Lambro v. United States

In the United States Court of Federal Claims

No. 21-1447 C

(Filed: September 20, 2022 )

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JASON LAMBRO, *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant. *

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Joseph A. Whitcomb, Whitcomb, Selinsky, PC, of Denver, CO, for Plaintiff.

Matthew J. Carhart, Trial Attorney, Commercial Litigation Branch, Civil Division,

Department of Justice, of Washington, D.C., for Defendant, and Jessie James and Maryellen

Righi, Assistant General Counsels, U.S. Agency for Global Media, of Washington, D.C., of

counsel.

OPINION AND ORDER

SOMERS, Judge.

Before the Court is the government’s motion to dismiss Plaintiff Jason Lambro’s

(“Plaintiff”) transfer complaint for lack of subject matter jurisdiction and failure to state a claim.

Plaintiff alleges that the U.S. Agency for Global Media (“USAGM” or “agency”) willfully

misclassified him and other similarly situated individuals as independent contractors rather than

employees. Because of this misclassification, Plaintiff alleges that he did not receive benefits he

was entitled to as a federal employee, namely overtime pay under the Fair Labor Standards Act

(“FLSA” or the “Act”). In response, the government moved to dismiss all claims that accrued

prior to January 28, 2018, as well as Plaintiff’s claim for declaratory relief, for lack of subject

matter jurisdiction. In addition, the government moved to dismiss the remainder of Plaintiff’s

complaint for failure to state a claim upon which relief may be granted because Plaintiff cannot

establish that he is a federal employee entitled to the FLSA’s protections. The government’s

motion to dismiss has been fully briefed, and the Court held oral argument on June 15, 2022.

For the reasons explained below, the Court grants the government’s motion to dismiss.

BACKGROUND

A. Factual History

As alleged in the operative complaint, since 2002, Plaintiff has worked as a studio

technician for Voice of America (“VOA”), a division of USAGM. ECF No. 40 ¶¶ 17, 24 (“2d.

Am. Compl.”). He provided services under a series of purchase order agreements that are

essentially unchanged from the parties’ initial 2002 agreement. Id. ¶ 24–25. The agreements

contained multiple terms that restricted the manner in which Plaintiff worked, including

provisions that prohibited subcontracting and established deadlines for work product, along with

explicitly stating that “no employer-employee relationship exists” between Plaintiff and the

agency. Id. ¶ 25; see generally ECF No. 40-2. Despite the explicit statement that no employer-

employee relationship exists, Plaintiff states that the agency “significantly controlled and

continues to control the timing and management of Plaintiff’s work.” 2d. Am. Compl. ¶ 28.

This included the agency telling Plaintiff when to arrive at work, id. ¶ 29; asking him to

“complete . . . non-contracted for tasks,” id. ¶ 33; supplying his equipment, id. ¶ 35; and asking

Plaintiff “to remain on-call at times if the agency needed [him] at the office,” id. ¶ 37. Plaintiff

further alleges that he “worked more than 40 hours a week,” but did not receive overtime pay or

other benefits that his federal employee counterparts received. Id. ¶ 38. In 2018, Plaintiff

formed a limited liability company to contract with VOA under “virtually identical” terms as the

predecessor purchase order agreements between Plaintiff and the agency. Id. ¶ 42. Plaintiff

alleges that, notwithstanding the agreement between his LLC and the agency, VOA failed to give

Plaintiff the autonomy generally given to private entities, which resulted in him being unable to

take time off work or have someone else complete the contracted-for work. Id. ¶ 46.

Plaintiff cites in support of his allegations a 2014 audit of USAGM. Id. ¶ 53–54. In

2014, the Broadcasting Board of Governors 1 Inspector General released a report that, among

other things, found the agency had exceeded its congressional authority in awarding personal

service contracts. See 2d. Am. Compl. ¶¶ 53–58. Plaintiff asserts that this audit is tantamount to

an agency admission that an employer-employee relationship existed between contractors and

the agency, which should have resulted in the agency “convert[ing] Plaintiff’s and the Class

Members’ contracts into personal service contracts and award[ing] them FLSA benefits.” See id.

¶¶ 54–58.

