          In the United States Court of Federal Claims
                                          No. 17-445C
                                    (Filed: January 17, 2018)

                                              )
 ELLEN P. BULLOCK,                            )
                                              )     Motion to Dismiss for Lack of Subject
                       Plaintiff,             )     Matter Jurisdiction; RCFC 12(b)(1);
                                              )     Lack of authority to bind government;
 v.                                           )     Failure to establish enforceable EEO
                                              )     Settlement Agreement
 THE UNITED STATES,                           )
                                              )
                      Defendant.              )
                                              )


       Jeffrey R. Eilliot, Wyomissing, PA, for plaintiff.

       Steven C. Hough, Commercial Litigation Branch, Civil Division, U.S. Department
of Justice, Washington, D.C., with whom were Chad A. Readler, Acting Assistant
Attorney General, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch,
Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, for defendant.
Holly Bryant, U.S. Army Litigation Division, Fort Belvoir, VA, of counsel.

                         OPINION ON MOTION TO DISMISS

FIRESTONE, Senior Judge.

       Pending before the court is a motion filed by the United States (“government”) to

dismiss this action filed by Ellen P. Bullock (“plaintiff”) for a breach of contract pursuant

to Rule 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal Claims

(“RCFC”) for lack of subject matter jurisdiction or in the alternative for failure to state a

claim. Ms. Bullock, an employee of the Department of Defense, U.S. Army Aviation and

Missile Command (“Army”), alleges that the government is in breach of a settlement
agreement she entered into in connection with a Title VII Civil Rights claim. Ms.

Bullock’s Title VII Civil Rights claim was filed before the Equal Employment

Opportunity Commission (“EEOC”). During the Equal Employment Opportunity

(“EEO”) proceedings, Ms. Bullock alleges she entered into an oral settlement agreement

with the Army that the government has failed to honor in full. Specifically, Ms. Bullock

claims she has not been paid the $70,000.00 she contends the government agreed to pay

in back pay, compensatory damages, and attorney’s fees.

       In its motion to dismiss, the government argues that Ms. Bullock’s claim must be

dismissed for lack of subject matter jurisdiction. The government argues that the Army

did not enter into a binding agreement to pay $70,000.00 to Ms. Bullock on the grounds

that Claudia Lynch, the Army attorney who represented the Army in the EEO

negotiations, did not have either the express or implied actual authority to bind the Army.

Specifically, the government argues that under Army Regulations 690—600 ¶ 1—13(d)

and ¶ 5—13(g) 1, only the activity commander or his designee may bind the Army. Here,

because Ms. Lynch was not the activity commander or his designee, she could not bind

the Army. The government also argues that the agreement is not binding on the grounds


       1
        Army Reg. 690—600 ¶ 1—13(d) states the agency representative will “[d]raft and/or
review proposed negotiated settlement agreements and Offers of Resolution.”

       Army Reg. 690—600 ¶ 5—13(g) states that the settlement agreement “will be signed by
the complainant and the attorney, if complainant is represented by an attorney, and the activity
commander, or designee.”

      In addition to Army Reg. 690—600 ¶ 5—13(g), the court understands from reviewing the
Army Regulations that per Army Reg. 690—600 ¶ 7—11(c) the power to agree to compensatory
damages rests solely with the activity commander.


                                                2
that the Army’s alleged offer was never reduced to writing in contravention of EEOC

regulation, 29 C.F.R. § 1614.603, which states that “[a]ny settlement reached shall be in

writing and signed by both parties and shall identify the claims resolved.” The

government argues for these same reasons that Ms. Bullock has failed to state a claim for

relief.

          For the reasons set forth below, the court finds that Ms. Lynch did not have the

authority to bind the government and for this reason the government’s motion to dismiss

for lack of subject matter jurisdiction is GRANTED.

    I.       Background Facts 2

    Ms. Bullock filed her EEO action on August 12, 2013. Pl.’s Compl. ¶ 12. Her EEO

complaint was assigned for mediation before Administrative Law Judge (“ALJ”) Anita

Richardson on June 11, 2015. Id. ¶ 18. The Army was represented by Claudia Lynch, an

attorney for the Army. Id. ¶ 11.

    Ms. Bullock alleges that on July 29, 2015, her attorney, Jeffrey Elliot, and Ms. Lynch

reached an agreement as to changes in her working conditions. Id. ¶ 23. Ms. Bullock

further alleges that on that same day, Ms. Lynch presented an offer to pay $50,000.00 to

resolve Ms. Bullock’s demand for over $150,000.00 in back pay, compensatory damages,

and attorney’s fees. Id. ¶ 26.



2
 The following jurisdictional facts are taken from the complaint and the declaration of Ms.
Lynch attached to the government’s reply to its motion to dismiss.


