                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2006-5076


                                 COLLEEN MURPHY,

                                                      Plaintiff-Appellant,

                                           v.


                                  UNITED STATES,

                                                      Defendant-Appellee.



      Barbara A. Norris, of Anchorage, Alaska, argued for plaintiff-appellant.

       Douglas K. Mickle, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for defendant-
appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General,
David M. Cohen, Director, and Bryant G. Snee, Assistant Director. Of counsel on the
brief was Beverly Dart, Department of Health and Human Services, Office of General
Counsel, General Law Division, of Washington, DC.

Appealed from: United States Court of Federal Claims

Judge Marian Blank Horn
                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                       2006-5076

                                  COLLEEN MURPHY,

                                                        Plaintiff-Appellant,

                                            v.

                                   UNITED STATES,

                                                        Defendant-Appellee.

                            __________________________

                              DECIDED: February 2, 2007
                            __________________________


Before LINN, PROST, and JORDAN∗, Circuit Judges.

LINN, Circuit Judge.

       Colleen Murphy (“Murphy”) appeals from a decision of the United States Court of

Federal Claims granting the government’s 12(b)(1) motion to dismiss her Back Pay Act

claim for lack of subject matter jurisdiction on the ground that Murphy failed to rebut the

presumption that her separation from the United States Public Health Service

Commissioned Corps (the “Commissioned Corps”) was voluntary. Murphy v. United

States, No. 05-567C (Fed. Cl. Feb. 22, 2006). Murphy’s complaint alleged that she had

been constructively and involuntarily discharged from the Commissioned Corps.

Because the Court of Federal Claims correctly found that Murphy failed to rebut the


       ∗
              Honorable Kent A. Jordan, Circuit Judge, United States Court of Appeals
for the Third Circuit, sitting by designation.
presumption that her separation from the Commissioned Corps was voluntary and

because Murphy failed to raise any genuine issue of material fact with respect to at

least one element of her claim, we affirm the judgment of the Court of Federal Claims,

albeit on different grounds.

       Metz v. United States, 466 F.3d 991 (Fed. Cir. 2006), which was issued after the

Court of Federal Claims’ decision, reveals that the Court of Federal Claims erred in

dismissing Murphy’s complaint for lack of jurisdiction. This court stated in Metz that

       the issue of the voluntariness of a plaintiff’s separation, a necessary
       requirement for a separated-plaintiff’s case to fit within the scope of 37
       U.S.C. § 204, is properly addressed under a Rule 12(b)(6) motion to
       dismiss and therefore is no longer a jurisdictional requirement
       appropriately challenged under Rule 12(b)(1). Therefore, if a plaintiff
       cannot establish that he is currently on active duty, he must assert and
       ultimately establish that his separation was involuntary in order to fit within
       the scope of, and take advantage of, the money-mandating status of
       § 204, or else his claim falls for failure to state a claim upon which relief
       can be granted.

Metz, 466 F.3d at 998.

       However, for the reasons below, we affirm the Court of Federal Claims on the

alternative basis of summary judgment, given Murphy’s failure to establish that her

resignation was voluntary. See Moden v. United States, 404 F.3d 1335, 1342 (Fed. Cir.

2005) (treating the Court of Federal Claims’ dismissal for lack of jurisdiction as a grant

of summary judgment and affirming on that alternative ground because the appellants

failed to raise a genuine issue of material fact with respect to at least one element of

their claim); cf. Banks v. Garrett, 901 F.2d 1084, 1087 (Fed. Cir. 1990) (affirming the

trial court’s dismissal for lack of jurisdiction as a dismissal under Fed. R. Civ. P.

12(b)(6)). See generally Glaxo, Inc. v. Torpharm, Inc., 153 F.3d 1366, 1371 (Fed. Cir.

1998) (holding that “an appellate court may affirm a judgment of a district court on any



2006-5076                                 2
ground the law and the record will support so long as that ground would not expand the

relief granted.”).

       First, the issue of voluntariness was fully briefed and argued before the Court of

Federal Claims, and, on review of the record, drawing all reasonable inferences in

Murphy’s favor, we find no error with the Court of Federal Claims’ conclusion that

Murphy “failed to offer competent proof sufficient to rebut the presumption that her

request for early separation from the [Commissioned Corps] was voluntary.” Murphy,

slip op. at 22-23. Second, on the record before it, the Court of Federal Claims also

stated that Murphy “would not prevail either against a [12(b)(6)] motion to dismiss for

failure to state a claim, or a [Rule 56] motion for summary judgment.” Id., slip op. at 14.

Third, in order to prevail with her claim, Murphy would have had to show, among other

factors, that the circumstances permitted no other alternative than for her to resign. See

Christie v. United States, 518 F.2d 584, 587-89 (Ct. Cl. 1975). Murphy has neither

presented any genuine issue of material fact nor identified in the briefs or at oral

argument any evidence that might be sought on additional discovery and relevant to the

issue of whether she had at least one other alternative to resigning. Compare R. Ct.

Fed. Cl. 12(b), with R. Ct. Fed. Cl. 56. Fourth, in this case, it is undisputed that Murphy

chose to resign rather than to remain employed and exhaust the grievance process

regarding the allegedly wrongful reassignment. See Christie, 518 F.2d at 587 (holding

that plaintiff had a choice other than resignation where she could stay and exhaust the

grievance process and stating that “[m]erely because plaintiff was faced with an

inherently unpleasant situation in that her choice was arguably limited to two unpleasant

alternatives does not obviate the voluntariness of her resignation”). Finally, Murphy’s




2006-5076                                3
argument that she was essentially forced to resign because she was ordered to relocate

to a different area is not persuasive because, as a condition for her employment in the

Commissioned Corps, she signed an oath that she would be “willing to serve in any

area or position or wherever the exigencies of the Service may require.” See 5 U.S.C. §

2101(3) (Commissioned Corps is part of the “uniformed services”).

      For the foregoing reasons, we treat the government’s motion as resolved on

summary judgment and affirm on that alternative ground.

                                           COSTS

      No costs.




2006-5076                              4
