Appendix — Hamlet v. United States, 116 S. Ct. 1542 (1996) (No. 95-1173)

Supreme Court, U.S

A 2S Se

wea 12 8 JAN 2 2 1996

0.

IN THEE OF DHE cons

SUPREME COURT OF THE UNITED STATES

October Term 1995

LOUISE J. HAMLET,

Petitioner,

v.

THE UNITED STATES,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Federal Circuit

APPENDIX

Alexander W. Beil

715 Court Street

P. O. Box 739

Lynchburg, Virginia 24505

(804) 528-0411

January 19, 1996 Counsel for Petitioner

a

i

TABLE OF CONTENTS

Judgment, U.S. Court of Appeals for the Federal Circuit,

SI ee pons 6 ks sb nw ok l

Order on Rehearing, October 27, 1995

Opinion, U.S. Court of Appeals for the Federal Circuit,

August 17, 1995 (CAFC Hamlet III) ......... 3

Opinion, U.S. Court of Federal Claims,

March 23, 1994 (CFC Hamlet III) ......... 23

Opinion, U.S. Court of Appeals for the Federal Circuit,

November 23, 1993 (CAFC Hamlet II) ...... 31

Opinion, U.S. Court of Appeals for the Federal Circuit,

April 27, 1989 (CAFC HamletI) .......... 35

5 U.S.C. §2105 (1977 & Supp 1995) ............ 43

ee es I i ewe ka Si ee eee 46

ASCS Handbook 22-PM Excerpts ............... 48

United States Court of Appeals for the Federal Circuit

94-5118

LOUISE J. HAMLET,

Plaintiff-Appellant,

THE UNITED STATES,

Defendant-Appellee

JUDGMENT

On Appeal from the U. S. Court of Federal Claims

in Case No(s). 281-86C

This:CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:

AFFIRMED

Entered by Order of the Court

Pe

DATED: Aug. 17, 1995

Francis X. Gindhart, Clerk

ISSUED AS A MANDATE: November 3, 1995

2

United States Court of Appeals for the Federal Circuit

ORDER

A combined petition for rehearing and suggestion for

rehearing in banc having been filed by the APPELLANT, and

the petition for rehearing having been referred to the panel

that heard the appeal, and thereafter the suggestion for

rehearing in banc having been referred to the circuit judges

who are in regular active service,

UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for rehearing be, and the

same hereby is, DENIED and it is further

ORDERED that the suggestion for rehearing in banc

be, and the same hereby is, DECLINED.

The mandate of the court will issue on November 3.

1995.

Dated: October 27, 1995

FOR THE COURT,

FRANCIS X. GINDHART, CLERK

By /s/

Diane M. Frye

Chief Deputy Clerk

3

United States Court of Appeals for the Federal Circuit

94-5118

LOUISE J. HAMLET,

Plaintiff-Appellant,

V.

THE UNITED STATES,

Defendant-Appellee.

DECIDED: August 17, 1995

Before ARCHER, Chief Judge, MICHEL and CLEVENGER,

Circuit Judges. CLEVENGER, Circuit Judge.

Louise J. Hamlet appeals from the judgment of the

United States Court of Federal Claims’ dismissing her action

for lack of jurisdiction. Hamlet v. United States, No. 281-

86C (Fed. Cl. Mar. 23, 1994). We affirm.

I.

Since the pertinent facts in this case are set forth in

detail in Hamlet v. United States, 14 Cl. Ct. 62, 63-64 (1988)

(CFC Hamlet 1), and in Hamlet v. United States, 873 F.2d

' Effective October 29, 1992, the United States Claims Court

became the United States Court of Federal Claims. Federal Courts

Administration Act of 1992, Pub. L. No. 102-572, §902(a), 106 Stat.

4506, 4516. Although Hamlet initiated her action in the Claims Court in

1986, we refer to the trial court by its current name.

J

1414, 1415 (Fed Cir. 1989) (CAFC Hamlet 1), only a

summary of the facts is necessary.

Hamlet was employed as a program assistant in the

Charlotte County, Virginia office of the Agricultural

Stabilization and Conservation Services (ASCS) from

November 19, 1956, until her removal on November 4, 1985.

This ASCS county office, like all such offices, operated under

the aegis of the United States Department of Agriculture

(USDA) as set forth in the ASCS organic statute, the Soil

Conservation and Domestic Allotment Act, Pub. L. No. 46,

49 Stat. 1148 (1935) (codified as amended at 16 U.S.C.

§590h (1988)).

After her removal, Hamlet requested and received

appeal hearings before the Virginia State ASCS Committee

and the National ASCS office. Her removal was upheld.

Subsequently, on May 5, 1986, Hamlet filed suit in the Court

of Federal Claims, claiming that she was ehtitled to relief

under the Tucker Act, 28 U.S.C. §1491(a)(1) (1988 & Supp.

V 1993).* She alleged that her removal (1) violated her

rights under the First and Fifth Amendments of the U.S.

Constitution; (2) breached her employment contract; and (3)

did not comply with the rules and regulations of the USDA

and ASCS rules found in the ASCS handbook: County

The Tucker Act states, in pertinent part:

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

ee ee

5

Office Personnel Management, 22-PM (Rev. 1) (1985) (22-

PM Manual). Hamlet sought reinstatement and backpay.

The Court of Federal Claims dismissed Hamlet’s

action for lack of subject matter jurisdiction and for failure to

state a clam. CFC Hamlet I, 14 Cl. Ct. at 67-68. This Court

vacated the judgment of the Court of Federal Claims and

remanded the case “for further consideration or for trial."

CAFC Hamlet I, 873 F.2d at 1417. We held that, under

United States v. Hopkins, 427 U.S. 123 (1976), Hamlet’s

claim for breach of contract was sufficient under the Tucker

Act to withstand a motion to dismiss for lack of jurisdiction,

reasoning that Hamlet might be able to prove facts entitling

her to relief based on her allegations that an implied-in-fact

contract had been created by the 22-PM Manual provisions

covering her employment and that this contract was breached

as a result of her removal. CAFC Hamlet I, 873 F.2d at

1417. We also held that the Court of Federal Claims erred in

dismissing Hamlet’s regulatory claim for reinstatement and

backpay since the court did not consider the 22-PM Manual

provisions governing her employment. Id. We further held

that Hamlet’s constitutional claim should not have been

dismissed because, unlike the situation in United States v.

Connolly, 716 F.2d 882 (Fed. Cir. 1983) (en banc), cert.

denied, 465 U.S. 1065 (1984), where the plaintiff's claim was

based solely on the First Amendment, Hamlet relied

additionally upon the backpay, compensation and

reinstatement rights contained in the 22-PM Manual. CAFC

Hamlet I, 873 F.2d at 1416-1417.

Upon remand, the Court of Federal Claims conducted

an initial proceeding concerning the implied-in-fact contract

issue on February 14, 1992, and held a trial on the merits on

July 13, 1992. After Hamlet presented her case, the

—

———— an

6

Government moved to dismiss the action. The Court of

Federal Claims dismissed tl.2 action, holding that (1) Hamlet

did not prove that an express or implied contract, if one

existed, had been breached; (2) Hamlet did not prove that the

22-PM Manual regulations had been violated; and (3) she did

not prove that her constitutional rights were violated by any

government policies or procedures. Hamlet v. United States,

no. 281-86C, slip op. at 4-5 (Cl. Ct. Oct. 2, 1992) (CFC

Hamlet II). After her motion for reconsideration was denied,

Hamlet again appealed to this court. This court explained

that the Government’s motion to dismiss was actually a

motion under Rule 52(c) of the Rules of the United States

Claims Court and, therefore, the Court of Federal Claims was

required to make adequate findings of fact and conclusions of

law to support its judgment. This court vacated and

remanded the case because the Court of Federal Claims’

"findings of fact and conclusions of law [were] insufficient to

enable meaningful appellate review." Hamlet v. United

States, No. 93-5075, slip op. at 2 (Fed. Cir. Nov. 23, 1993)

(CAFC Hamlet II).

Upon remand, the Court of Federal Claims held that

Hamlet did not satisfy her burden of proof in establishing the

existence of a contract of the breach of that contract. Hamlet

v. United States, No. 281-86C, slip op. at 4 (Fed. Cl. Mar.

2. 1994) (CFC Hamlet Ill). The court also held that the 22-

PM Manual does not have the "force and effect of law" under

Chrysler Corp. v. Brown, 441 U.S. 281 (1979), and thus

could not be interpreted to mandate the payment of money

damages for purposes of the Tucker Act, under United States

v. Testan, 424 U.S. 392, 400 (1976). CFC Hamlet Ill, slip

op. at 4-6. The Court of Federal Claims then sua sponte

examined its jurisdiction over Hamlet’s cause of action and

7

concluded that jurisdiction was lacking under the Tucker Act.

