# In the United States Court of Federal Claims

No. 12

- 727 C (Filed: August 12, 2013 )

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*

CANDIDA M. PEREZ

, * RCFC 12(b)(1); subject matter jurisdiction;

* Back Pay Act, 5 U.S.C. § 5596. Plaintiff, *

*

v. *

* THE UNITED STATES, *

*

Defendant. *

*

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O PINION AND O RDER

In this case, Plaintiff Candida Perez (“Perez”) seeks back pay based on an allegation that the United States (the “Government”) has not paid her at the appropriate rate for the past several years. The Government moves to dismiss the Complaint for lack of subject matter jurisdiction

. For the reasons that follow, the Government’s motion is GRANTED.

In addition, while the motion to dismiss was pending, Perez moved for leave to amend her Complaint. This motion was precipitated by a reference in the motion to dismiss to a single paragraph in Perez’s Complaint. This motion is DENIED for the reasons explained below.

I. Background 1

Perez was hired by U.S. Customs and Bo rder Patrol (“CBP”) in October of 1997. Compl. at ¶6. Perez’s current position is in the job series GS

- 0303 , where her title is CBP Clerk . She

holds a GS

- 5 pay grade. P erez alleges that “on or around June 6, 2006,” she was “ [re

- ] classified

as a CBP Tec hnician,” job series GS

- 1802. Id. at ¶ 5. 2 This CBP Technician position is

evidentl y supposed to be paid at a GS

- 7 grade

. Because Perez is paid a s a GS

- 5, she claims that

1 This factual background is limited to the facts in the Complaint . Additional facts derived from

the evidence will be discussed below.

2 The Complaint appears to have a typographical error as the paragraphs are labeled 1, 2, 3, 4, 5, 6, 5, 6, 7, etc. Thi s reference comes from the second paragraph 5, or the 7 th paragraph from the beginning of the Complaint.2

the alleged reclassification to GS

- 7 entitles her to “the back pay for the positio n owed since 2007 [which] is in excess of $76,000.00.” Compl. at ¶10. 3

II. Standard of Review

A motion brought pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims (“RCFC”) challenges the Court’s subject matter jurisdiction. See RCFC 12(b )(1). When faced with a motion to dismiss for lack of subject matter jurisdiction, a court must assume that all undisputed facts alleged in the complaint are true, and it must draw all reasonable inferences in the plaintiff’s favor. Scheuer v. Rhodes , 416 U.S. 232, 236 (1974); see also Henke v. United

States , 60 F.3d 795, 797 (Fed. Cir. 1995).

Pursuant to the Tucker Act, 28 U.S.C. § 1491, this Court maintains jurisdiction over “any claim against the United States founded either upon the Constitution, or a ny 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). The Tucker Act itself does not create a substantive cause of action, which means that “a plaintiff must identify a separate source of substantive law that creates the right to money damages.” Fisher v. United States , 402 F.3d 1167, 1172 (Fed. Cir. 2005) ( en banc in part). “In the parla nce of Tucker Act cases, that source must be ‘money

- mandating.’” Id. (citations omitted).

III. The Government’s Motion to Dismiss

Because the Complaint is not particularly clear, the Court first takes a moment to address the allegations raised therein. As de scribed above, the gist of the Complaint is that Perez

believes that she is entitled to higher pay because of a promotion or reclassification to a higher pay grade

. This leaves the Court with the conclusion that there are only two possible ways to

read th e Complaint: either Perez is requesting that she be awarded a reclassification, or she

believes she has been reclassified and she is requesting back pay for the raise that she never

received. The Court cannot determine which on the basis of the Complaint alone.

Because it is not the Court’s duty to make out a plaintiff’s case for her

— that’s what her attorney is supposed to be for

— it limits its analysis to those possible sources of substantive law identified by the Government in its opening brief. It limits its analysis thusly because Perez had the opportunity to respond directly to the Government’s arguments on its motion to dismiss , but instead of responding to those arguments, she provided the Court with a regurgitation of the Government’s facts and a disposition on summary judgment standards. If Perez cannot offer an explanation and basis for her claim, the Court will not go out of its way to attempt to do so for

her.

