Judges: Stephen S. Schwartz
Filed: Jun. 22, 2021
Latest Update: Jun. 23, 2021
In the United States Court of Federal Claims
No. 21-917C
(Filed: June 22, 2021)
NOT FOR PUBLICATION
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JEFFREY S. BROCKMEIER, *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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OPINION AND ORDER
Jeffery S. Brockmeier — representing himself1 — seeks lost wages and
damages allegedly resulting from Defendant’s breach of a pre-employment agreement
to appoint him on a certain date. Compl. at 3 (ECF 1). Defendant moved to dismiss
under RCFC 12(b)(1) and (b)(6).2 The motion to dismiss is GRANTED and Mr.
Brockmeier’s request for alternative dispute resolution is DENIED AS MOOT.
BACKGROUND
Mr. Brockmeier received an official job offer for an attorney-advisor position
with the Department of the Army on August 5, 2020. Compl. at 2, Ex. 1.3 The Army
offered a start date of August 31, 2020 and an annual salary of $118,074. Id. He
accepted that day and began planning accordingly. Id. at 2. In reliance on the offer,
he turned down two competing job offers, entered a new lease, and moved his family
into a new home. Compl. Continuation Page. It appears that the Army was aware of
Mr. Brockmeier’s reliance. See Pl.’s Opp. Exhs. 1, 4, 5.
Because the military had recently discharged Mr. Brockmeier, the Army would
have needed a “180 day waiver” to appoint him to a civilian role on the parties’
planned timeline. Id.; see 5 U.S.C. § 3326 (limiting appointment of former service
members within 180 days after retirement, except with prior authorization). All
1 Mr. Brockmeier, though proceeding pro se, is an attorney. See Compl. Ex. 1 (attorney-advisor offer).
2 See Def.’s Mot. to Dismiss (ECF 9); Pl.’s Opp. and Req. for ADR (ECF 10); Def.’s Reply (ECF 11).
3 When resolving a motion to dismiss the Court accepts all well pleaded facts as true. Call Henry, Inc.
v. United States, 855 F.3d 1348, 1354 (Fed. Cir. 2017). The Court also relies on documents attached to
the Complaint and to Mr. Brockmeier’s opposition to the government’s motion to dismiss. See Indium
Corp. of Am. v. Semi-Alloys, Inc.,
781 F.2d 879, 884 (Fed. Cir. 1985) (“In deciding such a Rule 12(b)(1)
motion, the court can consider … evidentiary matters outside the pleadings.”).
parties knew securing a waiver might delay Mr. Brockmeier’s appointment. See
Compl. Continuation Page. Still, the Army offered — and Mr. Brockmeier accepted
— the job because both thought the Army received approval to use a Covid-19 direct-
hire authority to bypass the waiver.
Id.
But a week before Mr. Brockmeier’s start date, the Army told him its direct-
hire approval was issued in error: They would both need to wait for the 180-day
waiver before he could start. The Army could not tell him how long the delay might
last. Because of the error, Mr. Brockmeier had to withdraw from his savings plan,
collect unemployment, and find another job. The Army only extended a second offer
on December 2, 2020 — two days after Mr. Brockmeier started another job. Id.
Mr. Brockmeier seeks $35,000 for breach of contract/lost wages plus costs.
Compl. at 3. He also pleaded emotional distress and reputational harm. See Compl.
Continuation Page.
DISCUSSION
Mr. Brockmeier’s claim is based on alleged breach of an “official agreement to
appoint [him] on a particular day[.]” Pl.’s Opp. at 4. For the Court to have jurisdiction,
the alleged “agreement” must have constituted an express or implied-in-fact contract
with the federal government. See Hercules, Inc. v. United States, 516 U.S. 417, 423
(1996).4 Actual or implied-in-fact contracts with the government require proof of
“(1) mutuality of intent; (2) consideration; (3) lack of ambiguity in offer and
acceptance; and (4) actual authority on the part of the government’s representative
to bind the government in contract.” Kam-Almaz v. United States,
682 F.3d 1364,
1368 (Fed. Cir. 2012); see also Trauma Service Grp v. United States,
104 F.3d 1321,
1325 (Fed. Cir. 1997) (“The general requirements for a binding contract with the
United States are identical for both express and implied contracts.”). Mr. Brockmeier
must plead each of those elements in order to state a claim. Perry v. United States,
149 Fed. Cl. 1, 20 (2020), appeal filed, No. 20-2084 (Fed. Cir. July 28, 2020).
The problem with Mr. Brockmeier’s theory is that his government job — like
most government positions — would have been by appointment, not contract. 5 U.S.C.
