Case: 19-1932    Document: 46     Page: 1   Filed: 07/17/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                    MICHELLE EBY,
                    Plaintiff-Appellant

                             v.

                    UNITED STATES,
                    Defendant-Appellee
                  ______________________

                        2019-1932
                  ______________________

     Appeal from the United States Court of Federal Claims
 in No. 1:15-cv-00553-CFL, Senior Judge Charles F. Lettow.
                   ______________________

                  Decided: July 17, 2020
                  ______________________

     JACK BRADLEY JARRETT, III, Alan Lescht and Associ-
 ates, PC, Washington, DC, for plaintiff-appellant.

     DANIEL S. HERZFELD, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for defendant-appellee. Also represented by
 ETHAN P. DAVIS, REGINALD THOMAS BLADES, JR., ROBERT
 EDWARD KIRSCHMAN, JR.
                   ______________________
Case: 19-1932     Document: 46     Page: 2     Filed: 07/17/2020




 2                                       EBY   v. UNITED STATES



     Before NEWMAN, O’MALLEY, and CHEN, Circuit Judges.
 O’MALLEY, Circuit Judge.
     Michelle Eby (“Eby”) appeals from an order of the
 United States Court of Federal Claims (“Claims Court”)
 granting the United States’ (“government’s”) motion for
 summary judgment and denying Eby’s cross-motion for
 summary judgment. Eby v. United States, 142 Fed. Cl. 293
 (2019). For the reasons explained below, we affirm.
                        BACKGROUND
     Eby was employed by the National Institute of Health
 (“NIH”), an agency within the Department of Health and
 Human Services (“HHS”), between 1989 and 2010. The
 NIH promoted Eby to a GS-13 position in 2001, and subse-
 quently to a GS-14 position in 2003. Eby, 142 Fed. Cl. at
 296. In 2009, Eby filed a complaint with the Equal Em-
 ployment Opportunity Commission (“EEOC”) against the
 government alleging disability discrimination. Id. In April
 2010, the dispute resulted in a settlement agreement be-
 tween Eby and the government, pursuant to which Eby
 agreed to resign and the government agreed that her su-
 pervisor would provide a neutral job reference for any fu-
 ture job applications.
     Upon resigning from the NIH, Eby applied for a posi-
 tion as a Regulatory Health Project Coordinator in the Di-
 vision of Drug Oncology Products in the Food and Drug
 Administration (“FDA”). The position had a maximum pro-
 motion potential to the GS-13 level. Eby asserts that, de-
 spite this, the hiring official at the FDA indicated that, if
 she performed well, she could be promoted to a GS-14 posi-
 tion within “a couple of years.” J.A. 266. Eby did not re-
 ceive a job offer from the FDA after the FDA contacted the
 NIH for a reference.
     In 2011, Eby notified the HHS’s Office of Equal Oppor-
 tunity and Diversity Management that she believed the
 NIH had violated the terms of the settlement agreement.
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 EBY   v. UNITED STATES                                     3



 The HHS determined that the NIH had made a good faith
 effort to comply with the terms of the settlement agree-
 ment. Eby then filed a claim with the EEOC, appealing the
 HHS’s decision and alleging breach of the settlement
 agreement. Eby, 142 Fed. Cl. at 296. In April 2012, before
 the EEOC rendered its decision on Eby’s claim, she was
 hired by the FDA as a Consumer Safety Officer—a differ-
 ent position than the one at issue in her claim against the
 HHS—at the GS-13 Step 10 level.
     In May 2013, the EEOC rendered its decision, conclud-
 ing that the HHS and NIH breached the settlement agree-
 ment. The EEOC also found, however, that the settlement
 agreement did not provide a remedy for breach of contract.
 Accordingly, it required that the HHS allow Eby to pursue
 one of two options: (1) reinstate the original EEOC disabil-
 ity discrimination complaint that led to the settlement
 agreement, thereby requiring Eby to return to her position
 at the NIH, return the awarded attorney’s fees, and forego
 administrative leave, or (2) bring a retaliation claim
 against the HHS for failure to provide a neutral reference.
 Eby chose to pursue the retaliation claim before the EEOC.
     Before the EEOC rendered its decision on the retalia-
 tion claim, Eby filed a complaint in the Claims Court, al-
 leging breach of contract and seeking back pay and other
 employment benefits. While both the EEOC action and the
 Claims Court action were pending, the FDA transferred
 Eby to a Health Science Administrator position, again at
 the GS-13 step 10 level. In March 2017, the EEOC ren-
 dered a final judgment in Eby’s favor on her retaliation
 claim and awarded back pay, fringe benefits, and attor-
 ney’s fees. The EEOC also ordered the HHS to place Eby
 in a Regulatory Health Project Coordinator position at the
 FDA, i.e., the position for which she initially applied. Eby,
 however, chose to stay in her then-current position.
    After the EEOC’s decision on the retaliation claim, the
 government moved to dismiss the action before the Claims
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 4                                      EBY   v. UNITED STATES



