Chattler v. United States

CHATTLER, Plaintiff-Appellant, Julie

UNITED STATES

State, Defendants-Appellees.

No. 2010-1066. Appeals,

United States Court of

Federal Circuit.

Jan. En

Rehearing Banc Denied

March 2011.*

* Judge ap- peal. Circuit Newman would rehear Sargent, Sargent, H. Walter H.

Wаlter CO, P.C., argued for Springs, of Colorado were On the brief plaintiff-appellant. Carey, Hagens Berman Sobol Robert B. Phoenix, AZ; E. LLP of Shana Shapiro CA; Scarlett, E. Berkeley, Megan Firm, of Carey Law Colorado Waples, Springs, CO. Abate, Attorney, Appel- Trial

Michael P. Staff, Division, United States late Civil DC, Justice, Washington, defendants-appellees. With argued for West, Assis- Tony him on the brief were General, Michael S. Attorney tant Raab, Attorney. NEWMAN, LINN, Dyk,

Before Judges. Circuit Opinion Hemisphere for the court filed Circuit issued the Western Travel implementing policy. Initiative Dissenting opinion LINN. filed These Judge developments greatly increased the de- NEWMAN. Judge Circuit passports. mand for In an attempt LINN, Judge. Circuit рersons accommodate with urgent needs (“Chattier”) appeals Julie Chattier demand, passports for in the face of this on grant judgment pleadings of Department pro- the State established District Court United States gram for expedited processing of certain in Northern District of California favor of passports, by expedite to be funded fees. defendants, Department and United States availability posted of this service was (collectively, “government” of State Department’s on the State website and set “Department”), implied that no contract passport application forth in the form. government was formed between the and appliеd Chattier for a passport on June expedited processing Chattier for of her 11, 2007. The passport application form in passport application exchange for a $60 5(b) completed she provision included re States, expedite fee. Chattler v. United lating expedited to processing stating: (N.D.Cal. 2008) 5, No. 07-CV-04040 June “Expedited requests processed in (“Contract Opinion”). ap Chattier also workdays three passport at a peals grant summary of in judgment agency. The additional fee for favor of the it did not services is Decl. of Ann Barrett $60.” (2007)1 § failing violate C.F.R. 51.63 Supp. of Def.’s Mot. to Dismiss Chatt automatically expedite refund Chattler’s States, ler v. United No. 07-CV-04040 fee. Chаttler v. United No. 07- (filed 9, 2007), (“Bar Oct. ECF 10-2 No. (N.D.Cal. (“Sum 2009) July CV-04040 ”). rett Decl. paid Chattier the additional mary Judgment”). Because the district fee. The passport agency received her court in determining did not err that no application along with the expedite fee on contract was formed and that no automatic 19, 2007, June August but due, refund was this court affirms. yet Chattier had passport. not received her Chattier submitted a second

Background person, and passport received her in time to fulfill her travel plans. undisputed After the It is September events of Con expedite that Chattler’s first gress request was Intelligence enacted the Reform and processed days, within three and that Terrorism Prevention Act of Pub.L. she is expedite entitled to a refund of her 108-458, 118 (Dec. 2004). No. Stat. 3638 fee. Rather than requesting a refund of 7209(b)(1) required Section of that Act fee, response and in govern to the Department State Department and the ment’s failure to good expedit make on its Security Homeland develop plan re ed service program, Chattier initiated legal quiring anyone entering into the United action. States, including those entering from Can

