            In the United States Court of Federal Claims
                                          No. 17-1144C
                                        Filed: July 3, 2018
                                     NOT FOR PUBLICATION

                                               )
 ALICIA DABNEY,                                )
                                               )
                        Plaintiff,             )
                                               )      Breach Of Contract; RCFC 12(b)(6);
 v.                                            )      Failure To State A Claim.
                                               )
 THE UNITED STATES,                            )
                                               )
                        Defendant.             )
                                               )
                                               )

        Brian K. Cline, Attorney of Record, Law Office of Pecora Cline, La Jolla, CA, for
plaintiff.

        Ashley Akers, Trial Attorney, Allison Kidd-Miller, Assistant Director, Robert E.
Kirschman, Jr., Director, Chad A. Readler, Acting Assistant Attorney General, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington, DC;
Marissa J. Suarez, Attorney, San Francisco Office, Pacific Region, Office of the General
Counsel, United States Department of Agriculture, San Francisco, CA, for defendant.

                         MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I.     INTRODUCTION

        Plaintiff, Alicia Dabney, brings this breach of contract action alleging that the United
States Department of Agriculture Forest Service (the “USFS”) materially breached a Title VII
Settlement Agreement (the “Settlement Agreement”) that she entered into with the USFS to
resolve certain employment discrimination claims, pursuant to the Tucker Act, 28 U.S.C.
§ 1491(a)(1). See generally Am. Compl. As relief, plaintiff seeks to recover monetary damages
from the government and certain injunctive relief. Id. at Prayer for Relief.

       The government has moved to dismiss this matter for failure to state a claim upon which
relief can 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
GRANTS the government’s motion to dismiss and DISMISSES the amended complaint.

II.     FACTUAL AND PROCEDURAL BACKGROUND1

        A.      Factual Background

        In this breach of contract action, plaintiff, Alicia Dabney, seeks to recover monetary
damages from the government and certain injunctive relief for alleged material breaches of a
Title VII Settlement Agreement that she entered into with the USFS in 2013 to resolve certain
employment discrimination claims. See generally Am. Compl. In the amended complaint,
plaintiff alleges that the USFS materially breached the Settlement Agreement by failing to
“provide a neutral or better reference to prospective employers.” Id. at ¶ 10.

        Plaintiff also alleges that the USFS materially breached the Settlement Agreement by
failing to field and return certain employment reference calls. Id. at ¶ 12. As relief, plaintiff
seeks $350,000.00 in monetary damages from the United States and certain injunctive relief. Id.
at Prayer for Relief.

                1.      The Settlement Agreement

        As background, plaintiff began working for the USFS as a Forestry Technician in 2010.
Def. Mot. at 1. Plaintiff alleges that during her tenure at the USFS, she suffered employment
discrimination. Id. at ¶ 8.

        On January 11, 2013, plaintiff and the USFS entered into the Settlement Agreement to
resolve her employment discrimination claims. Id. This agreement resulted in plaintiff’s
separation from the USFS in January 2013. Id.

        Specifically relevant to this dispute, the Settlement Agreement contains several
commitments from the USFS to plaintiff regarding plaintiff’s separation from the USFS and her
efforts to secure future employment. In this regard, the Settlement Agreement provides that:

        In consideration of [plaintiff’s] consent to the terms of this Agreement, the [USFS]
        agrees:
        ...

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

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        To pay [plaintiff] a lump sum of the amount of $160,000 in full and complete
        satisfaction of any and all claims for monetary relief [plaintiff] has raised or could
        have raised up to an including the effective date of this Agreement. The [USFS]
        will submit documentation to the National Finance Center (“NCF”) required to
        effect this lump sum payment within 45 days of the effective date of this
        Agreement.

Pl. Ex. 1 at 1-2. The Settlement Agreement also provides that the USFS agrees “[t]o
provide [plaintiff] with a written, neutral reference.” Id. at 2.

