     In the United States Court of Federal Claims
                                         No. 13-172C
                                     Filed: July 19, 2013

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                                           *
ALEXANDER VLAHOS,                          *
                                           *
       Plaintiff,                          *         Motion to Dismiss, RCFC 12(b)(1)
                                           *             (subject matter jurisdiction);
v.                                         *         Tucker Act Jurisdiction, 28 U.S.C. §
                                           *             1491;
THE UNITED STATES,                         *         5 U.S.C. § 3341(b)(1) (details within
                                           *             Executive or military departments);
       Defendant.                          *         RCFC 10(a) (complaint caption).
                                           *
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Lawrence A. Berger, Mahon & Berger, Glen Cove, N.Y., Counsel for Plaintiff.

Michelle Rachel Milberg, United States Department of Justice, Civil Division, Commercial
Litigation Branch, Washington, D.C., Counsel for the Government. Eacata Gregory, United
States Secret Service, Office of Chief Counsel, Washington, D.C., Of Counsel.

                    MEMORANDUM OPINION AND FINAL ORDER
BRADEN, Judge.
I.     RELEVANT FACTS. 1

        Alexander Vlahos (“Plaintiff”) is a GS-13 Special Agent Criminal Investigator, and has
been employed by the United States Secret Service for sixteen years. Am. Compl. ¶¶ 4-5. From
October 2007 to February 2009, Plaintiff was temporarily promoted to a GS-14/15 in a Criminal
Investigator position. Am. Compl. ¶¶ 6-7. In February 2009, Plaintiff’s status was returned to
his previous GS-13 position. Am. Compl. ¶ 7. Between October 2007 and February 2009,
Plaintiff was not paid wages and other benefits incident to the GS-14/15 position. Am. Compl. ¶
8.
II.    PROCEDURAL HISTORY.

       On March 7, 2013, Plaintiff filed a Complaint (“Compl.”) in the United States Court of
Federal Claims alleging that the United States Secret Service did not pay Plaintiff the

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        The relevant facts were derived from the March 18, 2013 Amended Complaint (“Am.
Compl.”).
compensation and benefits incident to his GS-14 criminal investigator position, which he held
from October 2007 to April 2009. Compl. ¶ 8. The Complaint also alleges that the United States
Secret Service breached a promise to promote Plaintiff to a permanent GS-14 position. Compl. ¶
10.
        On March 18, 2013, Plaintiff filed an Amended Complaint, claiming that the temporary
promotion was a forced assignment to a GS-14/15 position from October 2007 to February 2009.
Am. Compl. ¶¶ 4, 6, 8-10. The March 18, 2013 Amended Complaint also alleges that
“[Plaintiff] was promised by the Defendants that commensurate with the forced temporary
assignment, he would be appointed to a permanent GS-14 position.” 2 Am. Compl. ¶ 9. The
March 18, 2013 Amended Complaint further alleges that “Defendants have breached their
promise to [Plaintiff], and he was never offered an option to be appointed to a GS-14 Criminal
Investigator position, nor paid the compensation and benefits incident to the GS-14/15 criminal
investigator position.” Am. Compl. ¶ 10. The March 18, 2013 Amended Complaint seeks “(i)
entry of a monetary judgment in the amount of all wages and benefits owed to [Plaintiff] while
he encumbered the GS-14/15 position; and (ii) that Defendants be directed to immediately
appoint [Plaintiff] to a GS-14 position retroactive to October 2007; and (iii) that the Plaintiff be
granted such other, further, general, and equitable relief to which he may be entitled.” Am.
Compl. at 2.
        On May 6, 2013, the United States (“Government”) filed a Motion To Dismiss, pursuant
to RCFC 12(b)(1) (“Gov’t Mot.”), asserting that the “[c]ourt lacks jurisdiction to entertain
[Plaintiff’s] suit[,] because [Plaintiff] lacks a contractual relationship with the Government.”
Gov’t Mot. at 2.
        On June 6, 2013, Plaintiff filed a Memorandum In Opposition (“Pl. Opp.”), clarifying
that Plaintiff’s claim does not rely on an express or implied contract or on promissory estoppel,
but on the Government’s alleged violation of statute. Pl. Opp. at 2.
        On June 24, 2013, the Government filed a Reply (“Gov’t Reply”), reasserting that
“[Plaintiff]’s complaint is deficient in that it does not plead a basis for this Court’s jurisdiction.”
Gov’t Reply at 3.