B. Procedural History

Plaintiff originally filed his complaint in the United States District Court for the District

of Columbia on January 28, 2021. See ECF No. 1. Shortly thereafter, Plaintiff filed an

unopposed motion to transfer his case to this Court. See ECF Nos. 9–11. The district court

granted the motion and Plaintiff filed a transfer complaint in this Court on June 17, 2021. See

ECF Nos. 11, 20. Plaintiff filed a second amended complaint on November 5, 2021, asserting

three grounds for relief. See 2d. Am. Compl. Count I of the complaint seeks damages and

backpay for overtime worked while Plaintiff was allegedly misclassified as an independent

contractor. Id. ¶¶ 69–82. Count II asserts that the agency willfully violated the FLSA, entitling

Plaintiff to damages and back pay for up to three years prior to the filing of his complaint. Id.

1

Now known as the United States Agency for Global Media.

2

¶¶ 83–88. Count III requests a declaratory judgment finding that Plaintiff is an agency

employee. Id. ¶¶ 89–95. In response, the government moves to dismiss Plaintiff’s complaint on

three grounds: first, the FLSA’s three-year statute of limitations for willful FLSA violations

forecloses all claims that accrued prior to January 28, 2018, see ECF No. 41 at 12–13 (“Def.’s

Mot. Dismiss”); second, Plaintiff failed to state a claim, as he is not a federal employee, see id. at

13–20; and third, because both Count I and II must be dismissed, the Court lacks jurisdiction to

grant the declaratory relief requested in Count III, see id. at 20–21.

DISCUSSION

A. Legal Standard

1. Motion to Dismiss for Lack of Jurisdiction

The United States Court of Federal Claims, like all federal courts, is a court of limited

jurisdiction. Under the Tucker Act, this Court may “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).

However, “[t]he Tucker Act does not, of itself, create a substantive right enforceable against the

United States.” Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013) (citing Ferreiro v.

United States, 501 F.3d 1349, 1351 (Fed. Cir. 2007)). Rather, to state a claim within the Court’s

jurisdiction, “the plaintiff must identify a separate contract, regulation, statute, or constitutional

provision that provides for money damages against the United States.” Id. Stated differently, the

plaintiff must state a claim that is based on a provision that “can fairly be interpreted as

mandating compensation by the Federal Government for the damages sustained,” United States

v. Mitchell, 463 U.S. 206, 216–17 (1983) (citing United States v. Testan, 424 U.S. 392, 400

(1976)), and is “reasonably amenable to the reading that it mandates a right of recovery in

damages,” United States v. White Mountain Apache Tribe, 537 U.S. 465, 473 (2003). In

addition, even if a plaintiff brings a claim based on a money-mandating source of law, the claim

must also be brought within the applicable statute of limitations in order for it to be within the

Court’s jurisdiction. See Martinez v. United States, 333 F.3d 1295, 1316 (Fed. Cir. 2003) (“It is

well established that statutes of limitations for causes of action against the United States, being

conditions on the waiver of sovereign immunity, are jurisdictional in nature.”).

2. Motion to Dismiss for Failure to State a Claim

Even if a plaintiff alleges entitlement to relief under a money-mandating source of law,

the plaintiff must still state a claim upon which the Court can grant relief. “When considering a

motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule

12(b)(6), a court accepts all well-pled facts as true and draws all reasonable inferences in

plaintiff’s favor.” Silver Buckle Mines, Inc. v. United States, 117 Fed. Cl. 786, 791 (2014)

(citations omitted). Granting a motion to dismiss for failure to state a claim “is appropriate when

the facts asserted by the claimant do not entitle him to a legal remedy.” Lindsay v. United States,

295 F.3d 1252, 1257 (Fed. Cir. 2002). Denial of the motion is warranted when the complaint

presents “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on

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its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)).

B. Analysis

1. The Court Lacks Jurisdiction over Claims that Accrued Prior to January 28,

2018

In his complaint, Plaintiff alleges, inter alia, that VOA willfully violated the FLSA by

misclassifying him as an independent contractor rather than an employee. See 2d. Am. Compl.

¶¶ 83–88. The statute of limitations for most FLSA claims is two years, unless the employer

willfully violates the Act, which adds another year to the limitations period. See 29 U.S.C.

