In the United States Court of Federal Claims 

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

 *

RUTH R. MILLER, * 

 *

Plaintiff, * No. 11-766C

*

v. * (Filed: October 3, 2012)

*

THE UNITED STATES, *

*

Defendant. *

*

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

OPINION 

MARGOLIS, Senior Judge. 

This matter comes before the Court on defendant’s Motion to Dismiss in Part, filed May 

3, 2012. At oral argument, plaintiff conceded to dismissal of Counts II and III. (See Transcript 

of September 11, 2012 Proceedings (“Transcript”) at 8.) The Court now finds that it does not 

have subject-matter jurisdiction over Counts IV and V of plaintiff’s Amended Complaint 

because plaintiff has failed to show that she served the federal government by contract rather 

than by appointment, the exclusivity provision in the collective bargaining agreement bars 

plaintiff from enforcing the agreement in this Court, and plaintiff is not a party to the collective 

bargaining agreement. Thus, the Court grants defendant’s motion and dismisses Counts II-V. 

I. BACKGROUND

In her Amended Complaint, plaintiff Ruth R. Miller alleges that defendant, the United 

States, through the United States Department of Veterans Affairs (“VA”), employs her full-time 

at a VA hospital in Baltimore, Maryland as a radiology technician responsible for performing xrays and other patient tests. She alleges that defendant requires her to stay at home on standby at 

certain times, during which defendant may page her to come to the hospital to provide patient 

care. She alleges that through discussions, she and defendant’s representatives entered a contract 

for defendant to pay her an additional 25% of her salary for performing her standby duties, and 

that defendant did so for over a decade. Plaintiff alleges that nevertheless, in early 2008, 

defendant began decreasing her standby pay, and that in June 2011, defendant stopped paying it 
2

entirely, even though plaintiff performed her full standby duties during this period. Plaintiff 

alleges further that her union and defendant entered a collective bargaining agreement (the 

“Master Agreement”) covering plaintiff as an intended beneficiary, and that defendant violated 

the Master Agreement by reducing plaintiff’s standby pay. 

In her Amended Complaint, plaintiff asserts five claims based on defendant’s failure to 

pay plaintiff’s standby pay. Count I alleges that defendant violated Section 7 of the Fair Labor 

Standards Act. See 29 U.S.C. § 207. Counts II and III allege that defendant violated Maryland’s 

wage laws. Count IV alleges that defendant breached its contract with plaintiff. Finally, Count 

V alleges that defendant breached the Master Agreement. Defendant moves to dismiss Counts 

II-V under RCFC 12(b)(1) and 12(b)(6), arguing that this Court lacks jurisdiction over each of 

these claims, and that Counts IV and V fail to state a claim on which relief can be granted. 

II. STANDARD FOR DISMISSAL UNDER RCFC 12(b)(1)

RCFC 12(b)(1) allows a party to move to dismiss a claim for lack of subject-matter 

jurisdiction. In ruling on a 12(b)(1) motion, the Court must assume that all undisputed facts in 

the complaint are true and must draw all reasonable inferences in the nonmoving party’s favor.

Frederico v. United States, 70 Fed. Cl. 378, 381 (2006). However, if the motion challenges the 

complaint’s jurisdictional facts, the Court may consider relevant evidence beyond the pleadings

to resolve the dispute, and the plaintiff cannot rely on the complaint’s allegations, but must 

produce competent evidence establishing subject-matter jurisdiction by a preponderance of the 

evidence. Reynolds v. Army and Air Force Exchange Service, 846 F.2d 746, 747-748 (Fed. Cir. 

1988); Frederico, 70 Fed. Cl. at 381. 

III. STANDARD FOR DISMISSAL UNDER RCFC 12(b)(6)

RCFC 12(b)(6) allows a party to move to dismiss a claim for failure to state a claim on 

which relief can be granted. In ruling on a 12(b)(6) motion, the Court must assume that all wellpled factual allegations are true and draw all reasonable inferences in the nonmoving party’s 

favor. Anaheim Gardens v. United States, 444 F.3d 1309, 1314-1315 (Fed. Cir. 2006). 