Id. at 6-8.

II.

This court reviews de novo a dismissal by the Court

of Federal Claims for lack of subject matter jurisdiction.

Transamerica Ins. Corp. v. United States, 973 F.2d 1572,

1576 (Fed. Cir. 1992). "The Tucker Act, of course, is itself

only a jurisdictional statue; it does not create any substantive

right enforceable against the United States for money

damages." United States v. Testan, 424 U.S. 392, 398

(1976). In order to invoke jurisdiction under the Tucker Act,

a plaintiff must point to a substantive right to money damages

against the United States. Id. Hamlet’s complaint contained

three counts, each alieging a substantive right to

compensation from the United States: (1) a breach of

contract claim; (2) a violation of agency regulation claim; and

(3) a claim that her removal violated her constitutional rights.

After examining each of these counts in turn, we conclude

that the Court of Federal Claims lacked jurisdiction to hear

each respective count under the Tucker Act.

IIT.

This court has stated 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." Chu v. United

States, 773 F.2d 1226, 1229 (Fed. Cir. 1985). In earlier

proceedings in this case, we noted that under the Tucker Act,

"if Hamlet’s employment was by appointment,’ a breach of

contract action against the government would be precluded."

8

CAFC Hamlet I, 873 F.2d at 1417 n.5 (citing Hopkins, 427

U.S. at 128; Army & Air Force Exch. Serv. v. Sheehan, 456

U.S. 728, 738 (1982)). In Sheehan, the Supreme Court

examined the record and the relevant agency regulations and

concluded that the respondent in that case was employed by

appointment, rather than by contract, and, thus, the Tucker

Act did not confer jurisdiction over the respondent’s contract

claim against the United States for money damages. Sheehan,

456 U.S. at 735-37.

Hamlet argues that the 22-PM Manual constitutes a

binding employment contract and that the Government’s

breach of this contract entitles her to money damages against

the United States and establishes jurisdiction under the Tucker

Act. We must reject this contention. Under the provision of

the 22-PM Manual,’ all ASCS county employees are

employed by appointment. Paragraph 95(A) of the 22-PM

Manual states that "[p]ermanent appointments shall be used

for the employment of FULL-TIME or PART-TIME

employees who are expected to work more than one year."

In fact, the 22-PM Manual only mentions employment by

contract in one provision ($91), which states that ASCS

county offices should "obtain professional janitorial services

through contract." Such distinction between contract service

employees and other employees strongly suggests that Hamlet

and other non-janitorial employees of the ASCS county

offices are employed by appointment, not by contract. See,

e.g., Hopkins, 427 U.S. at 128-29. Additionally, under 9465

of the 22-PM Manual, only employees serving under

appointment are eligible to participate in the Civil Service

> In support of her breach of contract argument, Hamlet relies

solely on various provisions of the version of the 22-PM Manual that was

in effect at the time of her removal in 1985.

9

Retirement System (CSRS), and under 4628, only employees

serving under a permanent appointment may enroll in a

federal health benefits program. The record shows that

Hamlet was both covered by the CSRS and enrolled in the

Federal Employees Health Benefits program.

Consequently, we hold that Hamlet’s employment with

the ASCS was by appointment and not by contract. Nothing

in the record rebuts the presumption that a federal employee

is employed by appointment and not by contract or quasi-

contract. See Chu, 773 F.2d at 1229. Thus, Hamlet’s breach

of contract count does not provide for a substantive right to

money damages and cannot provide for jurisdiction under the

Tucker Act.

IV.

Hamlet asserts that the 22-PM Manual constitutes an

enforceable agency regulation and that certain provisions of

the 22-PM Manual require the United States to compensate

her for her removal. We disagree.

The Supreme Court has stated that:

[t]he basis of [a] federal claim -- whether it be

the Constitution, a statute, or a regulation --

does not create a cause of action for money

damages unless . . . that basis ’in itself... .

can fairly be interpreted as mandating

compensation by the Federal Government for

the damage sustained.’

Testan, 424 U.S. at 401-02 (quoting Eastport Steamship Corp.

v. United States, 372 F.2d 1002, 1008-09 (Ct. Cl. 1967)).

10

Therefore, in order to invoke jurisdiction under the Tucker

Act, Hamlet must show that (1) the 22-PM Manual was an

enforceable "regulation of an executive department,” see 28

U.S.C. §1491(a)(1); and (2) the provisions of the 22-PM

Manual can be fairly interpreted to create a substantive right

to monetary compensation from the United States. After

examining the pertinent provisions of the 22-PM Manual and

analyzing the law regarding the validity of manuals and

handbooks as regulations, we conclude that the 22-PM

Manual is not an enforceable regulation.

A.

The Soil Conservation and Domestic Allotment Act,

Pub. L. No. 46, 49 Stat. 1148 (1935) (codified as amended at

16 U.S.C. §590h (1988)), provides for the creation and

operation of the ASCS program and the ASCS county and

community committees, and specifically states that "[t]he

Secretary [of Agriculture] shall make such regulations as are ~

necessary relating to the selection and exercise of the

functions of the respective committees, and to the

administration, through such committees, of such programs."

5 U.S.C. §590h(b). In accordance with this statute, the

USDA promulgated and published regulations governing the

ASCS county and community committees. See 7 C.F.R.

§§7.01-.38 (1994). These published regulations set forth the

rules for the selection and conduct of the ASCS state, county

and community committees. 7 C.F.R. §§7.01-.27.

In accordance with these regulations, the ASCS

created the 22-PM Manual and distributed it to all state and

county offices. The 22-PM Manual provides instructions to

state and county ASCS offices "on all phases of the personnel

management program for County Office employees and

1]

committee members." 22-PM Manual, 91. The 22-PM

Manual states that it was promulgated in accordance with and

under the authority of the Soil Conservation and Domestic

Allotment Act and the regulations governing ASCS county

and community committees. See 22-PM Manual, 47.

The provisions of the 22-PM Manual establish

procedures for the hiring and classification of candidates for

employment in the county offices. The 22-PM Manual also

sets forth the pay schedule for county employees; eligibility

requirements for pay increases; overtime, leave and severance

pay policies; and the basic standards of employee conduct.

The Manual also outlines the procedures and grounds for a

separation of an employee for misconduct. See 22-PM

Manual, 9444. Before an employee can be removed, the

employee must be given notice of and an opportunity to

respond to a suspension action. 22-PM Manual, 9444, 447.

Only after an employee has been suspended and receives

notice of removal and an opportunity to reply, can an

employee then be removed. 22-PM Manual, 9448. After a

removal for misconduct, the removed employee has a right to

an informal appeals hearing at the state committee, and then

has a right to an appeal and a formal hearing before the

Deputy Administrator of the ASCS (or a designee). 22-PM

Manual, $9451-53. An employee who is suspended but not

yet removed may be reinstated by the county committee with

the approval of the state committee, or by the state

committee. 22-PM Manual, 9454. Although this provision

seems to imply that an employee cannot be reinstated once

the employee is removed, other provisions show that an

employee can be reinstated after removal. Paragraph 455 of

the 22-PM Manual provides that an employee who is restored

to duty is entitled to backpay for the period of suspension and

separation and to a restoration of benefits retroactive to the

12

date of termination.‘ Therefore, according to the 22-PM

Manual, an employee who has been separated may be

reinstated and, if so, is entitled to backpay. It is this backpay

provision upon which Hamlet bases her Tucker Act claim.

B.

Whether the 22-PM Manual qualifies as a "regulation

of an executive department" for Tucker Act purposes is a

complex question. In its decision below, the Court of Federal

Claims simply held that, since the 22-PM Manual was not

promulgated in accordance with the strict requirements of the

Administrative Procedures Act (APA), 5 U.S.C. §522(a)(1)

(1994), "it cannot be accorded the dignity of regulations."

CFC Hamlet Ill, slip op. at 6 (quoting Hedman v. United

States, 15 Cl. Ct. 304, 314 n.25 (1988), aff'd, 915 F.2d 1552

(Fed. Cir. 1990)).° However, the reasoning of the Court of

The pertinent part of $455 reads as follows:

An employee under permanent appointment who is

restored to duty . . . is eligible for backpay as follows:

(1) Backpay shall be at the rate that the

employee would have earned had the employee

remained on the rolls.