 Court for mootness. The Claims Court denied the motion
 because Eby had not yet received her back pay and bene-
 fits. Eby, 142 Fed. Cl. at 295. Subsequently, although Eby
 received that compensation, she maintained that her claim
 was still viable because the EEOC failed to consider back
 pay that Eby would have received if she had been promoted
 to a GS-14 position two years after she would have begun
 as a Regulatory Health Project Coordinator but for the
 NIH’s retaliation—i.e. in June 2012. Id. Eby asserted
 these damages under a breach of contract expectation dam-
 ages theory rather than under the Back Pay Act to which
 the EEOC’s remedy was constrained. Id. The Claims
 Court granted limited discovery related to whether Eby
 would have been promoted and when. Id.
     At the close of discovery, the government moved for
 summary judgment and Eby filed a cross-motion for sum-
 mary judgment. Id. at 295–96. The Claims Court granted
 the government’s motion for summary judgment and de-
 nied Eby’s cross motion for summary judgment two years
 later in March 2019. Eby, 142 F.3d at 301. The Claims
 Court found that Eby failed to prove she was entitled to a
 promotion to the GS-14 level at any time before March
 2017 and, therefore, had failed to prove she was entitled to
 the damages she requested. Id. at 300–01. Eby timely ap-
 pealed. 1 We have jurisdiction pursuant to 28 U.S.C.
 § 1295(a)(3).
                        DISCUSSION
     Eby raises two issues on appeal: (1) whether Eby
 proved her damages with reasonable certainty, and (2)
 whether the Claims Court incorrectly applied the “duly



     1  Eby was promoted to a GS-14 level in January
 2019, before the Claims Court issued its summary judg-
 ment ruling.
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 EBY   v. UNITED STATES                                    5



 appointed” requirement to a breach of contract claim. 2
 This court reviews the Claims Court’s grant of summary
 judgment de novo. Aviation & Gen. Ins. Co. v. United
 States, 882 F.3d 1088, 1093 (Fed. Cir. 2018). The Claims
 Court grants “summary judgment if the movant shows that
 there is no genuine dispute as to any material fact and the
 movant is entitled to judgment as a matter of law.” Rules
 of the Claims Court (“RCFC”) 56(a).
     Contracts with the federal government are generally
 governed by the same contract law that would apply to con-
 tracts between private individuals. Mobil Oil Expl. & Pro-
 ducing Se., Inc. v. United States, 530 U.S. 604, 607 (2000).
 In common law breach of contract cases, damages are
 awarded to make the non-breaching party whole by giving
 her the benefits she would have received if the breach had
 not occurred. Glendale Fed. Bank, FSB v. United States,
 239 F.3d 1374, 1380 (Fed. Cir. 2001); Estate of Berg v.
 United States, 687 F.2d 377, 379 (Ct. Cl. 1982). These “ex-
 pectation damages” are recoverable if they are (1) actually
 foreseen or reasonably foreseeable, (2) caused by the
 breach of the promisor, and (3) proved with reasonable cer-
 tainty. Bluebonnet Sav. Bank, F.S.B. v. United States, 266
 F.3d 1348, 1355 (Fed. Cir. 2001). In this case, the Claims
 Court found that Eby failed to prove she would have been
 promoted to a GS-14 position and therefore failed to prove
 her expectation damages with reasonable certainty. Eby,
 142 Fed. Cl. at 301.
     On appeal, Eby challenges the Claims Court’s determi-
 nation that she failed to prove with reasonable certainty
 that she would have been promoted to a GS-14 position.
 Eby contends that she would have been promoted to a GS-


       2 Generally, a federal employee is not entitled to the
 benefits of a position to which she has not been duly ap-
 pointed, regardless of the reasons for the non-appointment.
 United States v. Testan, 424 U.S. 392, 402 (1976).
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 6                                      EBY   v. UNITED STATES