IV. ANALYSIS

This Court has limited jurisdiction. Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 

1997). To invoke it, a plaintiff must base his or her claim on a Constitutional provision, federal

statute, federal regulation, or contract with the United States that requires the United States to 

pay money damages for a violation or breach – a “money-mandating source.” 28 U.S.C. § 
3

1491(a)(1);

1

Ferreiro v. United States, 501 F.3d 1349, 1351 (Fed. Cir. 2007); Brown, 105 F.3d at 

623. 

A. Plaintiff’s State Claims (Counts II and III)

Defendant argues that the Court does not have jurisdiction over Counts II and III because 

it does not have jurisdiction over state-law claims. Plaintiff argued in her Opposition brief that 

the Court should hear Counts II and III to whatever extent it has supplemental jurisdiction. 

However, at oral argument, plaintiff conceded to dismissal of Counts II and III. (See Transcript 

at 8.)2

B. Plaintiff’s Claim for Breach of the Standby Pay Agreement (Count IV)

Defendant argues that Count IV fails to invoke this Court’s jurisdiction and fails to state a 

claim on which relief can be granted because plaintiff has not alleged any facts or cited any 

statutes or regulations that would rebut the presumption that she serves the federal government 

by appointment rather than contract. Plaintiff argues that her Amended Complaint alleges that 

she and defendant entered into an employment contract related to her standby pay, and that this 

is sufficient to survive defendant’s motion. Additionally, plaintiff has submitted personnel 

forms, earnings statements, and hiring documents showing that defendant paid her an additional 

25% of her salary for her standby duties and how defendant calculated plaintiff’s overtime and 

standby pay. 

There is a presumption that federal employees hold their positions by virtue of 

appointment and derive the benefits and emoluments of those positions from the applicable 

statutes and regulations rather than from any contractual or quasi-contractual relationship with 

the government. Hamlet v. United States, 63 F.3d 1097, 1101-1102 (Fed. Cir. 1995); Calvin v. 

United States, 63 Fed. Cl. 468, 472 (2005); Boston v. United States, 43 Fed. Cl. 220, 225 (1999) 

(Margolis, J.) “[P]ublic employment does not, give rise to a contractual relationship in the 

conventional sense.” Chu v. United States, 773 F.2d 1226, 1229 (Fed. Cir. 1985) (quoting Shaw 

v. United States, 226 Ct. Cl. 240, 251 (1981)). Unless a federal employee can rebut this 

 

1

28 U.S.C. § 1491(a)(1) provides: 

The United States Court of Federal Claims shall have jurisdiction to render judgment upon 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. . . . 

2

The Court notes that it does not have original or supplemental jurisdiction over state-law claims. Sounders 

v. South Carolina Public Service Authority, 497 F.3d 1303, 1307 (Fed. Cir. 2007); Waltner v. United States, 98 Fed. 

Cl. 737, 764-765 (2011), aff’d, 679 F.3d 1329 (Fed. Cir. 2012). 
4

presumption, that employee cannot base his or her claim on an employment contract theory and 

will thus fail to invoke this Court’s subject-matter jurisdiction. Hamlet, 63 F.3d at 1101-1102;

Chu, 773 F.2d at 1229 (quoting Shaw, 226 Ct. Cl. at 251); Frederico, 70 Fed. Cl. at 386-387; 

Boston, 43 Fed. Cl. at 224-226. 

To determine whether a federal employee serves by appointment or contract, the Court 

looks to the relevant statutory language, regulations, and hiring documents. Frederico, 70 Fed. 

Cl. at 384-385; Calvin, 63 Fed. Cl. at 472; see also Hamlet 63 F.3d at 1101-1102 (examining the 

record to make determination). Because it is a jurisdictional issue, an employee cannot rely on 

the allegations in the complaint, but must produce competent evidence that establishes service by 

contract by a preponderance of the evidence. Reynolds, 846 F.2d at 747-748; Frederico, 70 Fed. 

Cl. at 381; Boston, 43 Fed. Cl. at 226. 

Here, plaintiff has not carried her burden in rebutting the presumption that she serves by 

appointment. 38 U.S.C. § 7401, titled “Appointments in Veterans Health Administration,” 

provides: “[t]here may be appointed by the Secretary such personnel as the Secretary may find 

necessary for the health care of veterans . . . (3) . . . diagnostic radiologic technologists . . . .” 

