United States Court of Appeals 

for the Federal Circuit 

__________________________ 

JULIE CHATTLER, 

Plaintiff-Appellant, 

v. 

UNITED STATES AND DEPARTMENT OF STATE, 

Defendants-Appellees. 

__________________________ 

2010-1066 

__________________________ 

Appeal from the United States District Court for the 

Northern District of California in case no. 07-CV-04040, 

Judge Maxine M. Chesney. 

__________________________ 

Decided: January 10, 2011 

__________________________ 

WALTER H. SARGENT, Walter H. Sargent, P.C., of Colorado Springs, Colorado, argued for plaintiff-appellant. On 

the brief were ROBERT B. CAREY, Hagens Berman Sobol 

Shapiro LLP of Phoenix, Arizona; SHANA E. SCARLETT, of 

Berkeley, California; and MEGAN E. WAPLES, The Carey 

Law Firm, of Colorado Springs, Colorado. 

MICHAEL P. ABATE, Trial Attorney, Appellate Staff, 

Civil Division, United States Department of Justice, of 

Washington, DC, argued for defendants-appellees. With 
CHATTLER v. US 2

him on the brief were TONY WEST, Assistant Attorney 

General, and MICHAEL S. RAAB, Attorney. 

__________________________ 

Before NEWMAN, LINN, and DYK, Circuit Judges. 

Opinion for the court filed by Circuit Judge LINN. 

Dissenting opinion filed by Circuit Judge NEWMAN. 

LINN, Circuit Judge. 

Julie Chattler (“Chattler”) appeals the grant of judgment on the pleadings by the United States District Court 

for the Northern District of California in favor of defendants, United States and Department of State (collectively, “government” or “Department”), that no implied 

contract was formed between the government and Chattler for expedited processing of her passport application in 

exchange for a $60 expedite fee. Chattler v. United States, 

No. 07-CV-04040 (N.D. Cal. June 5, 2008) (“Contract 

Opinion”). Chattler also appeals the grant of summary 

judgment in favor of the government that it did not violate 22 C.F.R. § 51.63 (2007)1 in failing to automatically 

refund Chattler’s expedite fee. Chattler v. United States, 

No. 07-CV-04040 (N.D. Cal. July 10, 2009) (“Summary 

Judgment”). Because the district court did not err in 

determining that no contract was formed and that no 

automatic refund was due, this court affirms. 

BACKGROUND

After the events of September 11, Congress enacted 

the Intelligence Reform and Terrorism Prevention Act of 

2004, Pub. L. No. 108-458, 118 Stat. 3638 (Dec. 17, 2004). 

Section 7209(b)(1) of that Act required the State Depart-

 1 All citations to 22 C.F.R. §§ 51.63 and 51.66 

are to the Regulations in force in 2007. 
3 CHATTLER v. US

ment and the Department of Homeland Security to develop a plan requiring anyone entering into the United 

States, including those entering from Canada, Mexico, 

and the Caribbean, to present a valid passport. The State 

Department issued the Western Hemisphere Travel 

Initiative implementing this policy. These developments 

greatly increased the demand for passports. In an attempt to accommodate persons with urgent needs for 

passports in the face of this demand, the State Department established a program for expedited processing of 

certain passports, to be funded by expedite fees. The 

availability of this service was posted on the State Department’s website and set forth in the passport application form. 

Chattler applied for a passport on June 11, 2007. The 

passport application form she completed included provision 5(b) relating to expedited processing and stating: 

“Expedited requests will be processed in three workdays 

from receipt at a passport agency. The additional fee for 

expedited services is $60.” Decl. of Ann Barrett in Supp. 

of Def.’s Mot. to Dismiss 16, Chattler v. United States, No. 

07-CV-04040 (filed Oct. 9, 2007), ECF No. 10-2 (“Barrett 

Decl.”). Chattler paid the additional fee. The passport 

agency received her application along with the expedite 

fee on June 19, 2007, but by August 1, 2007, Chattler had 

not yet received her passport. Chattler submitted a 

second request in person, and received her passport in 

time to fulfill her travel plans. It is undisputed that 

Chattler’s first expedite request was not processed within 

three days, and that she is entitled to a refund of her 

expedite fee. Rather than requesting a refund of the fee, 

and in response to the government’s failure to make good 

on its expedited service program, Chattler initiated legal 

action. 
CHATTLER v. US 4

Specifically, Chattler2 brought an action in district 

court asserting a Little Tucker Act claim under 28 U.S.C. 

