Vandesande v. United States ( 2019 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GLADYS S. VANDESANDE,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-1603
______________________
Appeal from the United States Court of Federal Claims
in No. 1:09-cv-00258-LKG, Judge Lydia Kay Griggsby.
______________________
Decided: April 17, 2019
______________________
RODERICK VICTOR HANNAH, Plantation, FL, argued for
plaintiff-appellant.
DOUGLAS T. HOFFMAN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also repre-
sented by ALLISON KIDD-MILLER, ROBERT EDWARD
KIRSCHMAN, JR., JOSEPH H. HUNT.
______________________
Before NEWMAN, SCHALL, and O’MALLEY, Circuit Judges.
2 VANDESANDE v. UNITED STATES
SCHALL, Circuit Judge.
DECISION
Gladys S. VanDesande appeals two separate summary
judgment decisions of the United States Court of Federal
Claims: VanDesande v. United States, No. 09-258C, slip
op. at 1 (Fed. Cl. Feb. 24, 2017) (“VanDesande I”), Appel-
lant’s App. 29; and VanDesande v. United States, No. 09-
258C, slip op. at 1 (Fed. Cl. Dec. 21, 2017) (“VanDesande
II”), Appellant’s App. 6. For the reasons set forth below,
we affirm-in-part, reverse-in-part, and remand.
DISCUSSION
I.
The parties are well-familiar with the facts. We there-
fore recite only what is necessary for them to understand
our decision.
On April 24, 2009, Ms. VanDesande filed suit in the
Court of Federal Claims. In her suit, she alleged that the
United States Postal Service (“Postal Service”) had
breached the Stipulation Agreement Regarding Damages
that she and the Postal Service had entered into in June of
2003 (“Stipulation Agreement” or “Agreement”), Appel-
lant’s App. 84. The purpose of the Stipulation Agreement
was to finally resolve a proceeding brought by Ms.
VanDesande before the Equal Employment Opportunity
Commission (“EEOC”). After the Court of Federal Claims
dismissed the suit for lack of jurisdiction, VanDesande v.
United States, 94 Fed. Cl. 624 (2010), Ms. VanDesande ap-
pealed to this court. In VanDesande v. United States, 673
F.3d 1342 (Fed. Cir. 2012), we reversed the decision of the
Court of Federal Claims and remanded the case to the
court for proceedings on Ms. VanDesande’s breach of con-
tract claim.
After the case was returned to it, the Court of Federal
Claims proceeded to address Ms. VanDesande’s breach
VANDESANDE v. UNITED STATES 3
claim. Pertinent to this appeal, Ms. VanDesande claimed
that the Postal Service had breached the Stipulation
Agreement in the following respects: (1) The Postal Service
breached paragraphs 1 and 2 of the Agreement by not re-
instating her to her prior letter carrier position with pay.
(2) The Postal Service breached paragraph 21 of the Agree-
ment by prematurely terminating her employment in June
of 2007, prior to making all payments required under the
Agreement. (3) The Postal Service breached paragraph 14
of the Agreement by failing to pay her the 2003 tax conse-
quences that arose out of the lump sum and back pay pay-
ments that she received that year from the Postal Service.
In VanDesande I, the Court of Federal Claims made
the following rulings on the parties’ cross-motions for sum-
mary judgment: First, the court held that paragraphs 1
and 2 of the Stipulation Agreement did not require the
Postal Service to reinstate Ms. VanDesande to her prior
letter carrier position with pay. VanDesande I, slip op. at
25–26, Appellant’s App. 53–54. The court thus granted
summary judgment for the government on this issue. Id.
at 31, Appellant’s App. 59. Second, the court held that
there were material facts in dispute with respect to the
question of whether the Postal Service breached paragraph
21 of the Stipulation Agreement when it terminated Ms.
VanDesande from her employment in June of 2007. Id. at
27–28, Appellant’s App. 55–56. Third, the court held that,
under paragraph 14 of the Stipulation Agreement, the
Postal Service is obligated to pay the tax consequences
arising from the lump sum and back pay payments Ms.
VanDesande received in 2003. The court also held, how-
ever, that the Postal Service is not obligated to pay Ms.
VanDesande’s entire tax liability. Id. at 21–23, Appellant’s
App. 49–51. And fourth, the Court held that there were
material facts in dispute with respect to the question of
whether the Postal Service breached paragraph 14 of the
Agreement by failing to pay Ms. VanDesande her 2003 tax
consequences. Specifically, the court stated that “material
4 VANDESANDE v. UNITED STATES
facts remain in dispute regarding[] whether plaintiff pro-
vided her tax consequences calculations to the appropriate
[Postal Service] officials.” Id. at 23, Appellant’s App. 51.