(a) Pay compensation § to

employee for the period of suspension and

separation, minus any amount earned by the

employee during the period, including

unemployment compensation.

> The footnote relied upon by the Court of federal Claims in the

present case was written in the lower court’s decision in Hedman. This

court, in affirming the judgment in Hedman, 15 Cl. Ct. 304, did not

13

Federal Claims is flawed. The APA specifically states that,

for matters "related solely to the internal personnel rules and

practices of an agency," an agency is not obligated to abide

by the requirements of section 552, such as publication in the

Federal Register. 5 U.S.C. §552(b)(2) (1994). Moreover, for

“a matter relating to agency management or personnel," an

agency is not obligated to abide by the notice-and-comment

rule-making procedures of the APA. 5 U.S.C. §553(a)(2)

(1994). Therefore, since the 22-PM Manual is a personnel

manual, it does not necessarily lose its status as a regulation

simply because it was not promulgated and published in

accordance with the requirements of the APA.

Obviously, not every piece of paper released by an

agency can be considered a regulation entitled to the force

and effect of law. See Piccone v. United States, 407 F.2d

866, 877 (Ct. Cl. 1969) (Nichols, J., concurring); Doe v.

Hampton, 566 F.2d 265, 280-81 (D.C. Cir. 1977). However,

several courts have held that an agency manual or handbook

can be a binding agency regulation. In Service v. Dulles, 354

U.S. 363 (1957), the Supreme Court held that an agency

employee’s removal was invalid because it violated the

United States Department of State’s Manual of Regulations

and Procedures. The Court held that the unpublished manual,

promulgated in accordance with the relevant executive order

and statute, was binding on the Department. Id. at 374-76.

Similarly, in Vitarelli_v. Seaton, 359 U.S. 535, 538-40

(1959), the Court held that the Department of Interior was

required to comply with the procedural standards set forth in

an internal order before dismissing an employee, even though

in the absence of such standards the employee could have

discuss the status of the 22-PM Manual as a regulation. See Hedman v.

Department of Agriculture, 915 F.2d 1552 (Fed. Cir. 1990).

14

been dismissed summarily. The Court treated the provisions

of the informal order as "regulations." Id. at 539-540.

Moreover, in Thorpe v. Housing Authority of Durham, 393

U.S. 268, 274-76 (1969), the Court held that a circular

distributed by the Department of Housing and Urban

Development (HUD) was binding o, the Department since

the circular was issued pursuant to ne agency’s general rule-

making powers and was intended by the agency to be

mandatory. The Court evaluated the circular as "an

administrative regulation." Id. at 276.

In Piccone, 407 F.2d at 871-72, the court held that a

government employee’s removal was invalid because

provisions of the Navy Civilian Personnel Instructions had

been violated. In his concurrence, Judge Nichols directly

confronted the issue of whether an unpublished (i.e., not

promulgated under the procedures set forth in the APA)

manual or document of a government agency could be

considered a "regulation." He stated that "whether [any piece

of paper emanating from an agency] is a regulation would

seem to depend in part on its contents and in part on agency

intent ascertained by extrinsic evidence.” Id. at 877 (Nichols,

J., concurring). Additionally, in Doe v. Hampton, 566 F.2d

265, 280-81 (D.C. Cir. 1977), the court held that provisions

of the Federal Personnel Manual may be binding on the

Government if the author of the manual so intended, even if

the manual was not published in the Federal Register. The

intent of the promulgator should be ascertained by an

examination of the provision’s language, its context, and any

available extrinsic evidence. Id. at 281.

In contrast, other court decisions have held that a

provision of a manual or handbook is not a regulation that

would be binding on the Government. In Khuri v. United

15

States, 154 Ct. Cl. 58 (1961), the court held that provisions

of the Foreign Service Manual were not binding on the

Government. Although the court considered the provisions to

be "regulations," the court determined that the Department of

State did not intend the manual to be mandatory, but rather

intended it to be a guide, setting forth general policies and

principles. Id. at 64. Similarly, in Caterpillar Tractor Co. v.

United States, 589 F.2d 1040, 1043 (Ct. Cl. 1978), the court

held that a Department of Treasury handbook for exporters

constituted “interpretive regulations" and, thus, was not

binding on the Government. The court in Fiorentino v.

United States, 607 F.2d 963, 968-69 (Ct. Cl. 1979), found

that a provision of a HUD employee manual was not a

binding regulation because it contravened a statute. In

Donovan v. United States, 433 F.2d 522, 523-24 (D.C. Cir.

1970), the court determined that certain provisions of the

unpublished Federal Aviation Administration employee

handbook were advisory and not mandatory and, thus, not

binding.

Indeed, the court has, on several occasions, stated that

provisions of the Federal Personnel Manual (FPM) were not

binding regulations. In Griessnauer v. Department of Energy,

754 F.2d 361, 364 (Fed. Cir. 1985), we found that a

provision of the FPM, which stated that an employee’s

resignation "should" be by written resignation, was precatory

and not mandatory. We held that this provision and similar

provisions of the FPM "do not create any rights in an

employee," and are not binding on the Government. Id. See

also Collins v. Merit Sys. Protection Bd., 978 F.2d 675, 678

(Fed. Cir. 1992). Similarly, in Johnson v. Merit Systems

Protection Board, 812 F.2d 705, 711 (Fed. Cir. 1987), we

held that a provision of the FPM, which stated that an agency

"should make every effort to take back a former employee

16

who was retired for disability," "merely establishes a ’policy’

for agencies to follow" and "does not create any rights in the

femployee].". In Horner v. Acosta, 803 F.2d 687, 694-95

(Fed. Cir. 1986), we refused to give effect to a provision of

the FPM Supplement since that provision had been made

obsolete by a statutory enactment. In Horner v. Jeffrey, 823

F.2d 1521, 1528-30 (Fed. Cir. 1987) (en banc), the court

rejected the contention that a provision of the FPM

Supplement, classifying service as a midshipman as "military

service" for credit purposes, should be accorded the status of

a regulation. The court first suggested that it was doubtful

that the FPM provisions in general could achieve the status of

law since the FPM provisions are "interpretive" and not

substantive." Id. at 1529-30 (citing Chrysler Corp. v. Brown,

441 U.S. 281, 301-04 (1979)).° Looking at the specific

* Since agency personnel manuals and handbooks are expressly

exempt from the procedural requirements of the APA, the structural

distinction in the APA, see 5 U.S.C. §§553(b), 553(d), between

“substantive rules" and "interpretative rules, general statements of policy,

or ruies of agency organization, procedure, or practice," as discussed in

Chrysler, is not controlling. However, we think the distinction is helpful

to our analysis.

In Chrysler, the Court held that, in order for an APA regulation

to have the “force and effect of law,” it must satisfy three requirements:

(1) it must be a “substantive rule”; (2) Congress must have granted the

agency authority to create such a regulation; and (3) the regulation must

be promulgated in conformity with any procedural requirements imposed

by Congress. 441 U.S. at 301-03. The Court noted that a "substantive

rule" was a "legislative-type rule,” “affecting individual rights and

obligations.” 441 U.S. at 302 (citing Morton v. Ruiz, 415 U.S. 199, 232,

236 (1974)). For our analysis, if a provision of an agency’s personnel

manual or handbook constitutes such a “substantive rule," it is far more

likely to be considered a binding regulation for purposes of Tucker Act

jurisdiction than if the provision were in the category of "interpretative

rules, general statements of policy, or rules of agency organization,

ns

17

provision in question, the court found it to be interpretive and

thus not controlling. Jeffrey, 823 F.2d at 1530. Additionally,

the court stated that the provision was invalid as contrary to

statute. Id. at 1530-31.

In light of the foregoing, we conclude that, regardless

of whether a provision of an agency’s personnel manual or

handbook was published or promulgated under the standards

set out in the APA, such provision is a regulation entitled to

the force and effect of law if (1) the promulgating agency

was vested with the authority to create such a regulation; (2)

the promulgating agency conformed to all procedural

requirements, if any in promulgating the regulation; (3) the

promulgating agency intended the provision to establish a

binding rule; and (4) the provision does not contravene a

statute. In determining whether a provision was intended to

be binding, the court should consider (a) whether the

language of the provision is mandatory or advisory; (b)

whether the provision is "substantive" or "interpretive"; (c)

the context in which the provision was promulgated; and (d)

any other extrinsic evidence of intent.

C.

As mentioned above, the Soil Conservation and

Domestic Allotment Act granted the USDA the authority to

promulgate regulations relating to the selection and operation

of the ASCS county and community committees. See 16

U.S.C. §590h. Additionally, the USDA regulations, published

procedure, or practice." In this analysis, “substantive” includes procedural

requisites in manuals or handbooks for the removal of an agency

employee, such as the procedural requirements held to be binding in

Service v. Dulles.