§ 1346(a)(2) for breach of contract. She asserted that 

provision 5(b) of the passport application was an offer, 

which she accepted by paying the $60 expedite fee, and 

that the government breached the resulting contract by 

failing to process her passport within three days. She 

also asserted that the government made a second offer on 

the Department of State’s website that she would receive 

her completed passport “in about 3 Weeks.” She contended that this offer, too, was accepted by paying the $60 

expedite fee, and that the contract was breached by 

failure to deliver her passport within three weeks. Chattler also brought a regulatory claim alleging that the 

government had violated 22 C.F.R. § 51.63 in failing to 

refund her expedite fee automatically and without a 

request on her part, when her passport application did 

not receive expedited processing. In her complaint, Chattler originally asked for “all consequential and special 

damages . . . not to exceed $10,000 for any individual” 

based on both her contract theory and the asserted regulatory violation, but later explicitly waived any right to 

damages over $60. Reply Br. of Pl.-Appellant 19 (regulatory claim), 20-21 (contract claims). 

 2 Chattler styled her complaint as a “class action pursuant to Federal Rule [sic] of Civil Procedure 

23(a) and 23(b)(2) and 23(b)(3) on behalf of herself and all 

others similarly situated, who paid an extra fee to secure 

expedited processing of their passports and whose passports were not processed within the required three-day 

period or were not delivered within the promised time.” 

Compl. 1, Chattler v. United States, No. 07-CV-04040 

(filed Aug. 7, 2007), ECF No. 1. However, it does not 

appear that there was a motion to certify this case as a 

class action, and the case has not, in fact, been certified. 

Consequently, we do not treat this case as a class action. 
5 CHATTLER v. US

The government answered by denying Chattler’s 

claims and indicated its willingness to refund the $60 fee 

on request. Chattler refused to make such a request or to 

have her complaint treated as a constructive request, 

presumably to avoid rendering her claims moot. The 

government moved for judgment on the pleadings on 

Chattler’s contract claims and for summary judgment on 

the regulatory claim. The district court granted both 

motions and Chattler appealed. 

The district court had jurisdiction under 28 U.S.C. § 

1346(a)(2), and this court has jurisdiction under 28 U.S.C. 

§ 1295(a)(2). 

DISCUSSION

I. Regulatory Claims 

At the time Chattler filed her application, section 

51.63(c) of Title 22 of the Code of Federal Regulations 

stated: “The passport expedite fee will be refunded if the 

Passport Agency does not provide the requested expedite 

processing as defined in § 51.66.” Section 51.66(b) defined 

expedited processing as “completing processing within 3-

business days commencing when the application reaches 

a Passport Agency . . . . The processing will be considered 

completed when the passport is ready to be picked up by 

the applicant or is mailed to the applicant.” The government concedes that Chattler is entitled to a refund of her 

$60 expedite fee because the government failed to process 

her application within three business days. The issue is 

whether Section 51.63 unambiguously requires that the 

government automatically provide a refund, or whether 

the government can, consistent with the regulations, 

require an applicant to make a refund request before it is 

obliged to issue the refund. 
CHATTLER v. US 6

We review a grant of summary judgment under the 

law of the regional circuit. Serdarevic v. Advanced Med. 

Optics, Inc., 532 F.3d 1352, 1362 (Fed. Cir. 2008). The 

Ninth Circuit reviews the grant of summary judgment de 

novo, “determining whether, viewing all evidence in the 

light most favorable to the nonmoving party, there are 

genuine issues of material fact and whether the district 

court correctly applied the relevant substantive law.” 

Kraus v. Presidio Trust Facilities Div., 572 F.3d 1039, 

1043-44 (9th Cir. 2009). 

We defer to the agency’s interpretation of its own 

regulation unless it is “plainly erroneous or inconsistent 

with the regulation.” Bowles v. Seminole Rock & Sand 

Co., 325 U.S. 410, 414 (1945) (“Seminole Rock”). The 

agency “interpretation need not be the best or most natural one by grammatical or other standards.” Pauley v. 

