employed pursuant to appointment, rather than by virtue
of an employment contract." (citations omitted)). Therefore, defendant could not have
breached the contract plaintiff alleges came into being for the DJ-0341-03, category II,
reemployed annuitant position because that position with the ARL would have been an
appointive position. See Piper v. United States, 90 Fed. Cl. at 505-06 (dismissing a
reemployed annuitant's breach of contract claim for lack of jurisdiction).

14
Alternatively, defendant notes in its submission to the court that it "has included
various documents which the Court may, but need not, rely upon in finding that Ms. Wade
has failed to state claim." Defendant attached an appendix to its motion to dismiss, which
included a copy of Ms. Wade's most recent notice of personnel action, a copy of Ms.
Wade's application for Voluntary Separation Incentive Payment, a declaration signed by
Ms. Thacker, and a declaration signed by Ms. Koch. Plaintiff also attached an appendix
to her filing, which included email correspondence between plaintiff and Tim Connolly,
who plaintiff alleges at the relevant time was an "ARL Attorney," email correspondence
between plaintiff and Mr. Lyon, and a copy of Department of Defense Instruction Number
1400.25, Volume 300, which contained highlights and other markings.

Under RCFC 12(d) (2017), "[i]f, on a motion under RCFC 12(b)(6) or 12(c}, matters
outside the pleadings are presented to and not excluded by the court, the motion must be
treated as one for summary judgment under RCFC 56." "Whether to accept extra-
pleading matter on a motion for judgment on the pleadings and to treat the motion as one
for summary judgment is within the trial court's discretion." Easter v. United States, 575
F.3d 1332, 1335 (Fed. Cir. 2009) (citing Gulf Coast Bank & Trust Co. v. Reder, 355 F.3d
35, 38-39 (1st Cir. 2004); and 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1371 (3d ed. 2004)), cert. denied, 559 U.S. 1005 (2010);
Duffy v. United States, 120 Fed. Cl. 55, 61 (2015), aff'd, 636 F. App'x 792 (Fed. Cir. 2016).
"Courts have 'complete discretion to determine whether or not to accept the submission
of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6)
motion' and rely upon that material." Love Terminal Partners v. United States, 97 Fed. Cl.
355, 378-79 (2011) (quoting 5C CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE§ 1366 (3d ed. 2004)). Before the court may convert a motion
to dismiss into a motion for summary judgment, however, the court must ordinarily provide
the parties with notice of its intention to do so. See RCFC 12(d) ("All parties must be given
a reasonable opportunity to present all the material that is pertinent to the motion."); see
also Easter v. United States, 575 F.3d at 1335; Huntington Promotional & Supply, LLC v.
United States, 114 Fed. Cl. 760, 772 (2014) (citing RCFC 12(d)) ("The rules of this court
require that the court provide the parties with notice of its intention to treat defendant's
motion as a motion for summary judgment and an opportunity to proceed pursuant to the
rules of summary judgment."); Martin v. United States, 96 Fed. Cl. 627, 629 (2011)
(citations omitted). On January 4, 2018, the court issued an Order notifying the parties of
the probability that the court might treat defendant's motion to dismiss as a motion for
summary judgment given the earlier submission of several declarations by the defendant
and additional filings by both parties, and provided both parties with an opportunity to
submit additional, relevant documents.

RCFC 56 is similar to Rule 56 of the Federal Rules of Civil Procedure in language
and effect. Both rules provide that "[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law." RCFC 56(a) (2017); Fed. R. Civ. P. 56(a) (2017); see
also Alabama v. North Carolina, 560 U.S. 330, 344 (2010); Hunt v. Cromartie, 526 U.S.
541, 549 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Adickes
v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); Biery v. United States, 753 F.3d 1279,