                                               3
    After further negotiations, Ms. Bullock alleges that after receiving the Army’s

settlement proposal she agreed to lower her demand to $70,000.00. According to an

August 27, 2015 email from ALJ Richardson to Ms. Bullock’s attorney, ALJ Richardson

represented that the “[Army] will agree to pay $70,000.00” and that the payment would

settle the dispute. Id. at ¶¶ 33-35, Ex. I. No final written agreement was ever executed

despite repeated requests from ALJ Richardson for Ms. Lynch to memorialize the

settlement agreement in writing. Id. ¶ 37, Ex. J.

    On September 21, 2015, ALJ Richardson sent an email to Ms. Bullock and Ms. Lynch

stating that she had “just learned from Ms. Lynch that the [Army] had rescinded its

settlement offer from August 27th” and that she was notifying the EEOC “that the parties

have reached an impasse.” Compl. ¶ 38, Ex. K.3

    II.   Positions of the Parties

    On July 31, 2017, the government filed the pending motion to dismiss. As noted

above, the government argues that because Ms. Lynch did not have the authority to bind

the Army and because the settlement agreement was not finalized in writing there is no

final settlement agreement between the Army and Ms. Bullock. The government argues

that Ms. Lynch, although authorized to negotiate on behalf of the Army before the

EEOC, did not have the express or implied actual authority to bind the Army to any



3
  Ms. Bullock’s EEO complaint is currently before an EEOC administrative law judge, who
stayed the EEOC proceedings on April 19, 2017 pending the resolution of Ms. Bullock’s claim
currently before this court. Def.’s Mot. to Dismiss (Def.’s Mot) at 3, Ex. 5.


                                              4
settlement agreement. Def.’s Reply at 5. The government argues per Army Reg. 690—

600, that only the activity commander or his designee had the authority to bind the Army

to the terms of a settlement and to pay compensatory damages.4 The government, relying

on Ms. Lynch’s sworn declaration, argues that she was not the activity commander or his

designee and thus could not bind the Army. Ms. Lynch states in her sworn declaration

that she “served as the agency representative in Ms. Bullock’s EEOC proceedings . . .

[and] [a]t no time was [she] empowered to enter into a settlement agreement on behalf of

the Army.” Lynch Dec. at ¶ 4. As the Army representative, Ms. Lynch explains that she

only “represents the Army’s interests, as well as advises and assists the management

official in proceedings before the EEOC.” Id. The government also argues that the

settlement agreement is not enforceable because it was not finalized in writing in

accordance with EEOC regulation, 29 C.F.R. § 1614.603.

   In response to the government’s motion to dismiss, Ms. Bullock asserts that the Army

should be bound by Ms. Lynch’s representations on the grounds that under “[f]ederal

common law[,]” attorneys are presumed to have the authority to settle on behalf of their

clients. Pl.’s Sur-Reply at 3-4 (citing In re Artha Management Inc., 91 F.3d 326 (2d Cir.

1996); Thomas v. Colorado Trust Deed Funds, Inc., 366 F.2d 136, 139 (10th Cir. 1966);

Garebedian v. Allstates Engineering Co. et al., 811 F.2d 802, 803 (3d. Cir. 1987) (other

citations omitted). Ms. Bullock does not address the Army regulations cited by the


       4
         Army Reg. 600—690 defines activity commander as an “army commander who has
delegated appointing authority for the civilian work force and has a civilian personnel official, a
labor counselor, and an EEO officer available for advice.”


                                                 5
government. With regard to the EEOC regulation, 29 C.F.R. § 1614.603, Ms. Bullock

asserts that courts have upheld oral settlement agreements resolving Title VII Civil

Rights claims. Pl.’s Resp. in Opp’n to Def.’s Mot at 10-11 (citing Greene v. Rumsfeld,

266 F. Supp. 2d 125, 136 (D.D.C. 2003) (holding that an oral agreement reached between

the parties resolving an Title VII Civil Rights complaint, which both parties represented

as an agreement to the presiding Magistrate Judge, was an enforceable agreement.)).

   III.   Standard of Review on Motion to Dismiss for Lack of Subject Matter
          Jurisdiction

       Ordinarily, where a plaintiff alleges a breach of contract “[a] well pleaded

allegation of a breach of either an express or implied-in-fact contract is sufficient to

overcome challenges to jurisdiction. Bank of Guam v. United States 578 F.3d 1318, 1325

(Fed. Cir. 2009) (citing Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1325 (Fed.

Cir. 1997)). However, if the government challenges jurisdiction, “‘only uncontroverted

factual allegations are accepted as true.’” Hymas v. United States, 810 F.3d 1312, 1317

(Fed. Cir. 2016) (citation omitted). In order to proceed, the party invoking this court’s

jurisdiction must establish jurisdiction by a preponderance of the evidence. Fid. & Gaur.

Ins. Underwriters, Inc. v. United States, 805 F.3d 1082, 1087 (Fed. Cir. 2015) (citing

Brandt v. United States, 710 F.3d 1369, 1373 (Fed Cir. 2013); Reynolds v. Army & Air

Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)).




