Stuart Nichols Auld v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STUART NICHOLS AULD,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-1764
______________________
Appeal from the United States Court of Federal Claims
in No. 1:15-cv-00429-RTH, Judge Ryan T. Holte.
______________________
Decided: August 12, 2024
______________________
STUART N ICHOLS AULD, Kansas City, MO, pro se.
J ANA MOSES , Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for defendant-appellee. Also represented by BRIAN M.
BOYNTON, STEVEN J OHN G ILLINGHAM , P ATRICIA M.
MCCARTHY .
______________________
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AULD v. US 2
P ER CURIAM .1
Stuart Nichols Auld appeals the final decision of the
United States Court of Federal Claims (“CFC”) granting
the Government’s motion for summary judgment on Count
I of his complaint and dismissing Count II of his complaint
for lack of jurisdiction. Auld v. United States, 2023 WL
2052343, at *1 (Fed. Cl. Feb. 16, 2023). We affirm.
BACKGROUND
Mr. Auld worked in a temporary capacity for the De-
partment of Commerce from October 1998 until October
2000 before becoming, in June 2009, a realty specialist for
the Bureau of Land Management (“BLM”) in the Depart-
ment of the Interior in a position that was conditioned on
completing a one-year probationary period. Am. Compl. at
2−3, ECF No. 28. When Mr. Auld applied to the realty spe-
cialist position, he “stated he was not a current Federal em-
ployee.” Auld, 2023 WL 2052343, at *1 (citing Mot. for
Summ. J. and Mot. to Dismiss at 2, ECF No. 35).
On May 5, 2009, Mr. Auld signed an “Employment
Agreement” wherein the Government agreed to reimburse
him for “the cost of travel, transportation, and other allow-
able expenses including transportation and storage of
household goods and personal effects” for his “transfer for
duty” from Kansas to Colorado for his BLM position. Id.
The agreement stated that reimbursement would be “in ac-
cordance with the Administrative Expenses Act of 1946
[(“the Act”)], as amended, and under Public Law 89-
516 . . . and regulations issued by the General Services Ad-
ministration.” Id. (citing Compl., Ex. C, ECF No. 1−1; Am.
Compl. at 3).
The Employment Agreement also specifically provided
that Mr. Auld “agree[s] to remain in the Federal Govern-
ment service for twelve (12) months following the effective
1 Circuit Judge Newman did not participate.
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AULD v. US 3
date of transfer” such that if Mr. Auld “fail[ed] to complete
the above agreement, any moneys expended by the Federal
Government because of such travel, transportation, and
other allowable expenses shall be recovered from [Mr.
Auld] as debt due the United States, unless [Mr. Auld] may
become separated from the Government for reasons beyond
[Mr. Auld’s] control.” Id. (citing Compl., Ex. C; Am. Compl.
at 4).
To cover Mr. Auld’s employment-related travel ex-
penses per the Employment Agreement, the Government
provided him with a credit card and gave him “oral instruc-
tions of how to handle personal or individual charges.” Id.
at *2. The Government, before the completion of Mr. Auld’s
one-year probationary period, terminated his employment
for “performance and conduct-related matters,” including
violations of the credit card policy and “fail[ure] to follow
his supervisor’s instructions on multiple occasions.” Id.
(citing July 16, 2020 Order at 2, ECF No. 98). The Govern-
ment deducted the relocation expenses that it alleged Mr.
Auld owed back from his final paycheck after termination.
Id.
Mr. Auld’s initial complaint in the CFC was amended
on April 25, 2016. Id. Mr. Auld’s amended complaint re-
cited two counts: “(1) ‘The BLM breached its employment
agreement with Mr. Auld’; and (2) ‘BLM’s actions were ar-
bitrary and capricious.’” Id. (quoting Am. Compl. at 8−10).
For relief on the first count, Mr. Auld sought recovery of
the amount deducted from his final paycheck. For relief on
the second count, Mr. Auld sought restoration to his former
realty specialist position. Suppl. App. 159. The Govern-
ment filed a joint motion for summary judgment on Count
I and motion to dismiss on Count II on July 13, 2016. Auld,
2023 WL 2052343, at *2 (citing Mot. for Summ. J. and Mot.
to Dismiss). On July 29, 2019, Mr. Auld’s case was reas-
signed from Judge Victor J. Wolski to Judge Ryan T. Holte.
Id. (citing Order Reassigning Case, ECF No. 78).
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AULD v. US 4
The CFC then denied as futile or stayed multiple sub-
sequent motions from Mr. Auld pending the resolution of
the Government’s motion for summary judgment and to
dismiss. Id. at *2−3.
The CFC resolved the Government’s motion for sum-
mary judgment on Count I and to dismiss Count II of
Mr. Auld’s complaint on February 16, 2023, granting the
Government’s motion on both counts. Id. at *10.
The CFC first considered the Government’s motion for
summary judgment on Count I—Mr. Auld’s allegation that
the government breached the Employment Agreement—
and found that the Employment Agreement, when read in
conjunction with the incorporated Act, was “a valid con-
tract for moving expenses subject to [Mr. Auld’s] one year
of service.” Id. at *6−8. The CFC noted that the Employ-
ment Agreement “directly incorporates and references the
language of § 5724(i)” of the Act, which covers reimburse-
ments for transferring employees, and § 5723, for moving
expenses for new employees, which has language that is
“virtually identical to § 5724(i).”2 Id. at *7.
2 The pertinent language in the Employment Agree-
ment, with the language that is substantially similar to
that in the Act emphasized, is as follows:
I agree to remain in the Federal Government service for
twelve (12) months following the effective date of trans-
fer, with the understanding that the cost of travel,
transportation, and other allowable expenses including
transportation and storage of household goods and per-
sonal effects will be paid by the Government.
