Bartlomain v. United States

30 Fed. Cl. 192, 1993 U.S. Claims LEXIS 324, 1993 WL 513466
CourtUnited States Court of Federal Claims
DecidedDecember 7, 1993
DocketNo. 93-383C
StatusPublished

This text of 30 Fed. Cl. 192 (Bartlomain v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bartlomain v. United States, 30 Fed. Cl. 192, 1993 U.S. Claims LEXIS 324, 1993 WL 513466 (uscfc 1993).

Opinion

ORDER

MOODY R. TIDWELL, III, Judge:

This case is before the court on defendant’s motion to dismiss for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1). Defendant’s motion is granted.

FACTS

Plaintiff, Joseph V. Bartlomain, began service as. an employee of the United States Postal Service in 1961. On March 21, 1986, [193]*193plaintiff underwent surgery and remained on sick leave until the Postal Service placed him on non-pay-non-leave status on May 24,1986. Eleven months later, the Office of Personnel Management (OPM) approved plaintiffs disability retirement application, making the date of his retirement retroactive to May 25, 1986. By the time of plaintiffs disability retirement approval, plaintiff had accrued 1,681 hours of unused accumulated earned sick leave.

Pursuant to the Postal Service’s civil service disability retirement regulations, the Postal Service afforded plaintiff the option of using his sick leave prior to separation, or of being separated immediately and using the sick leave to extend the length of service in the annuity computation. In monetary terms, the difference between the two options for plaintiff amounted to an additional $29,000 if the first option were utilized. Of course, plaintiff requested to exercise the first option and use his 1,681 hours of accumulated earned sick leave before officially retiring. However, OPM did not honor plaintiffs request and instead applied his sick leave to the computation of his annuity.

On June 18,1993, plaintiff filed a complaint in this court alleging that the Postal Service had not paid him his sick leave and failed to properly process his disability retirement' papers, depriving him of sick leave income. In his complaint, plaintiff requested relief for breach of promises and policies of defendant on which plaintiff relied and for breach of an implied covenant of good faith and fair dealing, caused by defendant’s mishandling plaintiffs retirement application.

DISCUSSION

In the Tucker Act, Congress defined the jurisdiction of this court, in pertinent part, as follows:

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.

28 U.S.C. § 1491(a)(1) (Supp.IV 1992). However, the Tucker Act alone does not create a substantive right enforceable against the United States for money damages. El Dora-do Springs v. United States, 28 Fed.Cl. 132, 134 (1993); Ashgar v. United States, 23 Cl.Ct. 226, 230 (1991). “It merely confers jurisdiction on the Court of Federal Claims if other authority creates a substantive right to recover money damages.” El Dorado Springs, 28 Fed.Cl. at 134. The burden of proof in establishing this court’s jurisdiction rests with the plaintiff. Id.; Booth v. United States, 990 F.2d 617, 619 (Fed.Cir.1993). Therefore, in order for plaintiff to establish the court’s jurisdiction over his claims, plaintiff must prove that he had either (1) an express or implied contract with the United States, or (2) some statutorily created right to recover money damages.

In the instant case, plaintiff asserted the existence of two implied contracts with the Postal Service. However, in a subsequent brief, plaintiff retracted any assertions of jurisdiction based on implied contracts with the United States. According to plaintiff, “[although Plaintiffs complaint was drafted with language used in asserting contract rights, such rights, if any, are not being asserted by Mr. Bartlomain.” PI. Response at 9. In any event, even assuming arguendo that, plaintiff asserted an implied contract with the United States, the court finds that such a contract does not exist. “Public employment does not ... give rise to a contractual relationship in the conventional sense.” Urbina v. United States, 428 F.2d 1280, 192 Ct.Cl. 875, 881 (1970). Plaintiff cannot rely on an express or implied contract with the government to establish jurisdiction in this court.

Absent from plaintiffs four-page complaint was a cite to statutory authority establishing a substantive right to money damages as a basis for suit against the United States. However, in response to defendant’s motion to dismiss, plaintiff asserted that both the Annual and Sick Leave Act, 5 U.S.C. §§ 6301-6373 (1988 & Supp.IV 1992), and the Federal Employees’ Retirement System Act, [194]*1945 U.S.C. §§ 8401-8479 (1988 & Supp.IV 1992), created such a substantive right. Unfortunately for plaintiff both statutes are inapplicable in his case, and cannot establish jurisdiction.

The Annual and Sick Leave Act does not apply to the Postal Service. Fleming v. United States, 30 M.S.P.R. 302, 304-305 (1986). The Postal Service is unique among government agencies because it is “an independent establishment of the executive branch of the Government of the United States” with unique and separate statutory and regulatory directives. 39 U.S.C. § 201 (1988). For example, 39 U.S.C. § 410 states as follows:

(a) Except as provided by subsection (b) of this section, and except as otherwise provided in this title or insofar as such laws remain in force as rules or regulations of the Postal Service, no Federal law dealing with public or Federal contracts, property, works, officers, employees, budgets, or funds, ... shall apply to the exercise of the powers of the Postal Service.

39 U.S.C. § 410 (1988). Because the Annual and Sick Leave Act is not an exception listed in subsection (b), it is not a federal law applicable to the Postal Service, and thus can not apply to plaintiff, a Postal Service employee. Moreover, the Annual and Sick Leave Act excludes Postal Service employees. The definitional section of the Annual and Sick Leave Act, 5 U.S.C. § 6301, states that “[f]or the purposes of this subchapter ... ‘employee’ means ... an employee as defined in section 2105 of this title____” 5 U.S.C. § 6301(2)(A) (1988). Section 2105 states that “[ejxcept as otherwise provided by law, an employee of the United States Postal Service ... is deemed not an employee for purposes of this title.” 5 U.S.C. § 2105(e) (1988). Clearly, the Annual and Sick Leave Act does not apply to Postal Service employees.

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Related

Daniel S. Urbina v. The United States
428 F.2d 1280 (Court of Claims, 1970)
Richard James Booth v. The United States
990 F.2d 617 (Federal Circuit, 1993)
El Dorado Springs v. United States
28 Fed. Cl. 132 (Federal Claims, 1993)
Phaidin v. United States
28 Fed. Cl. 231 (Federal Claims, 1993)
Rogers v. United States
15 Cl. Ct. 692 (Court of Claims, 1988)
Ashgar v. United States
23 Cl. Ct. 226 (Court of Claims, 1991)
Klamath & Modoc Tribes v. United States
174 Ct. Cl. 483 (Court of Claims, 1966)

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Bluebook (online)
30 Fed. Cl. 192, 1993 U.S. Claims LEXIS 324, 1993 WL 513466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bartlomain-v-united-states-uscfc-1993.