18

in the Code of Federal Regulations, give the Deputy

Administrator of the ASCS the authority to issue official

instructions and procedures to implement the provisions of the

published regulations. See 7 C.F.R. §§7.35, 7.36. Therefore,

the ASCS was vested with the authority to create the 22-PM

Manual, which sets forth the instructions and procedures

concerning the selection, hiring, pay, benefits, responsibilities,

and removal of county and community committee members

and employees.

Also, as discussed above, since the 22-PM Manual

relates to matters of agency personnel, its promulgation was

exempt from the strict procedural requirements found in the

APA. Congress imposed no other procedural requirements

for the promulgation of such an employee manual.

Therefore, on the record before us, the 22-PM Manual is not

infirm for reasons of its process of promulgation.

The provision of the 22-PM Manual upon which

Hamlet relies is the backpay provision ($455), reproduced in

pertinent part in note 4, supra. That provision states that a

permanent appointee who is restored to duty is eligible for

backpay, and backpay "shall be at the rate that employee

would have earned had the employee remained on the rolls."

This language is certainly mandatory and not merely

advisory. Moreover, the provision is "substantive" since it

purports to create a reinstated employee’s right to receive

backpay. Also, the Government’s own witness, Mr. Teto, the

Assistant Personnel Officer for the Human Resources

Management Division in ASCS, testified that the provisions

of the 22-PM Manual "are the agency regulations. They are

to be followed." In light of this evidence and the language

and content of the backpay provision, we conclude that the

ASCS intended the provision to be binding on the agency.

19

However, we also find that the backpay provision

contravenes a congressional statue and, therefore, it cannot be

an enforceable regulation. First, we note that because ASCS

county employees are appointed by the county committee,

which is comprised of elected members of the county’s

farming community, such ASCS county employees are not

included within the definition of “employee” in 5 U.S.C.

§2105(a) (1994). See Hedman v. Department of Agric., 915

F.2d 1552, 1554 (Fed. Cir. 1990). By its own terms, section

2105(a) constitutes the definition of “employee” for all of

Title 5, unless otherwise specifically modified. Therefore,

ASCS county employees cannot recover backpay under the

Back Pay Act, 5 U.S.C. §5596 (1994), since that Act resides

in Title 5 and it does not modify the definition of

“employee.”

Accordingly, we must infer a congressional intent to

forbid backpay to this class of ASCS employees. Our

reasoning follows that of the Supreme Court in Army & Air

Force Exchange Service v. Sheehan, 456 U.S. 728, 740-41

(1982), where the Court noted that employees of the Army

and Air Force Exchange Service were explicitly excluded

from the definition of employee in 5 U.S.C. §2105 and were

thus precluded from bringing a cause of action under the

Back Pay Act.’ The Court stated that “Congress” intent to

prohibit a backpay claim by a Service employee would

obviously be subverted if the employee could sue under the

Tucker Act whenever he asserted a violation of the Service’s

’ Employees of the military exchange services are expressly

excluded from the definition of “employee” for the purpose of coverage

under the laws administered by the Office of Personnel Management

(OPM). 5 U.S.C. §2105(c\1) (1994). The Back Pay Act is a law

administered by OPM.

20

regulations governing termination." Sheehan, 456 U.S. at

740-41. Although ASCS county employees are not explicitly

excluded from the definition of "employee" for purposes of

coverage under the Back Pay Act, they nevertheless equally

fail to satisfy the definition of "employee" because they are

appointed by the county executive director, who is not an

"employee" within the statutory definition. Thus appointed,

ASCS county employees are not "employees" under section

2105 as a matter of law. See Hedman, 915 F.2d at 1555.

Congress obviously understood that this class of employees

fall outside the definition in section 2105 because, when

Congress has chosen to confer the benefits of employee status

on ASCS county employees, it has done so in express terms.

Id. at 1554-55 & n.1 (noting that ASCS county employees are

expressly covered under certain federal programs, such as the

Civil Service Retirement System and the health insurance

benefits program). In view of Title 5’s "elaborate remedial

systen: that has been constructed step by step, with careful

attention to conflicting policy considerations,” Bush v. Lucas,

462 U.S. 367, 388 (1983), Congress’ exclusion of ASCS

county employees from the Back Pay Act evidences a clear

intent to preclude such employees from receiving backpay.

See United States v. Fausto, 484 U.S. 439, 447 (1988).

Therefore, we conclude that Congress deliberately chose to

exclude ASCS county employees from the Back Pay Act.

Because 9455 of the 22-PM Manual purports to give

backpay to ASCS county employees who are reinstated after

removal or suspension, it contravenes Congress’ intent to

preclude such employees from receiving backpay. Hence,

under the test set forth above, this provision of the 22-PM

Manual cannot be considered an enforceable "regulation of an

executive department." Therefore, the provision cannot be

21

the basis for invoking the Tucker Act jurisdiction of the

Court of Federal Claims under the rules set out in Testan.

V.

Hamlet also argues that her removal violated her rights

under the First and Fifth Amendments of the Constitution.

However, such constitutional claims "standing alone," i.e.,

without an underlying statutory or regulatory right to

recovery, "cannot be interpreted to command the payment of

money," and therefore cannot support the Court of Federal

Claims’ jurisdiction under the Tucker Act. United States v.

Connolly, 716 F.2d 882, 886-87 (Fed. Cir. 1983) (en banc);

see also CAFC Hamlet I, 873 F.2d at 1416-17. Since

Hamlet’s contract and regulatory claims are insufficient to

secure Tucker Act jurisdiction, her constitutional claims alone

cannot invoke such jurisdiction.

VI.

Accordingly, we hold that the Court of Federal Claims

lacked jurisdiction over Hamlet’s cause of action, and her

action was properly dismissed. Hamlet argues that such a

decision would unfairly preclude her and all ASCS employees

from obtaining judicial review of adverse personnel actions.

However, a former federal employee does not have an

inherent right to judicial review of her removal. See Fausto,

484 U.S. at 448-49, 452: see also Carter v. Gibbs, 909 F.2d

1452, 1456-57 (Fed. Cir. 1990) (en banc). In Fausto, the

Court held that the "integrated scheme of administrative and

judicial review" in Title 5 is barred review by the Court of

Federal Claims of a claim for backpay by a nonpreference

member of the excepted service, despite the fact that such

employees had no right to judicial review of adverse

22

personnel actions under Chapter 75 of Title 5. Fausto, 484

U.S. at 445, 447, 455. Hence, we cannot grant federal

employees access to the courts beyond that provided in Title

5 itself. Carter, 909 F.2d at 1455-56. Hamlet is not entitled

to judicial review where Congress has not granted it, and her

claims must be dismissed.*

No costs.

AFFIRMED

* — Since a court may sua sponte question its jurisdiction at any time,

we reject Hamlet’s conteniion that the Court of Federal Claims violated

the Mandate Rule and the Law of the Case doctrine.

23

In the United States Court of Federal Claims

No. 281-86C

(Filed: March 21, 1994)

Louise J. Hamlet,

Plaintiff,

V.

United States of America,

Defendant.

+* + + &# & & &

HODGES, Judge.

Plaintiff Louise J. Hamlet seeks back pay and

reinstatement following her removal for violating various

employment restrictions. We rule for defendant.

I.

The case was filed on May 5, 1986. Plaintiff was an

employee of the Agricultural Stabilization and Conservation

Service (ASCS), « part of the United States Department of

Agriculture. Plaintiff was dismissed from her position

following an investigation by the Inspector General of alleged

violations of Department of Agriculture rules concerning

political activity and conflict of interest.’ Plaintiff pursued

all avenues of appeal afforded her by ASCS and Department

of Agriculture regulations before filing suit in this court. In

The factual details are set forth in Hamlet v. United States, 14 Cl.

Ct. 62 (1988).

24

her complaint, plaintiff contended that her removal (1)

violated her rights under the First and Fifth Amendments to

the Constitution; (2) breached her employment contract; and

(3) did not comply with the rules and regulations of the

Department of Agriculture and the ASCS Personnel Policy

Manual 22-PM (Rev. 1).

The Claims Court granted defendant’s motion to

dismiss for lack of jurisdiction and for failure to state a claim

upon which relief may be granted. Hamlet v. United States,

14 Cl. Ct. 62 (1988). Plaintiff appealed, and the United

States Court of Appeals for the Federal Circuit vacated that

order and remanded. Hamlet v. United States, 873 F.2d 1414

(Fed. Cir. 1989). The remand was assigned to this court.