15
1286 (Fed. Cir.), reh'g and reh'g en bane denied (Fed. Cir. 2014); Ladd v. United States,
713 F.3d 648, 651 (Fed. Cir. 2013); Minkin v. Gibbons, P.C., 680 F.3d 1341, 1349 (Fed.
Cir. 2012); Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1309-10 (Fed. Cir. 2012);
Advanced Fiber Techs. (AFT) Trust v. J & L Fiber Servs., Inc., 674 F.3d 1365, 1372 (Fed.
Cir.), reh'g and reh'g en bane denied (Fed. Cir. 2012); Fujitsu Ltd. v. Netgear Inc., 620
F.3d 1321, 1325 (Fed. Cir.), reh'g denied (Fed. Cir. 2010); Consol. Coal Co. v. United
States, 615 F.3d 1378, 1380 (Fed. Cir.), reh'g and reh'g en bane denied (Fed. Cir. 2010),
cert. denied, 564 U.S. 1004 (2011 ); 1st Home Liquidating Trust v. United States, 581 F.3d
1350, 1355 (Fed. Cir. 2009); Arko Exec. Servs .. Inc. v. United States, 553 F.3d 1375,
1378 (Fed. Cir. 2009); Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1283
(Fed. Cir. 2008), reh'g and reh'g en bane denied, 556 F.3d 1329 (Fed. Cir. 2009); Moden
v. United States, 404 F.3d 1335, 1342 (Fed. Cir.), reh'g and reh'g en bane denied (Fed.
Cir. 2005); Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1370-71 (Fed.
Cir.), reh'g en bane denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1139 (2005); Mata v.
United States, 114 Fed. Cl. 736, 744 (2014); Leggitte v. United States, 104 Fed. Cl. 315,
317 (2012); Arranaga v. United States, 103 Fed. Cl. 465, 467-68 (2012); Cohen v. United
States, 100 Fed. Cl. 461, 469 (2011 ); Boensel v. United States, 99 Fed. Cl. 607, 610
(2011 ).

A fact is material if it will make a difference in the result of a case under the
governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see also Marriott
lnt'I Resorts, L.P. v. United States, 586 F.3d 962, 968 (Fed. Cir. 2009) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. at 248); Mata v. United States, 114 Fed. Cl. at 744;
Arranaga v. United States, 103 Fed. Cl. at 467-68; Thompson v. United States, 101 Fed.
Cl. 416, 426 (2011); Cohen v. United States, 100 Fed. Cl. at 469. Irrelevant or
unnecessary factual disputes do not preclude the entry of summary judgment. See
Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48; see also Scott v. Harris, 550 U.S.
372, 380 (2007); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir.
2001); Gorski v. United States, 104 Fed. Cl. 605, 609 (2012); Walkerv. United States, 79
Fed. Cl. 685, 692 (2008); Curtis v. United States, 144 Ct. Cl. 194, 199, 168 F. Supp. 213,
216 (1958), cert. denied, 361 U.S. 843 (1959), reh'g denied, 361 U.S. 941 (1960).

When reaching a summary judgment determination, the judge's function is not to
weigh the evidence and determine the truth of the case presented, but to determine
whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S.
at 249; see, ~. Schlup v. Delo, 513 U.S. 298, 332 (1995); Ford Motor Co. v. United
States, 157 F.3d 849, 854 (Fed. Cir. 1998) ("Due to the nature of the proceeding, courts
do not make findings of fact on summary judgment."); TigerSwan, Inc. v. United States,
118 Fed. Cl. 447, 451 (2014); Dana R. Hodges Trust v. United States, 111 Fed. Cl. 452,
455 (2013); Cohen v. United States, 100 Fed. Cl. at 469-70; Boensel v. United States, 99
Fed. Cl. at 611; Macy Elevator, Inc. v. United States, 97 Fed. Cl. 708, 717 (2011); Dick
Pacific/GHEMM, JV ex rel. W.A. Botting Co. v. United States, 87 Fed. Cl. 113, 126 (2009);
Johnson v. United States, 49 Fed. Cl. 648, 651 (2001), aff'd, 52 F. App'x 507 (Fed. Cir.
2002), published at 317 F.3d 1331 (Fed. Cir. 2003). The judge must determine whether
the evidence presents a disagreement sufficient to require submission to fact finding, or
whether the issues presented are so one-sided that one party must prevail as a matter of