§ 255(a). The government, in its motion to dismiss, argues that even if Plaintiff was able to

establish a willful violation of the FLSA, the Court would still lack jurisdiction over all claims

“that accrued before January 28, 2018,” because they “are barred by the FLSA’s statute of

limitations” as they arose more than three years prior to when Plaintiff filed his original

complaint in district court. See Def.’s Mot. Dismiss at 12. Plaintiff’s response does not address

the government’s statute of limitations argument, see generally ECF No. 42 (“Pl.’s Resp.”), and,

unsurprisingly, counsel for Plaintiff conceded at oral argument that the government was correct

with regard to these claims, see ECF No. 50 (“Tr. Oral Argument”) at 4–5. Accordingly, as the

Court lacks subject matter jurisdiction over all claims that accrued prior to January 28, 2018,

such claims are dismissed. See also Sarro & Assocs., Inc. v. United States, 152 Fed. Cl. 44, 58

(2021) (“A party’s failure to raise an argument in an opening or responsive brief constitutes

waiver.” (citing cases)).

2. Because Plaintiff Is Not a Federal Employee, Counts I and II Fail to State a

Claim

Counts I and II of Plaintiff’s complaint allege that VOA misclassified Plaintiff as an

independent contractor thereby denying him “overtime pay, liquidated damages, and any other

relief provided by the FLSA.” 2d. Am. Compl. ¶¶ 82, 88. Although Plaintiff acknowledges that

he was considered an independent contractor by VOA, he argues that, despite this classification,

based on the economic realities test, he was, in reality, a VOA employee for purposes of the

FLSA. See id. ¶¶ 20, 75, 76, 94. In response, the government asserts that because Plaintiff “was

never appointed as a Federal employee, nor was he hired pursuant to specific Congressional

authority creating an employer-employee relationship, he is not a Federal ‘employee’ under the

FLSA.” Def.’s Mot. Dismiss at 13. Accordingly, the government moves to dismiss Counts I and

II of Plaintiff’s complaint on the grounds that Plaintiff has failed to state a claim upon which

relief may be granted because Plaintiff cannot establish that he is a federal employee entitled to

the FLSA’s protections. See id.; see also Diaz v. United States, 156 Fed. Cl. 270, 275 (2021)

(“Whether [plaintiff] is an employee of the USPS is a legal question, not a factual allegation.

Therefore, a plaintiff cannot assert by merely pleading, in a conclusory fashion, that he has

employee status.” (internal citations and quotations omitted)). The Court agrees with the

government.

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The FLSA provides various protections for full- and part-time employees, including

overtime pay for employees who work for employers that fall within the Act’s coverage.

Importantly, the FLSA’s protections only apply to “employees” employed by “employers” as

those terms are defined in the Act. See 29 U.S.C. § 207. There is no dispute in this case that

VOA (and the federal government generally) is an “employer” and thus subject to the FLSA.

Instead, the parties dispute whether Plaintiff is an “employee.” Rather unhelpfully, the FLSA

defines the term “employee” as “any individual employed by an employer.” 29 U.S.C. §

203(e)(1). In order to fill in the gaps left by this definition, Plaintiff urges the Court to turn to the

economic realities test to determine whether he qualifies as an employee despite the fact that he

has worked under a series of purchase order agreements. See 2d. Am. Compl. ¶¶ 20, 75, 76, 94.

The economic realities test is a judicially-created test used to determine whether a person

who has not been classified as an employee does work of such a character and quality that he or

she should in fact be classified as an employee. See, e.g., Williams v. Henagan, 595 F.3d 610,

620 n.15 (5th Cir. 2010) (“The test stems from a series of Supreme Court cases rejecting the

common-law understanding of ‘employee’ and ‘independent contractor’ in the context of the

National Labor Relations Act, the Social Security Act, and the FLSA. In the FLSA context, the

Court ruled in Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33 (1961), that ‘economic

reality rather than technical concepts is to be the test of employment.’”). There appears to be

some variance in the factors considered by courts in applying the economic realities test;

however, under the version proffered by Plaintiff, the Court is to consider: “1) right to control;

2) opportunity for profit or loss; 3) investment in equipment or materials required for

employment; 4) the degree of skill required; 5) the degree of permanency and duration of the

working relationship; and 6) the extent to which the service rendered is an integral part of the

employer’s business.” Pl.’s Resp. at 16–17 (citing Pendleton v. JEVS Hum. Servs., Inc., 463 F.