We interpreted the remand as a recommendation that

plaintiff be given an opportunity to prove her case at trial.

Following trial, we dismissed her case, Hamlet v. United

States, No. 281-86C (Cl. Ct. Oct. 2, 1992), then denied

plaintiff's motion for reconsideration. Hamlet v. United

States, No. 281-86C (Fed. Cl. Dec. 18, 1992). Plaintiff

appealed to the Federal Circuit, which remanded for

additional findings concerning the credibility, weight, and

sufficiency of the evidence adduced at trial, and whether the

personnel manual is a regulation, is money-mandating, and

was violated. Hamlet v. United States, No. 93-5075 (Fed.

Cir. Nov. 23, 1993).

IT.

In this court, plaintiff bears the burden of proof in a

breach of contract action. Glasgow Assocs. v. United States,

203 Ct. Cl. 532, 539 (1974). Ifa plaintiff "fails to carry the

burden of proof then, even in the absence of opposing

25

evidence, he cannot recover on the breach of contract claim."

G & H Machinery Co. v. United States, 16 Cl. Ct. 568, 571

(1989) (emphasis added). Determinations of witness

credibility are reserved to the discretion of the trial judge.

Griessenauer v. Department of Energy, 754 F.2d 361, 364

(Fed. Cir. 1985). such determinations may not be disturbed

unless they are “inherently improbable or discredited by

undisputed evidence or physical fact." Hagmeyer_v.

Department of Treasury, 757 F.2d 1281, 1285 (Fed. Cir.

1985) (citation omitted).

Following the February 14, 1992 hearing, we

permitted plaintiff to proceed on the merits of her contract

claim. At the second trial on July 13, plaintiff's case-in-chief

consisted of approximately one hour of plaintiff's testimony,

during which she denied four of the five allegations that

resulted in her termination. Defendant contended that

plaintiff had failed to carry-her burden and moved for

dismissal. We granted defendant’s Rule 52(c) motion.

Plaintiff takes the position that we are bound by her

trial testimony because it was uncontested. The fact that

testimony is uncontested does not compel the finder of fact to

deem is dispositive. See, e.g. Secretary of Labor v. DeSisto,

929 F.2d 789, 797 (ist Cir. 1991} ("There is absolutely no

requirement that a trial court must accept at face value any

evidence before it, even if it is the only evidence on a certain

issue."); Smith v. Commissioner, 800 F.2d 930, 935 (9th Cir.

1986) ("[{T]he trial court is not compelled to accept even

uncontroverted testimony . . .."); Sternberger v. United States,

185 Ct. Cl. 528, 535 (1968) ("The fact alone that the

government presented no witnesses does not make plaintiff’ s

evidence compelling or substantial."). Plaintiff has the

burden to demonstrate both the existence of a contract and its

26

breach. Plaintiff received full opportunity for administrative

review and, absent compelling evidence to the contrary, we

may not presume bad faith on the part of the defendant. See,

e.g., Sanders v. United States Postal Service, 801 F.2d 1328,

1331 (Fed. Cir. 1986). Plaintiff did not carry her burden of

proof, and we granted defendant’s motion for judgment

pursuant to Rule 52(c).

Il.

A plaintiffs "asserted entitlement to money damages

depends upon whether any federal statute *can be fairly

interpreted as mandating compensation by the Federal

Government for the damage sustained." United States v.

Testan, 424 U.S. 392, 400 (1976) (quoting Eastport S.S.

Corp. v. United States, 372 F.2d 1002, 1009 (Ct. Cl. 1967)).

Plaintiff must assert an independent statute or regulation

creating either an implied or express substantive right to

receive money damages. Eastport, 372 F.2d at 1008. This

court has no jurisdiction to consider alleged violations of

regulations that do not specifically authorize payment of

money damages. Army & Air Force Exchange Service v.

Sheehan, 456 U.S. 728, 739 (1982). A money-mandating

statute or regulation "sufficient to perfect jurisdiction must

contain an express waiver of sovereign immunity." Markey

v. United States, 27 Fed. Cl. 615, 621, aff'd, 11 F.3d 1072

(Fed. Cir. 1993).

In Hedman v. United States, the executive director of

the ASCS sought back pay and reinstatement following his

termination. The court noted that the ASCS personnel

manual -- the same manual relied on by Ms. Hamlet -- was:

not a regulation. Hedman, 15 Cl. Ct. 304, 314 n.25 (1988),

aff'd, 915 F.2d 1552 (Fed. Cir. 1990). See also McGrath v.

27

United States, 1 Cl. Ct. 236, 238 (1982), aff'd, 714 F.2d 161

(Fed. Cir. 1983) (federal personnel manual held not to be a

regulation).

The Supreme Court has held that the effect of Testan

could not be avoided by reliance on an appointee’s internal

procedural rights: "To accept this reasoning would be to

undermine the Court’s ruling in Testan that the Tucker Act

provides a remedy only where damages claims against the

United States have been authorized explicitly . . ..". Sheehan

456 U.S. at 739-40. See also Hayes v. United States, 20 Cl.

Ct. 150 (1990), aff'd 928 F.2d 411 (Fed Cir. 1991) (Postal

service personnel manual not a "regulation" under Tucker

Act); Rehling v. United States, 11 Cl. Ct. 334 (1986), aff'd,

831 F.2d 305 (Fed. Cir. 1987) (Forest Service manual held

not money-mandating).

=?

The legal test to determine whether an agency manual

is to be given the "force and effect of law" was articulated by

the Supreme Court in Chrysler Corp. v. Brown, 441 U.S. 281

(1979). The Court held that an agency regulation must first

prescribe "substantive" or "legislative" rules rather than

merely "interpretive rules, general statements of policy, or

rules of agency organization, procedure, or practice."

Chrysler, 441 U.S. at 301. Second, its promulgation must be

pursuant to a specific statutory grant of authority and "must

conform with any procedural requirements imposed by

Congress." Id. at 302-03. See also Killip v. Office of

Personnel Management, 991 F.2d 1564, 1569-70 (Fed. Cir.

1993) (federal personnel manual not a regulation under

Chrysler test); Horner v. Jeffrey, 823 F.2d 1521, 1529 (Fed.

Cir. 1987) (to be given "force and effect of law" agency

regulation must meet Chrysler test).

iii ii

28

The ASCS personnel manual fails the Chrysler test.

It contains procedures tor hiring and removing ASCS

employees, and salary schedules for the various positions. it

was not "promulgated according to the strict requirements of

the Administrative Procedures Act, 5 U.S.C. §552(a)(1), [and

thus] it cannot be accorded the dignity of regulations."

Hedman, 15 Cl. Ct. at 314 n.25. The ASCS manual relied on

by plaintiff does not contain an explicit waiver of sovereign

immunity, and it cannot be "fairly interpreted" to mandate

payment. The ASCS personnel policy is not a regulation, and

it cannot serve as the basis for jurisdiction in this court. It

does not mandate the payment of money damages for

purposes of the Tucker Act.

IV.

A court may review its jurisdiction at any time. This

court has inherent jurisdiction to determine its own

jurisdiction sua sponte. Widdoss v. Secretary of Health and

Human Services, 989 F.2d 1170, 1177 (Fed. Cir.), cert.

denied, 114 S.Ct. 381 (1993); Wright, Miller & Cooper,

Federal Practice & Procedure: Jurisdiction §3522 at 69-70

(2d ed. 1984) ("[I]t is well settled that a federal court,

whether trial or appellate, is obliged to notice on its own

motion the want of its own jurisdiction ....". "A court may

not in any case, even in the interest of justice, extend its

jurisdiction where none exists." Johns-Manville Corp. v.

United States, 855 F.2d 1556, 1565 (Fed. Cir. 1988), cert.

denied, 489 U.S. 1066 (1989). As a result, "[w]hen a court

is without jurisdiction to hear a case, it is correspondingly

without authority to decide the merits of that case."

Hambusch v. United States, 857 F.2d 763, 765 (Fed. Cir.

1988), cert. denied, 490 U.S. 1054 (1989). Upon careful

ine nies buen,

29

review we determine that plaintiff has not established that this

court has jurisdiction over her claim.

The Tucker Act gives us jurisdiction over claims

based on implied-in-fact contracts. 28 U.S.C. §1491(a)(1);

Ysasi_v. Rivkind, 856 F.2d 1520 (Fed. Cir. 1988). An

implied-in-fact contract requires a showing of the same

contractual elements as those required to establish an express

contract. City of El Centro v. United States, 922 F.2d 816,

820 (Fed. Cir. 1990), cert. denied, 111 S.Ct. 2851 (1991).

