Carrier v. Mcdonald

MOTION to Dismiss for Lack of Jurisdiction

W.D.N.C.July 25, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION NO. 1:16-CV-00099-MOC-DLH REBECCA J. CARRIER, ) ) Plaintiff, ) ) vs. ) ) ROBERT A. MCDONALD, SECRETARY, ) U.S. DEPARTMENT OF VETERAN AFFAIRS ) ) Defendant. ) DEFENDANT SECRETARY ROBERT A. MCDONALD’S MOTION TO DISMISS Comes now Defendant Secretary Robert A. McDonald, in his official capacity as Secretary of the United States Department of Veteran Affairs (“VA”), by and through the United States Attorney for the Western District of North Carolina, and moves to dismiss this lawsuit for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and for failure to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6). In support of this motion, Defendant submits a Memorandum in Support of Motion to Dismiss. WHEREFORE Defendant requests that this lawsuit be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(1) and (6). This the 25th day of July, 2016. Respectfully submitted, JILL WESTMORELAND ROSE UNITED STATES ATTORNEY /s Gill P. Beck GILL P. BECK ASSISTANT U.S. ATTORNEY NCSB# 13175 Case 1:16-cv-00099-MOC-DLH Document 5 Filed 07/25/16 Page 1 of 3 Room 233, US Courthouse 100 Otis Street Asheville, NC 28801 Telephone: (828) 259-0645 E-mail: Gill.Beck@usdoj.gov OF COUNSEL: John G. Winkenwerder Jr. Extern – Emory University School of Law, J.D. Candidate 2017 Case 1:16-cv-00099-MOC-DLH Document 5 Filed 07/25/16 Page 2 of 3 CERTIFICATE OF SERVICE On this day, a copy of the foregoing was served via the Court’s electronic case filing (ECF) system upon: P. J. Roth Marshall, Roth & Gregory, PC 90 Southside Avenue, Suite 100 PO Box 769 Asheville, NC 28802 This the 25th day of July, 2016. Respectfully submitted, JILL WESTMORELAND ROSE UNITED STATES ATTORNEY /s Gill P. Beck GILL P. BECK ASSISTANT UNITED STATES ATTORNEY N.C. Bar No. 13175 Room 233, US Courthouse 100 Otis Street Asheville, NC 28801 Telephone No. 828-271-4661 Gill.Beck@usdoj.gov Case 1:16-cv-00099-MOC-DLH Document 5 Filed 07/25/16 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION NO. 1:16-CV-00099-MOC-DLH REBECCA J. CARRIER, ) ) Plaintiff, ) ) vs. ) ) ROBERT A. MCDONALD, SECRETARY, ) U.S. DEPARTMENT OF VETERAN AFFAIRS ) ) Defendant. ) DEFENDANT SECRETARY ROBERT A. MCDONALD’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Comes now Defendant Secretary Robert A. McDonald, in his official capacity as Secretary of the United States Department of Veteran Affairs (“VA”), by and through the United States Attorney for the Western District of North Carolina, and submits this Memorandum in support of Defendant’s Motion to Dismiss. I. Summary of Argument Plaintiff was employed at the Charles George VA Medical Center – Asheville, North Carolina (“A-VAMC”), pursuant to 38 U.S.C. § 7405(a), as a Computerized Tomography (“CT”) Diagnostic Radiological Technologist (hereinafter “CT Technologist”). In accordance with 5 U.S.C. § 2105(f), Plaintiff was an “employee” covered by certain provisions of the Civil Service Reform Act of 1978 (“CSRA”), which is codified in Title 5 of the United States Code. The CSRA, absent an exception not applicable, provides the exclusive remedy for claims “arising out of the federal employment relationship.” Plaintiff’s claim that the VA underpaid her by $350,000 “arises out of her federal employment relationship” and is precluded by the CSRA. Plaintiff has failed to state a claim upon which relief can be granted and failed to bring her claim within a sovereign Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 1 of 20 2 immunity waiver authorizing her lawsuit to proceed; accordingly, this lawsuit should be dismissed for lack of subject matter jurisdiction as well as failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(1) & (6). Plaintiff’s appointment as a federal employee precludes, as a matter of law, her contract claim regarding her compensation; accordingly, her contract claim should be dismissed for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). Plaintiff’s contract claim, which seeks over $350,000, exceeds this Court’s $10,000 jurisdictional limit for contract claims under the Tucker Act, 28 U.S.C. § 1346(a)(2), and accordingly, should be dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). II. Summary of Claims In her first cause of action, Plaintiff alleges that the VA violated 38 U.S.C. § 7405(a)(2), first by compensating her on an hourly basis, and later by compensating her on a “per patient” instead of a “per procedure” basis. In her second cause of action, Plaintiff alleges a breach of contract claim contending that she was compensated on a “per patient” instead of a “per procedure” basis. III. Facts Since 2003, Plaintiff has been employed by the A-VAMC as a CT Technologist. Complaint, ¶ 4. On or about March 13, 2013, Plaintiff signed a document, which Plaintiff contends was a “contract,” Complaint, ¶ 8, that stated: Rebecca Carrier [street address redacted] Black Mountain, NC 28711 Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 2 of 20 3 SUBJ: Fee Basis Appointment We are pleased to designate you as a Fee Basis Diagnostic Radiological Technologist (CT) for an indefinite period under the provisions of Title 38 U.S.C. 7405(a)(2). You are authorized to provide services as required by the Chief of Imaging Service Line, in accordance with the conditions set forth herein. Either you or the Department of Veterans Affairs may end this agreement at any time by a written notice to the other party. . . . You will be compensated at the rate of $14.00 per completed evaluation, not to exceed $15,000 per annum in FY2013. You will provide diagnostic and ultrasound exams. There is no obligation upon the Department of Veterans Affairs concerning the amount of service that will be used. The exact extent to which your services are utilized will be determined by the needs of the service. This agreement may be terminated at any time at the discretion of the service. . . . The effective date of your appointment March 13, 2013. If the above terms are agreeable, please sign this letter in the space provided and return it at your earliest convenience, but prior to the effective date of your appointment. Exhibit A. The document was co-signed by James Sitlinger, Chief, Human Resources Service, A-VAMC. “The contract does not define what constituted a ‘completed evaluation.’” Complaint, ¶ 8. Plaintiff was compensated fourteen dollars ($14) for each “completed evaluation.” Complaint, ¶ 8. “Plaintiff was compensated on a ‘per patient’ basis under the contract.” Complaint, ¶ 8. Plaintiff contends that she should have been compensated on a “per procedure” basis and seeks in excess of $350,000 for lost earnings. Complaint, ¶ ¶ 7, 11, 13, 16, 19, 23. IV. Standard of Review A. Rule 12(b)(1): Subject Matter Jurisdiction Federal district courts are courts of limited jurisdiction. United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009), cert. denied 558 U.S. 875 (2009). “They possess only Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 3 of 20 4 that power authorized by Constitution and statute.” Randall v. United States, 95 F.3d 339, 344 (4th Cir. 1996). “Thus, when a district court lacks subject matter jurisdiction over an action, the action must be dismissed.” Vuyyuru, 555 F.3d at 347. “The plaintiff has the burden of proving that subject matter jurisdiction exists.” Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999). When a defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), “the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991), cert. denied, 503 U.S. 984 (1992). The moving party should prevail only where there are no material jurisdictional facts in dispute, and the moving party is entitled to judgment as a matter of law. Richmond, Fredericksburg & Potomac R. Co., 945 F.2d at 768. B. Rule 12(b)(6): Failure to State a Claim When ruling on a Rule 12(b)(6) motion, a complaint must be dismissed if it does not allege sufficient facts to establish that a claim is plausible rather than merely conceivable. Monroe v. City of Charlottesville, 579 F.3d 380, 386 (4th Cir. 2009), cert. denied 559 U.S. 992 (2010); see Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Twombly, 550 U.S. at 556). The factual allegations must be “‘enough to raise a right of relief above the speculative level.’” Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009)(quoting Twombly, 550 U.S. at 555); see Iqbal, 556 U.S. at 678 (“The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully.”). The plaintiff must allege facts sufficient to Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 4 of 20 5 state all the elements of her claim. Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003), cert. denied, 540 U.S. 940 (2003). “[T]he court need not accept the legal conclusions drawn from the facts, and . . . need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Monroe, 579 F.3d at 385-86. “To survive a motion to dismiss, a complaint must contain factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). V. Argument A. The CSRA is an Exclusive Remedy Barring Plaintiff’s Lawsuit. 1. Plaintiff was appointed a CT Technologist under 28 U.S.C. § 7405(a). Plaintiff was appointed “a Fee Basis Diagnostic Radiological Technologist (CT) . . . under the provisions of Title 38 U.S.C. 7405(a)(2).” See Letter from James Sitlinger, Chief, Human Resources Service, A-VAMC, to Rebecca Carrier, Subject: Fee Basis Appointment, dated March 14, 2013 (Exhibit A), which is incorporated by reference. Section 7405(a), which is part of Chapter 74 of Title 38, provides, in pertinent part: (a) The Secretary, upon the recommendation of the Under Secretary for Health, may employ, without regard to civil service or classification laws, rules, or regulations, personnel as follows: . . . (2) On a fee basis, persons in the following positions: (A) Positions listed in section 7401(1) of this title. (B) Positions listed in section 7401(3) of this title. (C) Other professional and technical personnel. (b) Personnel employed under subsection (a)-- . . . (2) shall be paid such rates of pay as the Secretary may prescribe. 