16
Jaw. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-52; Jay v. Sec'y of Dep't of
Health and Human Servs., 998 F.2d 979, 982 (Fed. Cir.), reh'g denied and en bane
suggestion declined (Fed. Cir. 1993); Leggitte v. United States, 104 Fed. CJ. at 316. When
the record could not lead a rational trier of fact to find for the non moving party, there is no
genuine issue for trial, and the motion must be granted. See,~. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Advanced Fiber Techs. (AFT) Trust
v. J & L Fiber Servs. Inc., 674 F.3d at 1372; Marriott Int'! Resorts, L.P. v. United States,
586 F.3d at 968; Am. Seating Co. v. USSC Grp., Inc., 514 F.3d 1262, 1266 (Fed. Cir.),
reh'g en bane denied (Fed. Cir. 2008); Rothe Dev. Corp. v. U.S. Dep't of Def., 262 F.3d
1306, 1316 (Fed. Cir. 2001); Hall v. Aqua Queen Mfg., Inc., 93 F.3d 1548, 1553 n.3 (Fed.
Cir. 1996). Jn such cases, there is no need for the parties to undertake the time and
expense of a trial, and the moving party should prevail without further proceedings.

In appropriate cases, summary judgment:

saves the expense and time of a full trial when it is unnecessary. When the
material facts are adequately developed in the motion papers, a full trial is
useless. "Useless" in this context means that more evidence than is already
available in connection with the motion for summary judgment could not
reasonably be expected to change the result.

Dehne v. United States, 23 Cl. Ct. 606, 614-15 (1991) (quoting Pure Gold, Inc. v. Syntex.
(U.S.A.) Inc., 739 F.2d 624, 626 (Fed. Cir. 1984)), vacated on other grounds, 970 F.2d
890 (Fed. Cir. 1992) (citation omitted); see also Vivid Techs., Inc. v. Am. Sci. & Eng'g,
Inc., 200 F.3d 795, 806 (Fed. Cir. 1999) ('The purpose of summary judgment is not to
deprive a litigant of a trial, but to avoid an unnecessary trial when only one outcome can
ensue."); Metric Constr. Co., Inc. v. United States, 73 Fed. Cl. 611, 612 (2006).

Summary judgment, however, will not be granted if "the dispute about a material
fact is 'genuine,' that is, ifthe evidence is such that a reasonable [trier of fact] could return
a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see
also Long Island Sav. Bank, FSB v. United States, 503 F.3d 1234, 1244 (Fed. Cir.), reh'g
and reh'g en bane denied (Fed. Cir. 2007), cert. denied, 555 U.S. 812 (2008); Eli Lilly &
Co. v. Barr Labs., Inc., 251 F.3d 955, 971 (Fed. Cir.), reh'g and reh'g en bane denied
(Fed. Cir. 2001), cert. denied, 534 U.S. 1109 (2002); Gen. Elec. Co. v. Nintendo Co., 179
F.3d 1350, 1353 (Fed. Cir. 1999); TigerSwan. Inc. v. United States, 118 Fed. CJ. at 451;
Stephan v. United States, 117 Fed. Cl. 68, 70 (2014); Gonzales-McCaulley Inv. Grp., Inc.
v. United States, 101 Fed. Cl. 623, 629 (2011). In other words, if the nonmoving party
produces sufficient evidence to raise a question as to the outcome of the case, then the
motion for summary judgment should be denied. Any doubt over factual issues must be
resolved in favor of the party opposing summary judgment, to whom the benefit of all
presumptions and inferences runs. See Ricci v. Destefano, 557 U.S. 557, 586 (2009);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88; Yant v. United
States, 588 F.3d 1369, 1371 (Fed. Cir. 2009), cert. denied, 562 U.S. 827 (2010);
Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., 272 F.3d 1365, 1369 (Fed. Cir. 2001 ),
reh'g and reh'g en bane denied, 293 F.3d 1364 (Fed. Cir. 2002), cert. denied, 539 U.S.

