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In the United States Court of Federal Claims

No. 22-491C

(Filed: December 8, 2022)

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BYRON T. BROWN,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

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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

Motion to dismiss for

lack of jurisdiction and 

failure to state a claim; 

money-mandating statute 

and regulation; statutory 

appointment; moving 

expense reimbursement; 

broker fee. 
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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 5 U.S.C. §5724(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.” Id. at 3.

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, 659 F.3d 

1159, 1163 (2011) (citing Henke v. United States, 60 F.3d 795, 797 (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, 41 C.F.R. § 

302-11.200, in his complaint. 
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However, “The leniency afforded to a pro se litigant . . . does not relieve the 

burden to meet jurisdictional requirements.” Olajide v. United States, 124 

Fed. Cl. 196, 201 (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, 550 U.S. 544, 555, (2007). Rather, “the complaint must allege 

facts ‘plausibly suggesting (not merely consistent with)’ a showing of 

entitlement to relief.” Cary v. United States, 552 F.3d 1373, 1376 (2009) 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (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.” 28 U.S.C. §1491(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.” 424 U.S. 392, 398 (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, 463 U.S. 206 (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, 424 U.S. at 400 (quoting Eastport S.S. Corp. v. United States,

178 Ct. Cl. 599, 372 F.2d 1002 (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, 201 F.3d 1375, 1377-78 (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, 50 F.3d 1025. 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 
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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, 391 F.3d 1212, 1221 (Fed. Cl. 2004) (quoting Kizas v.Webster, 707 

F.2d 524,535 (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.” 5 

U.S.C.S. § 5724(d)(1) (2018) (emphasis added). The corresponding 

regulation, 41 CFR § 302-11.200, 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.” 41 C.F.R. § 302-11.200(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, 775

F.2d 280, 283 (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 moneymandating 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.
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of the Tucker Act’s authority. Bailey v. United States, 52 Fed. Cl. 105, 109

(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 

41 CFR § 302-11.200 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 41 C.F.R. § 302-11.200.

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 41 C.F.R. § 

302.11.200(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. 
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See Bell Atl. Corp. v. Twombly, 550 U.S. at 557. 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.