Corrigan v. United States ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN L. CORRIGAN,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-1471
______________________
Appeal from the United States Court of Federal
Claims in No. 1:16-cv-00432-MCW, Judge Mary Ellen
Coster Williams.
______________________
Decided: June 13, 2017
______________________
JOHN L. CORRIGAN, Belfair, WA, pro se.
WILLIAM JAMES GRIMALDI, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for defendant-appellee. Also
represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,
JR., CLAUDIA BURKE; SCOTT E. SCHWARTZ, Office of Gen-
eral Counsel, National Credit Union Administration,
Alexandria, VA.
______________________
2 CORRIGAN v. UNITED STATES
Before NEWMAN, CHEN, and STOLL, Circuit Judges.
PER CURIAM.
John L. Corrigan appeals an order of the United
States Court of Federal Claims (Claims Court) dismissing
his complaint for failure to state a claim. We affirm.
BACKGROUND
From 1999 to February 2016, Corrigan was employed
by the National Credit Union Administration (NCUA)—
an independent agency in the executive branch of the
federal government. 1 Sometime in 2015, Corrigan moved
from his assigned duty station in Seattle, WA to Belfair,
WA. NCUA did not change Corrigan’s duty station to
Belfair after his move. Corrigan alleges that “NCUA is
falsifying examiners’ duty stations in direct conflict with
government-wide regulations relating to duty stations.”
Appellant’s J.A. 7. He also alleges that, because NCUA
did not change his duty station to Belfair, he incurred
“food and lodging per diem” expenses “that NCUA would
not reimburse.” Id. at 8. In addition, Corrigan alleges
that, during an unspecified three-year period, NCUA
improperly deducted “commute time” from “legitimate
1 The facts recited herein are taken from Corrigan’s
complaint, unless otherwise noted. See McClary v. United
States, 775 F.2d 280, 283 (Fed. Cir. 1985) (“In considering
a motion to dismiss for failure to state a claim, the court
must accept the facts alleged by plaintiff as true.” (inter-
nal quotation marks omitted)). Because Corrigan is
proceeding pro se, we liberally construe his pleading in
search of a well-pleaded cause of action. See Haines v.
Kerner, 404 U.S. 519, 520 (1972) (stating that “allegations
of the pro se complaint” are “h[e]ld to less stringent
standards than formal pleadings drafted by lawyers”).
CORRIGAN v. UNITED STATES 3
travel time” in contravention of the Federal Travel Regu-
lations (FTR), 41 C.F.R. § 300 et seq. Id.Corrigan filed suit on March 31, 2016, seeking reim-
bursement of “all legitimate travel expenses relating to
work performed in Seattle in November and December
2015” and “three-years of travel time improperly deducted
from official duty travel time as ‘commute time.’” Id. His
complaint seeks relief pursuant to 5 U.S.C. §§ 5701–10,
the FTR, and 5 U.S.C. § 6101. Sections 5701–10 and the
FTR prescribe rules and procedures for reimbursing
federal employees for travel-related expenses. Section
6101 states: “To the maximum extent practicable, the
head of an agency shall schedule the time to be spent by
an employee in a travel status away from his official duty
station within the regularly scheduled workweek of the
employee.” 2
On July 20, 2016, the government filed a motion to
dismiss for lack of subject-matter jurisdiction pursuant to
Rule 12(b)(1) of the Rules of the United States Court of
Federal Claims (RCFC). The government argued that the
Claims Court lacked jurisdiction because Corrigan’s
claims were governed by exclusive grievance procedures
in the collective bargaining agreement (CBA) entered into
by NCUA and its employees’ union. Corrigan responded
to the government’s motion by stating that his claims
were “based on his money claim under the Federal Travel
Regulations” and that the FTR was a money-mandating
basis for suit under Mudge v. United States. Appellant’s
J.A. 10–11. In Mudge, we held: “Congress’s addition of
the word ‘administrative’ to § 7121(a) [of the Civil Service
Reform Act] established a federal employee’s right to seek
2 An employee’s official duty station is the “area de-
fined by the agency that includes the location where the
employee regularly performs his or her duties . . . .” 41
C.F.R. § 300-3.1.
4 CORRIGAN v. UNITED STATES
a judicial remedy for employment grievances subject to
the negotiated procedures contained in his or her CBA.”
