NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-5008 

RODGER SMITH, 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

 Defendant-Appellee. 

 Rodger Smith, of Atlanta,Georgia, pro se. 

 Michael S. Dufault, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for defendant-appellee. With 

him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, 

Director, and Patricia M. McCarthy, Assistant Director. 

Appealed from: United States Court of Federal Claims 

Judge Nancy B. Firestone 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-5008 

RODGER SMITH, 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

___________________________ 

DECIDED: March 8, 2007 

___________________________ 

Before RADER, Circuit Judge, ARCHER, Senior Circuit Judge, and GAJARSA, Circuit 

Judge. 

PER CURIAM. 

 The petitioner, Rodger Smith, seeks review of a final decision of the United 

States Court of Federal Claims dismissing his claim for lack of subject matter 

jurisdiction. Smith v. United States, No. 05-1246C (Ct. Fed. Cl. Aug. 22, 2006). We 

affirm. 

BACKGROUND 

On September 23, 1998, on behalf of the Morale, Welfare and Recreation 

(“MWR”) Office, an Air Force contracting officer issued a solicitation for “leisure travel, 
nonappropriated fund instrumentality official travel, and combined official and leisure 

travel services.” The solicitation included the statement: “NO APPROPRIATED FUNDS 

OF THE UNITED STATES SHALL BECOME DUE OR BE PAID A CONTRACTOR BY 

REASON OF THIS CONTRACT.” 

Rodger’s Travel Services (“RTS”), which is owned by Mr. Smith, submitted a bid 

and was awarded the concession contract on November 4, 1998. The concession 

contract included several standard Nonappropriated Fund Instrumentality (“NAFI”) 

clauses and stated that it was principally designed to serve the recreational needs of Air 

Force servicemen through the MWR. The concession fee was to be based upon “total 

sales of official travel (NAFI official and appropriated fund official when combined with 

leisure travel), leisure travel in conjunction with either type of official travel, and all other 

leisure travel for all [m]odes”.

On July 2005 Mr. Smith filed a claim with the contracting officer alleging that the 

concession fees were illegal rebates on tariff-controlled international airfares in violation 

of 49 U.S.C. §§ 463091 and 415102 and seeking reimbursement for the concession fees 

paid on international airfares ($3,116.00). Approximately four months later, before the 

contracting officer issued a decision upon his claim, Mr. Smith filed a complaint under 

the Contracts Disputes Act (“CDA”) of 1978, 41 U.S.C. §§ 601-613, with the United 

States Court of Federal Claims (“CFC”) seeking reimbursement of all his expenses 

 1

 Under 49 U.S.C. § 46309, criminal penalties are authorized against any 

person that receives a rebate or concession in connection with purchasing a foreign 

airfare at a price that varies from the tariff. 

2

 Under 49 U.S.C. § 41510, it is unlawful for a person to charge a price for 

foreign air travel that is different from the price specified in the tariff of the carrier. 

2007-5008 2
($82,635.97) under the contract.3 The CFC dismissed his appeal for lack of subject 

matter jurisdiction because his complaint arose from a contract entered into with the 

MWR, which is a NAFI and not an entity subject to the Tucker Act, 28 U.S.C. § 

1491(1)(a). 

DISCUSSION 

This court has jurisdiction over an appeal of a final decision of the CFC based on 

28 U.S.C. § 1295(a)(3). Whether the CFC properly dismissed the appellant’s complaint 

for lack of subject matter jurisdiction is a question of law that we review de novo. Boyle 

v. United States, 200 F.3d 1369, 1372 (Fed. Cir. 2000). 

The CFC does not have jurisdiction over contract claims against the United 

States involving NAFIs,4 except for certain exchanges listed in the Tucker Act, 28 

U.S.C. § 1491(a)(1).5 Core Concepts of Florida, Inc. v. United States, 327 F.3d 1331, 

1334, 1338 (Fed. Cir. 2003); see Furash & Co. v. United States, 252 F.3d 1336, 1338-

1339 (Fed. Cir. 2001) (Under the non-appropriation doctrine, the CFC lacks jurisdiction 

over an action against the United States in which congressionally appropriated funds 

cannot be used to pay the resulting judgment); 28 U.S.C. § 2517. Contracts with NAFIs 

outside the enumerated exchanges are not covered by the CDA. Furash, 252 F.3d at 

1343. This court has already held that an MWR is a NAFI outside of the exchanges 

 3

 At the time Mr. Smith filed suit in the CFC, sufficient time had elapsed 

since the filing of his claim with the contracting officer for it to be deemed a decision by 

the contracting officer denying the claim under the CDA. 41 U.S.C. § 605(c)(5) (2000). 

4

 A NAFI is a federal government entity whose “monies do not come from 

congressional appropriation but rather primarily from [their] own activities, services, and 

product sales.” El-Sheikh v. United States, 177 F.3d 1321, 1322 (Fed. Cir. 1999). 