17
957 (2003); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d at 1257; Wanlass v.
Fedders Corp., 145 F.3d 1461, 1463 (Fed. Cir.), reh'g denied and en bane suggestion
declined (Fed. Cir. 1998); see also Am. Pelagic Co. v. United States, 379 F.3d at 1371
(citing Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1345-46 (Fed. Cir. 2000)); Dana R.
Hodges Trust v. United States, 111 Fed. Cl. at 455; Boensel v. United States, 99 Fed. Cl.
at 611 ('"The evidence of the nonmovant is to be believed, and all justifiable inferences
are to be drawn in his favor."' (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 255)
(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88; Casitas
Mun. Water Dist. v. United States, 543 F.3d at 1283; Lathan Co. Inc. v. United States, 20
Cl. Ct. 122, 125 (1990))); see also Am. Seating Co. v. USSC Grp., Inc., 514 F.3d at 1266-
67; Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d at 807. "However, once a moving
party satisfies its initial burden, mere allegations of a genuine issue of material fact without
supporting evidence will not prevent entry of summary judgment." Republic Sav. Bank,
F.S.B. v. United States, 584 F.3d 1369, 1374 (Fed. Cir. 2009); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. at 247-48.

The initial burden on the party moving for summary judgment to produce evidence
showing the absence of a genuine issue of material fact may be discharged if the moving
party can demonstrate that there is an absence of evidence to support the nonmoving
party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also Riley &
Ephriam Constr. Co. v. United States, 408 F.3d 1369, 1371 (Fed. Cir. 2005); Crown
Operations lnt'I Ltd. v. Solutia Inc., 289 F.3d 1367, 1377 (Fed. Cir.), reh'g denied (Fed.
Cir. 2002); Trilogy Commc'ns, Inc. v. Times Fiber Commc'ns, Inc., 109 F.3d 739, 741
(Fed. Cir.) (quoting Conroy v. Reebok lnt'I, Ltd., 14 F.3d 1570, 1575 (Fed. Cir. 1994),
reh'g denied and en bane suggestion declined (Fed. Cir. 1995)), reh'g denied and en
bane suggestion declined (Fed. Cir. 1997); Lockwood v. Am. Airlines, Inc., 107 F.3d 1565,
1569 (Fed. Cir. 1997); Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d at 807; RQ
Squared, LLC v. United States, 119 Fed. Cl. 751, 757-58 (2015), subsequent
determination, 129 Fed. Cl. 742 (2017), aff'd, 2018 WL 358084 (Fed. Cir. Jan. 11, 2018).
If the moving party makes such a showing, the burden shifts to the nonmoving party to
demonstrate that a genuine dispute regarding a material fact exists by presenting
evidence which establishes the existence of an element essential to its case upon which
it bears the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. at 322; see also
Wavetronix LLC v. EIS Elec. Integrated Sys., 573 F.3d 1343, 1354 (Fed. Cir. 2009); Long
Island Sav. Bank, FSB v. United States, 503 F.3d at 1244; Florida Power & Light Co. v.
United States, 375 F.3d 1119, 1124 (Fed. Cir. 2004); Schoell v. Regal Marine Indus., Inc.,
247 F.3d 1202, 1207 (Fed. Cir. 2001); Am. Airlines, Inc. v. United States, 204 F.3d 1103,
1108 (Fed. Cir. 2000); Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d at 807;
Rasmuson v. United States, 109 Fed. Cl. 267, 271 (2013). However, "a non-movant is
required to provide opposing evidence under Rule 56(e) only if the moving party has
provided evidence sufficient, if unopposed, to prevail as a matter of law." Saab Cars USA,
Inc. v. United States, 434 F.3d 1359, 1369 (Fed. Cir. 2006).