Bethenergy Mines, Inc., 501 U.S. 680, 702 (1991). 

The Department of State interprets Section 51.63 as 

requiring a request before a refund is issued. A statement 

on the Department of State’s website first published on 

June 14, 2007 states: “Travelers who: A) Paid the $60 fee 

for expedited service and B) Have reason to believe that 

they did not receive expedited service should contact the 

Department of State to request that the Department 

consider a refund of the expedite fee. Customers should 

submit a written request with their passport number, if 

available, name, date and place of birth, and approximate 

date(s) they applied for their passport and received their 

passport (if applicable). Mailing address and phone 

number should also be included.” Decl. of Florence Fultz 

In Supp. Of Def.’s Mot. For Summ. J., Fultz Ex. 14 p. 5, 

Chattler v. United States, No. 07-CV-04040 (filed January 

30, 2009), ECF No. 111-8 (emphases added). See alsoRefund 

of Expedite Passport Fees, Travel.State.Gov Policy and Announcements, 

http://www.travel.state.gov/passport/ppi/refund/refund_3259.html (last 
7 CHATTLER v. US

visited Oct. 27, 2010) (similar statement in current iteration). The 

government has represented in its brief and at oral argument that its long-standing practice has been to require a 

request from the applicant before a refund is issued. Br. 

of Def.-Appellees 6, 23 (“There is not and has never been 

an automated process for identifying which applicants 

received the expedite processing within the meaning of 

the regulation. Instead, the Department reasonably relies 

upon refund requests by unsatisfied applicants to trigger 

the [refund] process.”); Oral Arg. 20:55-21:08, 24:30-24:55, available at http://oralarguments.cafc.uscourts.gov/mp3/2010-1066.mp3 

(“[T]he department’s view is that has been its practice [to 

require a request] consistently and historically all the way 

along.”). 

Chattler argues that this interpretation is contradicted by the preamble of the Federal Register Notice 

implementing the expedited processing rules: “There will 

be situations in which expedited passport processing 

cannot be completed within three days. . . . In such 

circumstances, the applicant will be notified and the fee 

will be refunded.” 59 Fed. Reg. 48,998, 48,999 (Sept. 26, 

1994). Chattler’s argument is inapposite. The phrase 

“the fee will be refunded” in the preamble sheds no light 

on the meaning of the phrase, “[t]he passport expedite fee 

will be refunded” in Section 51.63; as discussed below, 

“will” does not imply “will automatically.” To the extent 

that the preamble suggests that the Department is responsible for initiating the refund process by notifying the 

applicant of the Department’s failure to process her 

expedite request within the specified time frames, Chattler has not argued that she failed to receive such notice. 

Thus, the preamble does not serve to undermine the 

Department’s interpretation of Section 51.63 as requiring 

a refund request. 
CHATTLER v. US 8

Chattler next argues that the Department’s interpretation is “plainly erroneous or inconsistent with the 

regulation.” See Seminole Rock, 325 U.S. at 414. Chattler argues that the word “will” unambiguously compels 

the government to issue a refund automatically to all 

passport applicants who requested but failed to receive 

expedited processing, without regard to whether a request 

was made. The government argues that “will” does not 

prescribe the procedure or process by which the refund 

will be granted, and that the Department of State’s requirement of a refund request as a condition to the issuance of a refund is consistent with the regulation. The 

government’s analogy helps to illustrate this point. A 

retail policy could read: “The difference in purchase price 

will be refunded if another store advertises this product 

for less.” The most natural reading of “will be refunded” 

does not presuppose an automatic procedure for administering the refund. Instead, it is wholly consistent with a 

policy requiring a customer to make a request for a refund 

of the difference. To suggest, as Chattler essentially 

argues, that these procedural requirements are inconsistent with the word “will” simply because an applicant may 

not take the necessary steps to collect a refund is contrary 

to the plain meaning and ordinary usage of the word. 

This court again agrees with the government. In the 

context of Section 51.63, the word “will” simply describes 

future action, but does not preclude the imposition of 

conditions before such action is due. The possibility that 

a request may not be made by an applicant, and as a 

consequence, a refund may not be issued, does not make 

the withholding of refunds arbitrary. Nor is such government action discretionary; if a request is made (and 

the applicant is entitled to a refund) the government 

concedes that a refund must and will be issued. The 

agency’s interpretation is consistent with the language of 
9 CHATTLER v. US

Section 51.63 and is not “plainly erroneous or inconsistent 

with the regulation.” See Seminole Rock, 325 U.S. at 414. 