These elements are (1) mutuality of intent to contract; (2)

consideration; and (3) lack of ambiguity in offer and

acceptance. City of El Centro, 922 F.2d at 820; Russell

Corp. v. United States, 537 F.2d 474, 482 (Ct. Cl. 1976),

cert. denied, 429 U.S. 1073 (1977). When the government is

a party, plaintiff must show that the government official

whose conduct created the contract had actual authority to

bind the government in contract. Federal Crop Insurance

Corp. v. Merrill, 332 U.S. 380, 384 (1947).

Public employment does not turn on contract theory,

but is "accomplished by appointment and controlled by

statute, regulation, and Executive Order." Bigler v. United

States, 230 Ct. Cl. 985, 986 (1982). See also Chu v. United

States, 773 F.2d 1226, 1229 (Fed. Cir. 1985) ("[A]bsent

specific legislation, federal employees derive the benefits and

emoluments of their positions from appointment rather than

from any contractual or quasi-contractual relaticaship with the

government."); Kanie v. United States, 650 F.2d 264, 268

(Ct. Cl.), cert. denied, 454 U.S. 895 (1981) ("[T]he rights of

civilian and military public employees do not turn on contract

doctrines."). Hedman held that the ASCS personnel manual

"does not establish the terms and conditions of a contract

because it was promulgated merely to ‘instruct’ State and

30

County offices on the appropriate procedures to be followed

in office administration." Hedman, 15 Cl. Ct. at 315.

Plaintiff has not established the requisite elements of an

implied-in-fact contract.

V.

The First Amendment and Due Process clause of the

Fifth Amendment to the Constitution do not provide relief

because the alleged violation of either amendment does not

mandate the payment of money damages. United States v.

Connolly, 716 F.2d 882, 887 (Fed. Cir. 1983), cert. denied,

465 U.S. 1065 (1984); Testan, 424 U.S. at 400. Plaintiff's

constitutional claims do not afford her jurisdiction in this

court.

CONCLUSION

The Clerk will DISMISS plaintiff's complaint. No

costs.

a AA Ni lh es enti aI IA -

+ La teed Sa al eat Ra Fae

Ee RRA AIOE SUE A Men Lhe nak eck hed daveeenttins Se Bog

31

United States Court of Appeals for the Federal Circuit

93-5075

LOUISE J. HAMLET,

Plaintiff-Appellant,

V.

THE UNITED STATES,

Defendant-Appellee.

DECIDED: November 23, 1993

Before NEWMAN, ARCHER, and MICHEL, Circuit Judges.

PER CURIAM.

In an action against the United States, Louise J.

Hamlet contended that she had been wrongfully discharged

from her position as a program assistant in the United States

Department of Agriculture (USDA) Agricultural Stabilization

and Conservation Service (ASCS) office in Charlotte County,

Virginia. At trial, she presented testimony and documentary

evidence that this discharge breached an implied-in-fact

employment contract because it was not for good cause, and

did not comply with the rules and regulations of the USDA

and the ASCS Personnel Policy Manual 22-PM (Rev. 1).

Thereafter, Hamlet rested. The government then moved for

judgment pursuant to Rule 52(c) of the Rules of the United

States Court of Federal Claims, and the court granted the

government’s motion, Hamlet v. United States, No. 281-86C

(Oct. 2, 1992). Hamlet now appeals. Because the court’s

findings of fact and conclusions of law are insufficient to

32

enable meaningful appellate review and to comply with Rule

52(c), we vacate and remand.

DISCUSSION

Rule 52(c) requires that a judgment under the Rule

"shall be supported by findings of fact and conclusions of law

as required by subdivision (a) of this rule." Rule 52(a) in

turn requires that “the court shall find the facts specially and

state separately its conclusions of law thereon, and judgment

shall be entered pursuant to Rule 58." In short, under Rule

52(c), "[flindings of fact and conclusions of law must be

entered to support such a judgment." 9 C. Wright & A.

Miller, Federal Practice and Procedure, §2574 at 220 (Supp.

1992).' See also Oakley, Inc. v. International Tropic-Cal,

Inc., 923 F.2d 167, 168 (Fed.Ci. 1991), in which we vacated

and remanded a district court’s grant of preliminary injunctive

relief on the ground that its findings of fact were too "sparse"

to permit meaningful appellate review and to comply with

Rule 52(a).

Although the court entered judgment pursuant to Rule

58, it did not comply with the other requirement of Rule

52(a). A few legal conclusions can be inferred from the

decision of the trial court; however, the court did not set out

its view of the facts testified to by Hamlet, or recite its

factual findings concerning whether Hamlet’s implied-in-fact

employment contract with the government had been breached.

The only findings of fact stated in the opinion are that: (1)

there was no evidence to suggest the State Committee

' Rule 52 of the Rules of the United States Court of Federal

Claims is identical in all significant respects to Rule 52 of the Federal

Rules of Civil Procedure.

33

"merely rubber-stamped the ruling at the county level"; and

(2) there was no evidence to support Hamlet’s assertion that

her arguments were not considered by the Committee.

Hamlet, slip op. at 4. Whether the State Committee did or

did not "rubber-stamp" the ruling at the county level or

considered Hamlet’s arguments has no relevance to whether

the United States had good cause for firing Hamlet or

violated applicable regulations in doing so. This is not an

appeal from an action challenging the decision of the State

Board, rather it is an appeal of a trial judge’s decision to

grant judgment pursuant to Rule 52 in an original action for

violation of regulations and for breach of contract.

The opinion of the lower court does little more than

announce an unexplained refusal to accept Hamlet’s version

of the facts. Hamlet presented evidence as to the existence of

money mandating regulations governing her employment and

an implied-in-fact contract of employment. She also

presented testimony at trial denying all but one of the

incidents cited by the firing official, and other witnesses

presented testimony at an earlier trial stating that Hamlet had

excellent work performance. In addition, the parties

vigorously contest the legal issue of the allocation of the

respective burdens of production and proof as to just cause or

lack thereof. At minimum, regarding the breach of contract

claim, the lower court should have made findings concerning

the credibility of Hamlet and any corroborating witnesses, as

well as the weight to be accorded to their testimony, whether

Hamlet did or did not commit the five alleged infractions, and

whether the one charge to which Hamlet admitted could itself

justify removal under the appropriate burdens. All of these

findings are relevant to the determination of whether there

was a breach of contract as Hamlet alleges. Regarding the

claim based on the alleged violation of the Manual, the lower

34

court should have determined: (1) whether the Manual was

a regulation; (2) if so, whether it was money-mandating for

purposes of the Tucker Act; and (3) if so, whether it was

violated.

Because the court’s findings of fact and conclusions

of law are inadequate, appellate review of its decision is not

possible. Accordingly, we vacate and remand for either

proper findings or resumption of trial.

COSTS

Each party to bear its own costs.

* aXe Ue

eee pi i beans

bo. ag re

35

United States Court of Appeals for the Federal Circuit

88-1274

LOUISE J. HAMLET,

Plaintiff-Appellant,

V.

THE UNITED STATES,

Defendant-Appellee.

DECIDED: April 27, 1989

Before NEWMAN, ARCHER, and MICHEL, Circuit Judges.

ARCHER, Circuit Judge.

Louise J. Hamlet appeals from the judgment of the

United States Claims Court, Hamlet v. United States, !

Cl1.Ct. 62 (1988), dismissing her complaint for lack of

jurisdiction and for failure to state a claim upon which relief

may be granted under Rule 12(b)(1) and (4), Rules of the

United States Claims Court (RUSCC).' We vacate and

remand.

I,

Hamlet was employed as a program assistant in the

United States Department of Agriculture (USDA),

, The Claims Court also denied Hamilet’s motion to transfer the

case to the United States District Court pursuant to 28 U.S.C. §1631

(1982). Hamlet, 14 Cl.Ct. at 68. Because our decision remands the case

to the Claims Court, we need not consider Hamlet’s appeal of this issue.

36

Agricultural Stabilization and servation Service (ASCS)

office in Charlotte County, Virginia until her remeval on

November 4, 1985. She was not employed directly by the

USDA, but was employed by a county committee founded

and acting under the ASCS pursuant to 16 U.S.C. -§590h

(1982 & Supp. IV 1986). The parties agree that Hamlet’s

employment status is not governed by the general civil

service provisions of Title 5 and that she is not an

"employee" as defined in 5 U.S.C. §2105 (1982). Instead,

Hamlet’s employment is governed by the ASCS Personnel

Policy Manual 22-PM (Rev. 1) attached to her complaint.