Even if both parties argue in favor of summary judgment and allege an absence of
genuine issues of material fact, the court is not relieved of its responsibility to determine
the appropriateness of summary disposition in a particular case, and it does not follow

18
that summary judgment should be granted to one side or the other. See Prineville Sawmill
Co. v. United States, 859 F.2d 905, 911 (Fed. Cir. 1988) (citing Mingus Constructors, Inc.
v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)); see also Marriott lnt'I Resorts,
L.P. v. United States, 586 F.3d at 968-69; B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d
587, 593 (6th Cir. 2001); Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138,
1148 (10th Cir. 2000); Chevron USA, Inc. v. Cayetano, 224 F.3d 1030, 1037 n.5 (9th Cir.
2000), cert. denied, 532 U.S. 942 (2001); Bubble Room, Inc. v. United States, 159 F.3d
553, 561 (Fed. Cir. 1998) ("The fact that both the parties have moved for summary
judgment does not mean that the court must grant summary judgment to one party or the
other."), reh'g denied and en bane suggestion declined (Fed. Cir. 1999); Allstate Ins. Co.
v. Occidental lnt'I, Inc., 140 F.3d 1, 2 (1st Cir. 1998); Massey v. Del Labs .. Inc., 118 F.3d
1568, 1573 (Fed. Cir. 1997); LewRon Television, Inc. v. D.H. Overmyer Leasing Co., 401
F.2d 689, 692 (4th Cir. 1968), cert. denied, 393 U.S. 1083 (1969); Rogers v. United
States, 90 Fed. Cl. 418, 427 (2009), subsequent determination, 93 Fed. Cl. 607 (2010),
aff'd, 814 F.3d 1299 (2015); Consol. Coal Co. v. United States, 86 Fed. Cl. 384, 387
(2009), aff'd, 615 F.3d 1378, (Fed. Cir.), and reh'g and reh'g en bane denied (Fed. Cir.
2010), cert. denied, 564 U.S. 1004 (2011 ); St. Christopher Assocs .. LP. v. United States,
75 Fed. Cl. 1, 8 (2006), aff'd, 511 F.3d 1376 (Fed. Cir. 2008); Reading & Bates Corp. v.
United States, 40 Fed. Cl. 737, 748 (1998). The court must evaluate each party's motion
on its own merits, taking care to draw all reasonable inferences against the party whose
motion is under consideration, or, otherwise stated, in favor of the non-moving party. See
First Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir.), reh'g and reh'g
en bane denied (Fed. Cir. 2003); see also DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d
1314, 1322 (Fed. Cir. 2001); Gart v. Logitech, Inc., 254 F.3d 1334, 1338-39 (Fed. Cir.),
reh'g and reh'g en bane denied (Fed. Cir. 2001), cert. denied, 534 U.S. 1114 (2002);
Oswalt v. United States, 85 Fed. Cl. 153, 158 (2008); Telenor Satellite Servs., Inc. v.
United States, 71 Fed. Cl. 114, 119 (2006).

"Questions of law are particularly appropriate for summary judgment." Oenga v.
United States, 91 Fed. Cl. 629, 634 (2010) (citing Dana Corp. v. United States, 174 F.3d
1344, 1347 (Fed. Cir. 1999) ("Summary judgment was appropriate here [in Dana Corp.]
because no material facts were disputed, many being stipulated, and the only disputed
issues were issues of law. Moreover, on each issue one party or the other is entitled to
judgment as a matter of law.")); see also Santa Fe Pac. R.R. v. United States, 294 F.3d
1336, 1340 (Fed. Cir. 2002) ("Issues of statutory interpretation and other matters of law
may be decided on motion for summary judgment.").

