Nevin v. United States

43 Fed. Cl. 151, 1999 U.S. Claims LEXIS 48, 1999 WL 126678
CourtUnited States Court of Federal Claims
DecidedFebruary 25, 1999
DocketNo. 96-793 C
StatusPublished
Cited by4 cases

This text of 43 Fed. Cl. 151 (Nevin 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
Nevin v. United States, 43 Fed. Cl. 151, 1999 U.S. Claims LEXIS 48, 1999 WL 126678 (uscfc 1999).

Opinion

OPINION

DAMICH, Judge.

This case is before the court on Defendant’s Motion To Dismiss And Motion For Summary Judgment. The Plaintiff alleges that the government breached a contract in the form of a Federal Deposit Insurance Corporation (FDIC) employee buyout program by informing the Plaintiff that he could not participate in the program subsequent to the Plaintiffs submission of an application to take part in the buyout program. For the reasons stated below, this court finds for the Defendant and grants the Defendant’s Motion to Dismiss for lack of jurisdiction.

FACTS

On November 8, 1995, the FDIC issued, via E-mail, an announcement to all its employees offering a buyout, in which eligible employees would voluntarily terminate their employment in exchange for a financial incentive package. The Buyout Announcement explained why the FDIC was offering the buyout and contained specific features of the buyout plan, as well as a description of those employees eligible for the buyout. Two attachments accompanied the Buyout Announcement. The attachment specifically excluded reemployed annuitants from the buyout plan, and was included in the Buyout Announcement issued to all employees.

The buyout offer will be extended to those FDIC/RTC permanent employees on career appointments who have completed at least three or more years of continuous FDIC/RTC/FSLIC service, with the following exclusions: those employees electing disability retirement and reemployed annuitants.

Defendant’s Motion to Dismiss, at AP 37.

Reemployed annuitants are employees who already have retired from Government employment and are receiving Federal retirement benefits, yet have been reemployed for an indefinite term of service. Plaintiff, Mr. Nevin, was a reemployed annuitant at the time of the buyout offer. On November 9, 1995, FDIC sent out buyout packages to eligible individuals pursuant to the previous day’s E-mail. The FDIC admits that not all eligible employees received the package, while some ineligible employees received the buyout package. The Plaintiff did not receive such a package. In order to ensure that all employees were aware of their eligibility or ineligibility, the FDIC scheduled briefings explaining who was eligible and encouraged all employees to attend them. The Plaintiff attended one of the briefings on November 29,1995.

After November 9, 1995, and before December 4, 1995, the Plaintiff called the Personnel Serv. Branch (PSB) to ask about the exclusion of reemployed annuitants from the buyout offer. John Chipouras, Chief of the Benefits Section of the PSB, explained to the Plaintiff that he was not eligible. Despite being so informed, Plaintiff called the PSB on December 4,1995, and informed the office that he had not received a buyout package and now wished to receive one. Plaintiff received the buyout package on December 4, 1995, which was accompanied by an application to be signed by the recipient and a letter dated November 9, 1995, signed by Mr. Squerrini, Associate Director of the Personnel Services Branch of the FDIC. The letter was addressed, “Dear Buyout Eligible.” Thereupon, Plaintiff quickly submitted his application, which was received by the FDIC on December 12, 1995. The FDIC immediately established that it had made an error, and that the Plaintiff was not eligible for the buyout. The FDIC notified him at once as to this fact by phone, E-mail, and letter. The FDIC asked the Plaintiff if he still [153]*153wished to retire. On December 27, 1995, the Plaintiff informed the PSB via E-mail that he still wished to voluntarily retire on December 31, 1995. Plaintiff retired on December 31, 1995.

Plaintiff filed in this court for a breach of express contract and, in the alternative, for a breach of implied contract. Defendant has filed Motions to Dismiss under Rules 12(b)(1) and 12(b)(4) and, in the alternative, a Motion for Summary Judgment under Rule 56.

DISCUSSION

Plaintiff claims that because he received a buyout package and he signed the buyout agreement and submitted it to the FDIC, the FDIC is bound by either an express or implied contract to pay him such funds due to him were he allowed to participate in the buyout program. The Defendant argues that there was neither an express nor an implied contract because the package was sent to the Plaintiff in error and because the Plaintiff, as a reemployed annuitant, is ineligible for participation in the buyout program. Defendant moves this court to dismiss for lack of jurisdiction.

I. JURISDICTION

The Tucker Act jurisdiction of the United States Court of Federal Claims is set forth at 28 U.S.C. 1491 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.

29 U.S.C. 1491 (1994).

II. STANDARD OF REVIEW

The government denies the existence of an implied or express contract and moves to dismiss pursuant to RCFC 12(b)(1). “When reviewing a motion to dismiss for lack of subject matter jurisdiction under RCFC 12(b)(1) the facts as alleged in the complaint must be construed favorably to the plaintiff.” Morris v. United States, 33 Fed.Cl. 733, 741 (1995), quoting Scheuer v. Rhodes 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The court, in considering this motion, must presume all factual allegations to be true and correct. Reynolds v. Army and Air Force Exchange Service, 846 F.2d 746, 747 (Fed. Cir.1988). A plaintiff, however, bears the burden of establishing the court’s jurisdiction over the complaint by a preponderance of the evidence. Id. Therefore, if a defendant challenges the factual basis upon which jurisdiction is premised, the plaintiff may lose the benefit of the foregoing presumption of truth. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). The court then may look outside the complaint and receive evidence for the purpose of resolving the jurisdictional issue of fact. Morris v. United States, 33 Fed.Cl. 733, 742 (1995); Catellus Development Corp. v. United States, 31 Fed.Cl. 399, 405 (1994); Maniere v. United States, 31 Fed.Cl. 410, 413-14 (1994). The court, herein, now examines whether Plaintiff has met the burden of establishing the court’s jurisdiction, by proving the existence of either an express or implied contract between Plaintiff and the United States.

III. EXISTENCE OF A CONTRACT

In the case at bar, the Plaintiff argues that the November 9, 1995, letter signed by Mr. Squerrini is, in itself, an offer by the FDIC to contract with the Plaintiff. This court is disihclined to view that letter as anything but an invitation to an offer.

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Bluebook (online)
43 Fed. Cl. 151, 1999 U.S. Claims LEXIS 48, 1999 WL 126678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nevin-v-united-states-uscfc-1999.