ada, Mexico, Caribbean, and the present Specifically, brought Chattler2 an action passport. valid Department State in district court asserting a Little Tucker §§ 1. All citations to 22 51.63 and 51.66 similarly behalf of herself and all others situ- Regulations ated, are to the paid in force in 2007. expedit- who an extra fee to secure processing passports ed of their and whose styled complaint passports processed her as a were not "class within the re- pursuant quired three-day period action to Federal Rule [sic] of Civil or were not delivered 23(a) 23(b)(2) 23(b)(3) promised Procedure Compl. within the time.” Chatt- 1346(a)(2) jurisdiction The district court had under § under 28 U.S.C. Act claim 1346(a)(2), 28 U.S.C. and this court has pro- contract. She asserted breach 1295(a)(2). jurisdiction under U.S.C. 5(b) application was of the vision offer, accepted by paying the which she Discussion fee, and that the expedite $60 by failing resulting contract breached Regulatory I. Claims days. three her within applica- At the time Chattier filed her also asserted She 51.63(c) tion, section of Title offer on the made a second Regulations of Federal stated: “The Code her that she would receive State’s website passport expedite fee will be refunded “in about 3 Weeks.” completed passport Passport Agency provide does not offer, too, was contended that She requested expedite processing as defined fee, by paying expedite accepted $60 51.66(b) expe- 51.66.” Section defined the contract was breached “completing processing processing dited three to deliver her within failure days commencing within 3-business when brought regulatory also a weeks. Chattier application Passport Agen- reaches a government had alleging claim cy.... processing The will be considered in failing 51.63 to violated completed ready when the to automatically and expedite her fee refund picked up by applicant be or is mailed her request part, a on her when without applicant.” to the The con- expe- receive passport application did not a cedes that Chattier is entitled to complaint, In her Chatt- processing. dited expedite gov- of her fee because the $60 consequential originally asked for “all iеr her application ernment failed ... not to exceed special damages days. within business The issue is three $10,000 any based on both individual” unambiguously re- whether Section 51.63 theory regu- and the asserted her contract quires government automatically that the violation, waived latory explicitly but later refund, govern- or whether the provide Br. any right damages Reply over $60. can, regulations, ment consistent with the claim), 20- Pl.-Appellant (regulatory require applicant to make a refund claims). (contract request obliged before it is to issue the refund. by denying answered The willing- claims and indicated its

Chattler’s grant summary review a We request. ness to refund the fee on regional $60 judgment under thе law of request refused to make such a Chattier Op v. Advanced Med. circuit. Serdarevic (Fed.Cir. as a con- complaint tics, Inc., to have her treated 532 F.3d 2008). request, presumably to avoid ren- structive reviews the The Ninth Circuit novo, her claims moot. The dering summary judgment de “de grant of whether, judgment pleadings viewing moved for on the all evidence in termining nonmoving light Chattler’s contract claims and sum- most favorable to the genuine claim. issues of material mary judgment regulatory party, there are motions fact and the district court correct granted The district court both whether the relevant ‍‌‌‌‌​​​​‌‌​‌​‌‌​‌​​‌‌‌‌‌‌‌​‌‌‌‌‌​​​​‌‌​​​​‌​‌‌‌​‍substantive law.” ly applied appealed. and Chattier action, (filed and the case has this case as a class ler United No. 07-CV-04040 However, not, fact, 7, 2007), Consequently, we been certified. Aug. it does ECF No. certify as a class action. appear do not treat this case that there was motion Div., tifying applicants expe- which received the Presidio Trust Facilities Kraus v. (9th Cir.2009). 1039, 1043-44 processing meaning dite within the of the Instead, the regulation. Department rea- agency’s interpre to the We defer sonably upon requests by relies it is regulation tation of its own unless applicants trigger unsatisfied the [re- with the “plainly erroneous or inconsistent 20:55-21:08, Arg. process.”); fund] Oral Rock & regulation.” Bowles v. Seminole 24:30-24:55, http:// available Co., 410, 414, 65 Sand S.Ct. oralarguments.cafe.uscourts.gov/mp3/2010- (“Sеminole Rock”). (1945) 89 L.Ed. 1700 (“[T]he 1066.mp3 department’s is that view agency “interpretation need not be practice require request] has been its [to by grammati or most natural one best consistently historically way all the Pauley cal or other v. Beth- standards.” Mines, Inc., along.”). Energy U.S. 2524, 115 L.Ed.2d 604 argues interpretation that this preamble is contradicted interprets of State Register implementing Federal Notice requiring before