Thousands of refunds have issued to applicants who 

initiated the refund process by submitting a refund request. Chattler argues that only a relatively small percentage of applicants who were entitled to a refund for the 

Department’s failure to expedite actually received the 

refund, and that the refund request requirement is simply 

a means for the Department to retain undeserved funds. 

The government responds that the statistics underreport 

the true percentages, and that the refund request requirement is necessary to ensure that refunds are received by the proper parties. Even if we accept the factual 

validity of Chattler’s statistics, the failure of some parties 

to request a refund may be due to any number of reasons, 

and the government’s retention of unrequested refunds 

does not compel the conclusion that the Department 

imposed the refund request requirement as a means of 

improperly retaining the fees rather than as a reasonable 

way of assuring that refunds are made to the proper 

parties. 

For the foregoing reasons, this court holds that the 

phrase, “will be refunded” in Section 51.63(c) of the Code 

of Federal Regulations Title 22 does not imply “will be 

refunded without further action by the applicant,” and 

does not require the government to issue an automatic 

refund without a request by the applicant. We thus 

affirm the district court’s grant of the government’s 

summary judgment motion on Chattler’s regulatory 

claim. 

II. Contract Claims 

We review a grant of judgment on the pleadings under 

the law of the regional circuit. Imation Corp. v. Koninklijke Philips Elecs. N.V., 586 F.3d 980, 984 (Fed. Cir. 2009). 
CHATTLER v. US 10

The Ninth Circuit reviews the grant of judgment on the 

pleadings de novo. Compton Unified School Dist. v. 

Addison, 598 F.3d 1181, 1185 (9th Cir. 2010). “A judgment on the pleadings is proper if, taking all of [the 

plaintiff’s] allegations in its pleadings as true, [the defendant] is entitled to judgment as a matter of law.” Id. 

Because there are no facts in dispute, the question of 

whether a contract was formed is a question of law. 

Trauma Serv. Group v. United States, 104 F.3d 1321, 

1325 (Fed. Cir. 1997). 

The government is subject to suit only if it has waived 

sovereign immunity. United States v. Testan, 424 U.S. 

392, 399 (1976). A waiver “cannot be implied but must be 

unequivocally expressed.” Id. (internal quotation omitted). The Tucker Act provides a waiver of sovereign 

immunity for “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.” 28 U.S.C. § 1491 (emphasis added). 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.” Trauma Serv. Group, 104 F.3d at 1325 

(internal citations omitted). 

In the present case, the district court dismissed Chattler’s contract claims “for the reasons stated by defendants in their papers and at the hearing conducted May 

23, 2008.” Contract Opinion at 1, 3. This court agrees 

that no contract was formed by the timing provision in the 

passport application or by the statements on the Department’s website. 
11 CHATTLER v. US

A. Passport Application Provision 5(b) 

Chattler argues that provision 5(b) in the passport 

application and a statement on the Department of State 

website formed the basis of an express contract to process 

the application within three days and return it to Chattler within about two weeks. Provision 5(b) in the passport application reads: “For faster processing, you may 

request expedited service. Expedited requests will be 

processed in three workdays from receipt at a passport 

agency. The additional fee for expedited service is $60.” 

Barrett Decl. 16. 

Passport application provision 5(b) was not an offer. 

“An offer is the manifestation of willingness to enter into 

a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and 

will conclude it.” Cutler-Hammer, Inc. v. United States, 

441 F.2d 1179, 1183 (Ct. Cl. 1971) (citing Restatement 

(Second) of Contracts § 24 (Tentative Draft No. 1) (1964)). 

Provision 5(b) was not a manifestation of willingness to 

enter into a bargain for at least four reasons. 

First, provision 5(b) categorizes the applicant’s initiation of the expedite procedure as a “request,” Barrett Decl.

