           In the United States Court of Federal Claims
                                         No. 18-104C
                                      Filed: May 1, 2019
                                    NOT FOR PUBLICATION

                                              )
 STEVEN J. OLIVA,                             )
                                              )
                       Plaintiff,             )      RCFC 12(b)(6); Failure To State A Claim;
                                              )      Breach Of Contract; Relocation Pay; Lost
 v.                                           )      Salary.
                                              )
 THE UNITED STATES,                           )
                                              )
                       Defendant.             )
                                              )

      Emily A. Unnasch, Counsel of Record, Venable LLP, Washington, DC; James Y. Boland,
Of Counsel, Venable LLP, Tysons Corner, VA, for plaintiff.

      David R. Pehlke, Trial Attorney, Elizabeth M. Hosford, Assistant Director, Robert E.
Kirschman, Jr., Director, Joseph H. Hunt, Assistant Attorney General, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant.

                         MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I.     INTRODUCTION

       Plaintiff, Steven J. Oliva, brings this action to recover monetary damages from the
government in connection with certain alleged breaches of an Equal Employment Opportunity
(“EEO”) settlement agreement (the “Settlement Agreement”) by and between plaintiff and the
United States Department of Veterans Affairs (the “VA”). See generally Am. Compl. The
government has moved to dismiss this matter for failure to state a claim upon which relief may
be granted, pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims
(“RCFC”). See generally Def. Mot. For the reasons discussed below, the Court: (1) GRANTS
the government’s motion to dismiss and (2) DISMISSES the amended complaint.
II.      FACTUAL AND PROCEDURAL BACKGROUND1

         A.     Factual Background

         In this breach of contract action, plaintiff, Steven J. Oliva, seeks to recover relocation
incentive pay and lost salary from the government in connection with certain alleged breaches of
the Settlement Agreement that he entered with the VA on or about January 30, 2015. See
generally Am. Compl.; see also Pl. Ex. A1. Plaintiff periodically worked for the VA from 2000
until his termination from the agency in 2016. Am. Compl. at ¶¶ 21-23. After spending 8 years
employed in the private sector, plaintiff returned to the VA in 2012, as an Associate Director of
Pharmacy Customer Care at the Health Resource Center located in Waco, TX. Id. at ¶ 23.
Thereafter, plaintiff worked as an Associate Director of Contract Management for the VA’s
Health Resource Center headquarters located in Topeka, KS and the Campus of the Central
Texas Veterans Healthcare System located in Waco, TX. Id.

         In the amended complaint, plaintiff alleges that the VA breached the Settlement
Agreement in March 2015 and February 2016, respectively, and that he did not receive certain
job offers due to these alleged breaches. Id. at ¶¶ 6-18. As relief, plaintiff seeks to recover
$87,312.00 in relocation incentive pay related to a position located in Greenville, NC, and
$289,564.00 in lost salary for the period of May 2016 to the present. Id. at ¶ 34; see also id. at ¶
31, 33

                1.      The OPM Relocation Incentive Regulations

         As background, the Office of Personnel Management (“OPM”) has promulgated
regulations governing the payment of relocation incentives for federal employees. See generally
5 C.F.R. §§ 575.201, et seq. Under these regulations, an agency may pay a relocation incentive
to a current employee who must relocate to accept a position in a different geographic area, if the
agency determines that the position will likely be difficult to fill in the absence of an incentive. 5
C.F.R. § 575.201. Specifically, a relocation incentive may be paid to an employee who—



1
 The facts recited in this Memorandum Opinion and Order are taken from the amended complaint (“Am.
Compl.”); the exhibits attached thereto (“Pl. Ex.”); the government’s motion to dismiss (“Def. Mot.”);
and plaintiff’s response and opposition to the government’s motion to dismiss (“Pl. Resp.”). Unless
otherwise noted, the facts recited herein are undisputed.


                                                                                                      2
       (1) Must relocate to a different geographic area (permanently or temporarily) to
           accept a covered position . . . in an agency when the position is likely to be
           difficult to fill . . . and

       (2) Is an employee of the Federal Government immediately before the relocation.