Section 51.63 as expedited processing rules: will “There be a refund is issued. A statement on the in Department pub- expedited passport pro- of State’s website first situations which lished on 2007 states: June “Travelers cessing completed cannot be within three A) expedited who: Paid the fee for circumstances, $60 days.... appli- In such the B) service and Have reason to believe that cant will be notified and the fee will be they did not receive service 48,998, 48,999 Fed.Reg. refunded.” Department should contact the State to 1994). (Sept. argument Chattler’s is of request Department that the consider a inapposite. phrase The “the fee will be expedite refund of the fee. Customers preamble light refunded” in the no sheds request should submit a written with them meaning phrase, pass- “[t]he number, available, name, passport date port expedite fee in will be refunded” Sec- birth, date(s) place approximate and 51.63; below, tion as discussed “will” doеs they for applied passport their and re- imply automatically.” not “will To the ex- (if ceived applicable). their Mail- preamble tent that the suggests that the ing phone address and number should also Department responsible initiating is for be included.” Decl. of Florence Fultz In process by notifying appli- the refund J., Supp. Def.’s Mot. Of For Summ. Fultz Department’s process cant of the failure to p. Ex. 14 Chattier v. No. expedite request specified her within the (filed 30, 2009), January 07-CV-04040 frames, time not argued Chattier has that added). (emphases ECF No. 111-8 See Thus, she failed to receive such notice. Fees, Expedite Passport also Refund of preamble not does serve to undermine Poliсy Travel.State.Gov and Announce- Department’s interpretation of Section ments, http://www.travel.state.gov/ requiring 51.63 as a refund request. (last passporVppi/refund/refund_3259.html argues next Depart Chattier that 2010) (similar visited Oct. statement interpretation “plainly ment’s is erroneous iteration). current The has regulation.” or inconsistent with the See represented in argu- its brief and at oral Rock, Seminole U.S. ment that long-standing practice its has that argues Chattler the word “will” require request appli- been to from the unambiguously compels cant before a refund is issued. Br. of (“There automatically Def.-Appellees issue a refund to all is not and has process applicants requested never been an automated for iden- who but to re- failed Department’s refund for the failure to ex- regard without expedited processing, ceive gov- refund, was made. The request actually pedite to whether received pre- “will” does not argues that ernment request requirement the refund which procedure scribe simply Department a means for the that the granted, and the refund will be retain undeserved funds. The of a requirement Department State’s responds underreport the statistics to the issu- as a condition request percentages, the true and that the refund with the of a refund is consistent ance request requirement necessary to en- analogy govеrnment’s regulation. sure that refunds are received poli- A retail point. to illustrate this helps proper accept Even if we parties. purchase cy could read: “The difference statistics, validity of factual Chattler’s if another store price refunded parties request failure of some product for less.” advertises reasons, any may be due to number of refunded” reading natural of “will be most government’s unrequested retention of proce- an automatic presuppose does not compel refunds does not the conclusion In- administering the refund. dure imposed the refund stead, wholly policy consistent with a it is im- request requirement as means of to make a requiring a customer retaining than properly the fees rather as suggest, difference. To a refund of the way assuring that a reasonable refunds essentially argues, pro- that these proper parties. are made to the are inconsistent with requirements cedural simply appli- because the word “will” reasons, foregoing For the this court necessary steps take the cant phrase, holds that the “will be refunded” contrary plain to the collect a refund is 51.63(c) of of Section the Code Federal ordinary usage of the word. meaning and Regulations not imply Title does “will again agrees govern- with the This court without further action the be refunded 51.63, In of Section the ment. the context applicant,” require gov- and does not the action, future simply “will” describes word to an automatic refund with- ernment issue of preclude imposition but does not the request by applicant. out a the We thus due. The conditions before such action is grant gov- affirm the district court’s request that a not be made possibility summary judgment motion on ernment’s consequence, a applicant, an and as a regulatory Chattler’s claim. issued, may not be does not make refund arbitrary. Nor withholding the of refunds II. Contract Claims discretionary; action is such grant judgment review a of We (and applicant is made the is a the law of the pleadings under refund) con- entitled tо a regional Corp. circuit. Imation v. Konink that a must and will be is- cedes refund N.V., lijke Philips Elecs. 