(emphasis added).3 Plaintiff has failed to explain why this statute does not make her an 

appointee. See Frederico, 70 Fed. Cl. at 379, 385-386 (plaintiff podiatric surgeon failed to rebut 

presumption of appointment where he failed to address § 7401). Nor has plaintiff identified any 

statutes or regulations that show that she serves by contract. 

 

3

38 U.S.C. § 7401 provides: 

Appointments in Veterans Health Administration 

There may be appointed by the Secretary such personnel as the Secretary may find necessary for 

the health care of veterans (in addition to those in the Office of the Under Secretary for Health 

appointed under section 7306 of this title), as follows:

 (1) Physicians, dentists, podiatrists, chiropractors, optometrists, registered nurses, physician 

assistants, and expanded-function dental auxiliaries.

 (2) Scientific and professional personnel, such as microbiologists, chemists, and biostatisticians.

 (3) Audiologists, speech pathologists, and audiologist-speech pathologists, biomedical 

engineers, certified or registered respiratory therapists, dietitians, licensed physical therapists, 

licensed practical or vocational nurses, nurse assistants, medical instrument technicians, medical 

records administrators or specialists, medical records technicians, medical technologists, dental 

hygienists, dental assistants, nuclear medicine technologists, occupational therapists, occupational 

therapy assistants, kinesiotherapists, orthotist-prosthetists, pharmacists, pharmacy technicians, 

physical therapy assistants, prosthetic representatives, psychologists, diagnostic radiologic 

technologists, therapeutic radiologic technologists, social workers, marriage and family therapists, 

licensed professional mental health counselors, blind rehabilitation specialists, blind rehabilitation 

outpatient specialists, and such other classes of health care occupations as the Secretary considers 

necessary for the recruitment and retention needs of the Department subject to the following 

requirements . . . .

(emphasis added). 
5

Instead, plaintiff relies on: (1) her allegations that defendant’s representatives orally 

agreed to pay plaintiff’s standby pay and then did so for over a decade, and (2) her documents 

showing that defendant did in fact pay plaintiff the agreed standby pay for over a decade and 

how defendant calculated it. However, even if the Court takes these allegations as true and finds 

plaintiff’s evidence to be credible, plaintiff still fails to rebut the presumption that she serves by 

appointment. Plaintiff must show more than simply that defendant promised her standby pay

and followed through for a period of time, she must show that defendant hired her to serve by 

contract. See Frederico, 70 Fed. Cl. at 379, 386 (plaintiff’s allegation that a VA official orally 

promised him a specific salary did not create subject-matter jurisdiction); House v. United States, 

14 Cl. Ct. 32, 37 (1987) (policies in employee handbook and government’s policies and 

procedures manual did not create a contract where they did not change the plaintiffs’ status as 

appointees); see also Boston, 43 Fed. Cl. at 225-226 (“In this case, plaintiff attempts to do 

precisely what the courts in the above cited cases were unwilling to permit -- namely, to fashion 

an implied-in-fact contract from . . . a government official’s promise . . . .”)

To the contrary, plaintiff’s evidence tends to show that she serves by appointment and 

received her standby pay under the statutes that govern that appointment. First, one of the hiring 

documents showing how defendant calculated plaintiff’s overtime and standby pay, dated May 

23, 1983, is titled: “FLSA OVERTIME PAY COMPUTATIONS FOR FEDERAL 

EMPLOYEES IN RECEIPT OF ANNUAL PREMIUM PAY FOR REGULARLY 

SCHEDULED STANDBY DUTY UNDER TITLE 5 . . .” (Pl.’s Line, Ex. C, at 1 (emphasis 

added).) This appears to be a reference to 5 U.S.C. § 5545(c)(1), which authorizes agencies to 

pay employees annual premium pay of up to 25% of their basic pay rate for standby duties.4 

Second, a personnel form dated July 5, 1998, documenting an adjustment to plaintiff’s premium 

pay, states: “*+25.0% PREM *THIS ACTION EXEMPTS YOU FROM ON-CALL 

PREMIUM PAY UNDER 38 U.S.C.” (Pl.’s Line, Ex. A, at 22.) This appears to be a reference 

to 38 U.S.C. § 7457, which authorizes the Secretary of Veterans Affairs to pay “on-call pay” to 

employees in the positions listed in 38 U.S.C. § 7401(3), but provides that employees eligible for

both on-call pay and § 5545 premium standby pay are entitled to receive the greater of the two.