38 U.S.C. § 7405(a). In the March 14, 2013, Memorandum, Subject: Fee Basis Appointment (Exhibit A), Mr. Sitlinger stated: “The effective date of your appointment is March 13, 2013,” and Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 5 of 20 6 that Plaintiff must return the signed agreement “prior to the effective date of your appointment.” (emphasis and underlining added). Under 38 U.S.C. § 7405(a), VA employees are “appointed.” See Mangano v. United States, 529 F.3d 1243, 1245 (9th Cir. 2008)(“He had been appointed in 1991 to a part-time position at the Medical Center pursuant to 38 U.S.C. § 7405(a)(1)(A).”) (emphasis and underlining added); Breda v. McDonald, 2015 WL 9451036, at *3 (D. Mass. Dec. 23, 2015) (“ Dr. Breda argues that because the VA appointed him under 38 U.S.C. § 7405 as a part-time physician . . . .”) (emphasis and underlining added); Yu v. United States Department of Veterans Affairs, 2011 WL 2634095 (W.D. Pa. July 5, 2011)(“Dr. Yu was hired as a part-time physician under 38 U.S.C. § 4114(a)(1)(A), the predecessor to 38 U.S.C. § 7405 (covering temporary and part-time appointments under Veterans Health Administration statute . . . . Under section 2105(f) of the CSRA, however, part-time VA physicians are considered protected employees in certain limited circumstances . . . . .”), aff’d 528 Fed. Appx. 181 (3d Cir. 2013) (emphasis and underlining added); Graves v. Dep't of Veterans Affairs, 2014 WL 4145403, at *2 (E.D. Mich. Aug. 20, 2014)(“On May 20, 2012, the Department of Veterans Affairs John D. Dingell Medical Center (“Medical Center”) appointed Plaintiffs Justin Graves and Anthony Kropinski to temporary excepted positions as Biological Science Technicians pursuant to 38 U.S.C. 7405(a)(1).”)(emphasis and underlining added). 2. Plaintiff was an “employee” under the CSRA. Section 2105(f), Title 5, United States Code, defines “employee” for purposes of the CSRA as follows: (a) For the purpose of this title, “employee”, except as otherwise provided by this section or when specifically modified, means an officer and an individual who is-- Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 6 of 20 7 (1) appointed in the civil service by one of the following acting in an official capacity-- . . . (f) For purposes of sections 1212, 1213, 1214, 1215, 1216, 1221, 1222, 2302, and 7701, employees appointed under chapter 73 or 74 of title 38 shall be employees. 5 U.S.C. § 2105. Plaintiff’s appointment, pursuant to 38 U.S.C. § 7405(a), which is part of Chapter 74 of Title 38, resulted in Plaintiff being an “employee” for the statutorily specified provisions of the CSRA. 5 U.S.C. § 2105(f); Mangano, 529 F.3d at 1247-48 (VA doctor appointed pursuant to 38 U.S.C. § 7405(a) was, pursuant to 5 U.S.C. § 2302(f), an “employee” covered by specified CSRA provisions); Breda, 2015 WL 9451036 at *3 (VA doctor appointed pursuant to 38 U.S.C. § 7405 was an “employee” covered by specified CSRA provisions); Yu, 2011 WL 2634095 at *5 (W.D. Pa. July 5, 2011)(“Dr. Yu was hired as a part-time physician under 38 U.S.C. § 4114(a)(1)(A), the predecessor to 38 U.S.C. § 7405 (covering temporary and part-time appointments under Veterans Health Administration statute . . . . Under section 2105(f) of the CSRA, however, part-time VA physicians are considered protected employees in certain limited circumstances . . . . .”), aff’d 528 Fed. Appx. 181 (3d Cir. 2013)(“The Civil Service Reform Act thus forecloses Yu’s damages claims.”); Graves, 2014 WL 4145403 at *4 (plaintiffs appointed under 38 U.S.C. § 7405(a)(1)(D) were “employees” under CSRA pursuant to 5 U.S.C. §2105(f)).1 1In an analogous context, courts have held that VA physicians appointed under other provisions of Chapter 74 of Title 38 are CSRA “employees.” Harding v. Department of Veterans Affairs, 448 F.3d 1373, 1377 (Fed. Cir. 2006)(“We conclude, however, that by enacting § 2105(f) Congress expressed its intention to supercede all inconsistent provisions of chapters 73 and 74 of Title 38 and thereby extend [Merit System Protection] Board jurisdiction to claims like Dr. Harding’s [appointed pursuant to 38 U.S.C. 7401(1)]; James v. Von Zemensky, 284 F.3d 1310, 1320 (Fed. Cir. 2002)(“Congress has expressly provided [VA personnel appointed under 38 U.S.C. § 7401] with coverage by Title 5 provisions relating to whistleblower protection.”), rehearing denied 301 F.3d 1364 (Fed. Cir. 2002). Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 7 of 20 8 3. Plaintiff’s claim for compensation “arises from her federal employment,” which the CSRA precludes. The CSRA comprehensively overhauled the civil service system. See Lindahl v. Office of Personnel Mgmt., 470 U.S. 768, 773–74 (1985); Hall v. Clinton, 235 F.3d 202, 204–05 (4th Cir. 2000), cert. denied, 532 U.S. 995 (2001). The CSRA “prescribes in great detail the protections and remedies applicable to such action, including the availability of administrative and judicial review.” United States v. Fausto, 484 U.S. 439, 443 (1988). “A primary purpose of enacting the CSRA was ‘to replace the haphazard arrangements for administrative and judicial review of personnel action’ that existed prior to the CSRA. Hall, 235 F.3d at 204–05 (quoting Fausto, 484 U.S. at 444). “When the CSRA was enacted, the perception was that the existing appeals process was so lengthy and complicated that federal supervisors were discouraged from taking legitimate adverse personnel actions.” Hall, 235 F.3d at 205 (quoting Fausto, 484 U.S. at 445). “Further, because multiple jurisdictions had concurrent jurisdiction over actions challenging personnel decisions, there was a wide variation in decisions regarding the same or similar matters.” Hall, 235 F.3d at 205. “Accordingly, the CSRA was designed to eliminate this problem as well.” Hall, 235 F.3d at 205. Under the CSRA, different administrative and judicial review procedures apply depending on, inter alia, the type of employee and the type of claims an employee asserts. See generally, Elgin v. Dep't of the Treasury, 132 S. Ct. 2126, 2134 (2012); Fausto, 484 U.S. at 445-47. Depending upon the type of employee and type of action, the CSRA may provide appeal of an agency’s decision to the Merit Systems Protection Board (“MSPB”), and vests the Federal Circuit Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 8 of 20 9 with “exclusive jurisdiction” over MSPB appeals. 28 U.S.C. § 1295(a)(9); see 5 U.S.C. § 7703(b)(1)(A). The Fourth Circuit has held “that Congress intended that the CSRA would operate to the exclusion of all other statutory remedies for claims arising out of the federal employment relationship.” Hall, 235 F.3d at 206 (emphasis and underlining added).2 “Because Congress clearly intended the CSRA to be the exclusive remedy for federal employees, the comprehensive grievance procedures of the CSRA implicitly repealed all other then-existing statutory rights of federal employees regarding personnel decisions.” Hall 235 F.3d at 206. Since the CSRA is the exclusive remedy for federal employees, subject to the discrimination lawsuit exception3 not applicable here, Plaintiff’s invocation of 38 U.S.C. § 7405 to provide a cause of action fails. See Mangano, 529 F.3d at 1248 (VA doctor appointed pursuant to 38 U.S.C. § 7405(a))(“We hold that 2See also Mann v. Haigh, 120 F.3d 34, 38 (4th Cir. 1997)(“in view of the comprehensiveness of the CSRA,” a federal employee is precluded from obtaining judicial review of his removal under the APA, even though no such review was available under the CSRA either); Nguyen v. U.S. Dep't of Def., 39 F.3d 1178, at *1, 1994 WL 582642 at *1 (4th Cir.1994) (unpublished opinion) (citations and internal quotation marks omitted) (“The Civil Service Reform Act (CSRA) provides the exclusive procedure for challenging federal personnel decisions.”); Pinar v. Dole, 747 F.2d 899, 912 (4th Cir. 1984)(rejecting a federal employee's invitation to review certain minor employment actions under the APA, explaining that “the statutory scheme of the CSRA reveals that Congress intentionally foreclosed judicial review to employees” of such employment actions.), cert. denied, 471 U.S. 10 1016 (1985). 3 “In only one situation does the CSRA expressly exempt a covered employee's appeal of a covered action from Federal Circuit review based on the type of claim at issue. When a covered employee “alleges that a basis for the action was discrimination” prohibited by enumerated federal employment laws, 5 U.S.C. § 7702(a)(1)(B), the CSRA allows the employee to obtain judicial review of an unfavorable MSPB decision by filing a civil action as provided by the applicable employment law. See § 7703(b)(2). Each of the cross-referenced employment laws authorizes an action in federal district court. See 42 U.S.C. § 2000e–5(f); 29 U.S.C. § 633a(c); § 216(b). Title 5 U.S.C. § 7703(b)(2) demonstrates that Congress knew how to provide alternative forums for judicial review based on the nature of an employee's claim.” Elgin, 132 S.Ct. at 2134. Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 9 of 20 10 Dr. Mangano's FTCA claims involve personnel actions that can be challenged as prohibited personnel practices, and therefore the CSRA preempts those claims. His remedy, if any, lies within CSRA procedures.”); Breda, 2015 WL 9451036 at *3 (D. Mass. 2015)(VA doctor appointed pursuant to 38 U.S.C. § 7405)(“Because of its framework, the CSRA preempts federal employees' court claims alleging that personnel actions, including termination, violate the federal Constitution or state law.”)(quotations and citations omitted); Yu v. United States Department of Veterans Affairs, 2011 WL 2634095 at *5 (W.D. Pa. July 5, 2011)(“Dr. Yu was hired as a part-time physician under 38 U.S.C. § 4114(a)(1)(A), the predecessor to 38 U.S.C. § 7405”)(“As such, ‘[h]is remedy, if any, lies within the CSRA procedures.’ . . . Because the CSRA procedures available to Dr. Yu do not include review by this Court consideration of his claims revolving around his termination and closure of the Lab is precluded.”), aff’d 528 Fed. Appx. 181 (3d Cir. 2013)(“The Civil Service Reform Act thus forecloses Yu’s damages claims.”); Graves v. Department of Veterans Affairs, 2014 WL 4145403 at *7 (E.D. Mich. 2014)(plaintiffs appointed under 38 U.S.C. § 7405(a)(1)(D))(“ Plaintiffs cannot pursue an APA claim in district court because the CSRA offers an exclusive track for challenging personnel decisions.”). The Fourth Circuit’s holding in Hall v. Clinton, 235 F.3d 202 (4th Cir. 2000), is well supported by the Supreme Court's decisions addressing the comprehensive and exclusive nature of the CSRA's review scheme. In United States v. Fausto, 484 U.S. 439 (1988), the Supreme Court held that a federal employee who had no right of judicial review of his suspension under the CSRA could not obtain such review in the Claims Court under the Back Pay Act, 5 U.S.C. § 5596, explaining that the “CSRA established a comprehensive system for reviewing personnel action.” Fausto, 484 U.S. at 455 & 443-55. More recently, in Elgin v. Department of the Treasury, 132 S. Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 10 of 20 11 Ct. 2126 (2012), the Supreme Court explained that, “[j]ust as the CSRA's ‘elaborate’ framework demonstrates Congress' intent to entirely foreclose judicial review to employees to whom the CSRA denies statutory review, it similarly indicates that extrastatutory review is not available to those employees to whom the CSRA grants administrative and judicial review.” Id. at 2133 (citation omitted) (quoting Fausto, 484 U.S. at 443). Elgin thus held that federal employees who were removed pursuant to a federal statute could not challenge the constitutionality of that statute in district court under 28 U.S.C. § 1331, and must instead assert their challenges through the procedures afforded by the CSRA, including an appeal to the MSPB and review in the Federal Circuit. See Elgin, 132 S.Ct. at 2131-40. In determining whether the CSRA provides the exclusive remedy excluding “all other statutory remedies for claims arising out of the federal employment relationship,” the Fourth Circuit applies the bright-line test of whether the challenged action “arose out of the federal employment relationship.” Hall, 235 F.3d at 204 (“Because the CSRA constitutes the exclusive remedy for claims arising out of federal employment, we affirm.”); Hall, 235 F.3d at 205 (“The salient fact here is that the wrongful acts Hall alleges were taken against her arose out of her federal employment relationship.”)(emphasis and underlining added). In this case, the allegations in the Complaint, ¶ 4-6, 8-16, 17-21, 22-25, establish that Plaintiff’s first cause of action, violation of 38 U.S.C. § 7405(a)(2), and her second cause of action, her breach of contract claim, “arose out of her federal employment relationship,” and the CSRA precludes Plaintiff’s lawsuit, requiring dismissal of this case pursuant to Fed. R. Civ. P. 12(b)(1). Hall, 235 F.3d 206-07 (“In sum, the district court correctly dismissed Hall's Fifth Amendment Bivens and 42 U.S.C.A. § 1985(1) claims for lack of subject matter jurisdiction because they are barred by the CSRA.”). Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 11 of 20 12 Allowing a federal employee, such as Plaintiff, to bypass the CSRA to bring an action under 38 U.S.C. 7405(a)(2) or a breach of contract claim “would create an obstacle to the attainment of Congress's goal of unifying challenges to federal personnel decisions in a single administrative forum.” Hall, 235 F.3d at 206. Moreover, knowledge by a supervisor that making a particular personnel decision may give rise to a lawsuit wherein an employee bypasses the CSRA’s administrative procedures, “would no doubt discourage some supervisors from taking legitimate personnel actions.” Hall, 235 F.3d at 206. “The purpose of denying a private cause of action to federal employees is to ensure that they do not bypass comprehensive and carefully balanced statutory and administrative remedies in order to seek direct judicial relief.” Hall, 235 F.3d at 205. “Because Congress clearly intended the CSRA to be the exclusive remedy for federal employees, the comprehensive grievance procedures of the CSRA implicitly repealed all other then-existing statutory rights of federal employees regarding personnel decisions,” Hall 235 F.3d at 206, the doctrine of sovereign immunity and this Court’s subject matter jurisdiction are implicated. “The United States, as sovereign, is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that Court’s jurisdiction to entertain suit.” United States v. Sherwood, 312 U.S. 584, 586 (1941); United States v. Mitchell, 445 U.S. 535, 537 (1980)(“It is elementary, that the United States, as sovereign, is immune from suit save as it consents to be sued . . . .”). “[T]he [Supreme] Court has also interpreted this broad protection as extending not only to more traditional governmental entities, but to all agencies of the federal government.” Research Triangle Inst. v. Bd. of Governors of the Fed. Reserve Sys., 132 F.3d 985, 988 (4th Cir. 1997) (hereinafter “RTI”), cert. denied 525 U.S. 811 (1988). Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 12 of 20 13 Plaintiff has cited 38 U.S.C. § 7405(a)(2) as the basis for her First Claim for Relief; however, the “waiver [of sovereign immunity] ‘must be unequivocally expressed in [the] statutory text,’ and . . . ‘a waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.’” RTI, 132 F.3d at 988 (citing Lane v. Pena, 518 U.S. 187, – –––, 116 S.Ct. 2092, 2096 (1996)). Section 7405(a) authorizes the VA to make temporary full-time appointments, part-time appointments, and without-compensation appointments, but does not authorize suit against the VA. Nothing in Section 7405(a) indicates “unequivocally expressed” congressional intent to override the preclusive effects of the CSRA which “repealed all other then-existing statutory rights of federal employees regarding personnel decisions.” See Hall, 233 F.3d at 206. Plaintiff has failed to state a cause of action under 38 U.S.C. § 7405(a)4 and has failed to point to a waiver of sovereign immunity to authorize suit under 38 U.S.C. § 7405(a)(2) that would overcome the CSRA’s preclusive effect as expressed by the Fourth Circuit “that Congress intended that the CSRA would operate to the exclusion of all other statutory remedies for claims arising out of the federal employment relationship.” Hall, 235 F.3d at 206 (emphasis and underlining added). “[T]he terms of the [United States’] consent to be sued in any court define that court’s jurisdiction to entertain the suit.” Sherwood, 312 U.S. at 586. “It is axiomatic that . . . the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). “Except as Congress has consented there is no jurisdiction . . . in any . . . court to entertain suits against the United States . . . .” Sherwood, 312 U.S. at 587-88. In this case, the CSRA precludes this lawsuit since Congress has not waived sovereign immunity for the VA to be sued in this Court 4Additionally, courts have “held that the CSRA review provisions could not be supplemented by an implied right of action.” Fornaro v. James, 416 F.3d 63, 67 (D.C. Cir. 2005)(J. Roberts); Cutts v. Fowler, 692 F.2d 138, 140–41 (D.C.Cir.1982). Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 13 of 20 14 either under 38 U.S.C. § 7405 or for breach of contract in excess of $350,000.00. See United States v. Jones, 225 F.3d 468, 469-470 (4th Cir. 2000)(“Sovereign immunity deprives a court of jurisdiction.”) , cert. denied 532 U.S. 1053 (2001). Accordingly, Plaintiff’s lawsuit must be dismissed for lack of subject matter jurisdiction as not within the waiver of sovereign immunity. See Fed. R. Civ. P. 12(b)(1); Hall, 235 F.3d at 206-07. B. Plaintiff, as an appointee under 38 U.S.C. § 3805(a), was an “employee” not a “contractor,” and, accordingly, fails to state a breach of contract claim. “[T]here is a well-established principle that, absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.” Hamlet v. United States, 63 F.3d 1097, 1101 (Fed. Cir. 1995), cert. denied 517 U.S. 1155 (1996); Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.1985)); see also Klaskala v. U.S. Dep't of Health and Human Servs., 889 F.Supp. 480, 485 (S.D.Fla.1995) (“government employees serve by appointment, rather than by contract”). “The question of whether a government employee is serving by contract or appointment depends upon the ‘relevant statutory language and regulations and the language of the hiring documents.’” Calvin v. United States, 63 Fed. Cl. 468, 472 (2005) (internal quotations and citations omitted). In this case, A-VAMC Chief of Human Resources Service, in his March 14, 2013, Memorandum, Subject: Fee Basis Appointment (Exhibit A) “designated Plaintiff as a Fee Basis Diagnostic Radiological Technologist (CT) under the provisions of 38 U.S.C. 7405(a)(2) (a),” which authorizes the VA to “employ, without regard to civil service or classification laws, rules, or regulations, personnel . . . .” 38 U.S.C. 7405(a)(2)(a)(emphasis and underlining added). Similarly, subsection (b) provides “Personnel employed under subsection (a)-- . . . (2) shall be paid Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 14 of 20 15 such rates of pay as the Secretary may prescribe.” 