Auld v. United States

In the United States Court of Federal Claims

No. 15-429

(Filed: 16 February 2023)

NOT FOR PUBLICATION

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STUART NICHOLS AULD, *

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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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Stuart Nichols Auld, pro se, of Kansas City, MO.

Jana Moses, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.

Department of Justice, of Washington, DC, for defendant.

OPINION AND ORDER

HOLTE, Judge.

Plaintiff alleges the government breached an agreement when the Bureau of Land

Management recovered previously reimbursed moving expenses from him and arbitrarily and

capriciously terminated him. The government filed a motion for summary judgment on Count I

and a motion to dismiss for lack of subject matter jurisdiction on Count II. The government

asserts one year of service is required for moving expenses to be reimbursed. For the following

reasons, the Court (1) grants the government’s motion for summary judgment as to Count I, ECF

No. 35, because the reimbursement document requires one year of service; and (2) grants the

government’s motion to dismiss as to Count II, ECF No. 35, for lack of subject matter

jurisdiction.

I. Background

A. Factual History

The Court draws the following facts from plaintiff’s amended complaint and construes

the facts in the light most favorable to plaintiff. See Estes Express Lines v. United States, 739

F.3d 689, 692 (Fed. Cir. 2014) (“In deciding a motion to dismiss for lack of subject matter

jurisdiction, the court accepts as true all uncontroverted factual allegations in the complaint, and

construes them in the light most favorable to the plaintiff.”); Matsushita Elec. Indus. Co. v.

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Zenith Radio Corp., 475 U.S. 574, 587 (1986) (examining the non-movant’s evidence in the light

most favorable to the non-movant and drawing all justifiable inferences in favor of the non-

movant during summary judgment proceedings). The Court further draws from the facts found

in the parties’ summary judgment briefings. See generally Def.’s Mot. to Dismiss and for

Summ. J. (“MTD & MSJ”), ECF No. 35; Pl.’s Aff. & Decl., ECF No. 54; Def.’s Reply in Supp.

of its MTD & MSJ (“Gov’t’s Supp. Reply”), ECF No. 60; Pl.’s Resp. to Def.’s MTD & MSJ

(“Pl.’s Suppl. Br.”), ECF No. 110; Def.’s Reply to Pl.’s Suppl. Opp’n to Def.’s Mot. to Dismiss

& for Summ. J. (“Gov’t’s Reply Suppl. Br.”), ECF No. 114.

On 8 June 2009, plaintiff began working as a realty specialist for Bureau of Land

Management (“BLM”) conditioned on completing a one-year probationary period. Am. Compl.

at 3–4, ECF No. 28. Plaintiff previously held a temporary appointment with the Department of

Commerce from October 1998 to October 2000 as “a Regional Administrative Specialist for

Leasing, assisting with the Census 2000 efforts.” Id. at 2. Per BLM’s All Applicant Data

Report, plaintiff “stated he was not a current Federal employee when applying for the position.”

MTD & MSJ at 2. On 5 May 2009, plaintiff signed a document titled “Employment Agreement”

(hereinafter “Exhibit C”), which provided the government would reimburse plaintiff for “the cost

of travel, transportation, and other allowable expenses including transportation and storage of

household goods and personal effects” in connection with his “transfer for duty” from Kansas—

where he resided prior to his employment—to Colorado, his BLM duty location. 1 Compl., Ex.

C., ECF No. 1-1; App. to MTD & MSJ at 23; see Am. Compl. at 3. Exhibit C also provided

“Reimbursement will be in accordance with the Administrative Expenses Act of 1946, as

amended, and under Public Law 89-516, approved July 21, 1966, and regulations issued by the

General Services Administration.” Compl., Ex. C; App. to MTD & MSJ at 23. According to

Exhibit C, the employee “agree[s] to remain in the Federal Government service for twelve (12)

months following the effective date of transfer,” and if the employee “fail[s] to complete the

above agreement, any moneys expended by the Federal Government because of such travel,

transportation, and other allowable expenses shall be recovered from [the employee] as a debt

due the United States, unless [the employee] may become separated from the Government for

reasons beyond [the employee’s] control.” Compl., Ex. C; App. to MTD & MSJ at 23; see also

Am. Compl. at 4.

The government provided Mr. Auld a credit card to be used only for employment-related

expenses, such as travel expenses. 16 July 2020 Order at 2, ECF No. 98; see Am. Compl. at 5.

Before using the card, Mr. Auld received oral instructions of how to handle personal or

individual charges. 16 July 2020 Order at 2; Am. Compl. at 5; see Pl.’s Aff. & Decl. at 4–5.

Plaintiff’s first individual charge was “for a small amount of gas to see if the new card was active

and operating,” the second individual charge “was for a glass of wine at dinner,” and the third

charge was for “gas for a friend’s car for a free ride to the airport which actually saved the

Government a large taxi cab bill and/or mileage and parking fees for 2 weeks.” Pl.’s Aff. &

Decl. at 5. In December 2009, the government requested plaintiff return approximately $2,300 it

had provided him for relocation expenses, claiming plaintiff had never used them. App. to MTD

& MSJ at 101–04. Before plaintiff completed the one-year probationary period, BLM

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Plaintiff filled out and signed Exhibit C after completing the necessary paperwork and background check for

employment. See Am. Compl. at 3. While the Exhibit C is titled “Employment Agreement,” the document relates

to the moving expenses associated with his location. See Compl., Ex. C.