3 It is unclear from the Complaint whether Plaintiff seeks back pay starting on June 6, 2006

— the date at which she claims she was promoted

— or 2007, which appears to have no legal significance in this case. Paragraph 1 of the Complaint further muddles the issue by stating that “Plaintiff is a current employee [of CBP] and is seeking wages/salary for the last 5 six [sic] years.”3

The possible sources of substantive law identified by the Government are the Civil Service Reform Act (“CSRA”) and the Back Pay Act. The former relat es to the first reading

— the request that Perez be awarded a reclassification

— and the latter to the other reading.

a. The Court Lacks Jurisdiction Over Perez’s CSRA Claim

Insofar as the Complaint may be read to state a claim under the CSRA, the Court plai nly lacks jurisdiction. The Supreme Court has observed, in a very similar context, that “one is not entitled to the benefit of a position until [ s ] he has been duly appointed to it.” United States v.

Testan , 424 U.S. 392, 402 (1976). Because this reading of the Complaint would require the

Court to award Perez the rec lassification, it necessarily follows that she was not appointed to the position in the first place and is therefore not entitled to the associated benefits. In any event, Perez waived this claim in her response. See Resp. at 4 (“The Plaintiff here seeks pay for her correct and earned series and grade, not redress seeking a ‘reclassification.’”).

b. The Court Lacks Jurisdiction Over Perez’s Back Pay Act Claim

i. Perez Must Demonstrate Appointment to the GS

- 7 Position

Testan also has something to say on the topic of Perez’s Back Pay Act claim. In its analysis of the respondents’ Back Pay Act arguments, the Supreme Court noted that the Act did not override or depart from the previously

- mentioned rule that a “federal employee is entitled to receive only the salary of the position to which [s]he was appointed.” Testan , 424 U.S. at 406. Thus, the Court concluded that the Act only granted a monetary basis for relief to tho se who

suffered “a reduction in their duly appointed emol uments or position.” Id. at 407 (emphasis added) . In essence, the Court of Claims lacked jurisdiction because the Back Pay Act o n l y b e c o m e s m o n e y

- m a n d a t i n g w h e n a c l a i m a n t h a s a c t u a l l y r e c e i v e d a p r o m o t i o n o r o t h e r b e n e f i t

,

s u c h t h a t t h e d e p r i v a t i o n o f t h a t p r o m o t i o n o r b e n e f i t h a s b e e n u n l a w f

u l l y w i t h h e l d

.

What this means in the present context is simple: the key jurisdictional fact here

— that

fact which renders the Back Pay Act money

- mandating

— is whether Perez was appointed to a position which entitled her to greater pay than she was actua lly given. Put in the language of her Complaint, the question is whether her position was reclassified from CBP Clerk to CBP Technician, which would result in a pay grade change from GS

- 5 to GS

- 7 . She has alleged that the job was and the Government has d isputed that p osition. The Court, therefore, turns its

attention to this issue.

ii. Perez Has Failed to Present Evidence Sufficient to Sustain

Jurisdiction

Although a court presented with a motion to dismiss for lack of jurisdiction must assume that all undisputed allegations in the Complaint are true, see Rhodes , 415 U.S. at 236, that assumption does not control all cases. In fact, t here are two kinds of ju risdictional challenge: facial and factual. A facial challenge to jurisdiction is one in which the Court accepts as true the allegations of a complaint, and considers its power to entertain suit in light of those allegations.

See Cedars

- Sinai Med. Ctr. v . Watkins , 11 F.3d 1573, 1583 (Fed. Cir. 1993). For example, this4

Court may accept as true all of the allegations of a tort claim, but it still lacks jurisdiction to hear

the case.