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          The Amended Complaint defines “Defendants” as Janet Napolitano, Secretary of the
United States Department of Homeland Security, and the United States Secret Service, a
department of the Department of Homeland Security. Am. Compl. ¶¶ 2-3. The official caption
of the case (appearing above) was supplied by the Clerk of Court in conformance with Rule
10(a) of the Rules of the United States Court of Federal Claims (“RCFC”), which states that
“[t]he title of the complaint must name all the parties . . ., with the United States designated as
the party defendant.” RCFC 10(a). “Notwithstanding plaintiff’s failure to name the United
States as the party defendant in the case, the court, as a matter of practice, will indicate the
United States as the party defendant in the caption of its orders and opinions.” Hicks v. United
States, No. 11-678 C, 2012 WL 1044484, at *1 n.1 (Fed. Cl. Mar. 27, 2012).

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III.    DISCUSSION.
        A.      Jurisdiction.
        The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28
U.S.C. § 1491, “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.” 28 U.S.C. § 1491(a)(1). The Tucker Act, however, is “a
jurisdictional statute; it does not create any substantive right enforceable against the United
States for money damages . . . . [T]he Act merely confers jurisdiction upon [the United States
Court of Federal Claims] whenever the substantive right exists.” United States v. Testan, 424
U.S. 392, 398 (1976). Therefore, to pursue a substantive right under the Tucker Act, a plaintiff
must identify and plead an independent contractual relationship, Constitutional provision, federal
statute, and/or executive agency regulation that provides a substantive right to money damages.
Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004) (“[J]urisdiction under the Tucker
Act requires the litigant to identify a substantive right for money damages against the United
States separate from the Tucker Act[.]”); see also Fisher v. United States, 402 F.3d 1167, 1172
(Fed. Cir. 2005) (en banc) (“The Tucker Act . . . does not create a substantive cause of action; in
order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must
identify a separate source of substantive law that creates the right to money damages. In the
parlance of Tucker Act cases, that source must be ‘money-mandating.’”).
        Whether the court has jurisdiction over the March 18, 2013 Amended Complaint is
central to the Government’s May 6, 2013 Motion To Dismiss and is addressed below.

        B.      Standards For Decision On Motion To Dismiss Under RCFC 12(b)(1).

        A challenge to the United States Court of Federal Claims’ “general power to adjudicate in
specific areas of substantive law . . . is properly raised by a [Rule] 12(b)(1) motion[.]” Palmer v.
United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also RCFC 12(b)(1) (“Every defense to
a claim for relief in any pleading must be asserted in the responsive pleading . . . . But a party
may assert the following defenses by motion: (1) lack of jurisdiction over the subject matter[.]”).
When considering whether to dismiss an action for lack of subject matter jurisdiction, the court is
“obligated to assume all factual allegations of the complaint to be true and to draw all reasonable
inferences in plaintiff’s favor.” Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995).
Nonetheless, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the
evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)
(“[O]nce the [trial] court's subject matter jurisdiction [is] put in question . . . [the plaintiff] bears
the burden of establishing subject matter jurisdiction by a preponderance of the evidence.”).

        C.      Standing.

        The United States Supreme Court has held that “the question of standing is whether the
litigant is entitled to have the court decide the merits of the dispute or of particular issues.”
Warth v. Seldin, 422 U.S. 490, 498 (1975). Standing must be determined “as of the
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commencement of suit.” Rothe Dev. Corp. v. Dep’t of Def., 413 F.3d 1327, 1334 (Fed. Cir.
2005) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n.5 (1992)). The party invoking
federal jurisdiction bears the burden of establishing standing. See Lujan, 504 U.S. at 560-61.
Specifically, “a plaintiff must show [that] it has suffered an ‘injury in fact’ that is . . . concrete
and particularized and . . . actual or imminent, not conjectural or hypothetical; . . . the injury is
fairly traceable to the challenged action of the defendant; and . . . it is likely, as opposed to
merely speculative, that the injury will be redressed by a favorable decision.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 180-81 (2000) (internal citations omitted).

        The March 18, 2013 Amended Complaint alleges that Plaintiff incurred injury that is
concrete, particularized, fairly traceable to the allegations regarding the breach of promise, and
that Plaintiff’s financial injury can be redressed by a monetary award. For these reasons, the
court has determined that Plaintiff has standing to seek adjudication of the claims set forth in the
March 18, 2013 Amended Complaint.