        In addition, the Settlement Agreement provides that:

        The [USFS] will issue written direction to the Forest Supervisor and the Fire
        Management Officer for the Sequoia National Forest and all supervisory employees
        within the Western Divide Ranger District fire program that upon receiving a
        request for an employment reference concerning [plaintiff] they will not provide
        any negative or verbal information or references and they will refer all employment
        references requested from the [USFS] to Angel Prieto. The written direction will
        direct the recipients that they should destroy any reference to [plaintiff’s] removal
        contained in any file maintained by them. The [USFS] will implement this term
        within 45 days after the effective date of this Agreement.

Id. at 2-3.

        Plaintiff alleges that the USFS materially breached the Settlement Agreement when the
agency failed to provide neutral or better references to prospective employers. Am. Compl. at ¶
10. Plaintiff also alleges that the USFS breached the Settlement Agreement, during the period of
February 2013 to March 2013, when the agency failed to field and return employment reference
calls.2 Id. at ¶ 12. And so, plaintiff contends that these material breaches interfered with her
efforts to secure future employment opportunities resulting in an economic loss. Id. at ¶ 13.

                2.      Plaintiff’s Agency Level And EEOC Proceedings

        On April 11, 2013, plaintiff filed a complaint with the United States Department of
Agriculture (the “USDA”) alleging that the USFS willfully and materially breached the
Settlement Agreement. Id. at ¶ 14; see also Def. Mot. at 2. The USDA subsequently found that

2
 In her response and opposition to the government’s motion to dismiss, plaintiff also alleges that the
government breached the Settlement Agreement when the General Attorney for the United States
Department of Agriculture’s Office of General Counsel, Kerri Bandics, “[went] around the single point of
contact, Angel G. Prieto of the USFS and badmouth[ed] the plaintiff to Supervisor Elliot.” Pl. Resp. at 3.


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the USFS had complied with the terms of the Settlement Agreement and denied plaintiff’s claim
(the “Final Agency Decision”). Am. Compl. at ¶ 14; see also Def. Mot. at 2.

         In October 2013, plaintiff appealed the USDA’s Final Agency Decision to the United
States Equal Employment Opportunity Commission (the “EEOC”). Def. Mot. at 2. In August
2016, the EEOC affirmed the USDA’s decision to deny plaintiff’s claim. Am. Compl. at ¶ 15.

         Subsequently, plaintiff commenced a civil action in the United States District Court for
the Eastern District of California on November 4, 2016. Dabney v. Vilsack, No. 16-1685 (E.D.
Cal. Nov. 4, 2016), at Entry No. 1. The district court transferred the matter to the United States
Court of Federal Claims on May 19, 2017. Dabney v. Vilsack, No. 16-1685 (E.D. Cal. May 19,
2017), at Entry No. 13.

         B.     Procedural History

         Plaintiff filed a transfer complaint in this matter on November 6, 2017. See generally
Transfer Compl. On March 19, 2018, plaintiff filed an amended complaint. See generally Am.
Compl.

         On April 19, 2018, the government filed a motion to dismiss the amended complaint for
failure to state a claim upon which relief can be granted, pursuant to RCFC 12(b)(6). See
generally Def. Mot. On May 18, 2018, plaintiff filed a response and opposition to the
government’s motion to dismiss. See generally Pl. Resp. On June 1, 2018, the government filed
a reply in support of its motion to dismiss. See generally Def. Reply.

         The government’s motion to dismiss having been fully briefed, the Court resolves the
pending motion.

III.     LEGAL STANDARDS

         A.     Jurisdiction

         The United States Court of Federal Claims is a court of limited jurisdiction and
“possess[es] only that power authorized by Constitution and statute.” Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The Tucker Act grants the Court jurisdiction
over:
         [A]ny 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

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       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).

       The Tucker Act is, however, a jurisdictional statute; it does not create any substantive
right enforceable against the United States for money damages. Rather, the Tucker Act merely
confers jurisdiction upon the Court whenever the substantive right exists. United States v.
Testan, 424 U.S. 392, 398 (1976). And so, to pursue a substantive right against the United States
under the Tucker Act, a plaintiff must identify and plead a money-mandating constitutional
provision, statute, or regulation; an express or implied contract with the United States; or an
illegal exaction of money by the United States. Cabral v. United States, 317 Fed. App’x 979,
981 (Fed. Cir. 2008) (citing Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005)).

