Brown v. United States

      In the United States Court of Federal Claims
                                 No. 22-491C
                          (Filed: December 8, 2022)

*******************

BYRON T. BROWN,                                   Motion to dismiss for
                                                  lack of jurisdiction and
                     Plaintiff,                   failure to state a claim;
                                                  money-mandating statute
v.                                                and regulation; statutory
                                                  appointment; moving
THE UNITED STATES,                                expense reimbursement;
                                                  broker fee.
                     Defendant.

*******************

       Byron T. Brown, Honolulu, Hawaii, pro se.

       Michael D. Austin, Trial Attorney, United States Department of
Justice, Commercial Litigation Branch, Washington, DC, with whom were
Brian M. Boyton, Principal Deputy Assistant Attorney General, Patricia M.
McCarthy, Assistant Director, Eric P. Bruskin, Assistant Director, for
defendant. Michael Deeds, United States Army, of counsel.

                                       ORDER

       Byron Brown, appearing pro se, filed his complaint in this court on
June 1, 2022, after his suit was transferred from the United States District
Court for the District of Hawaii. Plaintiff alleges that the Defense Finance
and Accounting Service (“DFAS”) wrongfully withheld promised
compensation for plaintiff’s move to a new duty station. In 2019, plaintiff
was permanently relocated by the government from his old duty station in
Atlanta, GA to a new location in Hawaii. At the behest of his employer, the
Department of Defense (“DOD”), this move occurred in less than four weeks,
leaving plaintiff little time to sell his old home in Atlanta.

      Plaintiff alleges that DOD promised to reimburse him for certain
moving expenses, real estate fees, and pet transportation costs to help
ameliorate the financial burden of this hasty transition, but then failed to pay


                                       1
the real estate fees and pet expenses. 1 Pre-approval for reimbursement was
recorded in two documents, DD form 1716 and DD Form 1614, which were
signed by agency personnel on January 6, 2020.

        Given the short time line for his move, plaintiff chose not to retain a
real estate agent and instead contacted the “Opendoor” real estate company
to sell his house. Opendoor then purchased Mr. Brown’s house, with an eye
to re-selling it, and charged him a $19,157 fee. Plaintiff pre-approved this fee
with the United States Army Pacific headquarters (“HQ USARPAC”), but
DFAS later denied plaintiff’s request for housing and pet transportation cost
reimbursement after the move.

        Plaintiff now brings three claims against the government. First,
plaintiff contends that defendant’s knowledge and prior intent to deny the
expenses constitutes abuse of plaintiff’s right to “due process and the
opportunity to mitigate real estate expenses or decline the employment
offer.” Comp. 2. Second, plaintiff alleges an express or implied contract
which defendant breached when it failed to pay Brown’s moving expenses.
Lastly, Mr. Brown argues that the government’s refusal to pay his moving
expenses is a violation of 

(d)(1) and its implementing
regulations. 2 Plaintiff requests as damages his denied real estate costs of
$19,082, reimbursement for time spent pursuing his claim in the amount of
$56,785.56, a travel pet quarantine fee of $57.55, and “a 5% continually
compounding interest paid until full.” 

.

       Defendant moves for dismissal of all of plaintiff’s claims pursuant to
Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal
Claims (“RCFC”). The motion is fully briefed. Oral argument is unnecessary.
This court does have jurisdiction to hear plaintiff’s suit, and, while some of
the counts in the complaint need to be dismissed, plaintiff has stated a claim
upon which relief can be granted.

       Under RCFC 12(b)(1), “a court must accept as true all undisputed
facts asserted in the plaintiff's complaint and draw all reasonable inferences
in favor of the plaintiff.” Trusted Integration, Inc. v. United States, 

 (2011) (citing Henke v. United States, 

 (1995)).