586 F.3d agency’s interpretation is con- sued. (Fed.Cir.2009). The Ninth Circuit reviews language with the of Section 51.63 sistent pleadings de grant judgment of on erroneous or inconsis- “plainly and is v. Compton novo. School Dist. Unified regulation.” tent with the See Seminole (9th Addison, 598 F.3d Cir. Rock, 65 S.Ct. 1215. 2010). judgment pleadings is “A on appli- refunds have issued to Thousands of if, taking plaintiffs] all of alle proper [the process by initiated the cants who true, defen pleadings [the in its gations request. a Chattier ar- submitting a of judgment to as matter dant] is entitled gues only relatively percent- small are no facts law.” Id. Because there age applicаnts of who were entitled to processing, you may request expedited of whether a contract dispute, question question Expedited requests pro- of law. Trauma service. was formed is States, 104 v. F.3d Group workdays United cessed in three at a Serv. (Fed.Cir.1997). 1321, 1325 passport agency. The additional fee for Barrett Deal. service $60.” subject to sovereign immu only if it has waived suit Testan, 424 U.S. nity. 5(b) United States Passport application provision 47 L.Ed.2d 114 96 S.Ct. “An was not an offer. offer is the manifes implied but A waiver “cannot be willingness tation of to enter into bar (in Id. unequivocally expressed.” must be gain, justify person so made as to another omitted). Act The Tucker quotation ternal understanding his assent immunity soverеign a waiver of provides bargain is invited and will conclude it.” “any against claim the United States Cutler-Hammer, Inc. v. Constitution, upon either or founded (1971) (cit Ct.Cl. any Congress any regulation or Act (Second) ing Restatement Contracts department, upon any an ex executive (Tentative 1) (1964)). § 24 Draft No. Pro implied contract with the United press or 5(b) vision was not a manifestation of will (emphasis § 1491 States.” 28 U.S.C. add ingness bargain into a for at least enter ed). govern ‍‌‌‌‌​​​​‌‌​‌​‌‌​‌​​‌‌‌‌‌‌‌​‌‌‌‌‌​​​​‌‌​​​​‌​‌‌‌​‍with the express An contract four reasons. proof of “mutual requires ment intent 5(b) First, provision categorizes ap- contract, offer, including acceptance, an plicant’s expedite proce- initiation of the A with and сonsideration. contract (“For “request,” dure as a Barrett Decl. 16 requires United States also that the Gov processing, you may request expe- faster representative ernment who entered or service.”), any obligato- dited which belies agreement ratified the had actual authori intent, Cutler-Hammer, ry see 441 F.2d at ty to bind United States.” Trauma (“[N]owhere promise is there a (internal Group, 104 at 1325 Serv. F.3d part of the Government to sell even omitted). citations one ounce of silver at price mentioned. case, present In the court district simply ‘ap- Purchasers are invited make dismissed Chattler’s contract claims “for plication’ buy quantities certain of silver by the rеasons stated defendants in their price at a which will be not less than papers hearing May and at the conducted .”).+ $1.29 at Opinion 2008.” Contract 3. This Second, obligation of the “[t]he agrees court that no contract was formed liable, government, if it must be held by in timing provision in undertaking, be stated the form of an by application the statements on the not a prediction as mere or statement Department’s website. opinion or Like intention.” Id. 5(b) Passport Application A. Provision wise statements of information or defini obligation. tion are statements of The argues provision expedite provision passport applica in the 5(b) in passport applicаtion and a regu tion was included in furtherance of a statement on the of State (1) latory applicants scheme that allowed website of an express formed the basis by a “request expedited processing application contract to within 51.66(a); § 22 Passport Agency,” C.F.R. days three and return it to Chattier within 5(b) (2) processing, “[expe expedited about two weeks. Provision in the defined passport application passport processing reads: “For faster dited shall mean com-