5

 The CFC has jurisdiction over the following exchanges: “the Army and Air 

Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard 

Exchanges, or Exchange Councils of [NASA].” 28 U.S.C. § 1491(a)(1) (2000). 

2007-5008 3
listed in §1491(a)(1). Pacrim Pizza Co. v. Pirie, 304 F.3d 1291, 1293 Fed. Cir. 2002) 

(holding that the court lacked jurisdiction to hear a contract claim under the CDA 

because an MWR is an NAFI outside the exchanges covered by § 1491(a)(1)). 

In the present case, the CFC properly found that the MWR was a separate NAFI 

within the Air Force, and that the MWR is overseen and supported by the Air Force 

Services Agency (“AFSVA”). Mr. Smith argues that because the MWR merged with the 

AFSVA in 1992, the concession contract was not with a NAFI but instead with the 

AFSVA. In support, Mr. Smith relies on statements in an Air Force Fact Sheet, which 

had been posted on the internet. Specifically, those statements are: “MWR and 

Services merged Air Force wide in 1992[,]” and “[o]n Jan. 1, 1994, the Air Forces 

[MWR] and Services Agency was renamed Air Force Services Agency.” However, the 

CFC properly found that the MWR was not merged with the AFSVA, but rather that the 

AFSVA oversees and supports the MWR. The same fact sheet that Mr. Smith cites also 

states: 

The [Air Force Services Agency] manages Air Force central 

nonappropriated funds (NAFs) and operates central systems for field 

support such as banking, investments, purchasing, data flow, and 

insurance benefits programs, and the personnel system for NAF 

employees. AFSVA supports the Air Force Morale, Welfare, and 

Recreation Advisory Board and interacts with other agencies and armed 

services in areas affecting Services. 

(emphasis added). Even though the AFSVA oversees and supports the MWR, the 

MWR is still an NAFI. A.F. Instructions 32-201, Ch. 2, 3 (June 17, 2002). 

The CFC properly also found that the contract was between RTS and the MWR. 

The fact that the contract was signed by an Air Force contracting officer does not 

convert it into a contract with the Air Force. As custodians of the various NAFIs, the 

2007-5008 4
heads of Services may contract upon behalf of the NAFI. AFI 34-201, Chapter 2, 

Section 2.5.4 (June 17, 2002). Furthermore, the contract itself provided that the contract 

was between RTS and the MWR and that the MWR was a NAFI. 

Mr. Smith argues that the CFC does have jurisdiction because, although the 

concession contract was with the MWR, the contract involved appropriated funds. Mr. 

Smith has not established that the MWR activities at issue here were actually funded 

with appropriated funds. In his brief, Mr. Smith states that it is “clear that appropriated 

funds were being used to support the activities of the MWR.” He also declares that he 

created a report regarding all travel arrangements made using appropriated funds for 

the Defendant. However, he did not include this report or receipts in the record to 

corroborate that appropriated funds actually funded the MWR activities at issue. 

The fact that tickets may have been purchased using appropriated funds does 

not mean that the MWR as an entity is funded with appropriated funds. From the terms 

of the contract, it appears that the travel services were to be purchased by “customers” 

or “patrons” and not the MWR. RTS’s customers may have paid for the travel using 

appropriated funds, but that does not necessarily mean that the MWR is an entity that 

received appropriated funds. Rather, the concession fee appears to be consideration 

paid by RTS for the opportunity to sell travel services to Air Force servicemen. Mr. 

Smith has not established that the servicemen received their funding from the MWR to 

buy these tickets. 

Mr. Smith correctly points out that, to establish jurisdiction, the plaintiff need not 

show that appropriated funds have actually been used for the agency’s activities, but 

only that “under the agency’s authorizing legislation Congress could appropriate funds if 

2007-5008 5
necessary.” Furash, 252 F.3d at 1339 (quoting L’Enfant Plaza, 668 F.2d at 1212). 

However, Mr. Smith has not cited a statute (or regulation) showing that Congress could 

appropriate funds if necessary for the MWR for leisure travel combined with official 

travel or NAF official travel for Air Force Servicemen, and we have not found one. 

Mr. Smith argues that the terms of the contract establish that appropriated funds 

would be used to support the MWR’s activities. The fact that the contract specified that 

it could cover certain “appropriated fund travel” did not convert the contract with a NAFI 

into a contract with an appropriated funds entity. As discussed above, just because 

tickets may have been purchased using appropriated funds does not mean that the 

MWR as an entity is funded with appropriated funds. Furthermore, the contract explicitly 

specified that NAFI contracts “do not obligate appropriated funds of the United States. 

NO APPROPRIATED FUNDS OF THE UNITED STATES SHALL BECOME DUE OR 

BE PAID A CONTRACTOR BY REASON OF THIS CONTRACT.” (emphasis included). 

CONCLUSION 

 For the foregoing reasons, the CFC properly dismissed Mr. Smith’s contract 

claim against the MWR, which is an NAFI, for lack of subject matter jurisdiction. We 

therefore affirm the judgment of the CFC. 

 No costs. 

2007-5008 6