1
    These facts are drawn from the complaint and the attachments thereto.
2
  Although not specifically pled as such, we read Mr. Brown’s complaint as
alleging a violation of a money-mandating statute and regulation. We note
that Mr. Brown did cite a subsection of the relevant regulation, 

, in his complaint.
                                       2
However, “The leniency afforded to a pro se litigant . . . does not relieve the
burden to meet jurisdictional requirements.” Olajide v. United States, 

 (2015). Under RCFC 12(b)(6), the court must “determine
whether plaintiffs have stated claims upon which relief can be granted.” A
mere “formulaic recitation of the elements of a cause of action” is insufficient
to survive a motion to dismiss under Rule 12(b)(6). See Bell Atl. Corp. v.
Twombly, 

, (2007). Rather, “the complaint must allege
facts ‘plausibly suggesting (not merely consistent with)’ a showing of
entitlement to relief.” Cary v. United States, 

 (2009)
(quoting Bell Atl. Corp. v. Twombly, 

 (2007)).

       Tucker Act jurisdiction in this court is limited to “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.” 

(a)(1) (2018). The
Supreme Court in United States v. Testan stated that the Tucker Act “does
not create any substantive right enforceable against the United States for
money damages.” 

 (1976). Hence, in order to bring a suit
in this court, a plaintiff has to assert a substantive right found in the
Constitution, in an act of Congress, or in any regulation of an executive
department. See United States v. Mitchell, 

 (1983). Only a
provision of the Constitution, statute, or regulation that can “fairly be
interpreted as mandating compensation by the Federal Government for the
damage sustained” provides a substantive right actionable in this
court. Testan, 

 (quoting Eastport S.S. Corp. v. United States,

, 

 (Ct. Cl. 1967)).

       In its motion to dismiss, defendant separately argues and addresses
each of plaintiff’s claims. First, defendant argues that Mr. Brown has failed
to demonstrate this court’s jurisdiction over plaintiff’s due process claims
“because those provisions standing alone cannot be interpreted to require the
payment of money for [their] alleged violation.” Mot. to dismiss 6 (citing
Khan v. United States, 

 (Fed. Cir. 2000)). We agree.
The Due Process clauses of the Fifth and Fourteenth Amendments are not
money mandating; we therefore dismiss plaintiff’s due process claim for lack
of jurisdiction. LeBlanc v. United States, 

. 1028 (Fed. Cir.
1995).

        Defendant’s second point is that this “court does not possess
jurisdiction to entertain Mr. Brown’s contract claims because the relationship
between the parties is statutory, not contractual.” Mot. to Dismiss 6. Put
another way, because plaintiff is an employee under a statutory scheme, not

                                       3
a contractual relationship, Mr. Brown has not alleged a valid contract claim
against the United States. 3 We agree. It is well established that “federal
workers serve by appointment . . . their entitlement to pay and benefits must
be determined by reference to the statutes and regulations governing
[compensation], rather than to ordinary contract principles.” Adams v. United
States, 

 (Fed. Cl. 2004) (quoting Kizas v.Webster, 

 (D.C. Cir. 1983) (alteration in original)). It follows from this
that the additional benefits, such as moving expense reimbursement, are
similarly creatures of statute, not contract. Thus, the reimbursement forms
(DD form 1716 and DD Form 1614), relied upon by plaintiff, do not alter the
nature of the relationship or create a separate cause of action. The benefits
sought by Mr. Brown are, like his employment, the subject of a statute, not a
contract. Therefore, we dismiss plaintiff’s contract claim for lack of
jurisdiction.

        The lack of a valid contract claim, however, does not preclude
jurisdiction in this court. In his reply brief, Mr. Brown cites to § 5724(d)(1),
which states that: “an agency shall pay to or on behalf of an employee who
transfers [duty stations] in the interest of the Government, expenses of the
sale of the residence . . . of the employee at the old official station.” 

(d)(1) (2018) (emphasis added). The corresponding
regulation, 

, states that “your agency will . . . reimburse
you for the following residence transaction expenses when they are incurred
by you incident to your relocation: (a) your broker’s fee or real estate
commission that you pay in the sale of your residence at the last official
station, not to exceed the rates that are generally charged in the locality of
your old official station.” 

