                       NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit


                                       2007-5167


                                     BRIAN GREER,

                                                          Plaintiff-Appellant,

                                            v.


                                   UNITED STATES,

                                                       Defendant-Appellee.

      Brian Greer, of Walnut Creek, California, pro se.

       A. Bondurant Eley, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for defendant-appellee. With her
on the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, Director,
and Martin F. Hockey, Jr., Assistant Director.

Appealed from: United States Court of Federal Claims

Judge Thomas C. Wheeler
                            NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                          2007-5167

                                       BRIAN GREER,

                                                                     Plaintiff-Appellant,

                                              v.

                                      UNITED STATES,

                                                                     Defendant-Appellee.

                             ___________________________

                             DECIDED: December 4, 2007
                             ___________________________


Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit
Judge.

PER CURIAM.

          Brian Greer (“Greer”) appeals from a decision of the United States Court of

Federal Claims dismissing his complaint for lack of subject matter jurisdiction. Because

that court correctly concluded that it lacked jurisdiction over Greer’s complaint, we

affirm.

                                      BACKGROUND

          The dispute in this case stems from labor grievances filed by Greer against his

former employer, Safeway, Inc. (“Safeway”), with the National Labor Relations Board

(“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”). Greer alleges

that the NLRB and EEOC disclosed the grievance filings to Safeway, which in turn

disclosed them to other prospective employers. He alleges that he has been unable to

find employment as a result. Greer filed this action in the Court of Federal Claims
against the NLRB and the EEOC, alleging that the agencies breached a contract with

him in which they agreed, through statements on their websites and through an

“obligation inherent and obvious within [the retaliation] laws,” J.A. at 18, to protect him,

as a complainant, from retaliation by employers. 1       He asserted that the agencies

breached this alleged contract by providing Safeway with a copy of Greer’s complaint

and thereby “licensing” Safeway to distribute the complaint to other prospective

employers.    Greer also asserted several equitable causes of action based on this

alleged breach, seeking, among other things, an injunction ordering the agencies to

keep the fact of filing of complaints confidential. In a later filing, Greer added claims

under the Fifth and Fourteenth Amendments, and under the prohibition against bills of

attainder in Article I, Section 9 of the Constitution.

       The Court of Federal Claims granted the government’s motion to dismiss the

complaint for lack of subject matter jurisdiction. Greer alleged jurisdiction under the

Tucker Act, which authorizes the Court of Federal Claims to hear claims against the

United States founded upon, inter alia, “any express or implied contract with the United



       1
              Greer relies on the following statement from the NLRB website: “The
National Labor Relations Act (NLRA) protects employees’ rights to engage in protected
concerted activities with or without a union, [including] an employee speaking to his/her
employer on behalf of him/herself and one or more co-workers about improving
workplace            conditions.”          NLRB:                      About           Us,
http://www.nlrb.gov/Workplace_Rights/i_am_new_to_this_website/what_are_protected_
concerted_activities.aspx (last visited Nov. 15, 2007).

        Greer also relies on the following statement from the EEOC website: “An
employer may not fire, demote, harass or otherwise ‘retaliate’ against an individual for
filing a charge of discrimination . . . .” Retaliation,
http://www.eeoc.gov/types/retaliation.html (last visited Nov. 15, 2007).

      Finally, Greer relies on several federal and state laws, including the National
Labor Relations Act and the California Labor Code. See J.A. at 18.


2007-5167                                  2
States.” 28 U.S.C. § 1491(a)(1) (2000). The court noted that the jurisdiction granted by

the Tucker Act does not extend to contracts implied in law. Hercules, Inc. v. United

States, 516 U.S. 417, 423 (1996).          The court found that, accepting the undisputed

allegations as true and drawing all inferences in favor of the plaintiff, no express or

implied in fact contract existed between Greer and the United States. Thus, “[i]f the

Court were to find that [the United States] took on a contractual obligation to Mr. Greer

when he filed his grievances, it would have to be based on an implied in law contract

which the Court lacks jurisdiction to consider.” Greer v. United States, No. 07-123C,

slip op. at 3-4 (Fed. Cl. Aug. 1, 2007).        The court also determined that it lacked

jurisdiction over Greer’s other claims. It could not consider a due process claim unless

it was ancillary to a claim for money damages, and Greer had not asserted a claim for

damages over which the court had jurisdiction.               Furthermore, the Fourteenth

Amendment, which acts as a restraint only upon the states, was inapplicable to a claim

against the federal government. Finally, the court lacked jurisdiction to consider Greer’s

equitable claims because “the Tucker Act does not allow for the award of equitable or

injunctive relief, except in limited circumstances not applicable here.” Id., slip op. at 4.