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terminated plaintiff’s employment, citing performance and conduct-related matters. 16 July

2020 Order at 2. “The termination letter specifically noted plaintiff violated the government

credit card policy by using it to purchase gasoline for his personal vehicle on four separate

occasions[, and] the letter also stated that plaintiff failed to follow his supervisor’s instructions

on multiple occasions.” Id. (citations omitted). After the government terminated plaintiff, it

requested plaintiff repay his relocation expenses and deducted the amounts from his final

paycheck. Am. Compl. at 7; App. to MTD & MSJ at 122–23.

B. Procedural History

On 28 April 2015, plaintiff filed a complaint in the Court of Federal Claims after he

pursued similar litigation in Missouri state court and the United States District Court for the

Western District of Missouri. See Compl. at 15, ECF No. 1. The government filed a motion to

dismiss on 29 June 2015. See Def.’s Mot. to Dismiss, ECF No. 5. Plaintiff filed an amended

complaint on 25 April 2016, reducing his claims from nine counts to two counts: (1) “The BLM

breached its employment agreement with Mr. Auld”; and (2) “BLM’s actions were arbitrary and

capricious.” See Am. Compl. at 8–10 (cleaned up). On 13 July 2016, the government filed a

combined motion to dismiss on Count II and motion for summary judgment on Count I. See

MTD & MSJ.

On 4 March 2019, plaintiff, proceeding pro se, filed a motion for leave to file a second

amended complaint. See Pl.’s Mot. to Amend Compl., ECF No. 74. The government filed its

opposition to plaintiff’s motion on 18 March 2019. See Def.’s Opp’n to Pl.’s Mot. to Amend,

ECF No. 76. On 22 July 2019, plaintiff filed a reply to the government’s opposition by leave of

court from the previous judge. See Pl.’s Reply to Def.’s Opp’n to Pl.’s Mot. to Amend Compl.,

ECF No. 77. On 29 July 2019, this case was reassigned to the undersigned Judge. See 29 July

2019 Order, ECF No. 78. This Court denied plaintiff’s motion to file a second amended

complaint on 16 July 2020, holding the complaint was futile because the Court lacked

jurisdiction to consider plaintiff’s numerous amended claims. See 16 July 2020 Order at 12. In

the July 2020 order, the Court also allowed the government to file a supplemental brief in

support of its motion to dismiss and motion for summary judgment on or before 17 August 2020,

to which plaintiff could respond by 17 September 2020. Id. at 13. The Court limited these

filings to no more than 10 pages. Id.

On 3 August 2020, plaintiff filed a motion for reconsideration (“Mot. for Recons. of 16

July 2020 Order”), ECF No. 99, and the government responded on 7 August 2020 (“Def.’s

Resp. to Pl.’s Mot. for Recons.”), ECF No. 100. The Court denied plaintiff’s motion for

reconsideration on 10 August 2020. See 10 Aug. 2020 Order, ECF No. 101. On 27 August

2020, plaintiff moved to remand the case to Department of the Interior (“DOI”)/BLM. See Pl.’s

Mot. for Remand to DOI/BLM, ECF No. 105. On 9 September 2020, the Court stayed

consideration of plaintiff’s motion for remand and all other pending motions, including motions

plaintiff filed after the date of the Order and any deadlines for future responses, until resolution

of the government’s motion to dismiss and motion for summary judgment. 9 Sept. 2020 Order,

ECF No. 108. The Court also clarified, although the government did not file a supplemental

brief by 17 August 2020, plaintiff could still file a supplemental brief by 17 September 2020. Id.

at 2; see 16 July 2020 Order at 13. On 15 September 2020, plaintiff moved for leave to file a

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supplemental pleading or correct the amended complaint. 2 See Mot. for Leave to Correct Am.

Compl., ECF No. 109. The Court’s 9 September 2020 Order stayed the new motion. See 9 Sept.

2020 Order at 2.

On 17 September 2020, plaintiff filed a supplemental brief. See Pl.’s Suppl. Br. The

supplemental brief was 44 pages and included attachments totaling 145 pages, far exceeding the

10-page limit the Court’s 16 July 2020 Order imposed. See id.; 16 July 2020 Order at 13. The

government did not file its allowed supplemental brief but instead filed a reply to plaintiff’s

supplemental brief on 28 September 2020. See Gov’t’s Reply Suppl. Br.; see also 16 July 2020

Order. Plaintiff moved for leave to file a supplemental declaration on 1 October 2020 despite the

Court’s stay of further motions. 3 See Mot. for Leave to File Suppl. Decl., ECF No. 115; 16 July

2020 Order. On 14 October 2020, plaintiff moved to strike the government’s reply brief, arguing

the Court did not provide for such a reply but instead ordered plaintiff’s supplemental brief to be

the last filing with further motions and filing deadlines stayed. Mot. to Strike Reply, ECF No.

