NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
2006-5098
FAYE ZHENGXING,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
___________________________
DECIDED: November 8, 2006
___________________________
Before BRYSON, Circuit Judge, CLEVENGER, Senior Circuit Judge, and GAJARSA,
Circuit Judge.
PER CURIAM.
Plaintiff-Appellant Dr. Faye Zhengxing seeks reversal of a decision by the United
States Court of Federal Claims (CFC) dismissing her breach of contract claim for lack of
subject matter jurisdiction. Because Dr. Zhengxing has not demonstrated that she had
a contract with the Government, we affirm the decision of the CFC.
BACKGROUND
Dr. Zhengxing worked as a purchase order vendor, editing and translating
documents for the Voice of America (VOA), part of the International Broadcasting
Bureau of the U.S. Broadcasting Board of Governors. Dr. Zhengxing performed these
services on a per-order basis, pursuant to a blanket purchase agreement (BPA), at a
rate of $65.00 per order. Although Dr. Zhengxing believed she would eventually receive
an assignment as a television host, she never received such an assignment. On
August 16, 2001, VOA terminated Dr. Zhengxing for "false or malicious statements and
disrespectful conduct toward co-workers and the Chinese Branch Chief."
Dr. Zhengxing filed a claim to a VOA contracting officer, asserting that the BPA
had been improperly terminated. The contracting officer denied the claim, explaining,
among other things, that the BPA was not a contract and that the Government was not
obligated under the BPA beyond the extent of purchases made under the agreement.
She then brought her claim before the CFC, alleging improper termination of the BPA
and breach of an oral agreement to provide her with a television host position. She also
sought recovery of $100 million in damages arising from an alleged Government
conspiracy to kill her. The CFC dismissed Dr. Zhengxing's claims for lack of a contract
sufficient to confer jurisdiction under the Contract Disputes Act (CDA), 41 U.S.C. § 609,
and for lack of subject matter jurisdiction over her other claims. We have jurisdiction to
review the dismissal pursuant to 28 U.S.C. § 1295(a)(3).1
DISCUSSION
The jurisdiction of the CFC is a question of law to be reviewed de novo. Cyprus
Amax Coal Co. v. United States, 205 F.3d 1369, 1373 (Fed. Cir. 2000). Findings of fact
1
We note that Dr. Zhengxing, proceeding pro se, indicated a preference to
argue this case in person. She adds, however, that the "jurisdiction issue is so simple
and clear-cut that it might be sufficient for Court just to read Appellant's written brief."
The "jurisdiction issue" is a threshold issue in this case. Accordingly, we decide this
question on the briefs.
2006-5098 2
made by the CFC to ascertain its jurisdiction are reviewed for clear error. John R. Sand
& Gravel Co. v. United States, 457 F.3d 1345, 1353 (Fed. Cir. 2006). The Tucker Act
confers jurisdiction upon the CFC and waives sovereign immunity for "any claim against
the United States founded either upon the Constitution, or any Act of Congress or any
regulation of an executive department, or upon any express or implied contract with the
United States, or for liquidated or unliquidated damages in cases not sounding in tort."
28 U.S.C. § 1491(a)(1) (2000).
Dr. Zhengxing alleges that the Government breached a written contract, the BPA,
by terminating the agreement. The BPA at issue, however, is merely a framework for
future contracts and only creates a contractual obligation with regard to accepted
orders. Specifically, the BPA states that "[t]he Agency shall be obligated only to the
extent of authorized call orders actually placed under this agreement." Once an order is
placed under the agreement, a contract is created with respect to that order, but the
BPA in this case is not a contract because it lacks mutuality of consideration. Modern
Sys. Tech. Corp. v. United States, 979 F.2d 200, 202-04 (Fed. Cir. 1992). Accordingly,
the CFC properly determined that termination of the BPA did not confer jurisdiction
under the CDA.
Dr. Zhengxing further alleges that the Government breached an oral contract by
not offering her a full-time television host position. Absent specific legislation, however,
federal employees derive the benefits and emoluments of their positions from
appointment rather than from any contractual or quasi-contractual relationships with the
Government. E.g., Hamlet v. United States, 63 F.3d 1097, 1101-02 (Fed. Cir. 1995);
Chu v. United States, 773 F.2d 1226, 1229 (Fed. Cir. 1985). Dr. Zhengxing has pointed
2006-5098 3
to no specific legislation authorizing an appointment to such a position in this case.
Accordingly, Dr. Zhengxing's breach of oral contract claim fails as a matter of law
because it is insufficient to entitle her to any relief, and the CFC properly dismissed this
claim.
The CFC also properly dismissed Dr. Zhengxing's other claims. These claims
alleged various tortious activities, criminal conduct, and Title VII discrimination, none of
which are within the CFC's jurisdiction. 28 U.S.C. § 1491(a)(1) (CFC lacks jurisdiction
in cases "sounding in tort"); Joshua v. United States, 17 F.3d 378, 379 (Fed. Cir. 1994)
("The [CFC] has no jurisdiction to adjudicate any claims whatsoever under the federal
criminal code."); Canonica v. United States, 41 Fed. Cl. 516, 523 (1998) ("[CFC] does
not have jurisdiction over Title VII claims.").
CONCLUSION
Because the Court of Federal Claims properly determined that there was no
written or oral contract sufficient to confer jurisdiction in this case, we affirm.
No costs.
2006-5098 4