 

4

5 U.S.C. § 5545(c)(1) provides:

(c) The head of an agency, with the approval of the Office of Personnel Management, may provide 

that–

(1) an employee in a position requiring him regularly to remain at, or within the confines of, his 

station during longer than ordinary periods of duty, a substantial part of which consists of 

remaining in a standby status rather than performing work, shall receive premium pay for this duty 

on an annual basis instead of premium pay provided by other provisions of this subchapter, except 

for irregular, unscheduled overtime duty in excess of his regularly scheduled weekly tour. 

Premium pay under this paragraph is determined as an appropriate percentage, not in excess of 25 

percent, of such part of the rate of basic pay for the position as does not exceed the minimum rate 

of basic pay for GS-10 . . . 
6

Finally, plaintiff’s personnel forms state in numerous places: “*+25.0% PREM . . . SPECIAL 

RATE UNDER 38 U.S.C. 7455.” (See e.g., Pl.’s Line, Ex. A, at 3, 17). 38 U.S.C. § 7455 in turn 

authorizes the Secretary to increase the basic pay of employees in the positions listed in § 

7401(1) and (3). See 38 U.S.C. §§ 7455(a)(1), (2)(A).5 Thus, plaintiff has failed to rebut the 

presumption that she serves by appointment and has failed to establish service by contract by a 

preponderance of the evidence. The Court lacks subject-matter jurisdiction over Count IV. 

C. Plaintiff’s Claim for Breach of the Master Agreement (Count V)

Defendant argues that Count V fails to invoke this Court’s jurisdiction and fails to state a 

claim on which relief can be granted because the Master Agreement itself provides that its

grievance procedures are exclusive, and because a third-party beneficiary to a collective 

bargaining agreement cannot enforce that agreement in this Court. Plaintiff argues that the 

Master Agreement does not explicitly prohibit her from enforcing it in this Court. Further, 

plaintiff argues that although she might not be able to sue for money damages for breach of the 

Master Agreement because she is a third-party, she can request reinstatement of her standby 

pay– non-monetary relief. 

1. Presumption of appointment. 

As discussed above, for a federal employee to establish subject-matter jurisdiction for an 

employment contract claim in this Court, that employee must rebut the presumption that he or 

she serves by appointment. See discussion supra Part IV.B. Thus, to sue for breach of a 

collective bargaining agreement, a plaintiff must produce competent evidence establishing

service by contract by a preponderance of the evidence. See id.; Zaccardelli v. United States, 68 

Fed. Cl. 426, 433 (2005) (collective bargaining agreement was not a contract with the United 

States for purposes of Tucker Act jurisdiction because the terms of the plaintiffs’ employment 

were governed exclusively by statute); see also Todd v. United States, 386 F.3d 1091, 1094 (Fed. 

Cir. 2004) (dismissing breach of collective bargaining agreement claim and citing Chu, 773 F.2d 

 

5

38 U.S.C. §§ 7455(a)(1), (2)(A) provide: 

(a)(1) Subject to subsections (b), (c), and (d), when the Secretary determines it to be necessary in 

order to obtain or retain the services of persons described in paragraph (2), the Secretary may 

increase the minimum, intermediate, or maximum rates of basic pay authorized under applicable 

statutes and regulations. Any increase in such rates of basic pay–

 (A) may be made on a nationwide basis, local basis, or other geographic basis; and

 (B) may be made–

 (i) for one or more of the grades listed in the schedules in subsection (b)(1) of section 7404 

of this title;

 (ii) for one or more of the health personnel fields within such grades; or

 (iii) for one or more of the grades of the General Schedule under section 5332 of title 5.

 (2) Paragraph (1) applies to the following:

 (A) Individuals employed in positions listed in paragraphs (1) and (3) of section 7401 of this 

title.
7

at 1229, for the proposition that federal employees usually serve by appointment). As discussed 

above, plaintiff has failed to establish service by contract. See discussion supra Part IV.B. 