116. The government responded to both the motion for leave and motion to strike on 16 October

2020, arguing plaintiff’s supplemental briefing, which was 135 pages over the maximum allotted

pages, was contingent on the government filing a supplemental brief, and the motion for

supplemental declaration is stayed pursuant to the 9 September 2020 Order. 4 Def.’s Resp. to

Pl.’s Mot. for Suppl. Decl. & Mot. to Strike at 2, ECF No. 117. On 3 November 2020, plaintiff

filed another motion to strike the government’s response to the previous motion to strike. 5 Mot.

to Strike Def.’s Resp., ECF No. 118. The government filed a response, ECF No. 119, urging the

Court to deny plaintiff’s motion to strike. Plaintiff filed an amended motion to remand, ECF No.

122, on 22 December 2022.

II. Parties’ Arguments

A. Plaintiff’s Arguments

In his complaint, plaintiff asserts two counts: (1) “The BLM breached its employment

agreement with Mr. Auld”; and (2) “BLM’s actions were arbitrary and capricious.” Am. Compl.

8–10 (cleaned up). On Count I, plaintiff states Exhibit C incorporates statutory rights, found in

5 U.S.C. § 5723(b), entitling him to travel expenses. 6 Id. at 8. According to plaintiff, the

government may only recover travel and transportation funds granted to an employee if the

employee violates the agreement—“in other words, leaves federal service voluntarily before the

end of one year.” Id. Plaintiff alleges he did not voluntarily leave government service and

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As plaintiff’s arguments in this motion are sufficiently similar to those in his proposed second amended complaint,

and as these arguments remain unpersuasive, meritless, or futile, the Court, therefore, DENIES plaintiff’s motion

for leave to file a supplemental pleading or correct the amended complaint, ECF No. 109. See 16 July 2020 Order at

12.

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Since the Court allowed previous supplemental declarations, the Court allows pro se plaintiff’s supplemental

declaration to fully consider his arguments. The Court, therefore, GRANTS plaintiff’s motion for leave to file a

supplemental declaration, ECF No. 115.

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The Court DENIES plaintiff’s motion to strike, ECF No. 116, in order to fully consider the parties’ arguments.

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As the Court denies plaintiff’s motion to strike, ECF No. 116, the government’s response to this motion, ECF No.

117, and plaintiff’s corresponding motion to strike the government’s response are moot. The Court FINDS AS

MOOT plaintiff’s motion to strike, ECF No. 118.

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Section 5723 provides for travel and transportation expenses of new appointees and student trainees.

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intended to remain an employee of the government for more than twelve months, so he is entitled

to recover all amounts the government assessed to recover advanced moving expenses. Id. at 8–

9.

In Count II, plaintiff alleges the government’s decision to terminate him was arbitrary

and capricious. Id. at 9. Plaintiff argues the government did not utilize the probationary period

to evaluate plaintiff’s fitness for government service, as 5 C.F.R. § 315.803 requires, when it

terminated him for violating a government credit card policy. Id. at 9. Plaintiff explains while

the government “condoned [his] use of the credit card for individual charges for approximately

eleven months,” the government expressly “permitted [him] to use the credit card for personal

expenses,” and the government “never indicated to [him] that charges on his card would be a

basis for negatively evaluating his job performance or conduct during the probationary period.”

Am. Compl. at 9. Seeing “no rational connection between [his] alleged violations of the ‘credit

card policy,’ a policy which BLM never properly conveyed to Mr. Auld and BLM’s termination

action,” plaintiff claims the government’s actions were arbitrary, capricious, and contrary to law.

Id. at 10.

Plaintiff also challenges the sufficiency of his termination letter. Id. Plaintiff cites 5

C.F.R. § 315.804 which directs the government to notify probationary employees in writing why

they are being separated and the effective date of action; “The information in the notice as to

why the employee is being terminated shall, at a minimum, consist of the agency’s conclusions

as to the inadequacies of his performance or conduct.” Id. at 10; 5 C.F.R. § 315.804. “Other

than the alleged violation of the ‘credit card policy,’” plaintiff claims he received “no indication

[his] job performance or conduct during his time at BLM failed to demonstrate his fitness or his

qualifications for continued employment as a Realty Specialist.” Am. Compl. at 10.

In response to the government’s motions, plaintiff provided examples of federal

employees “making much greater and more griev[ous] misuse of their credit cards (with NO

individual line of credit) who were not terminated.” Pl.’s Aff. & Decl. at 4–5. Plaintiff further

asserted “NO individual charge card policy or prohibitions or written information was given to

Plaintiff before any of the first individual charges were made.” Id. at 5. Plaintiff states an

additional purpose for the card was for expenditures “in an emergency.” Am. Compl. at 6; Pl.’s

Aff. & Decl. at 3. The first item charge was “for a small amount of gas to see if the new card

was active and operating before Plaintiff headed out of town for training.” Pl.’s Aff. & Decl. at

5. The second item charge “was for a glass of wine at dinner.” Id. The third charge was for

“gas to a friend’s car for a free ride to the airport which actually saved the Government a large

taxi cab bill and/or mileage and parking fees for 2 weeks.” Id. Plaintiff maintains “no

disciplinary action was taken on these 3 individual charge card matters at the time[, so] the

defendants were therefor[e] legally, equitably estopped from trying to ‘stack the charges’ with

these forgiven incidents during training.” Id. at 6.