308 F.3d 1220, 1227 (Fed. Cir. 2002). The government
replied by, inter alia, moving to dismiss Corrigan’s com-
plaint under RCFC 12(b)(6) for failure to state a claim,
arguing that its new motion was proper in light of Corri-
gan’s “alternate interpretation of his claims” as arising
under the FTR and not “challeng[ing] the terms of the
CBA.” Appellee’s J.A. 41 n.1. In light of the new Rule
12(b)(6) motion, the government stated in its reply that,
“[t]o the extent that Mr. Corrigan requests a surreply to
reply in support of his argument, we w[ould] not object.”
Id. Corrigan did not file a surreply.
The Claims Court denied the government’s Rule
12(b)(1) motion, finding that Corrigan’s claims did not
challenge the terms of the CBA but, rather, sought “travel
expenses authorized by the FTR but improperly denied by
the agency.” Appellant’s J.A. 15. The Claims Court held
that, “[b]ecause the FTR is money-mandating, jurisdiction
in this Court is proper.” Id. (citing Bailey v. United
States, 52 Fed. Cl. 105, 109 (2002) (“The FTR, which
provides that federal employees who are performing
official travel are eligible to be reimbursed for transporta-
tion expenses[,] is a money-mandating provision of law.”
(internal citations omitted))). Although the Claims Court
determined that it had jurisdiction, it nevertheless grant-
ed the government’s Rule 12(b)(6) motion for failure to
state a claim because “Plaintiff has not pointed to any
provision of the FTR or other legal authority that author-
izes the reimbursement of expenses for travel between his
residence and his official duty station. Nor has Plaintiff
invoked any legal authority that entitles him to reim-
bursement for commuting.” Appellant’s J.A. 16.
On appeal, Corrigan argues that the Claims Court
erred in granting the government’s Rule 12(b)(6) motion
because, inter alia, (1) the motion was “surreptitiously
placed” in the government’s reply brief, (2) the Claims
CORRIGAN v. UNITED STATES 5
Court “used extrinsic evidence” to rule on the motion, and
(3) Corrigan’s complaint states a plausible claim upon
which relief could be granted. Open. Br. at 6, 12, 15–17.
The government responds that (1) its Rule 12(b)(6) motion
was properly presented in its reply brief because “the
grounds for dismissal pursuant to RCFC 12(b)(6) only
became apparent after [Corrigan’s] clarification of his
two-page complaint,” (2) the alleged extrinsic evidence
relied on by the Claims Court comprises public documents
that are subject to judicial notice, and (3) the Claims
Court did not err in holding that Corrigan’s complaint
failed to state a plausible claim. Resp. Br. at 33–45, 49.
The government also argues that the Claims Court erred
in deciding that it had jurisdiction over Corrigan’s claims.
We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).
DISCUSSION
The Tucker Act gives the Claims Court jurisdiction
over claims against the United States for money damages
“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” and waives the government’s sover-
eign immunity for such claims. 28 U.S.C. § 1491. “[T]he
Tucker Act does not create any substantive right enforce-
able against the United States for money damages, but
merely confers jurisdiction when such a right is conferred
elsewhere.” Adair v. United States, 497 F.3d 1244, 1250
(Fed. Cir. 2007) (citing United States v. White Mountain
Apache Tribe, 537 U.S. 465, 472 (2003)). “When the
source of such alleged right is a statute, it can only sup-
port jurisdiction if it qualifies, as most statutes do not, as
money-mandating.” Adair, 497 F.3d at 1250.
The Supreme Court held in United States v. Mitchell,
that a statute is money-mandating only if it “‘can fairly be
6 CORRIGAN v. UNITED STATES
interpreted as mandating compensation by the Federal
Government for the damage sustained.’” 463 U.S. 206,
212 (1983) (quoting United States v. Testan, 424 U.S. 392,
400 (1976)). In Mitchell, the Supreme Court held that a
money-mandating source of substantive law may be
implicit, stating that a plaintiff need only show that “the
source of substantive law he relies upon can fairly be
interpreted as mandating compensation by the Federal
Government for the damage sustained.” 463 U.S. at 216–
17 (internal quotation marks, citation, and footnote
omitted). The Supreme Court later clarified the “fairly be
interpreted” standard from Mitchell in White Mountain:
This fair interpretation rule demands a show-
ing demonstrably lower than the standard for the
initial waiver of sovereign immunity. . . . It is
enough, then, that a statute creating a Tucker Act
right be reasonably amenable to the reading that
it mandates a right of recovery in damages. While
the premise to a Tucker Act claim will not be
lightly inferred, . . . a fair inference will do.