16 (“For faster processing, you may request expedited 

service.”), which belies any obligatory intent, see CutlerHammer, 441 F.2d at 1179 (“[N]owhere is there a promise

on the part of the Government to sell even one ounce of 

silver at the price mentioned. Purchasers are simply 

invited to make ‘application’ to buy certain quantities of 

silver at a price which will be not less than $ 1.29+.”). 

Second, “[t]he obligation of the government, if it is to 

be held liable, must be stated in the form of an undertaking, not as a mere prediction or statement of opinion or 

intention.” Id. at 1182. Likewise statements of information or definition are not statements of obligation. The 
CHATTLER v. US 12

expedite provision in the passport application was included in furtherance of a regulatory scheme that (1) 

allowed applicants to “request expedited processing by a 

Passport Agency,” 22 C.F.R. § 51.66(a); (2) defined expedited processing, “[e]xpedited passport processing shall 

mean completing processing within 3- business days . . . ,” 

22 C.F.R. § 51.66(b); and (3) called for a fee to be collected 

“in the amount prescribed in the Schedule of Fees for 

Consular Services,” 22 C.F.R. § 51.66(c). Provision 5(b) 

substantially mirrors the informational content of the 

regulation: (1) it authorizes expedited processing (“For 

faster processing, you may request expedited service”); 

(2) defines expedited processing (“Expedited requests will 

be processed in three workdays from receipt at a passport 

agency”); and (3) notes the fee from the Schedule of Fees 

for Consular Services (“The additional fee for expedited 

service is $60”). Barrett Decl. 16. The use of language 

that simply restates obligations created by a regulation 

evinces that the government “never intended the language [] to be more than a mere expression of intention, 

as opposed to words of commitment.” Floyd v. United 

States, 26 Cl. Ct. 889, 891 (1992), aff’d on other grounds

996 F.2d 1237 (Fed. Cir. 1993), cert. denied 510 U.S. 925 

(1993). See also Clawson v. United States, 24 Cl. Ct. 366, 

370 (1991) (“Where rights and obligations are prescribed 

by statute and regulations rather than determined 

through the mechanics of a bilateral exchange, there is no 

contract in the usual sense of that word.”). The word 

“will” is often used in this definitional way, without 

creating an underlying obligation. See Merriam-Webster’s 

Online Dictionary, http://www.merriam-webster.com/dictionary/will 

(last visited July 20, 2010) (defining “will” as “3 –used to 

express futurity <tomorrow morning I will wake up in 

this first-class hotel suite – Tennessee Williams>”). We 

also note the use of the passive voice, i.e. “will be processed,” makes it less likely that the government intended 
13 CHATTLER v. US

to be bound. Cf. Jones v. United States, 526 U.S. 227, 258 

(1999) (Kennedy, J., dissenting) (“In addition, there is 

some significance in the use of the active voice in the 

main paragraph and the passive voice in clauses (2) and 

(3) of § 2119.”). Compare Airborne Data, Inc. v. United 

States, 702 F.2d 1350 (Fed. Cir. 1983) (per curiam) (“Contracting officers and other Governmental personnel shall 

comply with the terms of the legend.”). 

Third, as the relevant regulations confirm, an applicant’s assent to the “offer” would not necessarily conclude 

the bargain because the Department may decline to 

accept the expedite request under certain conditions. See

22 C.F.R. § 51.66(d) (“A request for expedited processing 

normally will be accepted only if the applicant can document urgent departure with airline tickets showing 

confirmed reservation or similar evidence. The Passport 

Agency may decline to accept the request if it is apparent 

at the time it is made that the request cannot be 

granted.”). 

Fourth, the form of provision 5(b) informs the substance; the single sentence of the provision is a far cry 

from the comprehensive instruments that typify government contracts under the Federal Acquisition Regulations 

and in the express contract cases relied on by Chattler. 

The Claims Court confronted a similar assertion of a 

contract arising out of a statement in an agency publication in Girling Health Systems, Inc. v. United States, 22 

Cl. Ct. 66 (1990). There, an Internal Revenue Service 

(“IRS”) publication included a single sentence that was 

alleged to constitute an offer to contract: “You should 

generally receive determination on your election within 60 

days after you have filed form 2553.” Id. at 68. The court 

found that no contract was formed, in part because the 

basis for the contract was a simple statement in an IRS 

publication, and “there has been no negotiation between 
CHATTLER v. US 14

IRS personnel and the plaintiff and no one from the IRS 

has assented to anything.” Id. at 70. This court affirmed 

because there, like here, the “language manifest[ed] no 

intent to be bound.” Girling Health Sys., Inc. v. United 

States, 949 F.2d 1145, 1147 (Fed. Cir. 1991).