B. Government’s Arguments

On Count I, the government moves the Court to grant summary judgment in its favor

“because there is no dispute as to the facts surrounding the agency’s recoupment of its payments

to Mr. Auld related to moving expenses and the agency is entitled to judgment as a matter of

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law.” MTD & MSJ at 13. The government claims Exhibit C’s incorporation of the terms of the

Administrative Expenses Act of 1946 (“the Act” or “Act”) supports both recovery efforts. Id. at

18. The Act permits agencies to pay “the travel expenses of an employee transferred in the

interest of the Government from one official station or agency to another for permanent duty.”

§ 5724(a)(1) (reimbursing moving expenses for transferring employees). The Act and its

regulations also permit such expenses for “new appointees appointed to [their] first official

station.” 41 C.F.R. § 302-1.1(a); see § 5723(b) (reimbursing moving expenses for newly

appointed employees). The government argues both payment recoupments were proper because

plaintiff “was never an ‘employee transferring’ nor was he a ‘new appointee appointed to his

first official station.’” MTD & MSJ at 18. Specifically, the government notes plaintiff “was not

a new appointee, as he had previously been employed by the Department of Commerce from

1998-2000,” and “he was not an ‘employee transferring’ [because] his earlier employment

preceded his re-employment by nearly a decade, and therefore could not qualify him as a

transferring employee.” Id. “By its own terms, the agreement did not provide for the

reimbursement of Mr. Auld’s moving expenses, and thus all payments made under the agreement

were unauthorized.” Id.

The government moves the Court to dismiss plaintiff’s amended complaint Count II for

lack of jurisdiction because plaintiff’s challenge to his termination is “well beyond this Court’s

jurisdiction.” MTD & MSJ at 10 (citing United States v. Fausto, 484 U.S. 439, 454 (1988)).

The government also relies upon text and applications of the Civil Service Reform Act of 1978

(“CSRA”) to demonstrate lack of jurisdiction as the CSRA establishes the primacy of MSPB for

administrative resolution of disputes over adverse personnel action. MTD & MSJ at 13–15. The

government argues plaintiff’s claim 5 C.F.R. § 315.804 was not satisfied (because he was given

no indication he failed to demonstrate his fitness and qualifications for continued employment)

“is a direct challenge to his termination and one that . . . is precluded under Fausto” and the

CSRA. Id. at 16. The government further asserts plaintiff’s probationary employment status

limits his rights of appeal; plaintiff may only bring two specific claims of wrongful termination

before the Merit Systems Protection Board (“MSPB”). Id. at 8. In plaintiff’s termination letter,

the government explained plaintiff “was a probationary employee with no statutory right to

appeal his termination, but that he could appeal to the [MSPB] if he alleged that his termination

was the result of political reasons or due to his marital status.” Id. Plaintiff acknowledged

receipt of the termination letter by signature dated 30 April 2010. Id. The government also

contends plaintiff’s discharge claim sounds in tort and is precluded under the Tucker Act.

Gov’t’s Supp. Reply at 8–9. Following its tort theory, the government contends the Court of

Federal Claims does not enjoy jurisdiction because plaintiff has not indicated a connection

between a contract and alleged tortious conduct, such as breach. 7 Id.

III. Applicable Legal Standards

A. Subject Matter Jurisdiction

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The government cites multiple memoranda to show it was dissatisfied with plaintiff’s conduct during employment.

See App. to MTD & MSJ at 99, 109, 112, 115. The government cites supervisory counseling with plaintiff on issues

such as plaintiff’s improper use of his government credit card during travel, continual lack of familiarity with

department regulations and materials, repeated failure to follow directions, and questionable acts. Id.

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The Tucker Act grants this court jurisdiction over “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). “The Tucker

Act . . . is itself only a jurisdictional statute; it does not create any substantive right enforceable

against the United States for money damages. . . . [T]he Act merely confers jurisdiction upon it

whenever the substantive right exists.” United States v. Testan, 424 U.S. 392, 398 (1976).

In considering a motion to dismiss for lack of subject matter jurisdiction, “a judge must

accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551

U.S. 89, 94 (2007); see Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed.

Cir. 2011) (“In determining jurisdiction, a court must accept as true all undisputed facts asserted

in the plaintiff’s complaint and draw all reasonable inferences in favor of the plaintiff.”).

Plaintiff “bears the burden of establishing subject matter jurisdiction by a preponderance of the

evidence.” Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). “If

the court finds that it lacks jurisdiction over the subject matter, it must dismiss the claim.”

Matthews v. United States, 72 Fed. Cl. 274, 278 (2006).

