                                                                                0Rl0lNAt
                  l|n tbt @nfte! $ltstts @ourt of /e[erul @lufurs
                                                                                                No. 16-501C
                                                                                                                                     FILED
                                                                          (Filed: September 26, 20 1 6)
                                                                                                                                   sEP 2 6   2016
:&   {. +   ***   :t d.   *****   {<   ***   {<   **   ,|<   *   ,&   {. + {.   ***       {.   * * * * * :t           *
                                                                                                                                   U.S. COURT OF
                                                                                                                      *           FEDERAL CLAIMS
TROY THOMPSON.                                                                                                        *
                                                                                                                      +

                                                       Plaintifl                                                      d<


                                                                                                                      {(

                                                                                                                      *
                                                                                                                      ,.

THE UNITED STATES,

                                                       Defendant.                                                     :*

                                                                                                                      +
*'t    *******,t+,i,t             'i * * * * *     {. :k {. r( r<       **      {.   **   !N   {r   *   {. :t ,t   ,t l.


                                                                                OPINION AND ORDER

       In this pro se case, Plaintiff Troy Thompson seeks damages for alleged breach ofa
settlement agreement (the "Agreement") he entered into with his employer, the U. S.
Department of Veterans Affairs (the "Agency"). Defendant has filed a Motion to Dismiss
for lack of subject matter jurisdiction under this Court's Rule l2(b)(1), and for failure to
state a claim under Rule 12(bX6). The motion has been fully briefed and is ready for
decision.

                                                                                                    Background

       The Agreement was executed in July 2015, and provides for a $30,000 payment to
Mr. Thompson to settle a complaint he had filed with the U.S. Office of Special Counsel
C'OSC). Compl. Ex. Page 18. In retum, he agreed to waive among other rights, all rights
to raise further challenges to the conduct complained of in his OSC complaint. Id.
Plaintiff s pleadings are confusing as to the time and amount of payment, but it is clear that
he did receive the payment in full. Compl. fl 7, Ex. Page 16. However, he is not satisfied
with the form and timing of the payment. The agreement provides that the Agency "will
make every effort" to make payment within 15 days after final signature of the Agreement,
which occurred on July 9,2015. Id. Page 19. Despite this promise, the Agency did not
make the payment until August 12,2015, which was 1 8 days later than the original 15-day
"best-efforts" goal described in the Agreernent. Plaintiff views the late payment as a




                                                                                                                           ?01,8 3qLo 00Er   ??1r   h15'{
compensable breach of the Agreement, and in his complaint seeks damages of at least
"$ I ,000 per day" as "delay damages", although the Civil Cover Sheet he filed with the case
specifies a larger claim of $27,000 plus costs. In addition, Plaintiff complains of the
"Vendor" form used by the Agency to proc€ss and deliver the payment to him. He alleges
no direct injury resulting from use ofthe form, although he clearly does not view himself
as a vendor in this situation.

                                    Standard of Review

        The Court must first determine whether a plaintiff has established subject matter
jurisdiction before proceeding to review the merits of the complaint. Fisher v. United
 States,402 F.3d 1167, 1173 (Fed. Cir. 2005). The jurisdiction of this Court is limited and
 extends only as far as prescribed by statute. Id. at 1172. Complaints filed by pro se
plaintiffs are held to less stringent standards than those composed by lawyers; however this
 does not relieve a pro se litigant from meeting his burden to establish jurisdiction. Failure
to meet that burden requires this Court to dismiss for lack of jurisdiction under Rule
 l2(bXl). Outlaw v. United States, I l6 Fed. Cl. 656, 658 (2014) (citations omitted). The
Tucker Act, 28 U.S.C. $ 1a91(aX1), gives this Court jurisdiction over "any express or
 implied contract with the United States." However, that statute has been interpreted to
require a separate source of money damages to establish jurisdiction. Fisher,402 F.3d at
 1172. This could be a contract with the United States so long as the contract contemplates
money damages for breach. Volk v. United States, 1 1 1 Fed. Cl. 313, 323 (2013).

        Under the requirements of Rule 12(b)(6), a complaint fails to state a claim upon
which relief may be granted "when the facts asserted by the claimant do not entitle him to
a legal remedy." Briseno v. United States, 83 Fed. Cl. 630, 632 (2008) (citation omitted).
The Court must construe allegations in the complaint favorably to the plaintiff. See
Extreme Coatings. Inc. v. United States, 109 Fed. Cl. 450, 453 (2013). Still, "a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face." Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation
omitted)). Further, a plaintiff may not simply plead "labels and conclusions" or "a
formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citations omitted).

                                      Discussion

       Under Paragraph I of the Agreement, Mr. Thompson agrees not to pursue further
any claims that were the subject of his oSC complaint, but this waiver does not include
"any claims that may arise from a breach of any term of this Agreement." Compl. Ex. page
18. This could be read to preserve the possibility of a claim for money damages; however,
in Paragraph 2 of the Agreement, Mr. Thompson "specifically waives any claims for
attorney's fees, costs, expenses, back pay, front pay, interest, lost wages, benefits,
placement in position, general damages, compensatory damages, liquidated damages,
costs, and/or other expenses." Thus, the Agreement precludes any monetary damage
remedy other than for failure to pay the agreed settlement sum, which is not claimed here.
For that reason, this Court has nojurisdiction to review the Agency conduct complained of
here.

       Even if this Court were to exercise jurisdiction, Mr. Thompson has failed to satisff
the requirement of Rule 12(bX6) to state a claim for which relief may be granted. While
the Agency payment was l8 days later than contemplated in the Agreement, Plaintiff does
not allege any damage resulting from the delay. Moreover, if his demand for "delay
damages" could be construed as interest, he specifically waived all claims relating to
interest in the agreement.

       For the reasons set forth herein, Defendant's Motion to Dismiss is GRANTED. The
Clerk is directed to dismiss this case without preiudice.

        IT IS SO ORDERED.

                                                        ifl**^     C.   l"?r,l^
                                                        THOMAS C. WHEELER
                                                        Judge