       B.      RCFC 12(b)(6)

       When deciding a motion to dismiss based upon RCFC 12(b)(6), the Court must assume
that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences
in the non-movant’s favor. See Redondo v. United States, 542 F. App’x 908, 910 (Fed. Cir.
2013); see also RCFC 12(b)(6). To survive a motion to dismiss under 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 claim to relief that is plausible on its
face,” the Court must dismiss the complaint. Iqbal, 556 U.S. at 678 (citation omitted). 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 the
defendant. Id. at 663-64, 678 (“A claim has facial plausibility when the pleaded factual content
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”).

       C.      Breach Of Contract Claims Against The Government

       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). But, plaintiff bears the burden of proving the existence of a contract
with the United States and she must demonstrate that there is “something more than a cloud of

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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, plaintiff must plead: “(1)
an obligation or duty arising out of the contract and (2) factual allegations sufficient to support
the conclusion that there has been a breach of the identified contractual duty.” Bell/Heery v.
United States, 739 F.3d 1324, 1330 (Fed. Cir. 2014). In addition, 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 her 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). 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 (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.

       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


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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 mean that Tucker Act jurisdiction exists. Id. For example, a contract that expressly
disavows money damages would not give rise to Tucker Act jurisdiction. Id. Similarly, 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 over a plaintiff’s breach of contract claims. Id. To that end,
the Federal Circuit has held that a settlement agreement that inherently relates to monetary
compensation “through relationship to [a plaintiff’s] future employment” contemplates money
damages in the event of breach. Id. at 1316.

III.   LEGAL ANALYSIS

       The government has moved to dismiss this matter for failure to state a claim upon which
relief can be granted, upon the grounds that plaintiff: (1) fails to allege facts to support her claim
that the USFS breached the Settlement Agreement by failing to provide a neutral or better
reference to prospective employers and (2) fails to identify a provision in the Settlement
Agreement that obligates the USFS to field and return employment reference calls, or to allege
that USFS did not field and return such calls. Def. Mot. at 3-6.

       In her response and opposition to the government’s motion to dismiss, plaintiff counters
that she has alleged viable breach of contract claims in the amended complaint, because the
amended complaint “recites material terms of the [Settlement Agreement]” and her response and
opposition to the government’s motion provides additional documents to support her breach of
contract claims. See Pl. Resp. at 6-7. For the reasons discussed below, plaintiff has not stated
plausible breach of contract claims in the amended complaint. And so, the Court GRANTS the
government’s motion to dismiss and DISMISSES this matter pursuant to RCFC 12(b)(6).

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        A.      The Court May Consider Plaintiff’s Breach Of Contract Claims

        As an initial matter, the Court possesses subject-matter jurisdiction to consider plaintiff’s
breach of contract claims arising under the Settlement Agreement. The Federal Circuit has held
“that Tucker Act jurisdiction may be exercised in a suit alleging breach of a Title VII settlement
agreement.” Holmes, 657 F.3d at 1312. The Federal Circuit has also recognized that a
settlement agreement inherently related to monetary compensation, “through relationship to [a
plaintiff’s] future employment,” contemplates money damages in the event of breach and may
form the basis for establishing the Court’s jurisdiction under the Tucker Act. Id. at 1316. In this
case, the Settlement Agreement contemplates an award of monetary damages in the event of a
breach, because the agreement contains several provisions to aid plaintiff’s efforts to secure
future employment. See Pl. Ex. 1 at 2-3. For example, the Settlement Agreement provides that
the USFS will, among other things, provide a “written, neutral reference” for plaintiff. Id. at 2.
And so, the Court is satisfied that it may consider plaintiff’s breach of contract claims. See
Holmes, 657 F.3d at 1316.

        B.      Plaintiff Fails To State Plausible Claims for Relief

        While the Court may consider plaintiff’s breach of contract claims, the government
correctly argues in its motion to dismiss that plaintiff fails to state plausible claims for relief in
the amended complaint. And so, the Court must dismiss this matter pursuant to RCFC 12(b)(6).

