Pate v. United States ( 2021 )

In the United States Court of Federal Claims
No. 20-266
Filed: March 2, 2021
JESSICA PATE,
Keywords: Repayment of
Plaintiff, Employee Training Costs;
Continued Service Agreement;
v.
Summary Judgment; Illegal
THE UNITED STATES, Exaction; Subject Matter
Jurisdiction
Defendant.
Jessica Pate, pro se, Plaintiff.
Stephanie A. Fleming, Trial Attorney, Jeffrey Bossert Clark, Acting Assistant Attorney General,
Robert E. Kirschman, Jr., Director, and Eric P. Bruskin, Assistant Director, Commercial
Litigation Branch, Civil Division, United States Department of Justice, with whom were Lindsay
Gower and Kelly J. Burns, Office of General Counsel, United States Department of Veterans
Affairs, Washington, D.C., Attorneys for Defendant.
MEMORANDUM OPINION AND ORDER
TAPP, Judge.
In this suit, pro se Plaintiff Jessica Pate seeks recovery of monies withheld from her
salary by the United States Department of Veterans Affairs (“VA”), her former employer, to
recoup expenditures for training while she was an intern at the VA. Plaintiff seeks partial
summary judgment on the first Count of her Complaint, an illegal exaction claim. She further
claims in her second Count that in pursuing collection through a payroll deduction, the VA
falsely claimed to the U.S. Treasury that the debt was enforceable. The United States filed a
Cross-Motion for Summary Judgment and a Partial Motion to Dismiss. For the reasons set forth
below, the Court GRANTS the United States’ Motion for Summary Judgment and its Partial
Motion to Dismiss and DENIES Ms. Pate’s Motion for Partial Summary Judgment.
I. Background
The VA Acquisition Academy (“VAAA”) trains acquisition professionals in support of
the VA’s mission, and was created in response to increased government outsourcing of goods
and services requiring better oversight of acquisition. Veterans Affairs Acquisition Academy,
(https://www.acquisitionacademy.va.gov). The Job Announcement for Ms. Pate’s Contract
Specialist position describes it as a “developmental position” in the two-year Acquisition Intern
Program preparing participants for professional certification in contracting. (Def.’s Cross-Mot.,
ECF No. 19, Attach. 19-1, Ex. 2 at 2). Ms. Pate began an internship as a Contract Specialist with
the VA on June 30, 2013. (Compl. at 3, ECF No. 1). On June 24, 2013, she signed a Continued
Service Agreement (“CSA”) with the VAAA agreeing that after completion of VAAA training,
she would serve in the VA for three years. (Compl. Ex. 3 at 2). The CSA specified that her
“Period of Obligated Service” after completion of training would run from August 6, 2015 to
August 5, 2018. (Id.). The CSA also contained a clause stating that in the event Ms. Pate left the
VA to work in another Federal agency before the period of obligated service expired, she would
“give the VA Acquisition Academy Acquisition Internship School Vice-Chancellor at least 30
calendar days advance written notice” so that a decision on reimbursement of training costs
could be made. (Id.). That clause went on to state that in the event Ms. Pate failed to give the
advance notice, she agreed to reimburse the VA for her training costs. These unambiguous
provisions are critical to resolution of Ms. Pate’s claims.
On August 6, 2015, upon completion of her internship training at the VAAA, Ms. Pate
began working at the VA’s Strategic Acquisition Center (“SAC”) in Frederick, Maryland.
(Compl. at 3). On February 2, 2016, she accepted an offer of employment as a Contract
Specialist with the U.S. Defense Logistics Agency (“DLA”), in Huntsville, Alabama. (Def.’s
Cross-Mot., Attach. 19-1, Ex.4 at 10). More than two years before her obligated service period
ended, she transferred from her VA job to commence work at DLA on April 3, 2016. (Compl. at
5). Ms. Pate did not inform the VAAA of her departure from VA employment. (Def.’s Cross-
Mot. at 11).
While conducting an internal review, the VAAA learned of Ms. Pate’s transfer and after
calculating her outstanding debt, sent two notification letters to her in August 2018 and
September 2018 at her home address on record at the VA. (Def.’s Cross-Mot., Attach. 19-1, Ex.
9 at 29–34). Ms. Pate did not update her address after leaving VA employment. (Def.’s Cross-
Mot. at 10). Thus the VAAA notification letters did not reach her. Def.’s Cross-Mot., Attach.