Reimbursement will be in accordance with the Admin-
istrative Expenses Act of 1946, as amended, and un-
der Public Law 89–516, approved July 21, 1966, and
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AULD v. US 5
Evaluating the plain meaning of the Employment
Agreement and the Act, the CFC found that both “ex-
pressly provide [Mr. Auld] must complete a twelve-month
probationary period” for reimbursement and that, there-
fore, “eleven months” of work “does not suffice.” Id. at *8.
The CFC addressed the language excepting the twelve-
month requirement where an employee “become[s] sepa-
rated from the Government for reasons beyond [the em-
ployee’s] control and acceptable to the Bureau or Office
concerned” and found that the conduct-related matters and
the misuse of the government credit card that were the ba-
ses of Mr. Auld’s termination were within his control. Id.
Thus, the CFC found that there was no genuine dispute as
to any material fact supporting the conclusion that the
Government was entitled to summary judgment to recover
the travel funds it advanced to Mr. Auld. Id.
The CFC then turned to the question of whether it
should dismiss Count II of Mr. Auld’s complaint for a lack
of jurisdiction since his challenge related to BLM’s person-
nel decision to terminate his employment. Id. at *8. The
CFC explained that under the Civil Service Reform Act of
1978 (“CSRA”) and the Supreme Court’s decision in United
States v. Fausto, the Merit Systems Protection Board
(“MSPB”) has exclusive jurisdiction to review an agency’s
regulations issued by the General Services Administra-
tion.
In the event I fail to complete the above agreement, any
moneys expended by the Federal Government because
of such travel, transportation, and other allowable ex-
penses shall be recovered from me as a debt due to the
United States, unless I may become separated from the
Government for reasons beyond my control and accepta-
ble to the Bureau or Office concerned.
Id. at *6−7.
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AULD v. US 6
personnel decision, and that “the CSRA does not extend ad-
ministrative or judicial review to non-preference members,
such as probationary employees.” Id. at *9 (citing 484 U.S.
439, 443, 454 (1988)). The CFC then reasoned that, since
Mr. Auld signed a termination letter confirming that he
“‘was a probationary employee with no statutory right to
appeal his termination’ except to the MSPB if [he] suspects
‘his termination was the result of political reasons or due
to his marital status,’” the CFC did not have jurisdiction
over his claim. Id. (citing Mot. for Summ. J. and Mot. to
Dismiss). Mr. Auld timely appealed the CFC decision to
this Court.
D ISCUSSION
This Court reviews the CFC’s summary judgment deci-
sion de novo, applying the same standard as the CFC: sum-
mary judgment should be granted when “there are no
genuine issues of material fact and the moving party is en-
titled to judgment as a matter of law.” Aviation & Gen. Ins.
Co. v. United States, 882 F.3d 1088, 1093 (Fed. Cir. 2018);
RCFC 56(a).
This Court reviews the CFC’s dismissal of a claim for
lack of jurisdiction de novo and reviews jurisdictional find-
ings of fact for clear error. John R. Sand & Gravel Co. v.
United States, 457 F.3d 1345, 1353−54 (Fed. Cir. 2006),
aff’d, 552 U.S. 130 (2008).
This Court possesses jurisdiction over this appeal pur-
suant to 28 U.S.C. § 1295(a)(3).
We affirm the CFC’s grant of summary judgment on
Count I of Mr. Auld’s complaint because the undisputed
facts support the finding that the Government did not
breach the Employment Agreement. The express terms of
the Employment Agreement and incorporated Act make
clear that the Government’s agreement to reimburse
Mr. Auld for relocation expenses was contingent on him
“remain[ing] in the Federal Government service for twelve
(12) months following the effective date of transfer.” Suppl.
App. 48 (Employment Agreement); 5 U.S.C. §§ 5724(i),
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AULD v. US 7
5723(b). Mr. Auld does not contest the fact that he served
less than a year with BLM. Am. Compl. at 1 (averring that
Mr. Auld was employed by BLM from June 8, 2009, until
April 30, 2010). Additionally, Mr. Auld provided his signa-
ture to acknowledge receipt of his termination letter that
explained that he had been terminated “during [his] proba-
tionary period.” Suppl. App. 145; Auld, 2023 WL 2052343,
at *4. Further, Mr. Auld’s own contentions under Count II
in his complaint refer to his status as a probationary em-
ployee. See, e.g., Am. Compl. at 9 (“BLM did not utilize the
probationary period to evaluate Mr. Auld’s fitness for gov-
ernment service when it terminated Mr. Auld for violating
a credit card policy.”). Thus, there is no dispute of material
fact that Mr. Auld failed to serve the twelve-month proba-
tionary period required by the Employment Agreement to
entitle him to relocation expenses, and summary judgment
in favor of the Government on Count I was proper.
We also affirm the CFC’s dismissal of Count II of
Mr. Auld’s complaint because his contention that BLM’s
actions were arbitrary and capricious relate only to BLM’s
personnel decision evaluating his candidacy for employ-
ment, which falls under the exclusive jurisdiction of the
MSPB. See Fausto, 484 U.S. at 454 (“[W]e find that under
the comprehensive and integrated review scheme of the
CSRA, the [CFC] (and any other court relying on Tucker
Act jurisdiction) is not an ‘appropriate authority’ to review
an agency’s personnel determination.”). See also Read v.
United States, 254 F.3d 1064, 1066 (Fed. Cir. 2001) (“[O]nly
the [MSPB], not the [CFC], is authorized to review remov-
als of federal employees.”); 5 U.S.C. § 1204. Thus, Mr. Auld
failed to establish the CFC’s subject matter jurisdiction
and the CFC properly dismissed Count II.
AFFIRMED
COSTS
No costs.
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