Alternatively, a factual challenge to jurisdiction is one in which the Court need not accept as true the facts alleged by a plaintiff in support of jurisdiction. First, the party challenging jurisdiction need only challenge the plaintiff’s allegations; it need not present evidence controverting the jurisdictional allegations. Id. at 1584. Then, because the party seeking to invoke the Court’s jurisdiction bears the burden of establishing that jurisdiction, KVOS, Inc. v.

Associated Press , 299 U.S. 269, 278 (1936), the non

- movant (plaintiff) must come forward with evidence in support of jurisdiction; allegations alone are insufficient at this stage. Cedars

- Sinai

, 11 F.3d at 1584. The plaintiff must demonstrate jurisdiction by a preponderance of evidence. Reynolds v. Army and Air Force Exchange Service , 846 F.2d 746, 748 (Fed. Cir. 1988); McNutt v. General Motors Acceptance Corp. , 298 U.S. 1 78, 189 (1936) (a court may demand, in order to establish jurisdiction, “that the party alleging jurisdiction justify his allegations by a preponderance of evidence.”).

Here, the Government presents a factual challenge to the Court’s juris diction: it asserts

that Perez is factually incorrect in her allegation that her position was reclassified from CBP

Clerk to CBP Techn ician

. The Government takes the position that Perez has never been appointed to a position at the GS

- 7 grade level . Faced with this factual challenge to the Court’s jurisdiction, Perez may no longer rest on her allegations, but she must instead present preponderant evidence in support of jurisdiction.

Perez submitted an affidavit and exhibit with her response to the Government’s motion.
Her affidavit states that, in 2010

— during a search for her lost badge/credentials

— she saw he r status listed as “Serie s 1802 ” on a computer. Perez Aff. at ¶ 3. Series 1802 corresponds to her

a lleged reclassification to a CBP Technician GS

- 7 . Perez also attests th at she knows of six other

CBP Clerks who were reclassified to CBP Technicians. Id. at ¶¶ 4

- 5. Based on the se “facts,” she concludes that “I should be paid as a 1802 GS

- 7 CBP Technician.” Id. at ¶ 6. Conspicuously absent from her notarized affidavit is a statement that she was ever actually promoted to a GS

- 7, or that her position was ever actually reclassifi ed to GS

- 7.

Exhibit A of the affidavit is a document labeled “CBP Form 56.” This form carries the heading “Badge/Credential Request.” The form lists Per ez’s title as “C.B.P. Technician ,” and her job series as GS

- 1802. The form references an “Authorizin g Official or Point of Contact”

named Marlon Hernandez. Everything on the form is type

- written, and there are no signatures

— Perez’s or otherwise. This form is evidently one of the documents she saw on the computer

when she lost her credentials.

The Gove rnment has submitted , either as exhibits to its opening brief or t o its reply, substantial evidence that overwhelmingly refutes Perez’s position. First, the declaration of Benjamin Badie, a CBP Human Resources Specialist, explains that it is possible that Perez did see her job listed as GS

- 1802 on the Customs Overtime Scheduling System (“COSS”) because COSS may contain job series and pay rate errors that don’t affect an employee’s actual status. Badie Decl. at ¶ 2. Instead, he explains that Standard Form 50 (“SF

- 50”) is the Government form that officially records personnel and pay actions, such as promotions, within grade5

increases, or changes to lower grade. Id. at ¶ 3. Badie highlights several incorrect recordings in the COSS system that state that Pe rez received a GS

- 7 grade, but he also observes that

contemporaneous SF

- 50 forms reflect that Perez was a GS

- 5 at those times. The Government

has also submitted numerous SF

- 50 forms that demonstrate that Perez was never given a promotion or reclassificat ion to GS

- 7.

