Case: 19-2059   Document: 43     Page: 1   Filed: 06/15/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                   STEVEN J. OLIVA,
                    Plaintiff-Appellant

                            v.

                   UNITED STATES,
                   Defendant-Appellee
                 ______________________

                       2019-2059
                 ______________________

     Appeal from the United States Court of Federal Claims
 in No. 1:18-cv-00104-LKG, Judge Lydia Kay Griggsby.
                  ______________________

                 Decided: June 15, 2020
                 ______________________

    HAN PARK, Covington & Burling LLP, Washington, DC,
 argued for plaintiff-appellant.  Also represented by
 RICHARD L. RAINEY; JENNIFER CIELUCH, New York, NY.

     DAVID PEHLKE, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, argued for defendant-appellee. Also represented
 by JOSEPH H. HUNT, ELIZABETH MARIE HOSFORD, ROBERT
 EDWARD KIRSCHMAN, JR.
                  ______________________

    Before NEWMAN, DYK, and WALLACH, Circuit Judges.
Case: 19-2059     Document: 43     Page: 2     Filed: 06/15/2020




2                                      OLIVA   v. UNITED STATES



 DYK, Circuit Judge.
     Steven J. Oliva appeals a decision of the Court of Fed-
 eral Claims (“Claims Court”) dismissing his complaint for
 failure to state a plausible claim for breach of contract dam-
 ages. We reverse and remand for further proceedings.
                        BACKGROUND
      Mr. Oliva periodically worked for the United States De-
 partment of Veterans Affairs (“VA”) between 2000 and
 2016. Starting in 2012, Mr. Oliva worked as an Associate
 Director of Pharmacy Customer Care at the Health Re-
 source Center in Waco, Texas. On January 9, 2015, the VA
 issued a letter of reprimand to Mr. Oliva for accusing a su-
 pervisor of improperly pre-selecting an applicant for a po-
 sition. Mr. Oliva filed a formal grievance challenging the
 letter of reprimand on the ground that his email consti-
 tuted protected whistleblowing. On January 30, Mr. Oliva
 entered into an Equal Employment Opportunity settle-
 ment agreement (“the Settlement Agreement”) with the VA
 to resolve his grievance. The Settlement Agreement stated
 that the VA would provide:
     [A] [w]ritten reference for Mr. Oliva and the assur-
     ance of a positive verbal reference, if requested[.]
     A written reference will be provided by [Mr. Oliva’s
     supervisor]. Should [the supervisor] be asked to
     provide a verbal reference, he will not mention the
     retracted [r]eprimand [letter] and will limit infor-
     mation provided to that set forth in the written ref-
     erence.
 J.A. 96.
     Mr. Oliva’s amended complaint alleged that he “was
 wrongfully terminated from his employment with the [VA]
 in April 2016.” J.A. 91. The parties appear to agree that
 his termination was for performance reasons.
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 OLIVA   v. UNITED STATES                                     3



     On January 22, 2018, Mr. Oliva filed a pro se complaint
 in the Claims Court, alleging that the VA had breached the
 Settlement Agreement on two occasions. The first alleged
 breach was in March 2015, when Mr. Oliva applied for a
 position as an Associate Director in the VA’s medical center
 in El Paso, Texas. According to the complaint, when the
 VA in Waco was contacted to provide a reference in support
 of his application, it disclosed the existence of the repri-
 mand letter. Mr. Oliva asserted that as a result, he did not
 receive an offer of employment at the El Paso position. Mr.
 Oliva alleged that but for the breach, he would have been
 hired for the position. The second alleged breach was in
 February 2016, when Mr. Oliva applied for a second posi-
 tion as a Healthcare Administrator in the VA’s healthcare
 center in Greenville, North Carolina. According to the com-
 plaint, a VA representative in Waco violated the Settle-
 ment Agreement by disclosing that Mr. Oliva was on a
 Temporary Duty Assignment, as well as the identity and
 contact information of his supervisor at the time. Mr. Oliva
 stated that, as a result, he did not receive an offer of em-
 ployment for the Greenville position. Mr. Oliva’s complaint
 again alleges that but for the alleged breach, he would have
 been hired for the Greenville position. He also alleges that
 he would have received salary and a relocation incentive
 payment from the VA if he had been hired for either job.
     The government moved to dismiss Mr. Oliva’s com-
 plaint for failure to state a claim for breach of contract. The
 Claims Court held that Mr. Oliva’s complaint “plausibly al-
 leged that the government breached the Settlement Agree-
 ment by disclosing his letter of reprimand—and the fact
 that plaintiff was on a temporary duty assignment—and
 that these alleged breaches resulted in the loss of future
 employment opportunities.” J.A. 80. On the other hand,
 the Claims Court held that “the most generous reading of
 the complaint shows that [the] plaintiff has not stated a
 plausible claim to recover relocation incentive payments
 from the government.” Id. The Claims Court referred Mr.
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4                                      OLIVA   v. UNITED STATES