       Greer timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(3).

                                       DISCUSSION

       We review the decision of the Court of Federal Claims to dismiss for lack of

subject matter jurisdiction de novo. See Sanders v. United States, 252 F.3d 1329, 1333

(Fed. Cir. 2001). The petitioner bears the burden of proving that the court possessed

jurisdiction over his complaint. See id.




2007-5167                                   3
       Greer’s first argument on appeal is that the Court of Federal Claims did have

jurisdiction over his complaint, because his purported contract with the government was

not an implied in law contract. We reject this argument. An express or an implied-in-

fact contract with the government requires, as one element, “’actual authority’ on the

part of the government’s representative to bind the government.” Schism v. United

States, 316 F.3d 1259, 1278 (Fed. Cir. 2002) (en banc); see also Night Vision Corp. v.

United States, 469 F.3d 1369, 1375 (Fed. Cir. 2006) (stating that elements for express

and implied-in-fact contracts are the same). The Court of Federal Claims correctly

found that this element was not satisfied here, because Greer did not allege that any

government representative with actual authority agreed to bind the United States to a

contract. Greer v. United States, No. 07-123C, slip op. at 4. Rather, if any contractual

obligation on the part of the United States were to be found from the alleged promises,

“it would have to be based on an implied in law contract,” id., slip op. at 3-4, which “is a

‘fiction of law’ where ‘a promise is imputed to perform a legal duty.’” Hercules, 516 U.S.

at 424 (internal citation omitted). The Court of Federal Claims correctly found that it

would lack jurisdiction over such a contract even if one did exist, because the Tucker

Act’s grant of jurisdiction extends only to express and implied-in-fact contracts. Id. at

423.

       Greer’s second argument is that, upon determining that it lacked subject matter

jurisdiction, the court was required to transfer the case sua sponte to a court of proper

jurisdiction. We reject this argument. Under 28 U.S.C. § 1631, a federal court that

lacks jurisdiction is permitted, “if it is in the interest of justice, [to] transfer such action or

appeal to any other such court in which the action or appeal could have been brought at




2007-5167                                   4
the time it was filed or noticed.” In this case, there was no other such court in which

Greer’s damages action could have been brought.            Transfer under section 1631 is

authorized only to the courts listed in 28 U.S.C. § 610: “the courts of appeals and

district courts of the United States, the United States District Court for the District of the

Canal Zone, the District Court of Guam, the District Court of the Virgin Islands, the

United States Court of Federal Claims, and the Court of International Trade.” None of

those courts, however, would have had jurisdiction over Greer’s claim. Greer sought to

recover damages of over four million dollars from the United States. The Court of

Federal Claims has exclusive jurisdiction over claims under the Tucker Act for money

damages exceeding $10,000. See Christopher Village, L.P. v. United States, 360 F.3d

1319, 1332-33 (Fed. Cir. 2004). The court therefore lacked the ability to transfer the

claim under section 1631 because there was no other federal court in which it could

have been brought. Furthermore, the court did not abuse its discretion in declining to

transfer Greer’s equitable claims to another federal court.

       Greer asserts several additional errors by the trial court.           None of these

arguments has merit, and we reject them. In particular, the allegations of misconduct by

the Court of Federal Claims judge are speculative and entirely unsupported, and do not

state a cognizable claim of bias in any event. See Liteky v. United States, 510 U.S.

540, 555 (1994) (requiring an extrajudicial source to support a claim of bias).

       For the reasons set forth above, the decision of the Court of Federal Claims is

affirmed.

       No costs.




2007-5167                                 5