38 U.S.C. § 7405(b) (emphasis and underlining added). In the March 14, 2013, Memorandum, Subject: Fee Basis Appointment (Exhibit A), Mr. Sitlinger stated: “The effective date of your appointment is March 13, 2013” and that Plaintiff must return the signed agreement “prior to the effective date of your appointment.” (emphasis and underlining added). In Pijanowski v. United States, 60 Fed. Cl. 628, 631 (2004) , aff'd, 125 F. App'x 1015 (Fed. Cir. 2005), the Claims Court considered the issue of whether a VA physician employed under 38 U.S.C. § 7405(a)(2) was an “employee” or a contractor, and held: In essence, plaintiff claims that an agreement with the medical center director as to the amount of hours executed pursuant to a statute authorizing the Secretary to appoint physicians on a fee basis forms a binding contract. However, the “statutory scheme ... clearly establishes that he was a federal employee rather than an independent contractor.” Ezekiel v. Michel, 66 F.3d 894, 900 (7th Cir.1995) . . . Section 7405 explicitly states that the VA Secretary may “employ” physicians on a fee basis and prescribe the rate of pay. The same statutory structure demonstrates that plaintiff's employment is not premised on a guaranteed minimum number of hours. . . . In addition, section 7405(a)(1) provides for employment on a temporary full-time, part-time, or no compensation basis. 38 U.S.C. § 7405(a)(1). Instead, plaintiff was appointed pursuant to a statute specifying that pay and length of employment was subject to change according to the VA Secretary. Plaintiff was put on notice that his statutory appointment did not provide for a full-time or even part-time basis. . . . Appointment to a federal position is contrary to the establishment of a contractual relationship. Pijanowski v. United States, 60 Fed. Cl. 628, 631-32 (2004), aff'd, 125 F. App'x 1015 (Fed. Cir. 2005). Similarly, in this case, Plaintiff was appointed pursuant to Section 7405, which “explicitly states that the VA Secretary may ‘employ’ . . . .” Pijanowski, 60 Fed. Cl. at 631. In addition, subsection (b) provides “Personnel employed under subsection (a)-- . . . (2) shall be paid such rates of pay as the Secretary may prescribe.” 38 U.S.C. § 7405(b) (emphasis and underlining added). Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 15 of 20 16 “Plaintiff's relationship with the Government cannot be simultaneously governed by both an appointment and a contract.” Collier v. United States, 56 Fed. Cl. 354, 356-57 (2003), aff’d 379 F.3d 1330 (2004); see Pijanowski, 60 Fed. Cl. at 632 (“Appointment to a federal position is contrary to the establishment of a contractual relationship.”) (citing Hopkins, 427 U.S. 123, 96 S.Ct. 2508, 49 L.Ed.2d 361); Hamlet v. United States, 63 F.3d 1097, 1101 (Fed. Cir. 1995)(“In earlier proceedings in this case, we noted that, under the Tucker Act, “if Hamlet's employment was by ‘appointment,’ a breach of contract action against the government would be precluded.”); Czeremcha Rodriguez v. United States, 2008 WL 868254, at *2 (S.D. Fla. Mar. 31, 2008). Accordingly, Plaintiff cannot be both an employee of and contractor with the VA regarding his appointment under 38 U.S. C. § 7405(a)(2), and since he is an appointed employee, his contract claim regarding his compensation fails to state a claim upon which relief can be granted and should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). C. Plaintiff’s $350,000 contract claim exceeds this Court’s $10,000 jurisdictional limit under 28 U.S.C. § 1346(a)(2). While Defendant contends that the CSRA is the exclusive remedy precluding this lawsuit and that Plaintiff has failed to establish a contract with the VA regarding her compensation, the Court, in the alternative, could dismiss Plaintiff’s claim, which seeks over $350,000, as exceeding the District Court’s $10,000 jurisdictional limit in contract claims under the Tucker Act, 28 U.S.C. § 1346(a)(2). Specifically, Section 1346(a)(2), Title 28, United States Code, provides, in pertinent part: (a) The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of: (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 16 of 20 17 or any regulation of an executive department, or upon any express or implied contract with the United States . . . . 28 U.S.C. § 1346 (a)(2). As the Fourth Circuit has held: “if a plaintiff's [contract] claim is for more than $10,000, he must bring the action in the Court of Federal Claims.” Randall, 95 F.3d at 347. The Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491, waives the sovereign immunity of the United States and its agencies for certain contract and other specified claims and consists of two parts: 28 U.S.C. § 1491, hereinafter “Big Tucker Act” for contract claims over $10,000, and 28 U.S.C. § 1346(a)(2), hereinafter “Little Tucker Act” for contract claims for $10,000 or less. Randall, 95 F.3d at 346-47. “The Little Tucker Act makes the jurisdiction of the Court of Federal Claims concurrent with the district court for civil actions or claims against the United States for $10,000 or less. 28 U.S.C. § 1346(a)(2).” Randall, 95 F.3d at 346–47. In effect, the Tucker Act authorizes the District Court to sit as a court of claims for contract claims of $10,000 or less. Randall, 95 F.3d at 347 n.9. “Determining the proper statutory framework for the district court's jurisdiction . . . is critical because it affects the appellate jurisdiction of this court.” Randall, 95 F.3d at 346. “The United States Court of Appeals for the Federal Circuit, not the regional courts of appeals, has exclusive jurisdiction over