The Court of Federal Claims holds pro se plaintiffs “to less stringent standards than

formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972); see Shapiro

v. United States, 143 Fed. Cl. 376, 378 (2019). While the court generally interprets the pleadings

of pro se plaintiffs liberally, “pro se status cannot excuse a failure to demonstrate that

jurisdictional requirements are met.” Ellis v. United States, 796 F. App’x 749, 750 (Fed. Cir.

2020). Thus, a pro se plaintiff—like any other plaintiff—must establish the court’s jurisdiction.

Riles v. United States, 93 Fed. Cl. 163, 165 (2010).

B. Summary Judgment

The Court may grant a motion for 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). A court shall not grant summary judgment if “the dispute about a material

fact is ‘genuine.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is

considered genuine if the “evidence is such that a reasonable [fact finder] could return a verdict

for the nonmoving party.” Id. “In determining whether there is a genuine issue of material fact,

the trial court must assume that the evidence presented by the non-movant is credible and draw

all justifiable inferences therefrom in the non-movant’s favor.” Monon Corp. v. Stoughton

Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir. 2001) (citing Anderson, 477 U.S. at 255). “Only

disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Id. (citing Anderson, 477 U.S. at 248).

“Contract interpretation is a matter of law and thus amenable to decision on summary judgment.”

Gov’t Sys. Advisors, Inc. v. United States, 847 F.2d 811, 814 n.1 (Fed. Cir.1988); see, e.g., NVT

Techs. Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004); H.B. Mac, Inc. v. United

States, 153 F.3d 1338, 1345 (Fed. Cir. 1998).

The party seeking summary judgment bears the burden of establishing the absence of any

genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the

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moving party has met this burden, the burden shifts to the non-movant who must present

sufficient evidence to show a dispute over a material fact allowing a reasonable factfinder to rule

in its favor. Anderson, 477 U.S. at 256. The evidence does not need to be admissible, but mere

denials, conclusory statements, or evidence not significantly probative will not defeat summary

judgement. Celotex, 477 U.S. at 324.

IV. Whether BLM Breached the Signed Document Providing for the Reimbursement of

Moving Expenses

In Count I, plaintiff alleges the government breached Exhibit C, which allows for the

advancement of moving expenses. See Am. Compl. at 8–9. Plaintiff alleges Exhibit C

constitutes a valid contract with the government. See Pl.’s Aff. & Decl. at 14, 19; Compl., Ex. C;

see also 5 U.S.C. § 5724(i) (stating employee must agree in writing to “remain in the

Government service for 12 months” in exchange for reimbursement of moving expenses). In the

Court’s 16 July 2020 Order, the Court found plaintiff to be an employee by “appointment,”

which inherently limits his ability to contract with the government. See 16 July 2020 Order at 9;

see Kania v. United States, 650 F.2d 264, 268 (Ct. Cl. 1981) (quoting Shaw v. United States, 640

F.2d 1254, 1260 (1981)) (“[I]t has long been held that the rights of civilian and military public

employees against the government do not turn on contract doctrines but are matters of legal

status even where compacts are made.”).

The government does not contest the contractual relationship between the plaintiff and

the government. See Gov’t’s Supp. Reply at 6 (“While Mr. Auld has produced a contract

between himself and the [government], it is narrow in scope, and limited to the sole issue of

relocation expenses.”) (citing App. to MTD & MSJ at 23). The government instead moves to

dismiss Count I under summary judgment because the Act and its related regulations “expressly

limit reimbursement to transfer employees or new employees.” MTD & MSJ at 11, 16–19; see

§ 5724(i); Compl., Ex. C. As the parties rely on Exhibit C and its incorporation of § 5724(i)—

providing the reimbursement of moving expenses—the Court will also rely on Exhibit C to

determine if the Act and language of Exhibit C limits recovery. See Am. Compl. at 3–4; MTD &

MSJ at 3; § 5724(i).

When reading the four corners of Exhibit C, the document lacks clarity unless read in

conjunction with the incorporated Act. See Compl., Ex. C. (“Reimbursement will be in

accordance with the Administrative Expenses Act of 1946, as amended, and under Public Law

89-516, approved July 21, 1966, and regulations issued by the General Services

Administration.”); § 5723(b) (relating to expenses for new employees); § 5724(i) (relating to

expenses for transferring employees). Reading the Act, the HR Specialist at the Department of

the Interior or plaintiff’s supervisor presumably presented the Exhibit C form agreement to all

new employees in relation to employment and the Act required. See Pl.’s Resp. to Mot. to

Dismiss at 2. Section 5724(i) of the Act states:

An agency may pay travel and transportation expenses (including storage of

household goods and personal effects) and other relocation allowances under this

section and sections 5724a, 5724b, and 5726(c) of this title when an employee is

transferred within the continental United States only after the employee agrees in

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writing to remain in the Government service for 12 months after his transfer, unless

separated for reasons beyond his control that are acceptable to the agency

concerned. If the employee violates the agreement, the money spent by the

Government for the expenses and allowances is recoverable from the employee as

a debt due the Government.