 Oliva to a pro bono attorney to assist him in filing an
 amended complaint.
      On September 26, 2018, Mr. Oliva, now represented by
 counsel, filed an amended complaint repeating the allega-
 tions of the first complaint and seeking (1) $289,564 in lost
 salary and (2) either $86,304 in lost relocation incentive
 pay with respect to the El Paso position or $87,312 in lost
 relocation incentive pay with respect to the Greenville po-
 sition. The Claims Court dismissed the amended com-
 plaint, holding that Mr. Oliva had not stated plausible
 claims to recover lost salary or relocation incentive pay. On
 the issue of lost salary, the Claims Court held that Mr.
 Oliva had “allege[d] in the amended complaint that the VA
 breached the Settlement Agreement,” but that “the factual
 allegations in the amended complaint show that the termi-
 nation of [Mr. Oliva]’s employment in April 2016 [for per-
 formance reasons], rather than the VA’s alleged breach of
 the Settlement Agreement in February 2016, was the prox-
 imate cause of [Mr. Oliva]’s lost salary.” J.A. 11–12. On
 the issue of relocation incentive pay, the Claims Court held
 that Mr. Oliva had not alleged the prerequisite facts that
 would have made him eligible for such pay under the Office
 of Personnel Management (“OPM”) regulations because he
 had alleged neither (1) that he had the required status—
 i.e., that he was a “federal employee” with “a ‘Fully Suc-
 cessful,’ or equivalent, rating of record immediately before
 he would have relocated”—nor (2) that “the VA determined
 the amount of relocation pay that he would have received.”
 J.A. 9–11. Mr. Oliva appeals, and we have jurisdiction un-
 der 28 U.S.C. § 1295(a)(3). 1



     1   The Claims Court had jurisdiction over Mr. Oliva’s
 breach of contract claim. See 28 U.S.C. § 1491(a)(1);
 Holmes v. United States, 657 F.3d 1303, 1312 (Fed. Cir.
 2011); Cunningham v. United States, 748 F.3d 1172
 (Fed. Cir. 2014).
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 OLIVA   v. UNITED STATES                                      5



                            DISCUSSION
     The Claims Court may dismiss a complaint if it fails “to
 state a claim upon which relief can be granted.” Ct. Fed.
 Cl. R. 12(b)(6). We review the Claims Court’s dismissal for
 failure to state a claim de novo. Jones v. United States, 846
 F.3d 1343, 1351 (Fed. Cir. 2017). To survive a motion to
 dismiss, the complaint must provide “a short and plain
 statement of the claim showing that the pleader is entitled
 to relief,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
 (2007), with “sufficient factual matter . . . to state a claim
 to relief that is plausible on its face,” Ashcroft v. Iqbal, 556
 U.S. 662, 678 (2009). We take all plausible factual allega-
 tions in the complaint as true and construe the facts in the
 light most favorable to the non-moving party. Jones, 846
 F.3d at 1351.
     To recover for a breach of contract, “a party must allege
 and establish: (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.”
 San Carlos Irrigation & Drainage Dist. v. United States,
 877 F.2d 957, 959 (Fed. Cir. 1989). “Contract remedies are
 designed to make the nonbreaching party whole.” Cal. Fed.
 Bank v. United States, 395 F.3d 1263, 1267 (Fed. Cir.
 2005). “One way to achieve that end is to give the non-
 breaching party ‘expectancy damages,’ i.e., the benefits the
 nonbreaching party expected to receive in the absence of a
 breach.” Id. For expectancy damages, the party must
 “show that the claimed damages . . . would not have oc-
 curred but for the breach.” Fifth Third Bank v. United
 States, 518 F.3d 1368, 1374 (Fed. Cir. 2008). But-for or
 proximate causation requires “that the causal connection
 between the breach and the loss . . . be definitively estab-
 lished.” Cal. Fed. Bank, 395 F.3d at 1267–68 (internal quo-
 tation marks and citations omitted).
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6                                      OLIVA   v. UNITED STATES