 14 position within two years of being appointed to the GS-
 13 position at the FDA in 2010. The government asserts
 that Eby did not prove with reasonable certainty that she
 would have been promoted to a GS-14 position because the
 position for which she applied had a maximum promotion
 of GS-13 and appointment to a GS-14 position would have
 required Eby to compete with other applicants.
     We conclude that potential discretionary promotions
 that are subject to a competitive process cannot provide the
 requisite reasonable certainty necessary to prove expecta-
 tion damages. In a case involving private parties, the Su-
 preme Court has held that, even where an employee might
 be given preference when applying for a promotion, the
 likelihood of that potential promotion is too speculative to
 sustain an expectation damages award. See Richmond &
 D.R. Co. v. Elliot, 149 U.S. 266, 268 (1893). In the govern-
 ment employment context, our predecessor court held that
 the possibility of a promotion, or even the probability of a
 promotion, is insufficient to sustain back pay awards at the
 higher pay grade. Power v. United States, 597 F.2d 258,
 262 (Ct. Cl. 1979). Government agencies are responsible,
 moreover, for setting the pay grades of each job within the
 agency. An employee may advance to a higher pay grade
 only up to the maximum pay grade advertised in the job
 announcement. Pay & Leave Pay Systems, U.S. Office of
 Personnel Management, https://www.opm.gov/policy-data-
 oversight/pay-leave/pay-systems/general-schedule/. Em-
 ployees may advance to pay grades higher than advertised
 in the job announcement only by competing with other ap-
 plicants on a merit system. Id. These precedents and the
 nature of government agency pay grades confirm that the
 Claims Court’s resolution of this issue was correct.
     Here, the FDA position at issue identified GS-13 as the
 maximum pay level the employee could attain. To advance
 to a GS-14 position, Eby would have been required to com-
 pete with other applicants. The competitive nature of such
 a promotion, and the discretion that the FDA could exercise
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 EBY   v. UNITED STATES                                     7



 in promoting Eby, make Eby’s claimed damages for GS-14
 wages speculative. Eby contends that it was highly likely
 she would be promoted to a GS-14 position because she had
 worked at that level before and was a desirable employee,
 and that her supervisors represented to her that accepting
 particular GS-13 positions (including the particular Regu-
 latory Health Project Coordinator she applied for in 2010)
 were likely to lead to a promotion to a GS-14 position. We
 do not find these arguments persuasive. These assertions
 do not show, with any degree of certainty, that Eby would
 have been promoted to the GS 14 level. At most they show
 that there was a good chance that Eby would be promoted.
 Missing is a showing of a reasonable certainty of promo-
 tion.
     In this context, we may not rely on Eby’s arguments
 regarding the promotion of other FDA employees. Eby ar-
 gues that, since May 2009, eight out of ten FDA employees
 were promoted from the GS-13 level to the GS-14 level
 within two years of being hired to GS-13 positions. Addi-
 tionally, Eby points to five individuals within the Office of
 Oncology and Hematology that were promoted to the GS-
 14 level within two years of being hired as GS-13 Project
 Coordinators or Project Managers. Again, these examples
 show that there may have been a good chance that Eby
 would be promoted, but they do not satisfy the reasonable
 certainty standard we must employ. In fact, these exam-
 ples lend support to the opposite conclusion: each individ-
 ual to whom Eby points was promoted only after applying
 to a GS-14 vacancy and undergoing a competitive selection
 process. At most, these examples demonstrate that promo-
 tion to a GS-14 level was a competitive process within the
 discretion of the FDA that often resulted in promotion, but
 not always.
     Eby also argues that the Claims Court improperly held
 that an applicant for federal employment may never obtain
 contract damages calculated based on discretionary promo-
 tions. A federal employee allegedly aggrieved by a non-hire
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 8                                       EBY   v. UNITED STATES



 determination is not entitled to the benefit of a position to
 which he or she has not been appointed—this is known as
 the “duly appointed” requirement. Testan, 424 U.S. at 402.
 Eby contends that, in ruling against her, the Claims Court
 improperly applied the duly appointed requirement to her
 breach of contract claim. Contrary to Eby’s argument, the
 Claims Court understood that Eby’s damages recovery was
 not subject to the duly appointed requirement because her
 claim stems from a breach of the settlement agreement.
 See Eby, 142 Fed. Cl. at 299–300. The Claims Court
 acknowledged that it was required to “consider the parties’
 evidentiary postulates regarding Ms. Eby’s possible promo-
 tion” and therefore considered the competitive nature of
 promotion from the GS-13 Project Coordinator position to
 a GS-14 position and the FDA’s lack of obligation to pro-
 mote a Project Coordinator past the GS-13 level. Id. at 300.
      In fact, the Claims Court proceeded on the assumption
 that Eby had in fact been “duly appointed.” The Claims
 Court reasoned that, even if Eby had been duly appointed
 to the GS-13 project coordinator position for which she ap-
 plied, the FDA’s failure to promote her to a GS-14 position
 still would not have been compensable. Id. In such a sce-
 nario, Eby would be entitled to the salary of the position to
 which she would have been appointed, not the salary of a
 position for which she had to later compete. Id. Because
 the Claims Court considered the evidentiary positions of
 the parties on whether Eby proved with reasonable cer-
 tainty that she was entitled to a GS-14 salary, we find no
 error in the court’s analysis.
     We conclude that the Claims Court correctly found that
 Eby failed to prove she would have been promoted with rea-
 sonable certainty and that the government, therefore, was
 entitled to judgment as a matter of law.
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 EBY   v. UNITED STATES                                   9



                          CONCLUSION
      We have considered the parties’ remaining arguments
 and find them unpersuasive. For the foregoing reasons, we
 affirm the Claims Court’s decision.
                          AFFIRMED
