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Weber v. United States

U.S. Court of Appeals, Federal Circuit


February 05, 1999

CALVIN J. WEBER, PLAINTIFF-APPELLANT,
v.
UNITED STATES, DEFENDANT-APPELLEE.

Before Michel, Clevenger, and Gajarsa, Circuit Judges.

The opinion of the court was delivered by: Per Curiam.

Calvin J. Weber appeals from the decision of the United States Court of Federal Claims dismissing two counts of his complaint for failure to state a claim under United States Court of Federal Claims Rule (RCFC) 12(b)(4), and the other counts for want of jurisdiction under RCFC 12(b)(1). We affirm.

I.

Mr. Weber was a civilian employee of the U.S. Army holding a position requiring a security clearance. His service was terminated on June 11, 1993, because his security clearance had been revoked. In the ensuing years, Mr. Weber has sought unsuccessfully to establish that his security clearance was improperly revoked, that his termination was unlawful as it affected him, and that others violated the law in the course of events that led to his removal.

In the instant case before the Court of Federal Claims, Mr. Weber asserted that he was entitled to compensation under the Severance Pay Act, 5 U.S.C. § 5595(b) (1994), and to excess commuting costs under the mileage allowance statute, 5 U.S.C. § 5704 (1994).

Severance pay is available for federal employees who are involuntarily separated from service, unless they have been removed for cause on charges of misconduct, delinquency, or inefficiency. See 5 U.S.C. § 5595(b), (c) (1994). Certain official travel costs of federal employees may be compensated under 5 U.S.C. § 5704, provided that the mode of transportation is authorized or approved as more advantageous to the government. See 5 U.S.C. § 5704(a)(1) (1994).

II.

The Court of Federal Claims dismissed Mr. Weber's claim for severance pay on the ground that it lacked jurisdiction to determine whether Mr. Weber had been removed for misconduct, delinquency or inefficiency. The court correctly noted that the Merit Systems Protection Board, not the Court of Federal Claims, is authorized to answer that question. Since Mr. Weber's claim for severance pay cannot proceed unless he can show that his removal was not for misconduct, delinquency or inefficiency, he has failed to state a claim upon which relief can be granted in the Court of Federal Claims.

The Court of Federal Claims dismissed Mr. Weber's claim for excess commuting costs (those purportedly caused by an alleged wrongful assignment of Mr. Weber from one worksite to another) on two grounds. First, the court held that the mileage allowance statute is not intended to serve as a reimbursement source for commuting costs. We agree with that Conclusion, as the statute nowhere speaks of commuting costs. Instead, the statute is concerned with costs incurred by federal employees when using personal vehicles while on government business. Second, because Mr. Weber's claim for excess commuting costs hinges on his claim that he was improperly detailed to the site that gave rise to the alleged increased commuting costs, the court held, correctly, that it had no jurisdiction to decide whether the personnel action giving rise to the detail to the other worksite was improper. Again, that is a matter within the jurisdiction of the Merit Systems Protection Board. We also agree that this ground for dismissing the claim for excess commuting costs is correct.

Finally, the Court of Federal Claims dismissed various charges of wrongdoing alleged by Mr. Weber, for want of jurisdiction. While it is not entirely clear from Mr. Weber's brief in this court whether he appeals from the dismissals for want of jurisdiction, to the extent he does so, we affirm the decision of the Court of Federal Claims for the reasons stated in its thorough opinion.

III.

For the foregoing reasons, we affirm the decision of the Court of Federal Claims dismissing Mr. Weber's complaint.

19990205


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