Supp. 3d 548, 561 (E.D. Pa. 2020)).

According to Plaintiff, his work relationship with VOA easily meets the economic

realities test. In support of this, Plaintiff alleges, inter alia, that he did not provide his own

equipment, 2d. Am. Compl. ¶¶ 35, 77, was “on-call” and unable to set his own hours, id. ¶ 37,

and worked more than forty hours a week without premium or overtime pay, id. ¶ 38. In

addition, he asserts that “USAGM was aware, at minimum, in June 2014 that the purchase order

agreements it entered into with Plaintiff . . . created an employee-employer relationship when []

the OIG audit explicitly told it as much. Yet, USAGM did nothing to convert Plaintiff’s . . .

independent contracting status to full-time employment.” Id. ¶ 86.

The government counters that whether Plaintiff is able to satisfy the economic realities

test is irrelevant to the inquiry because that test does not apply when assessing whether an

individual is a federal employee. Rather, according to the government, “[b]ased on . . . well-

established precedent, courts have correctly concluded that only those who are appointed or are

hired pursuant to specific Congressional authority creating an employer-employee relationship

are Federal employees under the FLSA.” Def.’s Mot. Dismiss at 15. Thus, the government

argues that because the complaint does not allege Plaintiff was appointed as a federal employee

or that he was hired pursuant to specific congressional authorization creating an employment

relationship, Plaintiff fails to state a claim. See id.

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The Court concurs with the government. Recall that in order to be entitled to the FLSA’s

benefits, one must be an employee, see 29 U.S.C. § 203(e)(1), and that an “individual employed

by a public agency” is separately defined under the Act so as to distinguish it from the more

general term “employee,” compare 29 U.S.C. § 203(e)(2)(A) with 29 U.S.C § 203(e)(1) (“Except

as provided in paragraph[] (2) . . . the term ‘employee’ means any individual employed by an

employer.” (emphasis added)). The relevant inquiry for this case then is whether Plaintiff

qualifies as a federal employee. In other words, may a plaintiff present a set of facts that would

make him a de facto federal employee through application of the economic realities test? The

answer to both questions is no.

As stated above, the economic realities test is a judicially-created doctrine that looks to

“economic reality rather than technical concepts” as “the test of employment.” Goldberg, 366

U.S. at 33. Application of that test to federal employment, however, is not workable as

“technical concepts,” such as appointment, are crucial to determining whether an individual is a

federal employee. All federal employees derive the benefits and burdens of their positions from

appointment. See, e.g., Chu v. United States, 773 F.2d 1226, 1229 (Fed. Cir. 1985). This is

crucial, as “the question of appointment, by itself, controls the question of whether an individual

is an ‘employee’ for the purpose of civil service.” Watts v. Off. Personnel Mgmt., 814 F.2d

1576, 1579–80 (Fed. Cir. 1987). Moreover, “[t]he status of ‘employee’ requires unequivocal

intention to bring an individual within the civil service.” Id. This is because, unlike private

employment, “federal workers’ rights are defined by Title V and not by contract, the common

law, or other statutes not specifically made applicable to federal workers.” Griffin v. Sec’y of

Health and Hum. Servs., 124 Fed. Cl. 101, 106 (2014); see also Doe v. United States, 513 F.3d

1348, 1359 (Fed. Cir. 2008) (“[F]ederal employee benefits and pay are governed by statute, not

by contract.”).

Plaintiff nevertheless asserts that the common law economic realities test should apply to

the federal government in lockstep with the private sector. That cannot occur without defying

over forty years of established circuit precedent. The Court of Claims, the Federal Circuit, and

this Court have continuously affirmed the principle that appointment is a sine qua non of federal

employment. In Baker v. United States, the Court of Claims stated that in order for a worker to

be considered a federal employee, he or she must meet “[a]ll three tests of this statutory

definition, i.e., federal appointment, federal supervision, and federal function.” 222 Ct. Cl. 263,

268 (1980). The Baker court went on to hold that, without appointment, the remainder of the

inquiry is irrelevant. Id. The Federal Circuit has observed in later cases that there is a

“significant degree of formality in the appointment process,” Horner v. Acosta, 803 F.2d 687,

692 (Fed. Cir. 1986), and has delineated formalities that indicate someone has been appointed

into the federal civil service. Examples of these formalities include execution of Standard Form

50 or 52, see Watts, 814 F.2d at 1580; Horner, 803 F.2d at 692–94; Bevans v. Off. Personnel

Mgmt., 900 F.2d 1558, 1562 (Fed. Cir. 1990), extensive paperwork, see Guevara v. I.N.S., No.