§ 5724(i) (emphasis added). Exhibit C directly incorporates and references the language of

§ 5724(i):

I agree to remain in the Federal Government service for twelve (12) months

following the effective date of transfer, with the understanding that the cost of

travel, transportation, and other allowable expenses including transportation and

storage of household goods and personal effects will be paid by the Government.

Reimbursement will be in accordance with the Administrative Expenses Act of

1946, as amended, and under Public Law 89–516, approved July 21, 1966, and

regulations issued by the General Services Administration.

In the event I fail to complete the above agreement, any moneys expended by the

Federal Government because of such travel, transportation, and other allowable

expenses shall be recovered from me as a debt due to the United States, unless I

may become separated from the Government for reasons beyond my control and

acceptable to the Bureau or Office concerned.

Compl., Ex. C (emphasis added); App. to MTD & MSJ at 23; see § 5724(i). Exhibit C’s

incorporation of the Act also includes § 5723, which pertains to reimbursement of moving

expenses for new employees. Compl., Ex. C. The relevant language of § 5723 provision is

virtually identical to § 5724(i) for transferring employees. §§ 5723(b), 5724(i). Reading Exhibit

C in light of the referenced Act, Exhibit C is a valid contract for moving expenses subject to

plaintiff’s one year of service. See Compl., Ex. C; App. to MTD & MSJ at 23; § 5724(i). In

other words, the government promised to pay plaintiff’s moving expenses in exchange for

plaintiff “agree[ing] to remain in the Federal Government service for twelve (12) months.”

Compl., Ex. C; App. to MTD & MSJ at 23; see § 5724(i). The Court now must determine

whether the Act and the language of the contract entitle plaintiff to reimbursement.

The language of Exhibit C, incorporating the statutory language, states the government

will reimburse the “cost of travel, transportation, and other allowable expenses including

transportation and storage of household goods and personal effects” if plaintiff remains “in the

Federal Government service for twelve (12) months.” Compl., Ex. C; App. to MTD & MSJ at

23; see § 5724(i). If plaintiff does not finish the twelve-month probationary period, or “fail[s] to

complete the above agreement,” the government can recover “any moneys expended by the

Federal Government because of such travel, transportation, and other allowable expenses.” Id.

Plaintiff avers the government may only recover travel and transportation funds it granted

to an employee if the employee violates the agreement—“in other words, [if the employee]

leaves federal service voluntarily before the end of one year.” Am. Compl. at 8. Plaintiff argues

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he did not voluntarily leave government service and intended to remain an employee of the

government for more than twelve months, so he is entitled to recover all amounts the government

assessed. Id. at 8–9. Plaintiff also contends the Court should consider eleven months close

enough to the required twelve months. See id. at 9.

When interpreting a contract, the Court looks at the document’s plain language. McAbee

Constr., Inc. v. United States, 97 F.3d 1431, 1435 (Fed. Cir. 1996) (citations omitted).

Unambiguous contract terms must be given their plain and ordinary meaning. Landmark Land

Co., Inc. v. FDIC, 256 F.3d 1365, 1373 (Fed. Cir. 2001) (citation omitted); see also Hunt Constr.

Grp., Inc. v. United States, 281 F.3d 1369, 1373 (Fed. Cir. 2002) (citing Textron Def. Sys. v.

Widnall, 143 F.3d 1465, 1469 (Fed. Cir. 1998)) (“When the contract language is unambiguous

on its face, our inquiry ends, and the plain language of the contract controls.”). A contract is

interpreted “as a whole and ‘in a manner which gives reasonable meaning to all its parts and

avoids conflict or surplusage of its provisions.’” United Int’l Investigative Servs. v. United

States, 109 F.3d 734, 737 (Fed. Cir. 1997) (quoting Granite Constr. Co. v. United States, 962

F.2d 998, 1003 (Fed. Cir. 1992)).

Exhibit C and the Act expressly provide plaintiff must complete a twelve-month

probationary period. Compl., Ex. C; App. to MTD & MSJ at 23; § 5724(i). According to the

plain terms of Exhibit C and the Act eleven months, therefore, does not suffice. See McAbee

Constr. Inc., 97 F.3d at 1435 (citations omitted). Regarding plaintiff’s position concerning his

intent to remain, the word “intent” appears nowhere in the document nor the Act. See Compl.,

Ex. C; App. to MTD & MSJ at 23; § 5724(i). Following the plain language of Exhibit C and the

Act, plaintiff “fail[ed] to complete the above agreement” by failing to remain employed for the

twelve-month probationary period. Compl., Ex. C; App. to MTD & MSJ at 23; § 5724(i); see

McAbee Constr. Inc., 97 F.3d at 1435 (citations omitted); Landmark Land Co., Inc., 256 F.3d at

1373 (citation omitted); United Int’l Investigative Servs., 109 F.3d at 737; Hunt Const. Grp., Inc.,

281 F.3d at 1373.

According to Exhibit C and the Act, if the employee “fail[s] to complete the above

agreement, any moneys expended by the Federal Government” in relation to the listed allowable

expenses “shall be recovered from [employee] as a debt due the United States.” Compl., Ex. C;

App. to MTD & MSJ at 23; § 5724(i). The only exception listed is if the employee “become[s]

separated from the Government for reasons beyond [the employee’s] control and acceptable to

the Bureau or Office concerned.” Id. As for the “reasons beyond [the employee’s] control”

exception, plaintiff argues the government’s decision to terminate him was beyond his control.