1331 in days paragraph within 3-business voice the main and the pleting processing pas- (3) 51.66(b); (2) (3) § and called ...” 22 C.F.R. sive voice in clauses “in 2119.”). to be collected the amount fee Datа, § Compare Airborne Inc. in of Fees for prescribed the Schedule States, (Fed.Cir. v. 702 United F.2d 1350 51.66(c). Services,” 22 C.F.R. Consular 1983) curiam) (per (“Contracting officers 5(b) substantially mirrors the in Provision personnel and other Governmental shall (1) regulation: content of the formational comply with the terms of legend.”). (“For expedited processing it authorizes Third, regulations as the relevant con- processing, you may request expe faster firm, applicant’s an assent to the “offer” (2) service”); expedited pro dited defines necessarily would not conclude bargain cessing (“Expedited requests pro Department may because the decline to workdays three at a cessed in accept expedite request under certain (3) passport agency”)) and single alleged sentence that was to consti- (last com/dictionary/will July visited tute an offer to contract: “You should 2010) (defining “will” as “3—used to ex generally your receive determination on press futurity I morning ctomorrow will days you election within 60 after have filed up wake in this first-class hotel suite— form 2553.” Id. at 68. The court found Williams>”). Tennessee also note the We formed, part that no contract was in be- voice, passive pro use of the “will be i.e. cause the basis for the contract was a cessed,” likely gov makes it less that the in simple publication, statement an IRS ernment intended to be bоund. Jones Cf. negotiation and “there has been no be- States, v. 119 United (1999) (Kenne personnel plaintiff tween IRS and the L.Ed.2d 311 (“In J., addition, any- no one from the IRS has assented to dy, dissenting) there is in court significance thing.” some the use of the active Id. at 70. This affirmed Moreover, cite, there, here, “language the Chattier has failed like because find, to be bound.” Gir court has been unable to no intent manifested] States, v. United ling Sys., government Health Inc. where the was single case (Fed.Cir.1991). 1145, 1147 F.2d perform held to have contracted to a ser- regulatory vice in furtherance of a scheme on two sets of cases to Chattier relies applica- in a by virtue of a statement form 5(b) provision her сontention support case, Girling, tion. In the closest First, group relies on a an offer. she was that no Claims Court determined contract cases in which the express contract formed, was 22 Cl.Ct. at and this court dispute. not in sufficiency of the offer was affirmed, only v. 949 F.2d 1147. The cases Me. Yankee Atomic Power Co. Unit- See (Fed.Cir. States, government ed 225 F.3d 1337-38 where the was bound con- 2000) (resolving an administrative whether perform tract a service are those in provision of a contract covered exhaustion by which the contract was manifested an govern- particular types of inaction express obligation observing the formali- ment); N. Power Co. v. United States contraсts, in- typical government ties of (Fed.Cir.2000) States, 224 F.3d signature by an cluding authorized (same); Hughes Galaxy Commc’ns Yankee, agent. Me. 225 F.3d at 1337- See (Fed.Cir. States, 953, 954 38; Power, 1364; N. States F.3d at 1993) (noting government was 1019; Fargo, Hughes F.3d at Wells provide a contract to its “best bound Commc’ns, F.2d at payloads efforts” to launch commercial reasons, For these this court holds that through space program, part shuttle did not manifest an intent challenge because “the did 5(b) by provision to be bound in contract validity of the contract before the passport application. here”). so Claims Court and does not do Bank, N.A Fargo Wells v. United B. Department’s Statements (Fed.Cir.1996) closer, in 88 F.3d 1012 Website that it addressed whether а contract was turn next We to Chattler’s asser- However, formed. the issues that case tion Depart- the statements on the any government official had were whether contract, ment’s website were offer to authority to contract and whether cer- government promised wherein the to re- precedent precluded tain conditions con- turn her to her within two to formation, gov- tract not whether certain exchange payment three weeks in ernments statements constituted offers. expedite fee. The relevant statement presented No similar issues are here. Be- following website includes table: cause none of these cases addressеd govern- whether certain statements If you apply today expect And Choose What to offers, they inappo- ment constituted are At a Routine will Service We Passport process site. Acceptance your application within four to six Facility* Chattier also relies on a second set of weeks time cases, which found that of receipt_ (for Mail re- We will By Expedited implied-in-fact entered into contracts to * newal, additional Service* your application keep proprietary information confidential. Overnight pages, about 3 Plus within amendment) (door-to- service Weeks delivery Data, 1350; See Airborne Re- door; below) for: see note search, Dev., Analysis, & Inc. v. United Sending your application 8 Cl.Ct. 54 We do not Returning your passport you dispositive. believe these cases are “ ”* * undertaking, prediction Decl. 32. The footnote not as mere or Barrett intention.”). opinion statement of reads: * you apply If for *Expedite Service: Conclusion today your passport request Expe- can Passport ‍‌‌‌‌​​​​‌‌​‌​‌‌​‌​​‌‌‌‌‌‌‌​‌‌‌‌‌​​​​‌‌​​​​‌​‌‌‌​‍Processing, you reasons, ex- foregoing dited For the this court pect your passport to receive about 3 judgment affirms the of the United States weeks. The 3 week estimated time- District Court for the Northern District of receipt your passport frame takes for California. the additional time it