19-1, Ex. 10 at 35. Consequently, Ms. Pate did not respond to the debt notices and in April 2019,
at the VA’s request, the Treasury began to offset her biweekly pay to recover the debt, which the
VA calculated to be $11,049.97. (Compl. at 5). In May 2019, Ms. Pate submitted a letter to the
VA disputing the debt. (Def.’s Cross-Mot., Attach. 19-1, Ex. 10 at 35). In September 2019, she
requested a hearing. (Def.’s Cross-Mot., Attach. 19-2, Ex. 11 at 1). To accommodate the hearing
process, the collection of Ms. Pate’s debt was suspended in October 2019 after collection of
$3,959.43, and the balance of $7,870.64 remains outstanding. (Def.’s Cross-Mot., Attach. 19-2,
Ex. 13 at 5; Def.’s Cross-Mot. at 11). The VA subsequently issued a hearing decision affirming
the validity of Ms. Pate’s debt, “due to the fact that you voluntarily left employment with the VA
before fulfilling your service agreement and you did not provide VAAA with the agreed upon
notice.” (Def.’s Cross-Mot., Attach. 19-2, Ex. 13 at 2–4). This litigation followed.
Ms. Pate sets forth two Counts in her Complaint. Count I alleges that the VA’s collection
is an illegal exaction in violation of Section 4108(b) of the Government Employees Training Act
(“GETA”), 5 U.S.C. § 4100 et. seq. (Compl. at 6–7). GETA gives Federal agencies general
authority for development and administration of their employee training. 5 U.S.C. § 4103. In
Count II, Ms. Pate alleges that due to the illegal exaction, the VA made “materially false
certifications” to the Treasury that the debt was legally enforceable when it arranged for
collection from her federal salary. (Compl. at 7–8).
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II. Analysis
In support of her illegal exaction claim, Ms. Pate relies principally upon the notice
requirement in Section 4108(b) of GETA. (Id. at ¶¶ 27, 28, 31, 32). Section 4108(a)(1) of GETA
provides that Federal employees who receive training from their agency must agree in writing to
continued service after training for a period “at least equal to three times the length of the
training period.” Section 4108(a)(2) provides that should the employee leave before that
obligation has been met, he or she must agree to pay back his training expenses. Section 4108(b)
provides that:
The payment agreed to under subsection (a)(2) of this section may not be
required of an employee who leaves the service of his agency to enter into
the service of another agency in any branch of the Government unless the
head of the agency that authorized the training notifies the employee before
the effective date of his entrance into the service of the other agency that
payment will be required under this section.
Ms. Pate argues that the VA did not meet the notice requirement of Section 4108(b) because at
the time of her decision to leave the VA she was not notified that her service obligation would be
enforced. (Pl.’s Mem. in Supp. of MPSJ (“Pl.’s Mem.”) at 15, ECF No. 15). She maintains that
both her direct employer SAC and VA Human Resources were aware of her planned departure
and did not mention a service obligation. (Id. at 19). She points to further support for this in part
of the transfer paperwork, Standard Form 75 (SF75), “Request for Preliminary Employment
Data.” In the SF75 her new employer, DLA, requested Ms. Pate’s employment information from
VA Human Resources. (Def.’s Cross-Mot. at 4). In completing that form, a VA Human Resource
Specialist answered “No” to Question 60-A, “Does Employee Have an Obligation to Remain in
Government Service for a Specific Period Because of Training Received?” (Pl.’s Decl. in Supp.
of MPSJ, Ex. 7 at 3, ECF No. 16). Ms. Pate argues that she was entitled to rely on this in
assuming she would have no service obligation. (Pl.’s Mem.at 9–10). With respect to the CSA
she signed when she began employment, Ms. Pate maintains that the CSA’s requirement to give
notice to her employer before leaving violates the notice requirement in GETA because it puts
responsibility for notice on the employee rather than on the employing agency. (Id. at 21). She
also argues that VAAA had no lawfully delegated authority to exercise discretion on
enforcement or to provide notice of collection, and in any event the collection notices provided
by VAAA were untimely. (Id. at 22).
The United States responds that the VA’s collections were made pursuant to a lawful
service agreement that was consistent with GETA policy and not in violation of any statutes or
regulations. The United States argues that the notice of service obligation enforcement required
by Section 4108(b) of GETA was provided to Ms. Pate by the terms of the CSA she signed at the
commencement of employment. (Def.’s Cross-Mot. at 11–12). As to Ms. Pate’s argument that
she relied on VA Human Resources’ mistaken representation of her service obligation in the
SF75, the United States points out that the SF75 was not prepared for her but for her new
employer DLA, and that in any event, Ms. Pate did not see it until she had already accepted the
position there. (Def.’s Reply at 13, ECF No. 23). Further, the United States urges that this error
should not affect Ms. Pate’s debt because her CSA specifically required that reimbursement
decisions would be made by the VAAA School Vice-Chancellor. (Compl. Ex.3 at 2). Finally, the
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United States maintains that the Secretary of the VA has delegated notice authority under Section
4108 to the “official authorizing training.” (Def.’s Cross-Mot. at 20–21). And that authority is
held by VAAA in this instance because it has “sole ownership and management over the training
program and corresponding continued service agreements” for interns. (Def’s Reply at 9, quoting
VAAA School Vice-Chancellor, Decl., Ex. 19-18 at 2).