The ASCS initiated the removal action against Hamlet

foilowing an investigation by the USDA Inspector General

and the determination by ASCS based on that investigation

that she had violated ASCS political activity and conflict of

interest restrictions. After exhausting all administrative

avenues of relief without success, Hamlet filed suit in the

Claims Court under the Tucker Act, 28 U.S.C. §1491(a)(1)

(1982). As relevant to this appeal, she claimed that her

removal (1) violated her rights under the First and Fifth

Amendments to the United States Constitution, (2) breached

her employment contract, and (3) did not comply with the

rules and regulations of the USDA and the ASCS’ Personnel

Policy Manual 22-PM (Rev. 1). The relief sought included

reinstatement and back pay.

The government moved to dismiss the complaint on

the grounds that Hamlet had not stated a claim on which

relief could be granted and that the Claims Court lacked

subject matter jurisdiction. The Claims Court granted the

government’s motion and dismissed each of Hamlet’s counts.

It determined that Hamlet’s claims under the First and Fifth

Amendments did not provide a basis for relief under the

37

Tucker Act, 28 U.S.C. §1491 (1982), because she had not

demonstrated that "a violation of either constitutional

provision mandates the payment of compensation from the

Federal Government." Hamlet, 14 Cl.Ct. at 65. The court

rejected Hamlet’s employment contract count holding that the

Federal employment relationship is governed by statute and

regulations, and that her employment with the ASCS was not

by express or implied contract. Id. at 67. Finally, her

regulatory count was rejected by the court on the basis that

she was not an employee under the provisions of 5 U.S.C.

§2105(a) (1982) and accordingly was not entitled to any relief

under the Back Pay Act. Hamlet, 14 Cl.Ct. at 65-67.

II.

A. Whether the Claims Court’s dismissal for want

of subject matter jurisdiction under RUSCC 12(b)(1) was

properly granted is a question of law. See Scheuer _v.

Rhodes, 416 U.S. 232, 236 (1974) (concerning Rule 12(b)(1)

of the Federal Rules of Civil Procedure (FRCP), comparable

to RUSCC 12(b)(1)); Air Prods. and Chems. v. Reichhold

Chems., 755 F.2d 1559, 1562 (Fed.Cir.), cert. denied, 473

U.S. 929 (1985). To the extent jurisdictional facts are in

dispute, however, the findings of fact are reviewed for clear

error. See Reynolds v. Army and Air Force Exch. Serv., 846

F.2d 746, 747 (Fed.Cir. 1988). Dismissal because a cause of

action has not been stated, see RUSCC 12(b)(4) and FRCP

12(b)(6), is similarly a question of law. Bell v. Hood, 327

U.S. 678, 682 (1946).? In passing on a motion to dismiss,

? The Claims Court did not specifically indicate whether its

dismissal was based on lack of jurisdiction or failure to state a claim. See

Bell v. Hood, 327 U.S. at 682; Do-Well Machine Shop v. United States,

870 F.2d 637 (Fed.Cir. 1989). Because we vacate and remand the case

38

whether on the ground of lack of jurisdiction over the subject

matter or for failure to state a cause of action, unchallenged

allegations of the complaint should be construed favorably to

the pleader. Scheuer v. Rhodes, 416 U.S. at 236. The

complaint should not be dismissed unless it is beyond doubt

that the plaintiff can prove no set of facts which would entitle

him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Under the Tucker Act, 28 U.S.C. §1491 (1982), the

United States has given its limited consent to be sued in the

Claims Court "upon any claim . . . founded either upon the

Constitution, . . . or any regulation of an executive

department, or upon any express or implied contract with the

United States .. ..". The Tucker Act, however, "is itself only

a jurisdictional statute; it does not create any substantive right

enforceable against the United States for money damages."

United States v. Testan, 424 U.S. 392, 398 (1976); Eastport

S.S. Corp. v. United States, 372 F.2d 1002, 1007-09, 178

Ct.Cl. 599 (1967). <A substantive right must be found in

some other source of law, and the claimant must demonstrate

that the source of substantive law he relies upon can be fairly

interpreted as mandating compensation. United States v.

Mitchell, 463 U.S. 206, 216-17 (1983).

B. The Claims Court’s dismissal of Hamlet’s

claim for reinstatement and back pay based on her

constitutional count was incorrect as a matter of law.’

to the Claims Court on each issue, we need not consider this distinction.

> Hamlet’s constitutional count also sought $250,000 in punitive

damages in addition to back pay and reinstatement. Punitive damages for

the alleged violation of Hamlet’s First and Fifth Amendment rights are not

available under the Tucker Act and this claim was properly dismissed by

the Claims Court. United States v. Connolly, 716 F.2d 882 (Fed.Cir.

39

In United States v. Connolly, 716 F.2d 882, 887

(Fed.Cir. 1983) (in banc), cert. denied, 465 U.S. 1065 (1984),

we held that "the first amendment, standing alone, cannot be

. interpreted to command the payment of money"

(emphasis added), and therefore cannot support the Claims

Court’s jurisdiction under the Tucker Act. The same holds

true for the due process clause of the fifth amendment. Id.

See also Inupiat Community of the Arctic Slope v. United

States, 680 F.2d 122, 132, 230 Ct.Cl. 647 (1982); Myers v.

United States, 231 Ct.Cl. 965, 966 (1982).

Unlike the plaintiff in Connolly, however, Hamlet’s

constitutional claim is not based solely on First and Fifth

Amendment violations. Rather, she relies additionally upon

the back pay, compensation and reinstatement rights contained

in the ASCS Personnel Policy Manual which governed her

employment with the ASCS. In this regard, Hamlet’s claim

is similar to those in Jackson v. United States, 428 F.2d 844,

192 Ct.Cl. 765 (1970), and Swaaley v. United States, 376

F.2d 857, 180 Ct.Cl. 1 (1957)*, which were distinguished in

Connolly, 716 F.2d at 887. In dismissing the constitutional

count, the Claims Court did not consider whether the

personnel manual provisions for back pay upon reinstatement

1983) (in banc), cert. denied, 465 U.S. 1065 (1984).

* — The Jackson and Swaaley cases involved civil service employees

and, after the enactment of the Civil Service Reform Act of 1978 (CSRA),

these employees may no longer seek review of their removal or demotion

in the Claims Court. See United States v. Fausto, 484 U.S. 439, 108 S.Ct.

668, 98 L.Ed.2d 830 (1988). The CSRA, however, is not fatal to

Hamlet’s claims under the Tucker Act because she was not employed in

the civil service and her employment status was not dealt with during the

reform of the civil service statutes. The reasoning in Jackson and Swaaley

can therefore still be applied to Hamlet’s case.

40

were sufficient to support Hamlet’s monetary claim. Rather,

its holding was predicated on the principle that First and Fifth

Amendment violations alone do not mandate the payment of

money. See Testan, 424 U.S. at 400.

C The Claims Court also prematurely dismissed

Hamlet’s claim for breach of her employment contract and

thereby denied her the opportunity to present evidence to

establish that basis for recovery. The Claims Court agreed

with the government’s argument that "a federal employee has

no right against the United States under an implied contract

theory" and stated that the "Federal employment relationship

is governed by statute and regulations". Hamlet, 14 Cl.Ct. at

67.

In United States v. Hopkins, 427 U.S. 123 (1976), the

Supreme Court noted that the Federal government in that case

could employ persons by contract and held that plaintiff's

claim for breach of contract was sufficient, under the

provisions of the Tucker Act, to withstand a motion to

dismiss for lack of jurisdiction. See also Army & Air Force

Exch. Serv. v. Sheehan, 456 U.S. 728, 739 n. 11 (1982)

(distinguishing cases not involving appointment "where

contracts were inferred from regulations promising

payment."). We cannot say that there is no set of facts

Hamlet could prove which would entitle her to relief based on

her allegations that an implied-in-fact contract had been

created by the personnel manual provisions covering her

employment and that this contract was breached as a result of

her removal.’

* We note, however, that if Hamlet’s employment was by

“appointment,” a breach of contract action against the government would

be precluded. United States v. Hopkins, 427 U.S. at 128; Army & Air

41

D. Finally, the Claims Court held that Hamlet was

not an "employee" duly appointed under the provisions of 5

U.S.C. §2105(a) (1982) and was therefore not entitled to

compensation for an unjustified or unwarranted personnel

action under the Back Pay Act, 5 U.S.C. §5596 (1982 &

Supp. V 1987). Hamlet, 14 Cl.Ct. at 65-67. Hamlet’s

regulatory claim, however, was not based on the Back Pay

Act. Rather, her complaint indicates that her claim for back

pay and reinstatement is premised solely on the ASCS

personnel regulations governing her employment and

appended to her complaint. The Claims Court did not

address this issue in the complaint on the basis upon which

it was founded. Thus, dismissal of Hamlet’s regulatory claim

was improper as a matter of law.