5 C.F.R. § 575.205(a).

       The OPM’s regulations also provide that a relocation incentive may be paid only when
the employee’s rating of record for the position held immediately before the move is at least
“Fully Successful” or equivalent. 5 C.F.R. § 575.205(c). Before paying such a relocation
incentive, an agency must establish a relocation incentive plan which includes, among other
things, the requirements for determining the amount of the relocation incentive. 5 C.F.R. §
575.207(a).

               2.        The Settlement Agreement

       In January 2015, plaintiff received a letter of reprimand for accusing a supervisor of pre-
selecting an applicant for a position. Am. Compl. at ¶ 3. On January 30, 2015, plaintiff entered
into the Settlement Agreement with the VA to resolve a formal grievance that he brought after
receiving the letter of reprimand. Id. at ¶ 4.

       Pursuant to the terms of the Settlement Agreement, the VA agreed to rescind the letter of
reprimand and not to disclose the existence of this letter to anyone seeking an employment
reference for plaintiff. See generally Pl. Ex. A1. Plaintiff also agreed to withdraw his informal
EEO complaint, and to consider his formal grievance resolved, in exchange for the VA’s
commitment to undertake certain remedial measures delineated in the Settlement Agreement.
See id. at 2. In this regard, the VA agreed to:

       [Provide a] [w]ritten reference for Mr. Oliva and assurance of a positive verbal
       reference, if requested—A written reference will be provided by Mr. Eitutis.
       Should Mr. Eitutis be asked to provide a verbal reference, he will not mention the
       retracted Reprimand and will limit information provided to that set forth in the
       written reference.

Id.; see also Am. Compl. at ¶ 5.




                                                                                                     3
               3.      The March 2015 And February 2016 Breaches

       Plaintiff alleges that, in or around March 2015, he applied for a position as an Associate
Director for the VA’s El Paso, TX Medical Center (the “El Paso Position”). Am. Compl. at ¶ 6.
Plaintiff further alleges that the posting for this position stated that the VA would authorize the
payment of a relocation incentive to the individual hired for the position and that the agency
established a relocation incentive plan and determined the amount of the relocation incentive
pay. Id. at ¶ 7; see also 5 C.F.R. §§ 575.207(a); 575.208(a)(1).

       Plaintiff alleges that the VA breached the Settlement Agreement in March 2015, when
the agency “disclosed the existence of the Letter of Reprimand in contravention of the express
terms of the Settlement Agreement,” after being contacted to provide a reference in support of
plaintiff. Am. Compl. at ¶¶ 9-10. Plaintiff contends that, if he had received an offer of
employment for the El Paso Position, he would have been required to move a distance of more
than 50 miles and that his job performance rating at the VA was at least “Fully Successful,” or
the equivalent, at the time that he submitted the employment application for the El Paso Position.
Id. at ¶ 8. Given this, plaintiff also contends that he would have received relocation incentive
pay in the amount of $86,304.00 to accept the El Paso Position. Id. at ¶ 31.

       In 2015, plaintiff pursued a claim with the VA’s Office of Resolution Management,
(“ORM”) alleging that the VA breached the Settlement Agreement by disclosing the letter of
reprimand to a potential employer. Id. at ¶ 11. In July 2015, the ORM found that the VA
breached the Settlement Agreement by disclosing the letter of reprimand. Id. at ¶ 12. And so,
the ORM offered plaintiff the option to either void the Settlement Agreement and pursue an EEO
claim, or to ratify that agreement. Id. After plaintiff elected to ratify the Settlement Agreement,
the parties ratified the agreement on July 7, 2015. Id. at ¶ 13; see also Pl. Ex. A2.

       Thereafter, plaintiff continued his efforts to secure future employment. Id. at ¶ 14.
Plaintiff applied for a position as a Healthcare Administrator with the VA’s Greenville, NC
Healthcare Center (the “Greenville Position”). Id. Plaintiff alleges relocation incentive pay was
also available for this position and that the VA established a relocation incentive plan and
determined the amount of the relocation incentive for this position. Id. at ¶ 15; see also 5 C.F.R.
§§ 575.207(a); 575.208(a)(1).