into consideration AFFIRMED your may passport appli- take to receive Passport Agency/Center cation at a NEWMAN, Judge, dissenting. Circuit Expedited for you apply Passport when requested Ms. Chattier through a Processing designated Pass- passport Department service of the Facility port Acceptance and for the State, whereby for a fee of $60.00 you. mailed to It passport to be passport processed will be within three longer apply take for customers who days receipt request. business after of the “Expedite” mail a renewal without expedited processing This is on the offered mailing envelope. marked form; passport application Regulations August Depart- Effective expedited processing define as follows: for expedited passport ment’s standard [Expedited process- C.F.R. 51.66. in 22 processing completion, as defined ing processing days is] within 3-business 51.66, days C.F.R. is ten business commencing application when the reach- ... your passport application or, a Passport Agency es if applica- Passport Agency/Center.... Expe- at a already Passport Agency, tion is with a passport processing dited is considered commencing when expe- complete ready when the dited processing approved. picked by applicant be an or when it is Regulations state that the fee will be applicant. in the mail to the put expedited processing refunded if the is not Id. provided days: within the three business These do not statements constitute The passport expe- 51.63. phrase offer contract. The “We will will Passport dite fee be refunded your application within about 3 Agency provide requested does not heading is under Weeks” of “What to expedited processing as defined 51.66. “ ”* * expect,” explicitly says and the note In accompanying Register Federal No- applicant expect that an “can to receive tice, explained: State (em- about 3 weeks.” Id. [her] F.R. 48998. There will be situations added). phases explains The note аlso expedited passport processing in which merely that three weeks is an “estimated cannot completed be within three added). (emphasis timeframe.” Id. These days.... The Department expects language statements use of intention or very these situations will be rare. In prediction, obligation, and thus do not circumstances, applicant such constitute offers to contract. See Cutler- notified and the fee will be refunded. Hammer, (“The obli- F.2d gation government, Expedited Passport Processing if it is to be held Fee for liable, 26,1994). (Sept. must be stated in the form of an