Am. Compl. at 8–9. The government cites “both performance and conduct-related matters” as

the basis of plaintiff’s termination. MTD & MSJ at 8. The government counseled plaintiff on

“his failure ‘to familiarize himself with pertinent regulations and manuals,’ his ‘lack of attention

to detail,’ his ‘lack of interest/seriousness in [his] job,’ and his ‘[c]ontinued failure to follow

instructions and doing things his way.” Id. at 4–6 (quoting App to. MTD & MSJ at 110). The

government also counseled plaintiff numerous times on his misuse of the government credit card

for personal expenses. Id. at 7–8. These actions were within plaintiff’s control and not “reasons

beyond” plaintiff’s control. Compl., Ex. C; App. to MTD & MSJ at 23. For these reasons, the

government terminated plaintiff’s employment and recovered the advanced moving expenses

from plaintiff in accordance with Exhibit C and the incorporated Act. Compl., Ex. C; § 5724(i).

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Per the plain language of Exhibit C and the Act, as the government terminated plaintiff

before the end of the twelve-month probationary period for reasons within his control, the

government is entitled to recover the funds it advanced related to the “cost of travel,

transportation, and other allowable expenses, including transportation and storage of household

goods and personal effects.” Compl., Ex. C; App. to MTD & MSJ at 23; § 5725(i); McAbee

Constr. Inc., 97 F.3d at 1435 (citations omitted). Applying the facts to the interpretation of the

contract, no “genuine dispute as to any material fact” exists and summary judgment in favor of

the government is appropriate. RCFC 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986); Gov’t Sys. Advisors, Inc. v. United States, 847 F.2d 811, 814 n.1 (Fed. Cir. 1988)

(“Contract interpretation is a matter of law and thus amenable to decision on summary

judgment.”).

V. Whether the Court has Jurisdiction over Plaintiff’s Arbitrary and Capricious

Discharge Claim

In Count II, plaintiff argues the government did not utilize the probationary period to

evaluate plaintiff’s fitness for government service when it terminated him for violating the

government’s credit card policy. Am. Compl. at 9–10. Seeing no rational connection between

his alleged violations of the credit card policy and the termination action, plaintiff contends the

government acted arbitrarily and capriciously. Id. The government requests this Court dismiss

plaintiff’s second count for lack of jurisdiction because plaintiff’s challenge is personnel-related

and “well beyond this Court’s jurisdiction.” MTD & MSJ at 10 (citing United States v. Fausto,

484 U.S. 439, 454 (1988)).

The Court considered a similar argument in reviewing plaintiff’s motion for leave to file

a second amended complaint, and while plaintiff’s current count is a distinct argument only now

ripe to answer, the Court notes much of the background law is the same. See 16 July 2020 Order

at 7–11. Congress enacted the CSRA to create an elaborate framework for evaluating adverse

personnel actions against federal employees. Fausto, 484 U.S. at 443. The CSRA established

the MSPB through the Office of Personnel Management (“OPM”). 5 U.S.C. § 1204. While this

court once reviewed federal employment disputes under the Tucker Act, in United States v.

Fausto, the Supreme Court held “under the comprehensive and integrated review scheme of the

CSRA, the Claims Court (and any other court relying on Tucker Act jurisdiction) is not an

‘appropriate authority’ to review an agency’s personnel determination.” Fausto, 484 U.S. at

454; see also Read v. United States, 254 F.3d 1064, 1066 (Fed. Cir. 2001) (stating only the

MSPB is authorized to review removals of federal employees). Further, the CSRA does not

extend administrative or judicial review to non-preference members, such as probationary

employees. Fausto, 484 U.S. at 443; see 5 U.S.C. § 7511(a)(1)(A) (contrasting probationary

employees from preference employees). Plaintiff “bears the burden of establishing subject

matter jurisdiction by a preponderance of the evidence.” Reynolds v. Army & Air Force Exch.

Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). “If the court finds that it lacks jurisdiction over the

subject matter, it must dismiss the claim.” Matthews v. United States, 72 Fed. Cl. 274, 278

(2006).

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Although the Court understands plaintiff’s frustration of nearly completing his

probationary period, the government terminated plaintiff while still a probationary employee.

See supra Section IV; 16 July 2020 Order at 7–8. Plaintiff’s probationary status limited his right

of appeal to the MSPB. See Rehling v. United States, 11 Cl. Ct. 334, 335–36 (1986) (“No

statute, regulation, or constitutional provision entitles such an employee to judicial vindication of

his or her discharge. . . . Congress’[s] sweeping reform of the Civil Service laws does not

provide for review in this court of personnel actions of the nature taken in this case against

probationers.”). Plaintiff’s signed termination letter confirmed he “was a probationary employee

with no statutory right to appeal his termination” except to the MSPB if plaintiff suspects “his

termination was the result of political reasons or due to his marital status.” MTD & MSJ at 8.