                                                                                                      4
        Plaintiff also alleges that the VA breached the Settlement Agreement in February 2016,
when the agency disclosed that plaintiff was assigned to a temporary duty station—and provided
the contact information for plaintiff’s temporary duty supervisor—after being contacted for an
employment reference for plaintiff. Am. Compl. at ¶ 17. In addition, plaintiff alleges that he did
not receive an offer of employment for the Greenville Position due to the VA’s actions. Id. at ¶
18. And so, plaintiff contends that, if he had received an offer of employment for this position,
he would have been required to move a distance of more than 50 miles and that his job
performance rating at the VA was at least “Fully Successful,” or the equivalent, at the time that
he submitted the employment application for the Greenville Position. Id. at ¶ 16. Given this,
plaintiff also contends that he would have received relocation incentive pay in the amount of
$87,312.00 to accept the Greenville Position. Id. at ¶ 31.

       In April 2016, the VA terminated plaintiff’s employment with the agency. Id. at ¶ 24.

       B.      Procedural History

       Plaintiff commenced this action on January 22, 2018. See generally Compl. After the
government filed a motion to dismiss this matter, the Court issued a Memorandum Opinion and
Order granting-in part and denying-in part the government’s motion to dismiss on July 18, 2018.
See generally Oliva v. United States, No. 18-104C, 2018 WL 3455135 (Fed. Cl. July 18, 2018).

       On August 1, 2018, with the consent of plaintiff, the Court referred this matter to the
Court of Federal Claims Bar Association Pro Bono/Attorney Referral Pilot Program for the
potential representation of plaintiff by counsel. See generally Order, dated Aug. 1, 2018. On
September 26, 2018, plaintiff filed an amended complaint after retaining counsel. See generally
Am. Compl. On October 29, 2018, the government filed a motion to dismiss. See generally Def.
Mot.

       On December 10, 2018, plaintiff filed a response and opposition to the government’s
motion to dismiss. See generally Pl. Resp. On December 21, 2018, the government filed a reply
in support of its motion to dismiss. See generally Def. Reply.

       This matter having been fully briefed, the Court resolves the pending motion to dismiss.




                                                                                                    5
III.   LEGAL STANDARDS

       A.      Jurisdiction And Breach Of Contract Claims

       Under the Tucker Act, the Court possesses subject-matter jurisdiction to consider express
or implied-in-fact contract claims against the United States. See Aboo v. United States, 86 Fed.
Cl. 618, 626-27 (2009). Plaintiff bears the burden of proving the existence of a contract with the
United States and he must demonstrate that there is “something more than a cloud of evidence
that could be consistent with a contract to prove a contract and enforceable contract rights.” D &
N Bank v. United States, 331 F.3d 1374, 1377 (Fed. Cir. 2003).

       To pursue a breach of contract claim against the United States under the Tucker Act, a
plaintiff must have privity of contract with the United States. Flexfab, L.L.C. v. United States,
424 F.3d 1254, 1263 (Fed. Cir. 2005) (citations omitted) (“[T]he ‘government consents to be
sued only by those with whom it has privity of contract.’”). Plaintiff must also support his
contract claim with well-pleaded allegations going to each element of a contract. See Crewzers
Fire Crew Transp., Inc. v. United States, 741 F.3d 1380, 1382 (Fed. Cir. 2014) (holding that to
invoke the jurisdiction of this Court under the Tucker Act, a plaintiff must present a well-pleaded
allegation that its claims arose out of a valid contract with the United States); see also RCFC
9(k) (“In pleading a claim founded on a contract or treaty, a party must identify the substantive
provisions of the contract or treaty on which the party relies.”); Gonzalez-McCaulley Inv. Grp.,
Inc. v. United States, 93 Fed. Cl. 710, 715 (2010).