1334 Ms. Chattier writes a letter pro- paid not unless passport was

Ms. Chattler’s requesting the Department оf State days, or with- business three cessed within have particulars.” “with Both sides refund Depart- that the State days fifteen in, an- refusing to write dug Ms. Chattier include mail allocates to ment letter, government refusing other expedite fee time. Nor was $60.00 refund $60.00. pro- not was Her refunded. is at suggests The record that more weeks, requiring her for six cessed discovery rec- petulance. stake than The Francisco visit to the San personal amake within the ord shows extensive discussion Office, where she obtained Passport these fees Department of its use of State de- her scheduled day a before mention purposes, particular for other with was never refunded. parture. The fee for the technology, expedite of information counsel argument appeal, of this At the required to be turned over to fees are not agreed that the for the Treasury. negli- $60.00 The amounts are not and has not gible. appellant’s owed to Ms. Chattier brief contains the refund is following chart: that it will not be paid, and stated been of Class

% Members Who Expedited Have Not Expedited Received Service Not Requests Issued Refunds Received Refunds Fiscal Year 541,749 6,414 2,019,607 98.82% 2,303,623 788,889 6,843 99.13% 9,577 2,925,518 633,155 98.49% 5,910,135 3,358,725 8,546 99.75% (Def.’s Vol.III:1520, 1561-62,1568); routinely given to be when appears which (Appx. provided. service is not Undisputed Material Counterstatement Facts).1 explained in Christensen v. As the Court 576, 588, County, Harris expedite request, At for each $60.00 (2000), it is 146 L.Ed.2d 621 powerful. parties arithmetic is dis- agency, “the under the inappropriate for adoption proce- of the pute whether guise interpreting regulation, to create requiring special request dure “with unan regulation.” de facto a new This was intended to burden the particulars” “policy” change new “effected] nounced process, simplify pro- or to internal policy in existing [and] affect[ed] law or However, cessing. published Regula- rights obligation,” individual Para West, requires applicant tion both notice to the F.3d lyzed Veterans Am. v. (Fed.Cir.1998), improp- and was applicant, and refund to the neither of tion, eligible expedite requests some were not 1. The State did not track refunds expedite separately fee from other re- requester because the was 2007, and numbers are Vol.III:1561-62, funds until June these (See required pay the fee. explained to include refunds in addition to 1568.) (Def.’s Spe- Resp. to Pl.'s First Set of (e.g., pass- expedite refunds of refunds of fees 8.). Interrog. Interrogs., No. cial application). In addi- port fees on a no-fee erly engrafted Regulation. against claims the United States “founded that the refund would original Constitution, intention be upon any either or Act of routinely expedited made if the service Congress, any regulation or of an execu failed, formalities, ap without additional is department, upon any express tive or Regulation, Ms. parent from Chatt implied contract with the United States out, citing regulations other points ier ... ”. Whether this claim is perceived as explicit request procedures. are as to refund relating regulation contract, to a juris or a E.g 21.5064(b)(3)(h) § ., 38 C.F.R. diction provided. liability may Whether Affairs) (“The (Department of Veterans particular be found on facts does not de Department of Affairs shall make Veterans termine whether there juris is Tucker Act only requests the refund the individual Elsevier, diction of the claim. See Reed 1823.12(b) it.”); , § (Department 43 C.F.R. —U.S.-, Inc. v. 130 S.Ct. Muchnick Interior) (“If you you believe are 1237, 1244, (2010) (distin 176 L.Ed.2d 17 refund, you may request due a it from the guishing subject jurisdiction matter you previously BLM offiсe where submit relief). the claim for your payment.”); § ted 37 C.F.R. 1.296 Ms. Chattier states that she is bringing (Patent Office) (“The and Trademark re claim, a contract citing princi- the contract quest may to withdraw also include a re offer, ples of acceptance, and consider- quest any for a paid amount (Second) ation. Restatement of Contracts fee.”); application filing excess of the § 24 In Exploration Mobil Oil & 205.283(a) (Department C.F.R. of Ener Southeast, Producing Inc. v. United (“Any gy) person pur entitled ‍‌‌‌‌​​​​‌‌​‌​‌‌​‌​​‌‌‌‌‌‌‌​‌‌‌‌‌​​​​‌‌​​​​‌​‌‌‌​‍to a refund States, 604, 607, 530 U.S. 120 S.Ct. suant to a final Decision and Order ... (2000), 147 L.Ed.2d 528 the Court ex- Refund.”); an Application file plained that “[w]hen United States 389.27(b) (Department of Trans relations, enters into contract rights its portation) (“Any person may file an appli and governed duties therein are generally paid April cation for refund of a fee since applicable the law to contracts between grounds that such fee private individuals.” See also Franconia exceeded the Board’s cost in providing the States, service.”) Assocs. v. United No provision such exists in the (2002) 122 S.Ct. 153 L.Ed.2d 132 Department Regulations State for expedit (when the passport processing. ed United States “does business citizens, with its it party does so much as a My colleagues panel on this offer an never cloaked with immunity.”). As in analysis regulatory elaborate and con- By-Products, National Inc. v. United abstrаction, tractual but authority no rati- 186 Ct.Cl. procedure fies the of a offer of (1969), government’s offer of service, a fee-based paid where the fee is passport service was made “in the form of refused, accepted, the service is undertaking predic- rather than a mere despite explicit prom- refund is denied opinion.” tion or statement of It ise of a the offer. disputed failed, undertaking this today The court holds that there is no that, despite litigation, this no refund has juridical path by which Ms. can been made. obtain review of this action is not disputed. Entitlement The con- concerning her unrefunded fee. That rul- ing litigation easy is incorrect. The tinuation of this is not stаtute under which support. justification action In brought, apparent was of its U.S.C. 1346(a)(2), jurisdiction establishes failure even to tender Ms. re- Chattler’s hints that she