90–1476, 1992 WL 1029, at *2 (Fed. Cir. Jan. 6, 1992), withholdings from the employee’s salary

for the civil servant retirement fund, see Bevans, 900 F.2d at 1563, and administration of an oath,

Horner, 803 F.2d at 694; Watts, 814 F.2d at 1579. Perhaps most telling, however, is that even in

the presence of those indicia the Court of Claims and the Federal Circuit have explicitly rejected

a “totality of the circumstances” approach, as “[a]n abundance of federal function and

supervision will not make up for the lack of appointment.” Horner, 803 F.2d at 693 (internal

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quotations omitted) (quoting Costner v. United States, 229 Ct. Cl. 87, 94 (1981)); see also

Bevans, 900 F.2d at 1564 (rejecting the argument that administration of the oath of office set out

in 5 U.S.C. § 3331 was an indicator of appointment to federal service because “even if [the

court] assume[s] [plaintiff] was given the oath of office, the administration of an oath would not

itself establish that [plaintiff] was appointed in the civil service”). This is because “definite,

unconditional action by an authorized federal official designating an individual to a specific civil

service position is necessary to fulfill the appointment requirement of 5 U.S.C. § 2105(a),” and

federal function and supervision are not sufficient decisive action. Horner, 803 F.3d at 693

(emphasis added). This means that it is not enough for an independent contractor to occupy a

post at an agency. There must be a corresponding action that intentionally brings him or her into

federal service: appointment. Baker, 222 Ct. Cl. at 266.

Even if Plaintiff could successfully argue that he has met the latter two Baker

prerequisites for federal employment (federal supervision and function), he has not alleged that

he was appointed, or even constructively appointed, which is required for him to state a claim.

As the applicable caselaw makes clear, there is no federal employment without appointment.

See, e.g., Costner, 229 Ct. Cl. at 94. The complaint alleges many facts that, if Plaintiff was

alleging employment by a private employer, would be pertinent to the economic realities test.

See 2d. Am. Compl. ¶ 29 (“Plaintiff was told when to arrive at work . . . . what audio systems he

would operate . . . .”); id. ¶ 33 (“Plaintiff was consistently directed to complete [] non-contracted

for tasks . . . .”); id. ¶ 35 (stating that “plaintiff was never required to provide any equipment to

complete his tasks”). However, the economic realities test can only prove constructive

employment. In other words, the nature of the economic realities test is that a court looks at the

quality and character of conduct an employee engages in and determines as a matter of law

whether or not there is such a degree of control that the person cannot be fairly characterized as

an independent contractor. See Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir.

1999) (“Because the statute defines employer in such broad terms, it offers little guidance on

whether a given individual is or is not an employer. In answering that question, the overarching

concern is whether the alleged employer possessed the power to control the workers in question

. . . .”). That is not the case with federal employment, which cannot occur “in a passive manner

without appointment.” Watts, 814 F.2d at 1580.

This difference is exemplified by the Federal Circuit’s decision in Guevara v.

Immigration and Naturalization Service, No. 90–1476, 1992 WL 1029, at *2 (Fed. Cir. Jan. 6,

1992). In that case, inmates who worked voluntarily and were paid one dollar a day asserted that

they “must be paid in accordance with the minimum wage requirements” of the FLSA. Guevara

v. I.N.S., 1992 WL 1029, at *1. The circuit rejected this proposition and, in upholding the

district court’s decision that the FLSA did not apply to the plaintiffs, noted that the plaintiffs had

failed to plead “any basis for their entitlement to the status of federal employees.” Id. In part,

this is because “[w]hatever the category, an individual is not considered to be a federal

government employee until he or she has been properly appointed as an employee of the

Government,” which involves appointment by a person who is authorized to do so. Id. at *2.