       D.      The Government’s May 6, 2013 Motion To Dismiss.

               1.      The Government’s Argument.

        The Government argues that the court does not have jurisdiction to adjudicate the claims
in the March 18, 2013 Amended Complaint, because the plaintiff did not have a contractual
relationship with the United States. Gov’t Mot. at 2. Moreover, “[e]ven if [Plaintiff]’s
allegations rise to the level [of] an implied-in-law contract or a claim for promissory estoppel,
this Court does not possess jurisdiction over those types of claims.” Gov’t Mot. at 2.
Specifically, “[t]o establish the existence of either an express or implied-in-fact contract with the
United States, [Plaintiff] must demonstrate: (1) a mutual intent to contract; (2) an exchange of
consideration; (3) lack of ambiguity in an offer and acceptance; and (4) actual authority on the
part of the Government representative to bind the United States in contract.” Gov’t Mot. at 8-9
(citing Harbert/Lummus Agrifuels Projects. v. United States, 142 F.3d 1429, 1434 (Fed. Cir.
1998) (listing elements); City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990)
(same)). The Government also argues that “[a] plaintiff must prove both that the contract was
entered into by an authorized Government official” (City of El Centro, 922 F.2d at 820-21), “and
privity of contract” (Erickson Air Crane Co. v. United States, 731 F.2d 810, 813 (Fed. Cir.
1984)). Gov’t Mot. at 9.

        In addition, the Government asserts that “[n]ot only does [Plaintiff] fail to describe the
‘promise’ with any specificity, but he does not rely on specific documents nor describe the
conduct of any Government employee that could possibly support his vague allegations.” Gov’t
Mot. at 10. The Government also asserts that “[Plaintiff] does not name any [g]overnment
employee let alone a government employee with authority to bind the Government in contract,”
and that “[d]ue to the absence of an agreement outlined in the [C]omplaint, [Plaintiff] appears to
allege a contract implied in law.” Gov’t Mot. at 10. Therefore, the March 18, 2013 Amended
Complaint “cannot be read to allege or describe an actual contract between [Plaintiff] and the
Government,” and “because of [Plaintiff]’s failure to allege the required elements to establish
existence of a contract, the [c]ourt should dismiss the [C]omplaint.” Gov’t Mot. at 11-12.

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        “Even if [Plaintiff] has sufficiently alleged a contract, he cannot overcome the
presumption that, as a Federal employee, he ‘derive[s] the benefits and emoluments of [his]
position[] from appointment rather than from any contractual or quasi-contractual relationship
with the government,’” and that “[a]ccordingly, his rights are a matter of legal status and there is
no contract liability enforceable under the Tucker Act.” Gov’t Mot. at 12 (quoting Federico v.
United States, 70 Fed. Cl. 378, 383 (2006)).

        The Government further asserts that the United States Court of Appeals for the Federal
Circuit has “consistently refused to give effect to government-fostered expectations that, had
they arisen in the private sector, might well have formed the basis for a contract or an estoppel.”
Gov’t Mot. at 12. These cases include “promises of appointment to a particular grade or step
level, promises of promotion upon satisfaction of certain conditions, promises of extra
compensation in exchange for extra services, and promises of other employment benefits.”
Gov’t Mot. at 12 (quoting Adams v. United States, 391 F.3d 1212, 1221 (Fed. Cir. 2004))
(emphasis added in Motion).

        In sum, “because of his Federal employee status, [Plaintiff] cannot maintain that
jurisdiction exists over an alleged promise to promote him to a higher GS-level and for
additional pay based upon a promise of promotion.” Gov’t Mot. at 12.

               2.      The Plaintiff’s Response.

       Plaintiff argues that his claim does not rely on an express or implied contract or on
promissory estoppel, but on the Government’s violation of statute. Pl. Opp. at 2. “[Plaintiff]
was detailed to the GS-14 position for 16 months without any written or verbal order of the
Director of the [United States Secret Service], as required by 5 U.S.C. Section 3341(b)(1).” Pl.
Opp. at 2.

          Subsection (b) provides that such details “may be made only by written order of the head
of the department, and may be for not more than 120 days.” 35 U.S.C. § 3341(b)(1). Likewise,
“[t]he payment of more money . . . during the time [Plaintiff] encumbered the GS-14 position is a
payment required by law,” 3 and the Back Pay Act is the appropriate vehicle to obtain such
payment. Pl. Opp. at 4-5. In other words, Plaintiff’s claim is “rooted in a failure of the Agency
to . . . pay equal pay for equal work pursuant to statute. [Plaintiff] was involuntarily maintained
. . . [in] an illegal detail.” Pl. Opp. at 6.




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          5 U.S.C. §§ 2301-02. Plaintiff explains that Section 2301 states “[E]qual pay should be
provided for work of equal value,” and that“[i]t is a prohibited personnel practice for an agency
‘to take or fail to take any….personnel action if the taking of or failure to take such action
violates . . . the Merit Systems principles contained in [5 U.S.C. Section 2301] . . . ’” Pl. Opp. at
4 (quoting 5 U.S.C. § 2302(b)(12)).

