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                                                No. 13-651C
                                            (Filed May 7,2014)
                                          NOT FOR PUBLICATION               FILED
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                                                       *
KAMINI HAWN,                                                             ,EiiaSR'u8h?fis

                             Plaintiff,



THE UNITED STATES,

                             Defendant.

************************

                             MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

        Pending before the Court is defendant's motion to dismiss the complaint for
lack of subject-matter jurisdiction and for failure to state a claim upon which relief
can be granted, under the Rules of the United States Court of Federal Claims
(RCFC) 12(bX1) and 12(bX6). For the reasons set forth below, the Court finds that
it lacks jurisdiction over plaintiff s claims. Defendant's motion to dismiss is
GRANTED.

                                              I.   BACKGROUND

       Plaintiff, proceeding pro se, filed her complaint in this court on September 6,
2013. Compl. at 1. Plaintiff alleges that the Defense Language Institute, United
States Army Garrison, Presidio of Monterrey, California (DLI), retaliated against
her when she informed the Inspector General's office (IG) about perceived
harassment and discrimination and that the DLI then breached the terms of the
related settlement agreement. Compl. at 1-2. The relevant facts have been alleged
as follows.

      Plaintiffwas employed as a Hindu language instructor at the DLI from April
2007 until June 2009 under a pair of thirteen-month temporary appointments. PI.'s
Objection to Def.'s Mot. to Dismiss (Pl.'s Opp'n), Ex. 1 at 1-2' On June 2, 2009, she
fiIed a harassment complaint through the Department of the Army Inspector
General Action Request System. Compl., Ex. 2 at 1-6. The complaint was closed on
June 12. 2009, when the dean ofplaintiffs department at the DLI found no evidence
to substantiate the harassm ent. Id.. at 6. on June 19, 2009, plaintiff was informed
that her appointment would not be extended. Pl.'s opp'n, Ex. 4. Though the letter
indicates that plaintiffs term will not be extended, the paperwork confirming her
appointment through July of2010 had already been processed' Pl"s Opp'n, Ex' 1 at
 f-i. plui.ttlff makes much of this distinction. Pl.'s Opp'n at 1-2 ("Extension of
contract was reversed[,] which is breach of contract."). one week later on June 26,
2009, plaintiff was removed from her position as a language instructor at the DLI.
Pl.'s Opp'n, Ex. 4.

       Plaintiff then fiIed claims with the Equal opportunity office and the u.s.
Merit systems Protection Board 04SPB), alleging that she was discriminated
against on the basis ofher age and religion and that she was dismissed because of
hlr whistleblowing activities. See PI.'s Opp'n, Ex. 8 at 13' On April 21, 2010' the
EEOC issued a decision denying plaintiffs claim and advising plaintiff of the 90-day
period within which she could file a complaint in district court. see compl., Ex. 1 at
a.

       Plaintiff reached a settlement agreement with the Army on August 30, 2010.
Pl.'s Opp'n, Ex. 6. As part of the settlement defendant agreed to "[a]ccept
employment with the bepartment of the Army in a language instructor capacity for
u p"tioa of thirteen (13) months if she successfully passes the Urdu OPI test" and
ptuintiff, in turn, agreed to withdraw and dismiss her claims with prejudice. Id. at
i-S. Plalntiff later sought to set aside this agreement, contending the government
had misrepresented the demand for language instructors at DLI during the
settlement negotiations. Mot. to Dismiss, Ex. B at 2; Compl. at2; see compl- Ex. B.
An adninistrative law judge (ALJ) at the MSPB set aside the settlement and
considered plaintiff s whistleblowing allegations. Mot. to Dismiss, Ex. B at 2. on
March 2, ZOLZ, tl.re ALJ issued a ruling finding that the Army had established by
clear and convincing evidence that it would have terminated plaintiff absent the
whistleblowing activity. Id.

       on March 27,2012, following the AIJ,s ruling, plaintiff appealed to have her
case reviewed by the full MSPB and requested that she "be immediately reinstated
into a pay status with back pay and back benefits." see Mot. to Dismiss, Ex. A at 1-
2. Th; d11 MSpB issued final orders denying relief on August 1 and September 13,
2012, finding that no new evidence warranted reversing the ALJ's decision, and
informing plaintiff that she could appeal the decision to the Federal circuit. .Id.,
Ex. A at i-+, n*. B at 1-4. (You have a right to request the United States Court of
                                           a
Appeals for the Federal Circuit review this final decision [no later than 60 days
after this order].").

       Instead of appealing to the Federal Circuit, plaintiff frled a complaint against
the DLI in the United states District court for the Northern District of california
on September 26,2012, seemingly alleging that the government had discriminated
against her in violation of Title VII of the Civil Rights Act,42 U'S.C. S 2000(e) et.
seq., and the Age Discrimination in Employment Act, 29 U'S.C. S 621 et. seq' See
Compl., Ex. 1 at 1. The District Court granted defendant's motion to dismiss
plaintiffs claims on July 29, 2O13. Hawn u. McHugh, No. 5:12-cv-05014, 2013 WL
395838?, at *4 (N.D' Cal. Julv 29, 2013).r The court informed plaintiff that if she
wanted to continue to pursue her retaliation claim, the proper course was an appeal
to the Federal Circuit, not a new complaint in the District Court. 1d' at*4 n.2.