In the instant case, Plaintiff has failed to allege that he was appointed by someone with

the authority to do so at the agency. See generally 2d. Am. Compl. Rather, as stated above, the

allegations relate almost entirely to the contracted for agreement between Plaintiff and VOA and

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their conduct while under said agreements. Id. Thus, Plaintiff’s complaint does not allege any

facts that, assumed as true, indicate formal action that would demonstrate his constructive

appointment. That makes sense considering Plaintiff attempts to apply a common law rule that is

diametrically opposed to the stringent and formal requirements of federal employment. See

Horner, 803 F.2d at 692 (“The precedents binding on this court have required that there be a

significant degree of formality in the appointment process.”). The economic realities test fills the

gap that Congress left in defining private sector employers and employees, whereas the Act

delineates and more specifically defines what constitutes a federal employee. 2 This is likely

because, in drafting the Act, Congress was aware of the formalities that coincide with federal

employment. Compare 29 U.S.C. § 203(e)(2)(A) with 29 U.S.C § 203(e)(1); see also Griffin,

124 Fed. Cl. at 106 (“[W]hen a statute limits its applicability, at least in part, to only United

States employees, we presume that Congress had in mind the definition of a federal employee

from the statutes that govern them.”).

The Court finds Judge Tapp’s reasoning in Diaz v. United States, 156 Fed. Cl. 270

(2021), both helpful and on point. In Diaz, Judge Tapp addressed the case of an independent

contractor who served as a mail carrier for the United States Postal Service. See 156 Fed. Cl. at

273. The plaintiff in that case brought a complaint alleging, inter alia, that he was improperly

classified as an independent contractor because “he performed essentially the same tasks as

employee mail carriers.” Id. at 275. Judge Tapp held that the plaintiff was properly classified as

an independent contractor and not a federal employee. Id. at 274. In doing so, he noted that

whether or not someone is a federal employee is “a legal question, not a factual allegation,” and

thus “a plaintiff cannot assert by merely pleading, in a conclusory fashion, that he has employee

2

Federal employees did not become entitled to the FLSA’s protections until the 1974

amendments to the FLSA. See 88 Stat. 58. Those amendments extended the FLSA’s protections to

individuals employed by a public agency, which includes

(A) any individual employed by the Government of the United States—

(i) as a civilian in the military departments (as defined in section 102 of Title 5),

(ii) in any executive agency (as defined in section 105 of such title),

(iii) in any unit of the judicial branch of the Government which has positions in the

competitive service,

(iv) in a nonappropriated fund instrumentality under the jurisdiction of the Armed

Forces,

(v) in the Library of Congress, or

(vi) the Government Publishing Office;

29 U.S.C. § 203(e)(2)(A). The cross-referenced definition to an “executive agency” defines the term as

“an Executive department, a Government corporation, and an independent establishment.” 5 U.S.C. §

105. The parties do not dispute that VOA is a public agency as defined in 29 U.S.C § 203(e)(2)(A).

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status.” Id. at 275 (internal quotations and citations omitted). Moreover, Judge Tapp rejected

application of the economic realities test, despite the plaintiff’s urging, because

the use of the economic realities test, or any balancing test for that matter, would

be a misapplication of the law as it relates to federal employees. . . . The Federal

Circuit imposes 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.”

Id. at 276 (quoting Harrison v. United States, 120 Fed. Cl. 533, 544–45 (2015). Additionally, he

noted that the plaintiff had failed to allege appointment and the fact that the plaintiff “executed

multiple agreements over the course of several years containing the apparent mutual

understanding that he was an independent contractor” further demonstrated that the plaintiff was

in fact an independent contractor rather than a federal employee. Diaz, 156 Fed. Cl. at 276.

Many of the facts that proved dispositive in Diaz are present in this case as well. Plaintiff

has not alleged facts that suggest appointment, and, instead, he has relied on the economic

realities test to attempt to bridge that gap. As explained above and articulated in Diaz, for

federal employees the economic realities test is not a substitute for appointment. Furthermore,

the fact that Plaintiff entered into an essentially identical contract seventeen times over the last

seventeen years, 2d. Am. Compl. ¶ 27, that explicitly states that “no employer employee

relationship exists” between Plaintiff and the government, id. ¶ 25, strongly indicates that there

was a “mutual understanding” that Plaintiff is an independent contractor. Diaz, 156 Fed. Cl. at

276 (finding that the presence of multiple agreements that spanned several years indicated an

understanding that the plaintiff was an independent contractor).