                               I
     Mr. Oliva argues that the Claims Court erred when it
 held that Mr. Oliva had failed to state a plausible claim to
 recover lost salary based on a finding that “the termination
 of [Mr. Oliva]’s employment [for performance reasons] in
 April 2016,” rather than the VA’s alleged breaches of the
 Settlement Agreement was “the proximate cause of [Mr.
 Oliva]’s lost salary.” J.A. 12. We agree with Mr. Oliva.
     Mr. Oliva plausibly claimed that the alleged breaches
 were the cause of his lost salary. “‘[D]amages for breach of
 contract require a showing of causation,’ which in turn ne-
 cessitates a ‘comparison between the breach and non-
 breach worlds.’” Vt. Yankee Nuclear Power Corp. v. En-
 tergy Nuclear Vt. Yankee, LLC, 683 F.3d 1330, 1349 (Fed.
 Cir. 2012) (quoting Yankee Atomic Elec. Co. v. United
 States, 536 F.3d 1268, 1273 (Fed. Cir. 2008)). With respect
 to the 2015 breach, the amended complaint alleged that
 “[a]s a result of the [VA]’s non-conforming reference [dis-
 closing the existence of the reprimand letter], [Mr. Oliva]
 did not receive an offer of employment for the El Paso,
 Texas position.” J.A. 88. Similarly, with respect to the
 2016 breach, the amended complaint alleged that “[a]s a
 result of the [VA]’s non-conforming reference [disclosing
 that Mr. Oliva was on a Temporary Duty Assignment and
 the identity of Mr. Oliva’s supervisor], [Mr. Oliva] did not
 receive an offer of employment for the Greenville, North
 Carolina position.” J.A. 90. Here, the amended complaint
 pleaded a non-breach world in which Mr. Oliva would have
 been employed at either El Paso or Greenville and, there-
 fore, would not have been terminated by the VA from his
 existing position. See Johnson v. City of Shelby, 574 U.S.
 10, 12 (2014) (holding that the plaintiffs’ had pleaded a sub-
 stantively plausible claim when they “stated simply, con-
 cisely, and directly events that, [the plaintiffs] alleged,
 entitled them to damages”). We conclude that Mr. Oliva
 has alleged facts sufficient to support his lost salary claim.
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 OLIVA   v. UNITED STATES                                    7



     We do not see how Mr. Oliva’s termination in April
 2016 from his Waco job undercuts the plausibility of these
 allegations. “To analyze expectancy damages one looks at
 what would have happened had the contract been per-
 formed.” Stockton East Water District v. United States, 761
 F.3d 1344, 1352 (Fed. Cir. 2014) (internal quotation marks
 and citation omitted).
      The government argues that because “the amended
 complaint dates the lost salary claim from the moment of
 termination,” Mr. Oliva has effectively claimed that “the
 cause of the alleged lost salary was Mr. Oliva’s termina-
 tion, not the alleged breach[es].” Appellee’s Br. 17. The
 government’s position is unpersuasive. As outlined above,
 Mr. Oliva alleged that, had he been offered employment at
 El Paso or Greenville, he would have left his employment
 at Waco before he was terminated. J.A. 88, 90; Energy Nw.
 v. United States, 641 F.3d 1300, 1305 (Fed. Cir. 2011) (“[A]
 plaintiff seeking damages must submit a hypothetical
 model establishing what its costs would have been in the
 absence of breach.” (citation omitted)). On a motion to dis-
 miss, we are obligated to draw all reasonable inferences in
 favor of Mr. Oliva and accept as true his plausible factual
 allegation that he would have received an offer of employ-
 ment at either El Paso or Greenville but for the alleged
 breaches. 2 See Amoco Oil Co. v. United States, 234 F.3d
 1374, 1376 (Fed. Cir. 2000) (“On a motion to dismiss for
 failure state a claim, any factual allegations in the com-
 plaint are assumed to be true and all inferences are drawn
 in favor of the plaintiff.”). There is no requirement that Mr.
 Oliva “prove [his] case at the pleading stage.” In re Bill of
 Lading Transmission & Processing Sys. Patent Litig., 681



     2    There is no suggestion on the record here that the
 reasons for Mr. Oliva’s termination from the Waco position
 would have led to termination from the El Paso or Green-
 ville positions.
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8                                      OLIVA   v. UNITED STATES