       Plaintiff filed a complaint in this court on September 6, 2013, alleging that
she was fraudulently induced to enter into a settlement agreement with the united
states Army. Plaintiff claims that defendant's actions led to her unfair dismissal,
"mental anguish and [indigence]." Compl' at 3. As a remedy plaintiff seeks to be
reinstated in her job at the DLI with full pay, benefrts, tenure and back'pay. 'Id' at
3.

       Defendant frled a motion to dismiss in lieu of an answer on November 4,
2013, containing two principle arguments for dismissal' First, defendant argues
that the Court does not have jurisdiction over plaintiffs claim because the Court
lacks jurisdiction over claims that fall within the jurisdiction of the MSPB. Mot. to
Dismiss at 3 (citing Contreras u. United States, 64 Fed' Cl. 583, 587 (2005)' aff'd 168
F. App'x 938 (Fed. Cir. 2006)). Inasmuch as plaintiffs claim is an appeal of the
MSFB decision, defendant argues that the Court has no jurisdiction to hear appeals
from the MSPB. Id. at 3-4 (citing 5 U.S.C. S 7703(bX1Xa)). Second, defendant
argues in the alternative that plaintiffs claims should be dismissed because she
failed to state a claim upon which relief can be granted under RCFC I2b)(6). Id. at
5-7. Since plaintiff failed to "allege any basis for jurisdiction," defendant argues
that the complaint should be dismissed. Id. at 6 (citing RCFC 8(aX1)).
Alternatively, the government contends that plaintiffs failure to present a prirna
facie contracL claim based on the settlement agreement should cause the court to
dismiss her claim. Id. at 6-7 (citing BelI AtI. Corp- u. Twombly,550 U.S' 544, 555
(2007)).


1 An amended complaint was subsequently filed, alleging age discrimination, but      it
was dismissed as time-barred. Hau;n u. McHugh, No. 5:12-cv-05OI4' 20l4WL
232303 at *1 (N.D. CaI. Jan. 21,2014).

                                          -3-
        Plaintiff, in opposing the motion, argues that her claim is based on the early
termination of her appointment "which is [a] breach of contract." Pl.'s Opp'n at 1.
She also claims that the settlement agreement was "breached due to the Agency's
fraud and lies," and lists the elements ofher purported fraud claim against the
government. Pl.'s Opp'n at 2, 5. Plaintiff also makes some references, of unclear
import, to equitable tolling and the Federal Circuit's jurisdiction over appeals of
MSPB decisions concerning claims of retaliation against whistleblowers. Id. at 2-4.
In its reply in support of its motion to dismiss, the government reiterates its
argument that, to the extent plaintiff is appealing the decision of the MSPB, the
matter is outside our jurisdiction; that the settlement agreement cannot support her
claim because it has been set-aside; and that plaintiffs claims related to the
termination of her federal employment cannot be heard in this court. Def.'s Reply
to PI.'s Resp. to Def.'s Mot. to Dismiss at   3.

                                  II.   DISCUSSION

       Under RCFC 12GX1), claims brought before this court must be dismissed
when it is shown that the court lacks jurisdiction over their subject matter. When
considering a motion to dismiss for lack of subject-matter jurisdiction, courts will
normally accept as true all factual allegations made by the pleader and draw all
reasonable inferences in the light most favorable to that party. See Scheuer u.
Rhodes, 416 U.S. 232, 236 (I97 4); Hxton u. B&B Plastics, Inc., 291 F.3d 1324, 1326
(Fed. Cir. 2002) (requiring that on a motion to dismiss for lack of subject-matter
jurisdiction the court views "the alleged facts in the complaint as true, and if the
facts reveal any reasonable basis upon which the non-movant may prevail,
dismissal is inappropriate"); CBY Design Builders u. United States, I05 Fed. Cl.
303, 325 (2012).

       While a pro se plaintiffs fiIings are to be liberally construed, see Erichson v.
Pardus,551 U.S. 89, 94 (2007), this lenient standard cannot save claims which are
outside the court's jurisdiction from being dismissed, see, e.9., Henhe u. United
States,60 F.3d 795, 799 (Fed. Cir. 1995). The party invoking a court's jurisdiction
bears the burden of establishing it, and must ultimately do so by a preponderance of
the evidence. See McNutt u. GMAC,298 U.S. 178, 189 (1936); Reynolds u. Army &
Air Force Exch. Seru., 846 F.2d 7 46, 7 48 (Fed. Cir. L998); Rocouich u. United States,
933 F.2d 991, 993 (Fed. Cir. 1991).

