63 F.3d 1097 (Fed. Cir. 1995), 94-5118, Hamlet v. United States

Docket Nº:94-5118.
Citation:63 F.3d 1097
Party Name:Louise J. HAMLET, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.
Case Date:August 17, 1995
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1097

63 F.3d 1097 (Fed. Cir. 1995)

Louise J. HAMLET, Plaintiff-Appellant,

v.

The UNITED STATES, Defendant-Appellee.

No. 94-5118.

United States Court of Appeals, Federal Circuit

August 17, 1995

Rehearing Denied; Suggestion for Rehearing In Banc Declined

Oct. 27, 1995.

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[Copyrighted Material Omitted]

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Alexander W. Bell, Lynchberg, VA, argued, for plaintiff-appellant.

Domenique Kirchner, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued, for defendant-appellee. Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director, Washington, DC and Charles F. Beall, Jr., Atty., Arlington, VA.

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 1 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 I ),

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and in Hamlet v. United States, 873 F.2d 1414, 1415 (Fed.Cir.1989) (CAFC Hamlet I ), 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 Service (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. 461, 49 Stat. 1148 (1935) (codified as amended at 16 U.S.C. Sec. 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 entitled to relief under the Tucker Act, 28 U.S.C. Sec. 1491(a)(1) (1988 & Supp. V 1993). 2 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 the ASCS rules found in the ASCS Handbook: County 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 claim. 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, 96 S.Ct. 2508, 49 L.Ed.2d 361 (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, 104 S.Ct. 1414, 79 L.Ed.2d 740 (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 1416-17.

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 Government moved to dismiss the action. The Court of Federal Claims dismissed the 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

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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, 14 F.3d 613, 1993 WL 481140 (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 or the breach of that contract. Hamlet v. United States, No. 281-86C, slip op. at 4 (Fed.Cl. Mar. 21, 1994) (CFC Hamlet III ). 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, 99 S.Ct. 1705, 60 L.Ed.2d 208 (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, 96 S.Ct. 948, 954, 47 L.Ed.2d 114 (1976). CFC Hamlet III, slip op. at 4-6. The Court of Federal Claims then sua sponte examined its jurisdiction over Hamlet's cause of action and 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 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, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (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 alleging 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.

III

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." CAFC Hamlet I, 873 F.2d at 1417 n. 5 (citing Hopkins, 427 U.S. at 128, 96 S.Ct. at 2511-12; Army & Air Force Exch. Serv. v. Sheehan, 456 U.S. 728, 738, 102 S.Ct. 2118, 2124, 72 L.Ed.2d 520 (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, 102 S.Ct. at 2122-24.

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 provisions of the 22-PM Manual, 3 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 (p 91), which states

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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, 96 S.Ct. at 2511-12. Additionally, under p 465 of the 22-PM Manual, only employees serving under appointment are eligible to participate in the Civil Service Retirement System (CSRS), and under p 628, 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...

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