       The requirements for establishing a contract with the United States are identical for
express and implied-in-fact contracts. See Night Vision Corp. v. United States, 469 F.3d 1369,
1375 (Fed. Cir. 2006); Huntington Promotional & Supply, L.L.C. v. United States, 114 Fed. Cl.
760, 767 (2014) (“The elements are the same for an express or implied-in-fact contract . . . .”).
Specifically, a plaintiff must show: (1) mutuality of intent; (2) consideration; (3) lack of
ambiguity in the offer and acceptance; and (4) actual authority to bind the government in
contract on the part of the government official whose conduct is relied upon. Kam-Almaz v.
United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012); see also Trauma Serv. Grp. v. United
States, 104 F.3d 1321, 1325 (Fed. Cir. 1997). In addition, a government official’s authority to
bind the United States must be express or implied. Roy v. United States, 38 Fed. Cl. 184, 188-89



                                                                                                    6
(1997), dismissed, 124 F.3d 224 (Fed. Cir. 1997). And so, “the [g]overnment, unlike private
parties, cannot be bound by the apparent authority of its agents.” Id. at 187.2

        Specifically relevant to this matter, the United States Court of Appeals for the Federal
Circuit has held “that Tucker Act jurisdiction may be exercised in a suit alleging breach of a
Title VII settlement agreement.” Holmes v. United States, 657 F.3d 1303, 1312 (Fed. Cir. 2011)
(“We do not view Title VII’s comprehensive scheme as a bar to the exercise of [Tucker Act]
jurisdiction.”). The Federal Circuit has also held that, “when a breach of contract claim is
brought in [this Court], the plaintiff comes armed with the presumption that money damages are
available, so that normally no further inquiry is required [to establish subject-matter
jurisdiction].” Id. at 1314. But, the Federal Circuit has recognized that that the mere existence
of a contract does not always means that Tucker Act jurisdiction exists. Id. For example, a Title
VII settlement agreement that involves purely nonmonetary relief would not give rise to Tucker
Act jurisdiction. Id. at 1315. And so, the Court may require a demonstration that a settlement
agreement could fairly be interpreted as contemplating money damages in the event of breach to
establish subject-matter jurisdiction. Id.

        B.      RCFC 12(b)(6)

        When deciding a motion to dismiss based upon failure to state a claim upon which relief
can be granted, pursuant to RCFC 12(b)(6), this Court must assume that all undisputed facts
alleged in the complaint are true and draw all reasonable inferences in the non-movant’s favor.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also RCFC 12(b)(6). To survive a motion to
dismiss pursuant to RCFC 12(b)(6), a complaint must contain facts sufficient to “state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see
also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And so, when the complaint fails to “state a

2
  A government official possesses express actual authority to bind the United States in contract “only
when the Constitution, a statute, or a regulation grants it to that agent in unambiguous terms.” Jumah v.
United States, 90 Fed. Cl. 603, 612 (2009), aff'd, 385 F. App’x. 987 (Fed. Cir. 2010) (internal citations
omitted); see also City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990). On the other
hand, a government official possesses implied actual authority to bind the United States in contract “when
the employee cannot perform his assigned tasks without such authority and when the relevant agency’s
regulations do not grant the authority to other agency employees.” SGS-92-X003 v. United States, 74 Fed.
Cl. 637, 652 (2007) (citations omitted). In addition, when a government agent does not possess express
or implied actual authority to bind the United States in contract, the government can still be bound by
contract if the contract was ratified by an official with the necessary authority. Janowsky v. United States,
133 F.3d 888, 891-92 (Fed. Cir. 1998).
                                                                                                           7
claim to relief that is plausible on its face,” the Court must dismiss the complaint. Iqbal, 556
U.S. at 678. On the other hand, “[w]hen there are well-pleaded factual allegations, a court
should assume their veracity” and determine whether it is plausible, based upon these facts, to
find against defendant. Id. at 679.