       After considering defendant's argument and plaintiffs response and sur-
reply, the court GRANTS defendant's motion to dismiss pursuant to RCFC
12(bX1)., Our court lacks jurisdiction over matters that fall within the jurisdiction

2 Because we conclude that plaintiffs claims are not within our jurisdiction, we do
not reach the government's alternative argument.
of the MSPB. See Contreras,64 Fed. Cl. at 587 (holding that where "a matter falls
within the competence of the MSPB, this Court is without jurisdiction") (citing
Lindahl u. OPM,470 U.S. 768 (1985)). The Court does not have jurisdiction over
matters falling within the competence of the MSPB, including plaintiff s complaint.
1d. This is so even where, as appears to be the case here, the MSPB can afford a
plaintiff no relief . United States u. Fausto, 484 U.S. 439, 455 (1988); McGee u.
United States, S CI. Ct.480,481 (1984).

       There are three different ways the Court could read plaintiffs complaint, and
under any of these readings we lack jurisdiction over it. First, to the extent that
plaintiff is appealing the MSPB's denial on the merits of her retaliation or
whistleblower claim, which is suggested by her reference to having "exhausted all of
her administrative remedies," we clearly lack jurisdiction over it. Under 5 U.S.C.
$ 7703OX1)(a) a "petition to review a final order or final decision of the |MSPBI
shall be frled in the United States Court of Appeals for the Federal Circuit." As the
Supreme Court explained, the jurisdiction granted under 5 U.S.C. S 7703G)(1) is
exclusive to the Court of Appeals for the Federal Circuit. Lind'ahl u. OPM,470 U.S.
768, 776 (1985). Thus if plaintiff seeks to have this Court review the decisions of
the MSPB, the complaint must be dismissed for lack of jurisdiction.

       The second possible reading ofplaintiffs complaint is that she is attempting
to appeal, or relitigate, the merits ofher disputed early termination. This reading
is suggested by plaintiffs references to the "[e]xtension of [her] contract" being
"reversed" and this constituting a "breach of contract." Pl.'s Opp'n at 1-2. The
problem with this reading is that claims regarding the termination of Federal
employees are, absent special circumstances not present here, heard by the MSPB.
See McGee, S CI. Ct. at 481 (holding that the remedies provided by the Civil Reform
Act are "all-inclusive" with respect to claims regarding dismissal of temporarily
appointed employee); Hamlet u. United States, 873 F.2d 1414, l4I7 n.5 (Fed. Cir.
1989) (explaining that breach of contract actions by federal employees based on
their employment are precluded). Review is excluded in this court even if, as was
the case here, the merits of the dismissal are not reviewable by the MSPB. 1d,,
Def.'s Mot., Ex. A at 2; Fausto,484 U.S. at 455; McGee, 5 CI. Ct. at 481.

      The third possible reading ofplaintiffs complaint is that she is suing for
breach ofher settlement agreement.3 Though breach ofa settlement agreement

3 To the extent that plaintiff is contending that the government committed fraud
against her by inducing her to enter the settlement agreement, that claim is outside
our subject matter jurisdiction. 28 U.S.C. $ 1491(a) ((2012) ("The United States
Court of Federal Claims shall have jurisdiction upon any claim against the United
States . . . not sounding in tort."); Phu Mang Phang u. United States,388 F. App'x
961. 963 Ged. Cir. 2010).
                                         _s_
between a federal employee and the government can fall within our jurisdiction,
Holrnes u. United States,657 F.3d 1303, 1312 (Fed. Cir. 2011), we cannot assert
jurisdiction over the settlement agreement because, as the plaintiff admits, it has
been set aside. Compl. l[ 2; Def.'s Mot., Ex. B at 2.

        Having concluded that the Court lacks jurisdiction over plaintiffs claims, the
Court addresses whether the interests ofjustice are served by transferring
plaintiffs clairns to another court. See 28 U.S.C. $ 1631 (2012) ("[T]he court shall, if
it is in the interest ofjustice, transfer [a civil action] to any other such court in
which the action or appeal could have been brought."). Section 1631 permits
transfer of a claim only to a court where the claim "could have been brought at the
time it was fiIed." Title 5 Section 7703(bX1)(A) in turn states that appeals of MSPB
decisions must be filed in the United States Court ofAppeals for the Federal Circuit
"within 60 days after the petitioner received notice ofthe frnal order or decision of
the board."a The MSPB decisions were issued on August 12,2012, and September
13,2072, roughly one year before the complaint was filed in this case. Plaintiff has
not claimed the MSPB failed to inform her of these decisions in a timely fashion.
The burden would be on her to show that she did not have timely notice ofthe
decision. Since she has failed to carry that burden, her appeal would not have been
timely when filed and as such the Court cannot transfer plaintiffs case to the
Federal Circuit.

                                 III.   CONCLUSION

       For the reasons stated above, defendant's motion to dismiss this case for lack
of subject-matter jurisdiction, under RCFC 12(b)(1), is GRANTED' The Cierk shall
close the case. No costs shall be awarded.




IT IS SO ORDERED,

                                         Judge




a On November 27 , 2012, after the relevant date in this case, Congress changed the
language of 5 U.S.C. S 77030)(1) to state that appeals must be filed "within 60 days
after the MSBP issues notice of the final order or the decision of the board."

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