1 

# In the United States Court of Federal Claims

No. 22

- 4 91 C (Filed: December 8

, 2022 )

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

BYRON T. BROWN

,

Plaintiff,

v.

THE UNITED STATES,

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

defen dant. 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 all eges 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.2 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 purchase d Mr. Brown’s house , with an eye

to re

- selling it, and charged him a $19,157 fee. P laintiff 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, r eimbursement 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 move s for dismissal of all of plaintiff’s claim s 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 , whi le some of the counts in the complaint need to be dismissed, plaintiff has state d 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.3 However, “ The leniency afforded to a pro se litigant . . . does not relieve t he 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 consi stent 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 fo unded 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. §14 91(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 cour t, 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 regula tion 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 d ue p rocess claim s

“ because those provisions standing alone cannot be interpreted to require the payment of money for [their] alleged violation.” Mot. to dismiss 6 (c iting

Khan v. U nited States , 201 F.3d 1375, 1377

- 78 (Fed. Cir. 2000) )

. We agre e. The Due Proces s c lauses of the F ifth and F ourteenth A mendments are not money mandating ; we therefore dismiss plaintiff’s d ue p rocess 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 D ismiss 6. Put another way, because plaintiff is an emp loyee under a statutory scheme

, not4 a contractual relationship, Mr. Brown has not alleged a valid contract claim against the United States. 3 We agree. It is well established that “ f ederal workers serve by appointment . . . their entitlement to pay and b enefits 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. W ebster , 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, t he 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) (20 18 ) (emphasis added)

. Th e correspond ing regulation, 41 CFR § 302

- 11.200

, state s 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

a dded)

. Both the statute and its implementing regulation provide a mandate for the government to pay employee s 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 reimburse d

.

Plaintiff has also establishe d jurisdiction over his claim for pet quarantine compensation . Specifically, Mr. Brown cites to Department of

Defense’s Jo int 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 a n appointment pursuant

to statute on page 12 of his response to the mot ion to dismiss.5 of the Tucker A ct’s authority. Bailey v. United States

, 52 Fed. Cl. 105, 109 (2002). Accordingly, this court does have jurisdiction over plaintiff’s s uit because a money mandating statute and regulation s do apply to both the plaintiff’s real estate and pet quarantine claims. Defendant’s motion to

dismiss plaintiff’s statut ory violation claim s for lack of jurisdiction therefore

must be denied

.

That leaves defendant’s argument that the claim for real estate fees

fail s 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 conten ds 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 do es 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

co mpensation 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 a n 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 consider ed 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.6 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 follow ing 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

.