IV.    LEGAL ANALYSIS

       The government has moved to dismiss this matter pursuant to RCFC 12(b)(6), upon the
grounds that: (1) plaintiff fails to state a plausible claim for relocation incentive pay and (2)
plaintiff fails to state a plausible claim for lost salary. See Def. Mot. at 5-9. Plaintiff counters in
his response and opposition to the government’s motion to dismiss that he has plausibly alleged
claims for relocation incentive pay and lost salary in the amended complaint because: (1) he
would have received and accepted an offer of employment for the Greenville Position prior to his
termination from the VA, but for the VA’s breach of the Settlement Agreement and (2) his
inability to obtain new employment was the direct and foreseeable consequence of the VA’s
breaches of the Settlement Agreement. Pl. Resp. at 4-6.

       For the reasons discussed below, the most generous reading of the amended complaint
makes clear that plaintiff has not stated plausible claims to recover relocation incentive pay or
lost salary in this case. And so, the Court GRANTS the government’s motion to dismiss and
DISMISSES the amended complaint. RCFC 12(b)(6).

       A.      Plaintiff Fails To State A Plausible Claim For Relocation Incentive Pay

       As an initial matter, a careful review of the amended complaint makes clear that plaintiff
fails to plausibly allege that he is entitled to receive relocation incentive pay. In the amended
complaint, plaintiff alleges that he is entitled to recover $87,312.00 in relocation incentive pay
that he would have received to accept the Greenville Position. Am. Compl. at ¶ 31; see also 5
C.F.R. § 575.205; Pl. Resp. at 4-6. While plaintiff has plausibly alleged that the VA determined
that a relocation incentive would be provided for this position, plaintiff fails to sufficiently allege
facts in the amended complaint to show that he would have been eligible to receive this pay. See
generally Am. Compl.

       First, plaintiff alleges no facts in the amended complaint to show that he was a federal
employee immediately before he would have relocated to Greeneville, NC, as required by the


                                                                                                      8
OPM regulations. The OPM regulations require, among other things, that an employee “[i]s an
employee of the federal government immediately before the relocation” to receive relocation
incentive pay. See 5 C.F.R. § 575.205(a)(2) (emphasis supplied). But, plaintiff merely alleges in
the amended complaint that he was an employee of the federal government “at all relevant
times” and that “[a]t the time he submitted his application and interviewed for the [Greenville
Position, he] met the requirements to receive relocation incentive pay.”3 Am. Compl. at ¶ 16; see
also Pl. Resp. at 5-6. Indeed, plaintiff neither states when he learned that the VA would not offer
him the Greenville Position, nor that he was a federal employee when he learned this
information. See generally Am. Compl. And so, plaintiff has not sufficiently alleged facts in the
amended complaint to show that he met the requirements to receive relocation incentive pay.

        Plaintiff also has not sufficiently alleged in the amended complaint that he had a “Fully
Successful,” or equivalent, rating of record immediately before he would have relocated to
Greenville, NC, as required by the OPM regulations to receive relocation incentive pay. See 5
C.F.R. § 575.205(c) (stating that an employee’s rating of record for the position held
immediately before the move must be at least “Fully Successful,” or equivalent, to receive
relocation incentive). Plaintiff alleges in the amended complaint that, “at the time he submitted
his application, [his] rating of record was at least ‘Fully Successful’ or the equivalent.” Am.
Compl. at ¶ 16 (emphasis supplied). But, the amended complaint is silent regarding whether
plaintiff had a “Fully Successful,” or equivalent, rating of record when he learned that he would
not be offered the Greenville Position. See generally Am. Compl. And so, again, the amended
complaint does not contain sufficient factual allegations to plausibly show that plaintiff would
have been eligible to receive relocation incentive pay to accept the Greenville Position.

        The Court is also not persuaded by plaintiff’s argument that he has demonstrated
eligibility to receive relocation incentive pay because the VA authorized a relocation incentive
for the Greenville Position. Id. at ¶ 15; see also 5 C.F.R. § 575.208(a). As the government
correctly observes in its motion to dismiss, the OPM regulations that govern the authorization of
relocation incentive pay make clear that the VA’s authorization of a relocation incentive, alone,
is not sufficient to show that plaintiff would have received relocation incentive pay for the


3
 It is undisputed that plaintiff was terminated from his position with the VA in April 2016. Am. Comp. ¶
27.
                                                                                                       9
Greenville Position. Def. Mot. at 6-7; see also 5 C.F.R. § 575.208(a) (requiring that, among
other things, the agency document in writing the basis for the amount and timing of relocation
incentive pay and length of the required service period, and case-by-case determinations for each
employee). Notably, plaintiff alleges no facts in the amended complaint to show that the VA
determined the amount of relocation pay that he would have received to accept the Greenville
Position. See generally Am. Compl. Plaintiff also does not explain how he calculated the
$87,312.00 in relocation incentive pay that he seeks in the amended complaint. Id.