In this case, both parties seek summary judgment as to the legality of the VA’s collection
of training costs from Ms. Pate. Pursuant to RCFC 56, a party is entitled to summary judgment
when there is “no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” RCFC 56(a). A “genuine” dispute is one that “may reasonably be resolved in
favor of either party,” and a fact is “material” if it might significantly alter the outcome of the
case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, at 248, 250 (1986). When, as in this case,
both parties move for summary judgment, ‘“the court must evaluate each party’s motion on its
own merits, taking care in each instance to draw all reasonable inferences against the party
whose motion is under consideration.’” Abbey v. United States, 99 Fed. Cl. 430, 436 (2011),
(quoting Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)).
There are no genuine disputes of material facts relating to Ms. Pate’s illegal exaction claim, and
therefore it is ripe for review. (Pl’s Mem. at 4; Def’s Cross-Mot. at 11).
To prove that the VA’s collections were an illegal exaction (Count I), Ms. Pate must
show that the money “‘was improperly paid, exacted, or taken from the claimant in contravention
of the Constitution, a statute, or a regulation.’” Aerolineas Argentinas v. United States, 77 F.3d
1564, 1572–73 (Fed. Cir. 1996) (quoting Eastport S.S. Corp. v. United States, 372 F.2d 1002,
1007 (Ct. Cl. 1967)). Here, Ms. Pate has not shown that the VA’s collection actions violated the
notice requirement of GETA, despite an impressive effort. It is clear from the record, and Ms.
Pate does not dispute, that she signed the CSA prior to commencement of her training. The CSA
sets forth her obligation to serve in the VA for a period of three years following completion of
her intern training, as required by Section 4108(a) of GETA. The dates of the period of obligated
service are also delineated in the CSA, and it specifically requires notice to the Vice Chancellor
of VAAA prior to departure from employment. There is no dispute that Ms. Pate did not give the
required notice to VAAA. She also seeks to invalidate the collection as untimely, but cannot
avoid the conclusion that the VAAA’s timing was caused at least in part by her failure to
provide notice that she was departing and her change of address. As the United States points out,
the deferral of collection likely worked to her benefit. It is difficult to sustain Ms. Pate’s
objections when she has taken the benefit of training under the CSA but has not fulfilled her part
of that bargain. See Makowiec v. United States, 137 Fed. Cl. 591, 597 (2018) (“Plaintiff knew
that she had agreed to get the degree, that [the agency] would pay for it, and that she would have
to continue to work for [the agency] for a certain period of time. Given this obligation, the Court
cannot see how the requirement that Plaintiff reimburse [the agency] when she left its employ
prematurely is an illegal exaction.”).Therefore, this Court finds that the VA’s collection in this
case was lawful, and the United States’ Cross-Motion to Dismiss must be GRANTED, while
Ms. Pate’s Motion for Partial Summary Judgment must be DENIED.
Count II of Ms. Pate’s complaint alleges that in applying for deductions from her salary,
the VA has made “materially false certifications” to the U.S. Treasury that the debt was
enforceable, in violation of Treasury regulations. (Compl. at 8). The United States moves to
dismiss this Count for lack of subject matter jurisdiction under RCFC 12(b)(1). The United
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States argues that Ms. Pate “does not cite any ‘separate source of substantive law that creates the
right to money damages’” necessary to invoke this Court’s jurisdiction, which is founded on the
Tucker Act, 28 U.S.C. § 1491. (Def.’s Cross-Mot. at 24 (citing Fisher v. United States, 402 F.3d
1167, 1172 (Fed. Cir. 2005) (en banc)).
When challenged, the burden of establishing subject matter jurisdiction rests with the
plaintiff, who must do so by a preponderance of the evidence. Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.
Cir. 1988). This is true for pro se litigants even though they are often held to a more lenient
standard in meeting other pleading requirements. Henke v. United States, 60 F.3d 795, 799 (Fed.
Cir. 1995). This Court’s jurisdiction to entertain claims and grant relief depends on the extent to
which the United States has waived sovereign immunity. United States v. Testan, 424 U.S. 392,
399 (1976). The Tucker Act does not create any substantive rights enforceable against the United
States for money damages; therefore a separate legal source granting damages must be identified
in order to establish jurisdiction. (Id.). Even though she has strenuously objected to the United
States’ collection actions, Ms. Pate has not met her burden to show any source of money
damages for violation of the regulations she cites. The Court finds that for that reason it lacks
subject matter jurisdiction over Count II, and it must GRANT the United States’ Partial Motion
to Dismiss Count II pursuant to RCFC 12(b)(1).
III. Conclusion
For the reasons set forth above, the Court DENIES Ms. Pate’s Motion for Partial
Summary Judgment (ECF No. 14) and GRANTS the United States’ Cross-Motion for Summary
Judgment (ECF No. 19). In addition, the Court GRANTS the United States’ Partial Motion to
Dismiss Count II (Id.). The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
s/ David A. Tapp
DAVID A. TAPP, Judge
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