In the above-captioned case, plaintiff claims that she entered into either an express
or implied-in-fact contract with the ARL "when Dr. Baker and I entered into a mutual
agreement and Dr. Russell approved the request; thus binding our agreement." Dr.
Russell approved her request to become a reemployed annuitant in May of 2015 and
June of 2015, respectively. Unlike an express contract, an implied-in-fact contract is an
agreement ""'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 1321, 1325 (Fed. Cir. 1997) (quoting Hercules, Inc. v. United States,

19
516 U.S. 417, 424 (1996) (quoting Bait. & Ohio R.R. Co. v. United States, 261 U.S. 592,
597 (1923))); see also 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.) (citing Trauma Serv.
Grp. v. United States, 104 F.3d at 1326), reh'g and reh'g en bane denied (Fed. Cir. 2009);
Bay View, Inc. v. United States, 278 F.3d 1259, 1265-66 (Fed. Cir. 2001), reh'g and reh'g
en bane denied, 285 F.3d 1035 (Fed. Cir.), cert. denied, 537 U.S. 826 (2002); XP
Vehicles. Inc. v. United States, 121 Fed. Cl. 770, 781 (2015); Westlands Water Dist. v.
United States, 109 Fed. Cl. 177, 203 (2013); Peninsula Grp. Capital Corp. v. United
States, 93 Fed. Cl. 720, 728 (2010) (citing Bait. & Ohio R.R. Co. v. United States, 261
U.S. at 597; and Russell Corp. v. United States, 210 Ct. Cl. 596, 609 (1976)), appeal
dismissed, 454 F. App'x 900 (Fed. Cir. 2011). Such an agreement will not be implied
"unless the meeting of minds was indicated by some intelligible conduct, act or sign." Bait.
& Ohio R.R. Co. v. United States, 261 U.S. at 598; see also Russell Corp. v. United
States, 21 O Ct. Cl. at 609.

It is clear that "[a] party alleging either an express or implied-in-fact contract with
the government 'must show a mutual intent to contract including an offer, an acceptance,
and consideration."' Bank of Guam v. United States, 578 F.3d at 1326 (quoting Trauma
Serv. Grp. v. United States, 104 F.3d at 1325); see also Chattier v. United States, 632
F.3d 1324, 1330 (2011) (citing Trauma Serv. Grp. v. United States, 104 F.3d at 1325);
Hanlin v. United States, 316 F.3d 1325, 1328 (Fed. Cir. 2003) (citing City of Cincinnati v.
United States, 153 F.3d 1375, 1377 (Fed. Cir. 1998)). "The elements of an express oral
contract are the same as those of a written contract: mutuality of intent to be bound,
definite offer, unconditional acceptance, and consideration." Edwards v. United States,
22 Cl. Ct. 411, 420 (1991) (citing Essen Mall Props. v. United States, 21 Cl. Ct. 430, 440
(1990); Pac. Gas & Elec. Co. v. United States, 3 Cl. Ct. 329, 339 (1983), aff'd, 738 F.2d
452 (Fed. Cir. 1984); and City of Klawock v. United States, 2 Cl. Ct. 580, 584 (1983),
aff'd, 732 F.2d 168 (Fed. Cir. 1984)); see also Total Med. Mgmt.. Inc. v. United States,
104 F.3d 1314, 1319 (Fed. Cir.) ("The requirements for a valid contract with the United
States are: a mutual intent to contract including offer, acceptance, and consideration; and
authority on the part of the government representative who entered or ratified the
agreement to bind the United States in contract." (citations omitted)), reh'g denied and en
bane suggestion declined (Fed. Cir.), cert. denied, 522 U.S. 857 (1997); San Carlos Irr.
& Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989); Stanwyck v. United
States, 127 Fed. Cl. 308, 312 (2016); Huntington Promotional & Supply, LLC v. United
States, 114 Fed. Cl. at 767; Eden Isle Marina. Inc. v. United States, 113 Fed. Cl. 372, 492
(2013); Council for Tribal Emp't Rights v. United States, 112 Fed. Cl. 231, 243 (2013),
aff'd, 556 F. App'x 965 (2014). The elements of a binding contract with the United States
are identical for express and implied-in-fact contracts. See Night Vision Com. v. United
States, 469 F.3d 1369, 1375 (Fed. Cir. 2006) ("The elements of an implied-in-fact contract
are the same as those of an oral express contract."), cert. denied, 550 U.S. 934 (2007);
Hanlin v. United States, 316 F.3d at 1328 ("Thus, the requirements for an implied-in-fact
contract are the same as for an express contract; only the nature of the evidence differs.");
City of Cincinnati v. United States, 153 F.3d at 1377 ("Like an express contract, an
implied-in-fact contract requires '(1) mutuality of intent to contract; (2) consideration; and,
(3) lack of ambiguity in offer and acceptance.' ... When the United States is a party, a