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                3.      The Court’s Resolution.

        As a matter of law, “a party invoking federal court jurisdiction must, in the initial
pleading, allege sufficient facts to establish the court’s jurisdiction.” DaimlerChrysler Corp. v.
United States, 442 F.3d 1313, 1318 (Fed. Cir. 2006) (quoting McNutt v. Gen. Motors Acceptance
Corp. of Ind., 298 U.S. 178, 189 (1936)). Thus, Plaintiff was required to plead sufficient facts to
establish that a contract existed between Plaintiff and the United States or that the United States
Secret Service violated a federal statute.

        The March 18, 2013 Amended Complaint does not establish a contractual relationship
between Plaintiff and the United States. “An express contract with the government requires
proof of ‘mutual intent to contract, including an offer, an acceptance, and consideration. A
contract with the United States also requires that the Government representative who entered or
ratified the agreement had actual authority to bind the United States.’” Chattler v. United States,
632 F.3d 1324, 1330 (Fed. Cir. 2011) (quoting Trauma Serv. Group v. United States, 104 F.3d
1321, 1325 (Fed. Cir. 1997)). The March 18, 2013 Amended Complaint does not indicate a
valid offer by an authorized Government representative or acceptance by Plaintiff. Therefore,
the March 18, 2013 Amended Complaint does not establish the necessary elements to form a
contract. Plaintiff’s June 6, 2013 Motion In Opposition attempted to establish other grounds for
jurisdiction by asserting that the United States Secret Service violated 5 U.S.C. § 3341(b)(1) by
detailing Plaintiff to the GS-14 position for 16 months, without a written or oral order from the
Director. Since it is the initial pleading that must establish the court’s jurisdiction, the court does
not have subject matter jurisdiction to adjudicate this claim.

         Even if the court granted Plaintiff leave to amend the March 18, 2013 Amended
Complaint to plead the cause of action asserted in Plaintiff’s June 6, 2013 Motion In Opposition,
Plaintiff would still be unable to cure the jurisdictional defect. “[T]he Back Pay Act [5 U.S.C. §
5596] ‘is merely derivative in application; it is not itself a jurisdictional statute . . . . Unless some
other provision of law commands payment of money to the employee for the ‘unjustified or
unwarranted personnel action,’ the Back Pay Act is inapplicable.” Spagnola v. Stockman, 732
F.2d 908, 912 (Fed. Cir. 1984) (quoting United States v. Connolly, 716 F.2d 882, 887 (Fed. Cir.
1983)); cf. Worthington v. United States, 168 F.3d 24, 26 (Fed. Cir. 1999) (“The Back Pay Act is
. . . a ‘money-mandating’ statute when based on violations of statutes or regulations covered by
the Tucker Act.”).

        Neither the March 18, 2013 Amended Complaint nor Plaintiff’s June 6, 2013 Opposition
identifies such a violation of a money-mandating statute or regulation. This court has held that
“§ 2302(b) is not a money-mandating statute . . . [since] nothing in this statute mandates
compensation for its violation, which is the key requirement for establishing jurisdiction in this
court under the Tucker Act.” Burch v. United States, 99 Fed. Cl. 377, 382 (2011) (citing Black v.
United States, 56 Fed. Cl. 19, 23 (2003) (“Section 2302(b) in no manner mentions compensation
or any right to recovery for damage sustained and, hence, the statute fails to express, either
directly or by implication, that a party has a right to compensation for any damage sustained.”)).
Furthermore, the statutes that Plaintiff alleges were violated, 5 U.S.C. § 2301-02, are part of the
Civil Service Reform Act of 1978 (“CSRA”), Pub. L. No. 98-454, 92 Stat. 1111 (codified as

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amended in scattered sections of 5 U.S.C.). “It is well established that the Court of Federal
Claims lacks jurisdiction over personnel actions that are covered by the CSRA.” Hall v. United
States, 617 F.3d 1313, 1316 (Fed. Cir. 2010) (citing United States v. Fausto, 484 U.S. 439, 449
(1988) (interpreting the CSRA’s statutory scheme as precluding judicial review of personnel
actions)).

IV.    CONCLUSION.

       For the reasons discussed herein, the Government’s May 6, 2013 Motion To Dismiss is
granted. The Clerk is directed to dismiss the March 18, 2013 Amended Complaint.

       IT IS SO ORDERED.
                                                                 s/Susan G. Braden
                                                                 SUSAN G. BRADEN
                                                                 Judge




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