§ 2105(a)(1) (“‘employee’, … means … an individual who is — (1) appointed in the
civil service[.]”); see Hamlet v. United States, 63 F.3d 1097, 1101 (Fed. Cir. 1995)
(citing Chu v. United States,
773 F.2d 1226, 1229 (Fed. Cir. 1985))). The statute that
delayed his start date, 5 U.S.C. § 3326, expressly refers to appointments. See Army
& Air Force Exch. Serv. v. Sheehan,
456 U.S. 728, 736 (1982) (determining that
respondent’s position was appointed based on regulatory language that “connote[d]
4 A contract implied in fact is an agreement “founded upon a meeting of minds, which, although not
embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light
of the surrounding circumstances, their tacit understanding,’” Hercules,
516 U.S. at 424 (quoting
Baltimore & Ohio R. Co. v. United States,
261 U.S. 592, 597 (1923)). This Court’s jurisdiction does not
extend to contracts implied in law, that is, circumstances where “there is no actual agreement between
the parties, but the law imposes a duty in order to prevent injustice.” Int’l Data Prods. Corp. v. United
States,
492 F.3d 1317, 1325 (Fed. Cir. 2007); see also United States v. Mitchell,
463 U.S. 206, 218 (1983)
(citing Merritt v. United States,
267 U.S. 338, 341 (1925)).
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appointment rather than contract”). His offer letter notes that his “appointment may
be subject to a suitability or fitness determination[.]” Compl. Ex. 1 (emphasis added).
His right to government employment was thus based not on any contract or
agreement with the United States, but on the statutes and regulations governing the
appointment. See Butler v. Com. of Pennsylvania, 51 U.S. 402, 416 (1850). The
government representatives he dealt with therefore lacked “actual authority” to agree
to appoint him on the day he expected. Kam-Almaz, 682 F.3d at 1368. As a matter of
law, he therefore cannot plead an element of his claim.
That result — assuming the truth of Mr. Brockmeier’s allegations — is
undeniably harsh. Though the “distinction between appointment and contract may
sound dissonant in a regime accustomed to the principle that the employment
relationship has its ultimate basis in contract, the distinction nevertheless prevails
in government service.” Adams v. United States, 391 F.3d 1212, 1221 (Fed. Cir. 2004)
(citations and internal quotations omitted) (quoting Kizas v. Webster,
707 F.2d 524,
535 (D.C. Cir. 1983) (itself quoting Riplinger v. United States,
695 F.2d 1163, 1164
(9th Cir. 1983))). Thus, “courts have consistently refused to give effect to government-
fostered expectations that, had they arisen in the private sector, might well have
formed the basis for a contract or an estoppel.”
Id. (quoting Kizas,
707 F.2d at 535).
Mr. Brockmeier makes two main points in response. First, conceding that he
had no contractual right to the position itself, Pl.’s Opp. at 7, he argues that a pre-
employment “agreement to appoint [him] on a particular day” in the future is
distinguishable from an agreement to appoint him. Id. at 8. But that is a distinction
without a difference. Promises of future federal employment (or the terms of such
employment) are not enforceable contracts either. See, e.g., Briddell v. United States,
No. 11-889C,
2012 WL 3268658, at *4 (Fed. Cl. Aug. 10, 2012); Ganse v. United States,
376 F.2d 900, 902 (Ct. Cl. 1967); Riplinger,
695 F.2d at 1165; National Treasury
Employees Union v. Reagan,
663 F.2d 239, 249–50 (D.C. Cir. 1981). If a government
representative cannot bind the government to appoint him at all, it follows that the
representative cannot bind the government to appoint him at a specific time.
Second, he argues that the government is estopped from denying that there
was an implied-in-fact contract. Pl.’s Opp. at 5–7. Specifically, he alleges (1) a promise
“to appoint [him] on a particular day,” id. at 4; (2) an expectation that the promise
would induce action because the Army knew about his situation and expected him to
rely on the appointment date,
id. at 6; and (3) that he “actually relied on the official
offer to [his] detriment,”
id. This is an argument for recovery based on promissory
estoppel, “[r]egardless of how [Mr. Brockmeier] labels the claim in the complaint.”
See Carter v. United States,
98 Fed. Cl. 632, 639 (2011); see also Restatement (Second)
of Contracts § 90 (providing for enforcement of “[a] promise which the promisor
should reasonably expect to induce action … on the part of the promisee … and which
does induce such action”); id. comment a (this type of contract “is often referred to in
terms of ‘promissory estoppel’”). Promissory estoppel is substantively equivalent to a
theory of contract implied in law, and therefore outside this Court’s jurisdiction to
address. See Brenes v. United States,
152 Fed. Cl. 365, 371 (2021) (comparing a
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detrimental reliance argument to “promissory estoppel — which seeks a judicially
enforced performance of a promise[,]” which was “no different than an implied-in-law
contract” (quoting Carter v. United States, 98 Fed. Cl. 632, 638 (2011)).
The negotiations between Mr. Brockmeier and the Army, in short, could not
create a contract. The complaint therefore must be dismissed because the facts, as
asserted, do not entitle Mr. Brockmeier to any legal remedy. Welty v. United States,
926 F.3d 1319, 1323 (Fed. Cir. 2019). Given that Mr. Brockmeier has failed to state a
claim, there is no reason to reach the parties’ arguments concerning the damages to
which he would have been entitled.
CONCLUSION
For the foregoing reasons, Mr. Brockmeier has failed to state a claim upon
which relief may be granted. Defendant’s Motion to Dismiss is GRANTED. The
complaint is DISMISSED and Mr. Brockmeier’s request for alternative dispute
resolution is DENIED AS MOOT.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
s/ Stephen S. Schwartz
STEPHEN S. SCHWARTZ
Judge
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