Berry v. United States

86 Fed. Cl. 750, 2009 U.S. Claims LEXIS 104, 2009 WL 1220573
United States Court of Federal Claims·Decided April 30, 2009·No. No. 08-330 C·Published·Cited by 6 cases

Opinion

OPINION and ORDER

BLOCK, Judge.

I. INTRODUCTION

In Berry v. United States, 86 Fed.Cl. 24 (2009) (“Berry I”) this court addressed defendant’s Rules of the United States Court of Federal Claims (“RCFC”) 12(b)(1) motion to dismiss. In its motion, defendant asserted that 28 U.S.C. § 15001 divested this court of jurisdiction to hear plaintiffs ease because on the same day that she filed her complaint in this court, she filed her appeal of a Merit Systems Protection Board (“MSPB”) decision concerning an identical claim2 at the United States Court of Appeals for the Federal Circuit. Def.’s Mot. to Dismiss at 3 & Ex. 3 (presenting plaintiffs petition for review in Berry v. Merit Sys. Prot. Bd., No.2008-3235, 2009 WL 89668 (Fed.Cir. Jan.15, 2009)). Defendant accordingly argued for the court to impose a rule that would deem all same-day filings “pending” for purposes of applying § 1500, regardless of the sequence in which the claims were actually filed. See Def.’s Supp. Br. at 5 (citing Harbuck v. United States, 378 F.3d 1324, 1328 (Fed.Cir.2004); United States v. County of Cook, 170 F.3d 1084, 1091 (Fed.Cir.1999)).

This court rejected defendant’s position and, joining the majority of courts to have considered the issue,3 held that the exact [752] order of plaintiffs filings was dispositive. See Berry I, 86 Fed.Cl. at 27-30 (citing Tecon Eng’rs, Inc. v. United States, 170 Ct.Cl. 389, 343 F.2d 943, 949 (1965) for the proposition that “[ijf ... plaintiff is able to demonstrate that she filed her complaint in this court before filing her petition for review at the Federal Circuit, then § 1500 would not apply”). Nevertheless, this court also noted that plaintiff had not yet provided sufficient evidence to establish the sequence of her filings. Id. at 29. Recognizing plaintiffs pro se status, the court permitted plaintiff a second opportunity to submit such evidence before ruling on defendant’s motion. Id. at 29-30.

But before concluding, this court also expressed “grave doubts” about whether it possesses jurisdiction over plaintiffs claim, regardless of § 1500’s possible application. Id. at 30. This court ordered supplemental briefing on whether plaintiff was presenting a valid Tucker Act claim, and, if so, whether the Civil Service Reform Act of 1978 (“CSRA”)4 would nevertheless preclude this court from exercising jurisdiction over such a claim. Id.

Plaintiff has since submitted a declaration detailing the sequence of her filings, and the parties have submitted their supplemental briefs. Thus, this court turns, once again, to defendant’s motion to dismiss. For the reasons set forth below, this court determines that plaintiff filed her claim in this court before she filed she filed her claim at the Federal Circuit, and, therefore, § 1500 does not apply. Nonetheless, this court also holds, sua sponte, that the CSRA precludes the court from exercising jurisdiction over plaintiffs otherwise-valid Tucker Act claim. Accordingly, it is on this ground that the court grants defendant’s motion to dismiss.

II. FACTUAL AND PROCEDURAL BACKGROUND

The following facts for this motion to dismiss are undisputed. Plaintiff was a patent examiner at the United States Patent and Trademark Office (“PTO”), but was removed from this position on January 6, 2006. Def.’s Mot. to Dismiss Ex. 1 at 2. Plaintiff immediately filed a grievance pursuant to the collective bargaining agreement (“CBA”) between her union (the Patent Office Professional Association (“POPA”)), and the PTO. Id. The parties reached a settlement agreement on August 14, 2006. Compl. at ¶ 1; Pl.’s Resp. Ex. 2 at 5. Pursuant to the terms of the settlement agreement, the PTO reinstated plaintiff to her original position without back pay and retroactively placed her in “leave without pay” (“LWOP”)5 status for the period between her disputed removal and her reinstatement. Pl.’s Resp. Ex. 2 at 1.

On October 15, 2006, the PTO initially granted plaintiff a “within-grade increase in pay” (“WIGI”)6 from GS-13 step 6 to GS-13 step 7. Compl. at ¶ 1; Def.’s Mot. to Dismiss Ex. 1 at 3; Pl.’s Supp. Br. at 1, Dec. 1, 2008. Shortly thereafter, the PTO rescinded the WIGI because plaintiff had not fully performed the requisite two years of time in grade, citing her previous seven months of LWOP status.7 Compl. at ¶ 2; Def.’s Mot. to Dismiss Ex. 1 at 3; Pl.’s Supp. Br. at 2, Dec. 1, 2008.

Plaintiff then filed an informal grievance requesting reconsideration of the PTO’s decision to rescind the WIGI. Berry, 2009 WL [753]*75389668, at *1. The PTO reiterated its position that time in LWOP status does not constitute creditable service and, therefore, plaintiff was not entitled to a WIGI at that time. Id. Plaintiff appealed the PTO’s decision to the MSPB, complaining that the PTO failed to properly restore her to duty pursuant to the settlement agreement and, as a result, the PTO improperly denied her a WIGI. Compl. at ¶ 5; Def.’s Mot. to Dismiss Ex. 1 at 1. The MSPB dismissed plaintiffs appeal for lack of jurisdiction, holding that the CBA’s “negotiated grievance procedure is the exclusive remedy for resolving such a dispute.” Def.’s Mot. to Dismiss Ex. 1 at 4.

On May 6, 2008, plaintiff filed a timely petition for review from the MSPB’s decision to the United States Court of Appeals for the Federal Circuit.8 Def.’s Mot. to Dismiss Ex. 3. On the same day, plaintiff filed her complaint in this court.9 Compl. at 1. Plaintiffs complaint did not address the subject of this court’s jurisdiction. Compl. at 1-3. Rather, plaintiff merely asked that “this [cjourt exercise jurisdiction and grant her WIGI.” Compl. at 3.

III. DISCUSSION

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Berry v. United States, 86 Fed. Cl. 750, 2009 U.S. Claims LEXIS 104, 2009 WL 1220573 (uscfc 2009).

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