(a) (2022) (emphasis
added). Both the statute and its implementing regulation provide a mandate
for the government to pay employees certain moving expenses. Plaintiff was
such an employee. These provisions are money mandating and therefore give
this court jurisdiction under the Tucker Act. McClary v. United States, 

 (Fed. Cir. 1985). The question remains, however, whether the
fee claimed here can be reimbursed.

       Plaintiff has also established jurisdiction over his claim for pet
quarantine compensation. Specifically, Mr. Brown cites to Department of
Defense’s Joint Travel Regulation (JTR) 054103, which states that “cat and
dog transportation and quarantine charges . . . may be claimed as a MEA
(Miscellaneous Expense Allowance).” Because the JTR is a money-
mandating regulation, these pet quarantine expenses also fall under the scope

3
 Plaintiff concedes the new position in Hawaii was an appointment pursuant
to statute on page 12 of his response to the motion to dismiss.
                                       4
of the Tucker Act’s authority. Bailey v. United States, 

(2002). Accordingly, this court does have jurisdiction over plaintiff’s suit
because a money mandating statute and regulations do apply to both the
plaintiff’s real estate and pet quarantine claims. Defendant’s motion to
dismiss plaintiff’s statutory violation claims for lack of jurisdiction therefore
must be denied.

        That leaves defendant’s argument that the claim for real estate fees
fails to state a claim for which relief can be granted. Defendant argues that

 limits the real estate reimbursement to “broker
expenses.” Def. Resp. 5. The government contends that Mr. Brown’s lack of
representation in the Opendoor transaction means that Mr. Brown was not
charged a broker fee. Defendant reasons that plaintiff’s Opendoor fees are a
“service charge” and not “broker expenses” as specified in § 302-11.200 and
are thus not reimbursable. Per the government, Opendoor’s fee does not
trigger the § 5724(d)(1) mandate because “an expense cannot simply be
‘comparable’ to a reimbursable expense to qualify for reimbursement; the
expense itself must be reimbursable.” Def.’s Resp. 5. Defendant notes that
plaintiff referred to Opendoor’s fees as a “comparable . . . service charge” in
his response to the motion to dismiss and contends this is an admission by
plaintiff that Opendoor’s fee does not qualify as an item meriting
compensation under 

.

       We cannot go so far. Given plaintiff’s pro se status, we do not
construe his reply as conceding that the Opendoor fee was an ineligible
service charge. The question of whether the transactional fee qualifies under
any of the enumerated expenses in § 302-11.200 or under the catch-all
provision of subsection (f) remains open. 4 Nor is the fact that plaintiff was
unrepresented in the sale to Opendoor compelling. Sellers frequently pay the
commission or brokerage fee in a residential real estate transaction. Mr.
Brown was the seller here. Whether the fee charged can be considered Mr.
Brown’s “broker’s fee or real estate commission” under 

(a) or otherwise an “expense of sale and purchase made for
required services that are customarily paid by the seller of a residence” under
§302.11.200(f) is unresolved. Mr. Brown has alleged enough to plausibly
suggest that his expense qualifies under one of the provisions cited above.

4
  Mr. Brown also attempted to file a sur-reply, which was not docketed by
the clerk’s office because the court had not asked for a sur-reply. Owing to
plaintiff’s pro se status, we will allow the document to be filed and note from
it that that Mr. Brown was not acceding to defendant’s position regarding the
characterization of the Opendoor fee.

                                       5
See Bell Atl. Corp. v. Twombly, 

. The motion to dismiss must
therefore be denied in this regard. 5 Accordingly, the following is ordered:

         1. The clerk’s office is directed to accept for filing and to docket the
            sur-reply from plaintiff received on November 15, 2022.

         2. Defendant’s motion to dismiss is granted in part and denied in part
            as outlined above.


                                             s/Eric G. Bruggink
                                             ERIC G. BRUGGINK
                                             Senior Judge




5
    We also view as unresolved the issue of the pet quarantine fees.
                                        6