Significantly, plaintiff has failed to identify any provisions in the Master Agreement showing 

service by contract. Thus, the Court lacks subject-matter jurisdiction over Count V. 

2. The Master Agreement’s exclusivity provision. 

Article 43, § 1 of the Master Agreement states that it provides the “exclusive procedure” 

for resolving employees’ grievances.6 (Def.’s Mot., Ex. A.) Section 2(A) defines “grievance” as 

“any complaint by an employee . . . concerning any matter relating to employment . . . .”

7

 (Id.) 

The agreement lists exceptions, but plaintiff has not argued that any apply. (See id. at Art. 43, §§ 

2-3.) The agreement outlines procedures for resolving grievances, but these procedures do not 

include filing suit in this Court. (Id. at Art. 43, § 7.) 

In Doe v. United States, the United States Court of Appeals for the Federal Circuit 

considered a similar provision8in a collective bargaining agreement and held that it deprived this 

Court of jurisdiction over the plaintiffs’ claim for breach of the agreement. 513 F.3d 1348, 1355

(Fed. Cir. 2008); see also Todd, 386 F.3d at 1094 (“appellants, in essence, seek to gain the 

benefit of the [collective bargaining agreement], and at the same time, to circumvent the 

exclusive grievance procedures of the contract.”); Whalen v. United States, 93 Fed. Cl. 579, 603 

(2010) (same); Zaccardelli, 68 Fed. Cl. at 433 (same). Thus, for this additional reason, the Court 

does not have subject-matter jurisdiction over Count V. 

 

6 Article 43, § 1 provides in full:

Section 1 - Purpose

The purpose of this article is to provide a mutually acceptable method for prompt and equitable 

settlement of grievances. This is the exclusive procedure for Title 5, Title 38 Hybrids and Title 38 

bargaining unit employees in resolving grievances that are within its scope, except as provided in 

Sections 2 and 3. 

7 Article 43, § 2(A) provides in full: 

A grievance means any complaint by an employee(s) or the Union concerning any matter relating 

to employment, any complaint by an employee, the Union, or the Department concerning the 

interpretation or application of this Agreement and any supplements or any claimed violation, 

misinterpretation or misapplication of law, rule, or regulation affecting conditions of employment. 

The Union may file a grievance on its own behalf, or on behalf of some or all of its covered 

employees. 

8 The collective bargaining agreement in Doe provided that its grievance procedure was “the exclusive 

procedure available to bargaining unit employees, the Union or the Administration for the resolution of grievances.” 

513 F.3d 1348, 1355 (Fed. Cir. 2008).
8

3. Plaintiff’s standing as a third-party beneficiary. 

In Todd, the Federal Circuit held that federal employees who were not parties to a 

collective bargaining agreement could not sue for breach of that agreement in this Court as thirdparty beneficiaries because they did not have a contract with the United States. 386 F.3d at

1094. Here, plaintiff alleges only that she was a third-party beneficiary of the Master 

Agreement, not that she was a party to it. (Amend. Compl. ¶ 32.) Thus, she cannot sue for 

breach of the Master Agreement in this Court. Further, she cannot circumvent Todd by 

requesting equitable relief. Count V’s defect is not that it seeks money damages, but that it is 

based on a collective bargaining agreement to which plaintiff is not a party. Also, this Court 

may only grant equitable relief where it is “tied and subordinate” to a money judgment. 28 

U.S.C. § 1491(a)(2);9James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998). Thus, again, the 

Court does not have jurisdiction over Count V. 

V. CONCLUSION

The Court grants defendant’s Motion to Dismiss in Part, and Counts II-V of plaintiff’s 

Amended Complaint are dismissed. 

s/Lawrence S. Margolis 

LAWRENCE S. MARGOLIS

Senior Judge, U.S. Court of Federal Claims 

 

9

28 U.S.C. § 1491(a)(2) provides: 

To provide an entire remedy and to complete the relief afforded by the judgment, the court may, as 

an incident of and collateral to any such judgment, issue orders directing restoration to office or 

position, placement in appropriate duty or retirement status, and correction of applicable records, 

and such orders may be issued to any appropriate official of the United States. In any case within 

its jurisdiction, the court shall have the power to remand appropriate matters to any administrative 

or executive body or official with such direction as it may deem proper and just. . . .