Chattler relies on two sets of cases to support her contention that provision 5(b) was an offer. First, she relies 

on a group of express contract cases in which the sufficiency of the offer was not in dispute. See Me. Yankee 

Atomic Power Co. v. United States, 225 F.3d 1336, 1337-

38 (Fed. Cir. 2000) (resolving whether an administrative 

exhaustion provision of a contract covered particular 

types of inaction by the government); N. States Power Co. 

v. United States, 224 F.3d 1361, 1364 (Fed. Cir. 2000) 

(same); Hughes Commc’ns Galaxy v. United States, 998 

F.2d 953, 954 (Fed. Cir. 1993) (noting that the government was bound by a contract to provide its “best efforts” 

to launch commercial payloads through the space shuttle 

program, in part because “the government did not challenge the validity of the contract before the Claims Court 

and does not do so here”). Wells Fargo Bank, N.A. v. 

United States, 88 F.3d 1012 (Fed. Cir. 1996) is closer, in 

that it addressed whether a contract was formed. However, the issues in that case were whether any government official had the authority to contract and whether 

certain conditions precedent precluded contract formation, not whether certain governments statements constituted offers. No similar issues are presented here. 

Because none of these cases addressed whether certain 

statements of the government constituted offers, they are 

inapposite. 

Chattler also relies on a second set of cases, which 

found that the government entered into implied-in-fact 

contracts to keep proprietary information confidential. 

See Airborne Data, 702 F.2d 1350; Research, Analysis, & 
15 CHATTLER v. US

Dev., Inc. v. United States, 8 Cl. Ct. 54 (1985). We do not 

believe these cases are dispositive. 

Moreover, Chattler has failed to cite, and this court 

has been unable to find, a single case where the government was held to have contracted to perform a service in 

furtherance of a regulatory scheme by virtue of a statement in a form application. In the closest case, Girling, 

the Claims Court determined that no contract was 

formed, 22 Cl. Ct. at 73, and this court affirmed, 949 F.2d 

at 1147. The only cases where the government was bound 

in contract to perform a service are those in which the 

contract was manifested by an express obligation observing the formalities of typical government contracts, including a signature by an authorized agent. See Me. 

Yankee, 225 F.3d at 1337-38; N. States Power, 224 F.3d at 

1364; Wells Fargo, 88 F.3d at 1019; Hughes Commc’ns, 

998 F.2d at 954. 

For these reasons, this court holds that the government did not manifest an intent to be bound in contract 

by provision 5(b) of the passport application. 

B. Statements on the Department’s Website 

We turn next to Chattler’s assertion that the statements on the Department’s website were an offer to 

contract, wherein the government promised to return her 

passport to her within two to three weeks in exchange for 

payment of the expedite fee. The relevant statement on 

the website includes the following table: 
CHATTLER v. US 16

Barrett Decl. 32. The “**” footnote reads: 

**Expedite Service: If you apply for your 

passport today and request Expedited 

Passport Processing, you can expect to receive your passport in about 3 weeks. The 

3 week estimated timeframe for receipt of 

your passport takes into consideration the 

additional time it may take to receive your 

passport application at a Passport 

Agency/Center when you apply for Expedited Passport Processing through a designated Passport Acceptance Facility and 

for the passport to be mailed to you. It 

may take longer for customers who apply 

for a renewal by mail without “Expedite” 

marked on the mailing envelope. 

 Effective August 16, 2007, the Department’s standard for expedited passport 

processing completion, as defined in 22 

C.F.R. 51.66, is ten business days from . . . 

receipt of your passport application at a 

Passport Agency/Center . . . . Expedited 

passport processing is considered complete 

when the passport is ready to be picked by 

an applicant or when it is put in the mail 

to the applicant. 
17 CHATTLER v. US

Id. 

These statements do not constitute an offer to contract. The phrase “We will process your application 

within about 3 Weeks” is under the heading of “What to 

expect,” and the “**” note explicitly says that an applicant 

“can expect to receive [her] passport in about 3 weeks.” 