20
fourth requirement is added: The government representative whose conduct is relied
upon must have actual authority to bind the government in contract." (quoting City of El
Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990)); Trauma Serv. Grp. v. United
States, 104 F.3d at 1325; Russell Corp. v. United States, 21 O Ct. Cl. at 608-09; Weeks v.
United States, 124 Fed. Cl. 630, 633 (2016); Huntington Promotional & Supply, LLC v.
United States, 114 Fed. Cl. at 767; Vargas v. United States, 114 Fed. Cl. 226, 233 (2014);
Prairie Cnty., Mont. v. United States, 113 Fed. Cl. 194, 202 (2013), aff'd, 782 F.3d 685
(Fed. Cir.}, cert. denied, 136 S. Ct. (2015); Mastrolia v. United States, 91 Fed. Cl. 369,
384 (2010) (citing Flexfab, L.L.C. v. United States, 424 F.3d 1254, 1265 (2005)). 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. See 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 and
reh'g en bane denied (Fed. Cir. 2001); see also Snyder & Assocs. Aquisitions LLC v.
United States, 133 Fed. Cl. 120, 126 (2017). "'A well pleaded allegation of an express, or
implied-in-fact, contract necessarily includes allegations going to each of the requisite
elements of a contract."' De Archibold v. United States, 57 Fed. Cl. 29, 32 (2003) (quoting
McAfee v. United States, 46 Fed. Cl. 428, 432, appeal dismissed, 243 F.3d 565 (Fed. Cir.
2000)).

Plaintiff contends that "the element of 'acceptance and offer' for the expressed [sic]
contract was established" when she complied with Dr. Baker's instruction to prepare the
required documentation supporting her request to become a reemployed annuitant, and
that "mutuality of intent to contract was established" when Dr. Russell approved that
request. According to plaintiff, Dr. Russell possessed the "delegated authority" to execute
a binding contract between plaintiff and the ARL. Plaintiff cites section 4(f) of Department
of Defense Instruction 1400.25, Volume 300, as the source of Dr. Russell's authority to
contract on the behalf of the United States, which provides:

The Secretaries of the Military Departments and the Heads of the Defense
Agencies and DoD Field Activities with independent appointing authority for
themselves and their serviced organizations may approve the employment
of annuitants covered by this Volume in executive-level positions and
positions at the GS-15 level and below (or equivalent). This authority may
be delegated, in writing, to the lowest practical level.

Dep't of Def. Instruction, No. 1400.25, Vol. 300, at 3 (Dec. 10, 2008). Defendant, however,
argues that approval of a "reemployed annuitant request packet is not sufficient to
demonstrate intent on the part of the United States Government to enter into an
enforceable employment contract with the plaintiff. At most this action demonstrates

21
AR L's intent to submit a request for personnel action and initiate the recruitment process."
According to defendant, without an employment offer from the Civilian Personnel Advisory
Center, "the offer and acceptance prong of a valid contract is nonexistent." Additionally,
defendant asserts that plaintiff has failed to demonstrate that Dr. Baker or Dr. Russell had
the authority to enter into a binding contract with plaintiff.