 F.3d 1323, 1339 (Fed. Cir. 2012) (citing Skinner v. Switzer,
 562 U.S. 521, 529–30 (2011)).
     We conclude that the Claims Court erred when it held
 that Mr. Oliva had failed to state a plausible claim to re-
 cover for lost salary.
                               II
     Mr. Oliva argues that the Claims Court erred when it
 dismissed his claim for relocation incentive pay as an addi-
 tional demand of damages. We agree with Mr. Oliva.
     Mr. Oliva plausibly alleged entitlement to lost reloca-
 tion incentive pay. As we noted in Crow Creek Sioux Tribe
 v. United States, 900 F.3d 1350, 1354 (Fed. Cir. 2018),
 “there is no need to allege details of the damages calcula-
 tion in the complaint.” See also In re Johnson & Johnson
 Talcum Powder Prods. Mktg., Sales Practices & Liab.
 Litig., 903 F.3d 278, 287 (3d Cir. 2018) (holding that “a
 plaintiff need not develop detailed economic models at the
 pleading stage” and only needs to allege facts “that, if
 proven true, would permit a factfinder to determine that
 []he suffered at least some economic injury”); 5A C. Wright
 & A. Miller, Federal Practice and Procedure § 1310 (4th
 ed.) (noting that “[g]eneral damages[, which] typically are
 those elements of injury that are proximate and foreseea-
 ble consequences of the defendant’s conduct” and “can be
 alleged without particularity under Federal Rule of Civil
 Procedure 8(a)”); 24 Williston on Contracts § 64:16 (4th ed.)
 (“With respect to . . . [pleading] general damages, no alle-
 gation describing the elements of those damages ordinarily
 need be made.”). 3


     3    There is no suggestion that Mr. Oliva’s allegation
 of lost relocation incentive pay is a request for special dam-
 ages, nor did the Claims Court invoke the heightened
 pleading standard for special damages under Court of Fed-
 eral Claims Rule 9(g).
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 OLIVA   v. UNITED STATES                                  9



     The Claims Court noted that although Mr. Oliva had
 “plausibly alleged that the VA determined that a relocation
 incentive would be provided for [the Greenville] position,
 [Mr. Oliva] fail[ed] to sufficiently allege facts in the
 amended complaint to show that he would have been eligi-
 ble to receive this [relocation] pay.” J.A. 9.
      The government relies on OPM regulations providing
 that relocation pay is only available to “an employee
 who . . . [i]s an employee of the Federal Government imme-
 diately before the relocation.” 5 C.F.R. § 575.205(a)(2).
 Furthermore, “[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 Success-
 ful’ or equivalent.” Id. at § 575.205(c).
      The Claims Court adopted this position and held that
 Mr. Oliva was required to allege the date “when he learned
 that the VA would not offer him the Greenville Position”
 and that “he was a federal employee” with a “Fully Success-
 ful, or equivalent, rating of record” “when he learned this
 information” because the OPM regulations state that the
 employee must have the requisite status for relocation “im-
 mediately before relocation.” J.A. 10. Mr. Oliva’s amended
 complaint stated that “[b]ut for the VA’s breach of the Set-
 tlement Agreement, [he] would have received relocation in-
 centive pay.” J.A. 92.
     The Claims Court also held that Mr. Oliva had alleged
 “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.” J.A. 11.
 The Claims Court held that Mr. Oliva’s claim was also not
 supported because he had “not explain[ed] how he calcu-
 lated the $87,312.00 in relocation incentive pay that he
 seeks in the amended complaint.” J.A. 11. However, such
 detailed allegations as to the damages calculation were not
 required.
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 10                                     OLIVA   v. UNITED STATES



     The amended complaint set forth sufficient factual al-
 legations to plausibly claim that Mr. Oliva was entitled to
 receive relocation incentive pay. Accordingly, we conclude
 that the Claims Court erred when it dismissed his claim.
                              III
      We note that Mr. Oliva has also filed a complaint with
 the Merit Systems Protection Board (“Board”), which we
 address in a contemporaneously issued decision. See Oliva
 v. Dep’t of Veterans Affairs, No. 19-1990. During oral argu-
 ment, the government suggested that Mr. Oliva was at-
 tempting to obtain double recovery by simultaneously
 filing complaints before the Claims Court and the Board.
 “The purpose of damages for breach of contract is generally
 to put the wronged party in as good a position as he would
 have been had the contract been fully performed.” S. Cal.
 Fed. Sav. & Loan Ass’n v. United States, 422 F.3d 1319,
 1332 (Fed. Cir. 2005). “[D]ouble recovery for the same in-
 jury is inappropriate” when the two causes of action arise
 from the “same operative facts.” Tex. Advanced Optoelec-
 tronic Sols., Inc. v. Renesas Elecs. Am., Inc., 895 F.3d 1304,
 1328 (Fed. Cir. 2018) (alteration in original) (quoting Aero
 Prods. Int’l, Inc. v. Intex Recreation Corp., 466 F.3d 1000,
 1017, 1019 (Fed. Cir. 2006)). Mr. Oliva admits that he can-
 not recover twice for the same injury. There is no possibil-
 ity of double recovery because we hold in Oliva, No. 19-
 1990, that Mr. Oliva cannot recover on his Whistleblower
 Protection Act theory for damages for loss of the El Paso
 job.
                REVERSED AND REMANDED
                            COSTS
      Costs to appellant.