Regardless of the agency’s reasons for discharging plaintiff, this Court does not have authority to

determine whether such action was arbitrary and capricious. See Fausto, 484 U.S. at 455.

Further, even if plaintiff had a claim to bring to the MSPB, the United States Court of Appeals

for the Federal Circuit, not this court, conducts judicial review of MSPB decisions. 5 U.S.C.

§ 7703(2)(b)(1)(A).

Even if plaintiff fell within the definition of “employee,” the relevant provisions are not

money-mandating to provide this Court jurisdiction under the Tucker Act. See 28 U.S.C.

§ 1491(a)(1); see also United States v. Testan, 424 U.S. 392, 401 (1976) (stating an alleged

violation of federal employment laws does not “automatically creates a cause of action against

the United States for money damages”); Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir.

2013) (“To be cognizable under the Tucker Act, the claim must be for money damages against

the United States, and the substantive law must be money-mandating.”). Due to plaintiff’s

probationary status and failure to provide money-mandating authority sufficient under the

Tucker Act, the Court lacks jurisdiction to consider plaintiff’s claim for an arbitrary and

capricious employment action. See § 7511(a)(1)(A)(ii); Fausto, 484 U.S. at 454; Matthews, 72

Fed. Cl. at 278. The government’s motion to dismiss Count II for lack of subject matter

jurisdiction is, therefore, granted. Reynolds, 846 F.2d at 748; Matthews, 72 Fed. Cl. at 278.

VI. Whether the Court Should Remand to the DOI/BLM

The Tucker Act grants the Court authority to “order the remand of appropriate matters to

an administrative or executive body or official” with direction the Court deems proper and just.

RCFC 52.2(a); see 28 U.S.C. § 1491(a)(2). There are several reasons why remand may be

appropriate, all off which require an agency to have a previous position on an issue. See SKF

USA Inc. v. United States, 254 F.3d 1022, 1028–29 (Fed. Cir. 2001) (stating when an agency

action is reviewed by the courts, the agency may take one of five positions, all of which relate to

a previous agency decision). As long as the request is “substantial and legitimate,” and not “in

bad faith or frivolous,” the Court should grant the motion. Id. at 1028. “A court must also

‘consider whether remand would unduly prejudice the non-moving party.’” Keltner v. United

States, 148 Fed. Cl. 552, 562 (2020) (quoting Am. Waterways Operators v. Wheeler, 427 F.

Supp. 3d 95, 98 (D.D.C. 2019), remand reconsideration denied, 507 F. Supp. 3d 47 (D.D.C.

2020)).

In this case, plaintiff requests remand to the DOI/BLM on several grounds, including

DOI/BLM employees’ alleged fraudulent activities and a lack of notice of his due process rights.

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Pl.’s Mot. for Remand to DOI/BLM at 3. There is, however, no board or agency decision for

this Court to remand as the agency did not issue an initial decision on any appeal of plaintiff’s

termination. The Court is, accordingly, without authority to remand plaintiff’s case.

If plaintiff wished to appeal his termination decision, the governing body at the

DOI/BLM is the MSPB, which plaintiff received notice of in his termination letter. See MTD &

MSJ at 8; see generally Read v. United States, 254 F.3d 1064, 1066 (Fed. Cir. 2001) (“only the

Merit Systems Protection Board, and not the Court of Federal Claims, is authorized to review

removals of federal employees”). As discussed supra, the only termination grounds on which

the MSPB will hear a claim for probationary employees is if plaintiff suspects his termination

was the result of political reasons or due to his marital status. See supra Section V; MTD & MSJ

at 8. Further, the United States Court of Appeals for the Federal Circuit, not this court, conducts

judicial review of MSPB decisions. 5 U.S.C. § 7703(2)(b)(1)(A).

VII. Conclusion

The Court has considered all allegations in plaintiff’s amended complaint and related

motions. To the extent not discussed herein, plaintiff’s other claims are unpersuasive, meritless,

or unnecessary for resolving the issues currently before the Court. For the foregoing reasons, the

Court GRANTS the government’s motion for summary judgment on Count I, ECF No. 35, and

GRANTS the government’s motion to dismiss on Count II, id.

The Court also DENIES plaintiff’s motion to remand to the DOI/BLM, ECF Nos. 105 &

122, and DENIES plaintiff’s motion for leave to file supplemental pleading or correct amended

complaint, ECF No. 109. The Court GRANTS plaintiff’s motion for leave to file supplemental

declaration, ECF No. 115. The Court DENIES plaintiff’s motion to strike, ECF No. 116, and

FINDS AS MOOT plaintiff’s motion to strike, ECF No. 118. The Clerk is DIRECTED to

enter judgment accordingly.

IT IS SO ORDERED.

s/ Ryan T. Holte

RYAN T. HOLTE

Judge

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