The documents contained in plaintiff's reemployed annuitant request packet, on
which plaintiff tries to rely to establish a contractual relationship with the ARL, indicate
that Dr. Baker and Dr. Russell were only approving that a request to hire plaintiff as a
reemployed annuitant go forward for final approval, as required by ARL management.
The first document is titled "Re-employed Annuitant Request," and the second document
is titled "REQUEST FOR CIVILIAN HIRE." (capitalization in original) (emphasis added).
The Request for Civilian Hire form indicates that the request is for a "Re-employed
Annuitant Hiring Request," and that "[i]f approved, Ms. Wade would return to work for
WMRD .... " (emphasis added). In these documents Dr. Baker and Dr. Russell were
merely seeking approval from the responsible, authorized government officials to
proceed; no contract came into existence as a result of these two documents.

Moreover, according to declarations included in defendant's appendix and signed
by Ms. Koch and Ms. Thacker, which describe the "internal ARL procedures" for hiring
reemployed annuitants, the submission of a reemployed annuitant request is only an
initial step in the ARL's hiring process. Following Dr. Baker's and Dr. Russell's approval
of plaintiff's reemployed annuitant request documentation, Ms. Koch submitted an RPA
for plaintiff's employment to the Civilian Personnel Advisory Center on January 4, 2016.
Thereafter, the Civilian Personnel Advisory Center still was required to determine whether
plaintiff had "cleared" the PPP, RPL, and ICTAP lists, and, only after plaintiff had cleared
those three lists, on January 28, 2016, could the Director of ARL approve a salary
memorandum. The Civilian Personnel Advisory Center could extend a tentative offer of
employment to plaintiff only after the Director of the ARL approved the salary
memorandum. Plaintiff, who states in her complaint that she has "extensive knowledge
and experience with the ARL hiring process as well as the Civilian Personnel
Classification Process," acknowledges that the Civilian Personnel Advisory Center could
not have extended a "formal offer" to her until after she cleared the PPP, RPL, and ICTAP
lists on January 28, 2016. In this case, however, when a representative from the Civilian
Personnel Advisory Center requested a salary memorandum from Ms. Koch, Ms. Koch
stated, "[p]lease hold on this action, we were given some news at the Director's meeting
yesterday that may change our requirement." Ultimately, after determining that none of
the Directorates within the ARL had a need for an individual with plaintiff's skill set in a
DJ-0341-03, category II position, the Civilian Personnel Advisory Center did not extend a
tentative employment offer to plaintiff for such a position. Consequently, without even an
employment offer from the ARL, a contract between plaintiff and defendant to serve as a
reemployed annuitant with the ARL could never have come into existence. Plaintiff has
failed to prove the requisite elements of either an express or implied-in-fact contract with
the ARL. See Bank of Guam v. United States, 578 F.3d at 1326.

22
Plaintiff alleges, but has failed to demonstrate, that Dr. Russell, the Director of the
ARL at the relevant time, had the authority to contract on behalf of the United States.
Defendant also points out that there also is no evidence in the record that Dr. Baker had
the necessary authority. Department of Defense Instruction 1400.25, Volume 300 states
that the "Secretaries of the Military Departments and the Heads of the Defense Agencies
and DoD Field Activities with independent appointing authority for themselves and their
serviced organizations may approve the employment of annuitants .... This authority
may be delegated, in writing, to the lowest practical level." Dep't of Def. Instruction, No.
1400.25, Vol. 300, at 3 (Dec. 10, 2008). There is no evidence in the record before the
court that the authority to hire a reemployed annuitant had been properly delegated to
either the Director of the WMRD or the Director of the ARL. Defendant is correct that
approval of the plaintiff's "reemployed annuitant request packet to start a personnel action
for an appointed position should not create an employment contract where one would
otherwise never exist." See Trauma Serv. Grp. v. United States, 104 F.3d at 1325. In
sum, the factual record in the case before the court does not demonstrate that a contract
between plaintiff and defendant ever came into existence.

CONCLUSION

Given the facts of plaintiff's case, the court's jurisdiction was never triggered and
no contract between plaintiff and the defendant ever came into existence. Plaintiff's
complaint is DISMISSED. The Clerk's Office shall enter JUDGMENT consistent with this
opinion.

~
IT IS SO ORDERED.

MARIAN BLANK HORN
Judge

23

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4242281. Public record. Not legal advice.