Id. (emphases added). The note also explains that three 

weeks is merely an “estimated timeframe.” Id. (emphasis 

added). These statements use language of intention or 

prediction, not obligation, and thus do not constitute 

offers to contract. See Cutler-Hammer, 441 F.2d at 1182 

(“The obligation of the government, if it is to be held 

liable, must be stated in the form of an undertaking, not 

as a mere prediction or statement of opinion or intention.”). 

CONCLUSION

For the foregoing reasons, this court affirms the 

judgment of the United States District Court for the 

Northern District of California. 

AFFIRMED 
United States Court of Appeals 

for the Federal Circuit 

__________________________ 

JULIE CHATTLER, 

Plaintiff-Appellant, 

v. 

UNITED STATES AND DEPARTMENT OF STATE, 

Defendants-Appellees. 

__________________________ 

2010-1066 

__________________________ 

Appeal from the United States District Court for the 

Northern District of California in Case No. 07-CV-4040, 

Judge Maxine M. Chesney. 

__________________________ 

NEWMAN, Circuit Judge, dissenting. 

Ms. Chattler requested the expedited passport service of 

the Department of State, whereby for a fee of $60.00 the 

passport will be processed within three business days after 

receipt of the request. This expedited processing is offered 

on the passport application form; the Regulations define 

expedited processing as follows: 

22 C.F.R. § 51.66. [Expedited processing is] processing within 3-business days commencing when the 

application reaches a Passport Agency or, if the application is already with a Passport Agency, com-
CHATTLER v. US 2

mencing when the request for expedited processing 

is approved. 

The Regulations state that the fee will be refunded if the 

expedited processing is not provided within the three business days: 

22 C.F.R. § 51.63. The passport expedite fee will be 

refunded if the Passport Agency does not provide 

the requested expedited processing as defined in 

51.66. 

In the accompanying Federal Register Notice, the State 

Department explained: 

59 F.R. 48998. There will be situations in which 

expedited passport processing cannot be completed 

within three days. . . . The Department expects that 

these situations will be very rare. In such circumstances, the applicant will be notified and the fee 

will be refunded. 

Fee for Expedited Passport Processing (Sept. 26, 1994). 

Ms. Chattler’s passport was not processed within three 

business days, or within the fifteen days that the State 

Department allocates to include mail and receipt time. Nor 

was the $60.00 expedite fee refunded. Her passport was not 

processed for six weeks, requiring her to make a personal 

visit to the San Francisco Passport Office, where she obtained the passport a day before her scheduled departure. 

The fee was never refunded. 

At the argument of this appeal, counsel for the government agreed that the $60.00 refund is owed to Ms. Chattler 

and has not been paid, and stated that it will not be paid 

unless Ms. Chattler writes a letter to the Department of 
3 CHATTLER v. US

State requesting the refund “with particulars.” Both sides 

have dug in, Ms. Chattler refusing to write another letter, 

the government refusing to refund the $60.00. 

The record suggests that more is at stake than petulance. The discovery record shows extensive discussion 

within the State Department of its use of these fees for 

other purposes, with particular mention of information 

technology, for the expedite fees are not required to be 

turned over to the Treasury. The amounts are not negligible. The appellant’s brief contains the following chart: 

(Appx. Vol.III:1520, 1561-62, 1568; (Def.’s Counterstatement 

of Undisputed Material Facts).1

 1 The State Department did not track refunds of the 

expedite fee separately from other refunds until June 2007, 

and these numbers are explained to include refunds in 

addition to refunds of expedite fees (e.g., refunds of passport 

fees on a no-fee application). In addition, some expedite 

requests were not eligible for a refund because the requester 

was not required to pay the fee. (See Vol.III:1561-62, 1568.) 
CHATTLER v. US 4

At $60.00 for each expedite request, the arithmetic is 

powerful. The parties dispute whether the adoption of the 

procedure requiring a special request “with particulars” was 

intended to burden the refund process, or to simplify internal processing. However, the published Regulation requires 

both notice to the applicant and refund to the applicant, 

neither of which appears to be routinely given when the 

expedited service is not provided. 