fund, action, as if bring a derivative

seeking to ques- unethical. The were somehow of however, the bona fides

tion, is not cause.

motivation, but the merits 1090, 1095 Corp., v.

See Ash GAF (“Where

(3d Cir.1983) a true plaintiff has action, filing suit motivation of his

cause irrelevant”). ruling From the court’s judicial recourse has no

that Ms. Chattier fee, respectful- I recovery of her $60.00

ly dissent. LIMITED,

INNOVAIR AVIATION

Plaintiff-Appellee, STATES, Defendant-

UNITED

Appellant.

No. 2010-5025. Appeals, States Court

United

Federal Circuit.

Jan. 2011.

Rehearing En Banc Denied

April Bartolomucci, Hogan Christopher

H. DC, ar- LLP, Washington, Lovells US him on plaintiff-appellee. With gued D. and Joshua Ty were Cobb the brief Hawley. Counsel, Trial

Sheryl Floyd, L. Senior Branch, Divi- Civil Litigation Commercial Justice, sion, Department of States DC, argued for defendant- Washington, were on the brief her appellant. With notes fee 51.66(d) (“A conditions. Seе from the Schedule of Fees for Consular request expedited processing normally (“The additional fee for Services accepted only will if the applicant be can $60”). Deal. 16. The service is Barrett urgent departure document with airline simply obli language ‍‌‌‌‌​​​​‌‌​‌​‌‌​‌​​‌‌‌‌‌‌‌​‌‌‌‌‌​​​​‌‌​​​​‌​‌‌‌​‍use of restates showing tickets confirmed reservation or gations by regulation created evinces similar evidence. Passport Agency that the “never intended the accept request decline to if it is to be more than a mere ex language [] apparent at the time it is made that the intention, pression opposed to words States, granted.”). cannot be Floyd of commitment.” v. United (1992), on other Cl.Ct. aff'd 5(b) Fourth, the form of provision in- (Fed.Cir.1993), grounds 996 F.2d 1237 substance; forms single sentence cert, denied 510 U.S. provision cry is a far from the 126 L.Ed.2d 274 See also Clawson comprehensive typify instruments States, (1991) Cl.Ct. government contracts under the Federal (“Where rights obligations pre are Acquisition Regulations express regulations scribed statute and rather contract cases relied on Chattier. The through than determined the mechanics of Claims Court confronted a similar asser- exchange, a bilateral there is no contract arising tion of contract out of a state- word.”). in the usual sense of that agency publication ment an in Girling word “will”is often used this definitional Systems, Health Inc. v. United way, creating underlying obli without (1990). There, Cl.Ct. 66 an Internal Reve- gation. See Merriam-Webster’s Online (“IRS”) publication nue Service included Dictionary, http://www.merriam-webster.

Case Details

Case Name: Chattler v. United States

Court Name: Court of Appeals for the Federal Circuit

Date Published: Jan 10, 2011

Citation: 632 F.3d 1324

Docket Number: 2010-1066

Court Abbreviation: Fed. Cir.