appeals in cases based ‘in whole or in part’ on the Tucker Act. Randall, 95 F.3d at 346 (citing 28 U.S.C. § 1295(a)(2)). “The provision of 28 U.S.C. § 1295(a)(2) is mandatory and cannot be waived by the parties, because it relates to the subject matter jurisdiction of this court.” Randall, 95 F.3d at 346. Accordingly, the Fourth Circuit has been “cautious about trespassing into the province of the Court of Federal Claims and the Federal Circuit to decide non-tort actions against the United States” because “‘a primary purpose of the [Tucker] Act [is] to ensure that a central judicial body adjudicates most claims against the United Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 17 of 20 18 States Treasury.’” Randall, 95 F.3d at 346. In this case, Plaintiff alleges that “[a]s a result of [the VA’s] breach of contract, Plaintiff has been legally and proximately damaged, entitling Plaintiff to an award of compensatory damages.” Complaint, ¶ 25. “Plaintiff estimates [her] losses at not less than $350,000.” Complaint, ¶ 16. The Plaintiff requests that the Court interpret the March 14, 2013 Memorandum (Exhibit A) as a contract and determine whether the term “completed evaluation” means on a “per patient” or “per procedure” basis. Complaint, ¶¶ 7, 8, 11, 12, 15, 19, 24. As the Fourth Circuit has emphasized: “If a plaintiff's claim is for more than $10,000, he must bring the action in the Court of Federal Claims.” Randall, 95 F.3d at 347. Accordingly, Plaintiff’s contract claim must be dismissed. See Randall, 95 F.3d at 347; Breda, 2015 WL 9451036, at *5 (“Dr. Breda [who was appointed by the VA under 38 U.S.C. § 7405(a)] seeks $150,000 in damages. . . . These claims must be dismissed because under 28 U.S.C. § 1491, the Court of Federal Claims has exclusive jurisdiction for breach of contract claims against the United States for over $10,000.). VI. Conclusion For the foregoing reasons, Plaintiff’s lawsuit should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(1) and (6). This the 25th day of July, 2016. Respectfully submitted, JILL WESTMORELAND ROSE UNITED STATES ATTORNEY /s Gill P. Beck GILL P. BECK Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 18 of 20 19 ASSISTANT U.S. ATTORNEY NCSB# 13175 Room 233, US Courthouse 100 Otis Street Asheville, NC 28801 Telephone: (828) 259-0645 E-mail: Gill.Beck@usdoj.gov OF COUNSEL: John G. Winkenwerder Jr. Extern – Emory University School of Law, J.D. Candidate 2017 Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 19 of 20 20 CERTIFICATE OF SERVICE On this day, a copy of the foregoing was served via the Court’s electronic case filing (ECF) system upon: P. J. Roth Marshall, Roth & Gregory, PC 90 Southside Avenue, Suite 100 PO Box 769 Asheville, NC 28802 This the 25th day of July, 2016. Respectfully submitted, JILL WESTMORELAND ROSE UNITED STATES ATTORNEY /s Gill P. Beck GILL P. BECK ASSISTANT UNITED STATES ATTORNEY N.C. Bar No. 13175 Room 233, US Courthouse 100 Otis Street Asheville, NC 28801 Telephone No. 828-271-4661 Gill.Beck@usdoj.gov Case 1:16-cv-00099-MOC-DLH Document 5-1 Filed 07/25/16 Page 20 of 20 Department of Veteran Affairs Charles George VA Medical Center 1100 Tunnel Road Asheville NC 28805 ln Reply Refer To: 637/05 Rehecca Carrier Redacted Street Address Black Mountain, NC 2871'l SUBJ: Fee Basis Appointment Dear Mrs. Carrier, We are pleased to designate you as a Fee Basis Diagnostic Radiological Technologist (CT) for an indefinite period under the provisions of Title 38 U.S.C. 7 O5@)(2). You are authorized to provide services as required by the Chief of lmaging Service Line, in accordance with the conditions set forth herein. Either you or the Department of Veterans Affairs may end this agreement at any time by a written notice to the other party. You must avoid any action which might result in or look as though you are using public office for private gain or might conflict, or appear to conflict, with the interest of the VA or the Federal Government. lf, during the term of this agreement, a conflict of interest is disclosed, this agreement shall be immediately terminated in writing by the Department of Veteran Affairs. You will be compensated at the rate of $14.00 per completed evaluation, not to exceed $15,000 per annum in FY2013. You will provide diagnostic and ultrasound exams. There is no obligation upon the Department of Veterans Affairs concerning the amount of service that will be used. The exact extent to which your services are utilized will be determined by the needs of the service. This agreement may be terminated at any time at the discretion of the service. lmaging will maintain your work schedule. On each visit, you must sign in with the timekeeper and thereby establish your presence in the Medical Center. The effective date of your appointment March 13, 2013. lf the above terms are agreeable, please sign this letter in the space provided and return it at your earliest convenience, but prior to the effective date of your appointment. Sincerely yours, -+-^--