As the Court explained in Christensen v. Harris County, 

529 U.S. 576, 588 (2000), it is inappropriate for “the agency, 

under the guise of interpreting a regulation, to create de 

facto a new regulation.” This unannounced new “policy” 

“effect[ed] a change in existing law or policy [and] affect[ed] 

individual rights and obligation,” Paralyzed Veterans of Am. 

v. West, 138 F.3d 1434, 1436 (Fed. Cir. 1998), and was 

improperly engrafted on the Regulation. The original 

intention that the refund would be routinely made if the 

expedited service failed, without additional formalities, is 

apparent from the Regulation, as Ms. Chattler points out, 

citing other regulations that are explicit as to refund request procedures. E.g., 38 C.F.R. § 21.5064(b)(3)(ii) (Department of Veterans Affairs) (“The Department of Veterans 

Affairs shall make the refund only if the individual requests 

it.”); 43 C.F.R. § 1823.12(b) (Department of the Interior) (“If 

you believe you are due a refund, you may request it from 

the BLM office where you previously submitted your payment.”); 37 C.F.R. § 1.296 (Patent and Trademark Office) 

(“The request to withdraw may also include a request for a 

refund of any amount paid in excess of the application filing 

fee.”); 10 C.F.R. § 205.283(a) (Department of Energy) (“Any 

person entitled to a refund pursuant to a final Decision and 

Order . . . may file an Application for Refund.”); 14 C.F.R. § 

 

(Def.’s Resp. to Pl.’s First Set of Special Interrogs., Interrog. 

No. 8.). 
5 CHATTLER v. US

389.27(b) (Department of Transportation) (“Any person may 

file an application for refund of a fee paid since April 28, 

1977, on the grounds that such fee exceeded the Board’s cost 

in providing the service.”) No such provision exists in the 

State Department Regulations for expedited passport processing. 

My colleagues on this panel offer an elaborate analysis 

of regulatory and contractual abstraction, but no authority 

ratifies the procedure of a government offer of a fee-based 

service, where the fee is paid and accepted, the service is 

refused, and refund is denied despite the explicit promise of 

a refund in the offer. 

The court today holds that there is no juridical path by 

which Ms. Chattler can obtain review of this government 

action concerning her unrefunded fee. That ruling is incorrect. The statute under which this action was brought, 28 

U.S.C. 1346(a)(2), establishes jurisdiction of claims 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 . . .”. Whether this claim is perceived as 

relating to a regulation or a contract, jurisdiction is provided. Whether liability may be found on particular facts 

does not determine whether there is Tucker Act jurisdiction 

of the claim. See Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 

1237, 1244 (2010) (distinguishing subject matter jurisdiction 

from the claim for relief). 

Ms. Chattler states that she is bringing a contract claim, 

citing the contract principles of offer, acceptance, and consideration. Restatement (Second) of Contracts § 24 (1981). 

In Mobil Oil Exploration & Producing Southeast, Inc. v. 

United States, 530 U.S. 604, 607 (2000), the Court explained 

that “[w]hen the United States enters into contract rela-
CHATTLER v. US 6

tions, its rights and duties therein are governed generally 

by the law applicable to contracts between private individuals.” See also Franconia Assocs. v. United States, 536 U.S. 

129, 141 (2002) (when the United States “does business with 

its citizens, it does so much as a party never cloaked with 

immunity.”). As in National By-Products, Inc. v. United 

States, 405 F.2d 1256, 1264 (Ct. Cl. 1969), the government’s 

offer of expedited passport service was made “in the form of 

an undertaking rather than a mere prediction or statement 

of opinion.” It is not disputed that this undertaking failed, 

and that, despite this litigation, no refund has been made. 

Entitlement is not disputed. The continuation of this 

litigation is not easy to support. In apparent justification of 

its failure even to tender Ms. Chattler’s refund, the government hints that she is seeking to bring a derivative action, 

as if this were somehow unethical. The question, however, 

is not the bona fides of motivation, but the merits of the 

cause. See Ash v. GAF Corp., 723 F.2d 1090, 1095 (3d Cir. 

1983) ("Where a plaintiff has a true cause of action, his 

motivation in filing suit is irrelevant"). From the court’s 

ruling that Ms. Chattler has no judicial recourse for recovery of her $60.00 fee, I respectfully dissent.