537 U.S. at 472–73 (internal quotation marks and cita-
tions omitted).
In Adair, we distinguished between when a claim
should be dismissed for lack of jurisdiction, when the
substantive statute invoked is not money-mandating, and
when it should be dismissed for failure to state a claim:
If a trial court concludes that the particular
statute simply is not money-mandating, then the
court shall dismiss the claim for lack of subject
matter jurisdiction under Rule 12(b)(1). . . . If,
however, the court concludes that the facts as pled
do not fit within the scope of a statute that is
money-mandating, the court shall dismiss the
claim on the merits under Rule 12(b)(6) for failing
to state a claim upon which relief can be granted.
CORRIGAN v. UNITED STATES 7
Adair, 497 F.3d at 1251 (citations omitted).
The Claims Court determined that the FTR is money-
mandating and serves as a basis for jurisdiction in this
case. We agree. In particular, one of the statutory sec-
tions cited in Corrigan’s complaint, 5 U.S.C. § 5702, states
that federal employees are “entitled” to receive either a
“per diem allowance” or “reimbursement” for “actual and
necessary expenses of official travel” or a combination of
the two, subject to regulations prescribed in the FTR. 5
U.S.C. § 5702(a)(1). These statutory and regulatory
provisions “can fairly be interpreted as mandating com-
pensation by the Federal Government.” Testan, 424 U.S.
at 400 (internal quotation marks omitted). Thus, Corri-
gan’s claims founded on 5 U.S.C. § 5702 form a basis for
Tucker Act jurisdiction in the Claims Court. See
McClary, 775 F.2d at 283 (holding that 5 U.S.C. § 5724,
which mandates payment of certain travel and transpor-
tation moving expenses, is money-mandating).
The Claims Court held that Corrigan’s complaint
failed to state a claim upon which relief could be granted
because “the FTR does not require or authorize reim-
bursement of per diem costs for travel between an em-
ployee’s official duty station and his residence, or for
commuting time.” Appellant’s J.A. 15 (citing 41 C.F.R. §
300-3.1 (authorizing reimbursement only for travel be-
tween an official duty station “or other authorized point of
departure” and a “temporary duty location, between two
temporary duty locations, or relocation at the direction of
a Federal agency”)). The Claims Court observed that
Corrigan seeks reimbursement of expenses related to
commuting between his residence in Belfair and his
official duty station in Seattle, not expenses incurred for
official travel. Appellant’s J.A. 15–16. While Corrigan
asserts that a genuine issue of material fact exists regard-
ing the location of his official duty station, his complaint
states that his official duty station is Seattle. We agree
with the Claims Court that Corrigan seeks reimburse-
8 CORRIGAN v. UNITED STATES
ment for commuting expenses that may not be reim-
bursed under the statutes and regulations cited in his
complaint. Because Corrigan’s claims fail to state a
plausible claim for relief, the Claims Court did not err in
dismissing Corrigan’s complaint. 3
We have considered all of Corrigan’s other arguments
and find them to be unpersuasive.
CONCLUSION
For the foregoing reasons, we affirm the decision of
the Claims Court.
AFFIRMED
COSTS
No Costs.
3 The Claims Court did not err by referencing agen-
cy opinions or regulations in its opinion—the so-called
“extrinsic evidence” complained of by Corrigan. In addi-
tion, we agree with the government that the Claims Court
had authority to dismiss the complaint even though the
government’s Rule 12(b)(6) motion first appeared in its
reply brief, given that Corrigan had an opportunity to
respond by filing a surreply before the Claims Court
decided the motion. See, e.g., Anaheim Gardens v. United
States, 444 F.3d 1309, 1315 (Fed. Cir. 2006) (“The trial
court may dismiss sua sponte under Rule 12(b)(6), provid-
ed that the pleadings sufficiently evince a basis for that
action.”).