                                              6
   IV.      Ms. Bullock Has Not Established Jurisdiction Over A Contract Claim

         The Court of Federal Claims has jurisdiction over a claim founded upon an

express or implied-in-fact contract with the United States pursuant to the Tucker Act. 28

U.S.C. § 1491(a)(1). To hear a breach of contract claims against the government, the

plaintiff must allege all of the elements of a contract. See Trauma Serv. Grp., 104 F.3d at

1325. The elements for an express or an implied-in-fact contract with the government are

the same: “(1) mutuality of intent to contract; (2) lack of ambiguity in offer and

acceptance; (3) consideration; and (4) a government representative having actual

authority to bind the United States in contract.” Anderson v. United States, 344 F.3d

1343, 1353 (Fed. Cir. 2003) (citation omitted) (footnote omitted).

         The threshold issue in this case is whether Ms. Lynch had the authority to bind the

Army before the EEOC. A government official “‘possesses express actual authority to

bind the [United States] in contract, only when the Constitution, a statute, or regulation

grants [that power] to that agent in unambiguous terms.’” Jumah v. United States, 90

Fed. Cl. 603, 612 (2009), aff'd 385 Fed. App’x 987 (Fed. Cir. 2010)(citation omitted). If

the government representative does not have actual authority to bind the United States in

contract, the representative may only bind the government if the representative has

implied actual authority. H. Landau & Co. v. United States, 886 F.2d 322, 324 (Fed. Cir.

1989). “Authority to bind the government may be implied when it is an integral part of

the duties assigned to the particular government employee.” Winter v. Cath-Dr/Balti

Joint Venture, 497 F.3d 1339, 1346 (Fed. Cir. 2007) (citing H. Landau & Co., 866 F.2d



                                              7
at 324 quoting J. Cibinic & R. Nash, Formation of Government Contracts 43 (1982)).

Importantly, “anyone entering into an arrangement with the Government takes the risk of

having accurately ascertained that he who purports to act for the Government stays within

the bounds of his authority.” Federal Crop Ins. Corp v. Merrill, 332 U.S. 380, 384

(1947).

       The court agrees with the government that Ms. Bullock’s claim must be dismissed

for lack of subject matter jurisdiction because Ms. Lynch lacked the express or implied

actual authority to bind the Army before the EEOC and thus there is no settlement

agreement to enforce. Def.’s Resp. at 5. Under Army Reg. 600—690 ¶5—13(g), only

the activity commander, or his designee, has the authority to bind the Army to EEO

settlement agreements. It is clear from Ms. Lynch’s uncontested declaration that she was

not given settlement authority from the activity commander. Thus she did not have

express settlement authority under the subject regulations. In addition, the court finds

that Ms. Lynch did not have implied actual authority. In her declaration, Ms. Lynch

states that she “served as the agency representative in Ms. Bullock’s EEOC proceeding”

and not as a person with binding settlement authority. Lynch Dec. ¶ 4. As she explains

in her declaration, as the agency representative she “represents the Army’s interests, as

well as advises and assists the management official in proceedings before the EEOC.” Id.

at ¶ 2. Ms. Lynch concludes that “[a]t no time was I empowered to enter into an

agreement on behalf of the Army.” Id. ¶ 4. In view of Ms. Lynch’s declaration it is clear

that settlement authority was not “integral” to Ms. Lynch’s duties.



                                             8
       Having concluded that Ms. Lynch did not have express or implied actual authority

to bind the Army before the EEOC, Ms. Bullock’s federal common law argument must

also fail. In Winter, the Federal Circuit held that a government employee, other than the

contracting officer, cannot bind the government, where a regulation expressly states that

only the contracting officer can bind the government. The Circuit stated, that a person

other than the contracting officer, “could not have had the implicit authority to authorize

contract modifications because the contract language and government regulation it

incorporates by reference explicitly state that only the contracting officer had the

authority to modify the contract.” Winter, 497 F.3d at 1346. The same reasoning applies

in this case. Where a regulation expressly provides which government official has the

authority to bind the government, a government attorney, like Ms. Lynch, does not have

“federal common law” authority to bind the government.

       Because Ms. Lynch did not have the authority to enter into a binding EEO

settlement agreement with Ms. Bullock, there never was a binding contract between the

Army and Ms. Bullock to pay $70,000.00 and thus Ms. Bullock’s case must be

dismissed.5




5
  Having concluded that there was no binding settlement agreement between Ms. Bullock and the
Army, it is not necessary to address the government’s argument that the case must be dismissed
because the alleged agreement was not in writing. Also, because the court does not have
jurisdiction over the case, the court will not address the government’s alternative request for
dismissal under RCFC 12(b)(6) for failure to state a claim upon which relief can be granted.




                                              9
                                       CONCLUSION

      For these reasons, the government’s motion to dismiss Ms. Bullock’s complaint

for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1) is GRANTED. The

Clerk is directed to enter judgment accordingly. No costs.

      IT IS SO ORDERED.



                                                         s/Nancy B. Firestone
                                                         NANCY B. FIRESTONE
                                                         Senior Judge




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