                1.      Plaintiff Fails To State A Claim That The USFS Breached
                        The Settlement Agreement By Failing To Provide References

        First, a careful reading of the amended complaint shows that plaintiff does not allege
sufficient facts to state a plausible claim that the USFS breached the Settlement Agreement by
failing to provide a neutral or better reference to her prospective employers. To properly state a
claim for breach of contract, plaintiff must: (1) identify “an obligation or duty arising out of the
contract” and (2) provide “factual allegations sufficient to support the conclusion that there has
been a breach of the identified contractual duty.” Bell/Heery, 739 F.3d at 1330. While there can
be no dispute that the Settlement Agreement requires that the USFS “provide [plaintiff] with a
written, neutral reference,” plaintiff alleges no facts to show that the USFS actually breached this
contractual obligation. Pl. Ex. 1 at 2; see generally Am. Compl. Indeed, plaintiff simply
alleges—without any explanation—that the terms of the Settlement Agreement “were breached,

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and the material breached caused damages.” Am. Compl. at ¶ 10; see generally id. Plaintiff’s
unsupported allegations are simply insufficient to state a plausible breach of contract claim. And
so, the Court must dismiss this claim. RCFC 12(b)(6).

               2.      Plaintiff Fails To State A Plausible Claim That
                       The USFS Did Not Field Or Return Reference Calls

       Plaintiff similarly fails to allege a plausible claim that the USFS breached the Settlement
Agreement by declining to field and return employment reference calls. See Bell/Heery, 739
F.3d at 1330. Plaintiff points to no provision in the Settlement Agreement that actually creates
such a duty on the part of the USFS. Am. Compl. at ¶ 12. In addition, while plaintiff alleges
that the USFS “ignored employment related inquiries concerning the plaintiff,” during the period
February 2013 to March 2013, she does not allege any facts to support this claim. Id. Plaintiff’s
bare allegations are simply insufficient to state a plausible breach of contract claim. And so, the
Court must also dismiss this claim pursuant to RCFC 12(b)(6). Twombly, 550 U.S. at 570.

               3.      Plaintiff Fails To State A Plausible Claim Regarding Ms. Bandics

       Lastly, to the extent that plaintiff properly raises this claim in these proceedings, plaintiff
also fails to state a plausible claim that the actions of the General Attorney for the United States
Department of Agriculture’s Office of General Counsel, Kerri Bandics, resulted in a material
breach of the Settlement Agreement. In her response and opposition to the government’s motion
to dismiss, plaintiff alleges for the first time that Ms. Bandics violated the terms of the
Settlement Agreement “by going around the single point of contact, Angel G. Prieto . . . and
badmouthing the plaintiff to Supervisor Elliot.” Pl. Resp. at 3. But, again, plaintiff points to no
provision in the Settlement Agreement that would create a duty on the part of Ms. Bandics, or
the USFS, to refrain from such conduct. See generally Am. Compl.; Pl. Resp. Plaintiff also fails
to provide any facts in the amended complaint to support her allegation that Ms. Bandics
“badmouthed” her. See Bell/Heery, 739 F.3d at 1330; see generally Am. Compl.; Pl. Resp.
Because plaintiff neither identifies an obligation arising out of the Settlement Agreement related
to this claim, nor alleges any facts to support the claim, the Court must also dismiss plaintiff’s
final claim pursuant to RCFC 12(b)(6).




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V.     CONCLUSION

       In sum, when read in the light most favorable to plaintiff, the amended complaint makes
clear that plaintiff fails state plausible breach of contract claims in this action. And so, for the
foregoing reasons, the Court:

       1. GRANTS the government’s motion to dismiss; and

       2. DISMISSES the amended complaint.

       The Clerk’s Office is directed to ENTER final judgment in favor of the government and
to DISMISS the amended complaint.

       Each party shall bear its own costs.

       IT IS SO ORDERED.



                                                    s/ Lydia Kay Griggsby
                                                    LYDIA KAY GRIGGSBY
                                                    Judge




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