III.

For the reasons expressed, we conclude that the

Claims Court improvidently dismissed Hamlet’s complaint

and we remand the case for further consideration or for trial.

We note that the Claims Court’s jurisdiction to entertain any

of Hamlet’s claims depends on whether or not the ASCS

personnel manual provisions, upon which she relies, can

properly be construed as money-mandating, a matter that was

not considered by the Claims Court. United States v. Testan,

424 U.S. at 398-400; Eastport $.S. Corp. v. United States,

372 F.2d at 1007-09.

Force Exch. Serv. v. Sheehan, 456 U.S. at 738 (employment by

appointment).

42

COSTS

Each party shall bear its own costs.

VACATED AND REMANDED

43

5 U.S.C. §2105 (date)

Employee

(a) For the purpose of this title, "employee", except as

otherwise provided by this section or when specifically

modified, means an officer and an individual who is --

(1) appointed in the civil service by one of the

following acting in an official capacity --

(A) The President;

(B) | aMember of Members of Congress, or

the Congress;

(C) amember of a uniformed service;

(D) an individual who is an employee

under this section;

(E) the head of a Government controlled

corporation; or

(F) an adjutant general designated by the

Secretary concerned under section

70%(c) of title 32;

(2) engaged in the performance of a Federal

function under authority of law of an Executive act;

and

(3) subject to the supervision of an individual

named by paragraph (1) of this subsection while

engaged in the performance of the duties of his

position.

(b) An individual employed at the United States Naval

Academy in the midshipmen’s laundry, the midshipmen’s

44

tailor shop, the midshipmen’s cobbler and barber shops, and

the midshipmen’s store, except an individual employed by the

Academy dairy is deemed an employee.

(c) An employee paid from nonappropriated funds of the

Army and Air Force Exchange Service, Army and Air Force

Motion Picture Service, Navy Ship’s Stores Ashore, Navy

exchanges, Marine Corps exchanges, Coat Guard exchanges,

and other instrumentalities of the United States under the

jurisdiction of the armed forces conducted for the comfort,

pleasure, contentment, and mental and physical improvement

of personnel of the armed forces is deemed not an employee

for the purpose of --

(1) laws administered by the Office of Personnel

Management, except --

(A) — section 7204;

(B) as otherwise specifically provided in

this title;

(C) — the Fair Labor Standards Act of 1938;

(D) for the purpose of entering into an

interchange agreement to provide for the

noncompetitive movement of employees

between such instrumentalities. and the

competitive service; or

(E) — subchapter V of chapter 63, which shall

be applied so as to construe references to

benefit programs to refer to applicable

programs for employees paid from

nonappropriated funds; or

45

(2) subchapter I of chapter 81, chapter 84 (except

to the extent specifically provided therein), and

section 7902 of this title.

This subsection does not affect the status of these

nonappropriated fund activities as Federal instrumentalities.

(d) A Reserve of the armed forces who is not on active

duty or who is on active duty for training is deemed not an

employee or an individual holding an office of trust or profit

or discharging an official function under or in connection

with the United States because of his appointment, oath, or

status, or any duties or functions performed or pay or

allowances received in that capacity.

(e) Except as otherwise provided by law, an employee of

the United States Postal Service or of the Postal Rate

Commission is deemed not an employee for purposes of this

title.

(f) For purposes of sections 1212, 1213, 1214, 1215,

1216, 1221, 1222, 2302, and 7701, employees appointed

under chapter 73 or 74 of title 38 shall be employees.

46

28 U.S.C. §1491 (date)

Claims against United States generally; actions involving

Tennessee Valley Authority

(a) (1) 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. For the purpose of

this paragraph, an express or implied contract with the Army

and Air Force Exchange Service, Navy Exchanges, Marine

Corps Exchanges, Coast Guard Exchanges, or Exchange

Councils of the National Aeronautics and Space

Administration shall be considered an express or implied

contract with the United States.

(2) To provide an entire remedy and to complete

the relief afforded by the judgment, the court may, as an

incident of an collateral to any such judgment, issue orders

directing restoration to office or position, placement in

appropriate duty or retirement status, and correction of

applicable records, and such orders may be issued to any

appropriate official of the United States. In any case within

its jurisdiction, the court shall have the power to remand

appropriate matters to any administrative or executive body

or official with such direction as it may deem proper and just.

The Court of Federal Claims shall have jurisdiction to render

judgment upon any claim by or against, or dispute with, a

contractor arising under section 10(a)(1) of the Contract

Disputes Act of 1978, including a dispute concerning

termination of a contract, rights in tangible or intangible

47

property, compliance with cost accounting standards, and

other nonmonetary disputes on which a decision of the

contracting officer has been issued under section 6 of that

Act.

(3) Toafford complete relief on any contract claim

brought before the contract is awarded, the court shall have

exclusive jurisdiction to grant declaratory judgments and such

equitable and extraordinary relief as it deems proper,

including but not limited to injunctive relief. In exercising

this jurisdiction, the court shall give due regard to the

interests of national defense and national security.

(b) Nothing herein shall be construed to give the United

States Court of Federal Claims jurisdiction of any civil action

within the exclusive jurisdiction of the Court of International

Trade, or of any action against, or founded on conduct of, the

Tennessee Valley Authority, or to amend or modify the

provisions of the Tennessee Valley Authority Act of 1933

with respect to actions by or against the Authority.

—_

48

Excerpt from:

9445

ASCS Handbook

County Office Personnel Management

For State and County Offices

22-PM (Revision 1)

RESPONSIBILITY AND AUTHORITY

Authority is given to CED’s, COC’s, STC’s and DASCO to

suspend, remove, disqualify, or determine ineligibility for

future ASCS service. See Exhibit 31.

A

B

1446

Use principles of fairness in using this authority.

A removal or disqualification action, unless waived,

is a bar to further ASCS County Office and

committee service.

See Exhibit 31 for sample letters to suspend, remove,

or disqualify employee.

See Exhibit 32 for authority to suspend, remove, and

restore employees to duty.

DETERMINATIONS AND ACTION

Review all facts available to determine whether the

alleged facts are consistent with subparagraph 444B.

Obtain complete information and determine whether ~

the facts relating to the charges are severe enough to

require removing the employee.

9455

49

If there is a reasonable doubt about any of the

charges of underlying facts, do not consider

them.

If the facts are unclear, request OIG to make

a formal investigation of the matter. Provide

OIG with as much detail as possible.

The following alternatives to removal may be

available:

l Counseling.

2 Training.

3 Improved supervision.

4 Assistance from the State Office.

5 A letter of reprimand

6 Reassignment.

7 Any combination of the alternatives in

subparagraphs | through 6.

RESTORING BACKPAY AND BENEFITS

An employee under regular appointment who is

restored to duty, except for provisions in subparagraph

B, is eligible for backpay as follows:

l

Backpay shall be at the rate that the employee

would have earned had the employee remained

on the rolls.

a Pay compensation to employee for the

period of suspension and removal,

minus any amount earned by the

employee during the period, including

unemployment compensation.

50

b Obtain a signed statement from the

employee verifying the amount earned

or that the employed had no earnings.

File a copy of this statement in the

employee’s OPF.

DASCO- may require a reduction in the

amount of back salary to be granted.

a This requirement may be based on a

determination that removal is not

justified, but that some disciplinary

action is needed.

) The reduction in backpay may be for a

period of up to 6 months (13 pay

periods), beginning with the date of

suspension.

An employee who has enrolled in a health

benefit plan shall have enrollment reinstated

retroactive to date of termination.

a Make deductions for periods with

backpay.

b Consider nonpay periods LWOP.

The empioyee shall receive credit for all other

benefits just as if the employee had remained

on active duty.

a Grant WGI retroactively to the due

date.

51

Deduct retirement from back salary.

Deduct life insurance from back salary

UNLESS there is a determination that

the suspension or removal was

erroneous. This provision applies to

all backpay cases made on or after

October 21, 1972.

Consider period without backpay in

subparagraph 2, as LWOP, for benefit

purposes.

An employee who resigns while suspended shall not

be granted backpay if STC or COC determines that

the person would have been removed had the person

not resigned.