       Indeed, as the Court previously held in the July 18, 2018, Memorandum Opinion and
Order in this case, plaintiff’s claim to recover relocation incentive pay is speculative at best.
Oliva v. United States, No. 18-104C, 2018 WL 3455135 at *6 (Fed. Cl. July 18, 2018). Given
this, plaintiff simply has not plausibly alleged that he was eligible to receive relocation incentive
pay under the OPM’s regulations. And so, the Court must dismiss plaintiff’s claim for relocation
incentive pay.

       B.        Plaintiff Fails To State A Plausible Claim To Recover Lost Salary

       Plaintiff also fails to plausibly allege a claim for lost salary. In the amended complaint,
plaintiff seeks to recover $289,564.00 in lost salary, for the period of May 2016 to the present,
and plaintiff alleges that the VA’s breaches of the Settlement Agreement were the but-for cause
of his lost salary. See Am. Compl. at ¶ 33; see also Pl. Resp. at 7 (“[T]he Government’s
breaches of the settlement agreement were the but-for cause of [plaintiff’s] lost salary . . . .”).
But, plaintiff does not allege any facts in the amended complaint to show that the lost salary that
he seeks in this action resulted from the VA’s breaches of the Settlement Agreement. See
generally Am. Compl.

       In this regard, plaintiff alleges in the amended complaint that the VA breached the
Settlement Agreement in February 2016, when the agency disclosed that he was assigned to a
temporary duty station—and provided the contact information for his temporary duty
supervisor—after being contacted for an employment reference for plaintiff. Id. at ¶¶ 17-18.
But, as the government correctly observes in its motion to dismiss, the VA terminated plaintiff’s
employment with the agency two months after this alleged breach occurred—in April 2016. Def.
Mot. at 3.



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        Plaintiff acknowledges in the amended complaint that his lost salary started to accrue in
May 2016, shortly after his termination from the VA. Am. Compl. at ¶¶ 32-33. And so, the
factual allegations in the amended complaint show that the termination of plaintiff’s employment
in April 2016, rather than the VA’s alleged breach of the Settlement Agreement in February
2016, was the proximate cause of plaintiff’s lost salary. Id. Given this, plaintiff has not
plausibly alleged a claim to recover lost salary based upon the alleged breaches of the Settlement
Agreement. RCFC 12(b)(6); see also San Carlos Irrigation & Drainage Dist. v. United States,
877 F.2d 957, 959 (Fed. Cir. 1989) (stating that a breach of contract claim requires: “(1) a valid
contract between the parties, (2) an obligation or duty arising out of the contract, (3) a breach of
that duty, and (4) damages caused by the breach”); see also Fifth Third Bank v. United States,
518 F.3d 1368, 1374 (Fed. Cir. 2008) (stating that to meet the causation requirement in a breach
of contract case plaintiff must show that “the damages would have not occurred but for the
breach”).4

V.      CONCLUSION

        In sum, the most generous reading of the amended complaint makes clear that plaintiff
fails to state plausible claims to recover relocation incentive pay and lost salary. And so, for the
foregoing reasons, the Court GRANTS the government’s motion to dismiss and DISMISSES
the amended complaint.

        The Clerk shall enter judgment accordingly.

        No costs.

        IT IS SO ORDERED.


                                                     s/ Lydia Kay Griggsby
                                                     LYDIA KAY GRIGGSBY
                                                     Judge




4
 The Court understands that plaintiff is pursuing a wrongful termination claim against the VA before the
United States Merit Systems Protection Board. See Am. Compl. at ¶ 24; Def. Mot. at 8.
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