Next is the declaration of Lynnette Abbott, an HR supervisor, who states that Marlon

Hernandez

— the Authorizing Official on Perez’s CBP Form 56

— was the Local Property Officer

where Abbott and Perez worked. Abbott states that CBP Form 56 is ei ther completed independently by the employee (Perez) or based on information provided by the employee. Abbott Decl. at ¶ 2. Thus, the Abbott declaration establishes that the CBP Form 56 does not

demonstrate that Perez was ac tually promoted or reclassifie d; instead, C BP Form 56 only shows

that Perez once claimed that she was

.

Finally, while the Government could have made the simple observation that whatever happened to the six employees identified by Perez is irrelevant to Perez’s actual employment

status , it has gone the extra yard and submitted the declaration of Amanda Nadeau to rebut Perez’s claim that six other clerks were reclassified to the 1802 series. Of the six people referenced by Perez, only three began in the GS

- 0303 series in which Perez is also classified. Of those three, only one wound up in the GS

- 1802 series and he was not reclassified. Instead, he applied to a public notice vacancy announcement and received the appointment in that manner.

See Nadeau Decl. at ¶ 3. Thus, the only perso n who followed the path to which Perez claims entitlement did so by affirmatively applying for a job different from the one he shared with

Perez.

All told, Perez has failed abysmally to meet her burden. The Court finds it very telling

that Perez does not claim to have been promoted or reclassified in her notarized affidavit. The only piece of actual evidence produced by Perez is the CBP Form 56 (her affidavit just repeats her allegations with additional detail) , and the Government has adequately demonstr ated that

document’s irrelevance to the question of whether Perez was actually promoted or her position reclassified. Moreover, after fully rebutting the only piece of evidence presented by Perez, the Government went above and beyond its burden by present ing ev idence that disproved every other jurisdictionally relevant allegation or assertion made by Perez in her Complaint or her affidavit. The evidence shows that Perez was never promoted and that her position was never reclassified to a higher pay grade. As such, she cannot be entitled to backpay and this Court lacks jurisdiction over her claim

.

IV. Perez’s Motion to Amend

While the Government’s motion to dismiss was pending, Perez filed a motion for leave to amend her Complaint. The motion notes that “Para. #3 [of the original Complaint] states in part that ‘venue’ lies in Federal District Court in Miami Dade County. [This] was alleged in error

and constitutes a clerical error

. ” Pltf Mot. at ¶ 2. The error was a relic from previous drafts of

the Co mplaint. Id. The Government filed its Answer an d “the Anser [sic] did not al e r t the

Plaintiff of the scrivener’s error.” Perez claims that the Government’s motion to dismiss “addressed Para. # 3, in a substantive way and it would unduly prej udice the Pl aintiff, if a6

scrive ner’s error caused her claim to be dismissed.” Id . at ¶ 3. The motion stated that Perez’s counsel had conferred with the Government’s counsel and that the Government did not oppose

the motion.

Although the Government’s attorney state d that she had not conferred with Perez’s attorney on the issue, she did not oppose the amendment referenced in the motion to amend

— i.e., to correct the statement of venue. The Government maintained, however, that even with the correct statement, the Cour t lacks jurisdiction over Perez’s Complaint.

Rather than granting the motion to amend and effectively teeing up another motion to
dismiss that was identical in substance to the one now before the Court, the Court withheld its judgment on the motion to amend pending its final decision on the motion to dismiss. In the end, this decision proved wise: Perez’s Complaint suffers from a jurisdictional infirmity that will not be cured by the superficial step of modifying her statement of venue. The Court lacks jurisdiction over her claim, regardless of where she states that venue lies, and any amendment would prove futile. Because the Court lacks jurisdiction over the action and amendment will not

cure that lac k, the Court denies Perez’s motion to amend.

V. Conclusion

For the foregoing reasons, Perez’s motion to amend is DENIED and the Government’s

motion to dismiss is GRANTED , and Perez’s claim will be dismissed without prejudice

. The

Clerk is directed to enter judgment accordingly.

s/ Edward J. Damich

EDWARD J. DAMICH Judge