The Federal Circuit has explicitly stated 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.” Chu, 773 F.2d at

1229. Although a significant portion of Plaintiff’s opposition to the government’s motion

addresses what the agency could have done in terms of appointing him, there is no allegation that

Plaintiff was hired pursuant to any specific authority that would entitle him to a remedy under

the FLSA. See generally 2d. Am. Compl. In short, the only way the Court could find in favor of

Plaintiff would be to ignore binding circuit precedent. Moreover, the ramifications of such a

finding would be enormous, as the Federal Circuit summarized in Watts v. Office of Personnel

Management. In that case, the circuit considered whether a pilot employed by a proprietary

Central Intelligence Agency corporation was entitled to civil service retirement benefits. See

Watts, 814 F.2d at 1578. There, the plaintiff argued that “the circumstances as a whole indicate

the intention to appoint [plaintiff] to the civil service.” Id. at 1580. In holding that the plaintiff

was not a civil servant, the circuit observed that

[t]he position urged by Watts would create a new category of employees who,

without formal appointment or even awareness of the government’s role when

employed, would become “appointed” civil servants, in numbers unknown, and

without thought as to their effect on actuarial soundness of the retirement fund. The

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implications of Watts’ position might extend further to cover employees of

corporations, privately owned, yet primarily producing goods or services for the

government. We conclude that, in the absence of formal or even intended

appointment, Watts is not an “employee” for the purposes of the civil service

system.

Id. at 1579. Plaintiff’s proffered position creates the same issue: a litany of employees in

numbers unknowable that would be entitled to the benefits and burdens of federal employment

without definitive action by the government.

As demonstrated throughout the above, Plaintiff’s arguments are entirely foreclosed by

the requirements regarding the creation of federal employment and binding Court of Claims and

Federal Circuit precedent applying those requirements. Because Plaintiff’s complaint does not

allege a scintilla of evidence that would indicate to this Court that he was appointed, he has not

as a matter of law sufficiently alleged that he is a federal employee. Therefore, he fails to state a

claim under Counts I and II upon which the Court can grant relief.

3. The Court Lacks Jurisdiction over Count III Because It Requests Declaratory

Relief That Is Not Incident and Collateral to a Claim within the Court’s

Jurisdiction

Finally, Count III of Plaintiff’s complaint requests relief in the form of a declaration “that

at all times while working for Defendant, [Plaintiff and other potential class members] were

improperly misclassified and should have been classified as employees instead of independent

contractors, pursuant to the FLSA.” 2d. Am. Compl. ¶ 91. As Judge Lettow explained in Land

of Lincoln Mutual Health Insurance Company, 129 Fed. Cl. 81 (2016), this Court has jurisdiction

to grant declaratory or other equitable relief in three circumstances:

First, the court may “issue orders directing restoration to office or position,

placement in appropriate duty or retirement status, and correction of applicable

records” as an “incident of and collateral to” a monetary judgment. 28 U.S.C.

§ 1491(a)(2). Second, the court has jurisdiction to hear nonmonetary disputes

arising under the Contract Disputes Act, 28 U.S.C. § 1491(a)(1) (last sentence), and

third, it has juridical power to grant equitable relief in bid protests. 28 U.S.C.

§ 1491(b)(2).

129 Fed. Cl. at 99; see also Manuel v. United States, 115 Fed. Cl. 105, 114–15 (2014) (collecting

cases). As this case is neither a Contract Disputes Act claim nor a bid protest, in order for the

Court to be empowered to grant declaratory relief, there must be a claim that on the merits

entitles Plaintiff to a monetary judgment. See Faison v. United States, 102 Fed. Cl. 637, 643

(2012). As explained above, Plaintiff fails to state a monetary claim upon which relief may be

granted; therefore, the Court does not have jurisdiction over Plaintiff’s request for declaratory

relief and grants the government’s motion to dismiss Count III.

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CONCLUSION

For the reasons stated above, the Court GRANTS the government’s motion to dismiss.

The Clerk SHALL enter judgment accordingly.

IT IS SO ORDERED.

s/ Zachary N. Somers

ZACHARY N. SOMERS

Judge

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