Following VanDesande I, the parties filed renewed
cross-motions for summary judgment regarding the termi-
nation issue and the 2003 tax consequences issue. The
Court of Federal Claims addressed these issues in
VanDesande II.
On the issue of whether the Postal Service breached
paragraph 21 of the Stipulation Agreement when it termi-
nated Ms. VanDesande from her employment in June of
2007, the court determined that Ms. VanDesande had
failed to “state a plausible claim for relief.” VanDesande II,
slip op. at 21, Appellant’s App. 26. The court reasoned that
“any breach of paragraph 21 would not result in damages,
given that plaintiff served in a non-pay, non-duty status
prior to her termination.” Id. The court therefore granted
summary judgment for the government on this issue. Id.
at 22, Appellant’s App. 27.
The court also granted summary judgment for the gov-
ernment on the 2003 tax consequences issue. Id. As indi-
cated above, tax consequences are covered in paragraph 14
of the Stipulation Agreement. Appellant’s App. 89–90.
Among other things, paragraph 14 contemplates Ms.
VanDesande submitting to the Postal Service accountant-
prepared calculations of the Postal Service’s tax conse-
quences liability. In 2004, after correspondence between
Ms. VanDesande’s representative and the representative of
the Postal Service, the Postal Service retained the account-
ing firm of Michaelson & Co. (“Michaelson”) to calculate its
tax consequences liability for 2003. In February of 2005,
Michaelson determined that the Postal Service owed Ms.
VanDesande $33,691 in 2003 tax consequences. Id. at 507.
In due course, Ms. VanDesande retained her own account-
ant, Antonio E. Gomez. In April of 2006, Mr. Gomez deter-
mined that the Postal Service owed Ms. VanDesande
VANDESANDE v. UNITED STATES 5
$42,471 in 2003 tax consequences. Id. at 557–58. Para-
graph 29 of the Stipulation Agreement requires that “[a]ll
service of documents” is to be by “U.S. Postal Service Cer-
tified Mail, Return Receipt Requested PS Form 3811.” Id.
at 94. However, rather than using this method of service,
Ms. VanDesande provided Mr. Gomez’s calculations to the
Postal Service by attaching them to a motion for reconsid-
eration filed in the EEOC proceeding she brought to en-
force the Stipulation Agreement. In that regard, it appears
that, on or about May 15, 2006, the Postal Service attorney
who was dealing with Ms. VanDesande’s representative re-
ceived this pleading, including Mr. Gomez’s 2003 tax con-
sequences calculations. *
The Court of Federal Claims granted summary judg-
ment for the government on this issue on the ground that
Ms. VanDesande had not complied with the requirement of
paragraph 29 of the Stipulation Agreement for service of
documents by certified mail, return receipt requested.
VanDesande II, slip op. at 18–21, Appellant’s App. 23–26.
The court rejected Ms. VanDesande’s claim that she had
substantially complied with paragraph 29 when, in May of
2006, she served the Postal Service’s designated repre-
sentative with a copy of her motion for reconsideration in
the EEOC proceeding and attached to the motion her ac-
countant’s calculations.
* The certificate of service indicates that the motion
for reconsideration was served by first class mail on April
28, 2006. Appellant’s App. 528. However, the date on the
date stamp marking the pleading as received in May of
2006 by the Postal Service is illegible, id. at 519, and the
parties have not provided a specific date of receipt by the
Postal Service. The parties do not appear to dispute that
the document was received in early May, id. at 434, and
thus, no later than May 15, 2006.
6 VANDESANDE v. UNITED STATES
Plaintiff correctly argues that a purpose of the Stip-
ulation Agreement’s requirement to serve the ac-
countant-prepared calculation via certified mail is
to ensure that the USPS receives the calculation.
But, another essential purpose of this requirement
is to make clear to the USPS that this calculation
is being provided for the purpose of activating the
Stipulation Agreement’s payment and dispute res-
olution provisions. Plaintiff did not accomplish this
goal by simply attaching the accountant-prepared
calculation to her EEOC filing and serving this fil-
ing on the USPS.
Id. at 20–21, App. 25–26 (citation and footnote omitted).
Having granted summary judgment in favor of the gov-
ernment in both VanDesande I and VanDesande II, on De-
cember 22, 2017, the Court of Federal Claims entered
judgment dismissing Ms. VanDesande’s complaint. Appel-
lant’s App. 5. This appeal followed. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(3).
II.
“We review the summary judgment of the Court of Fed-
eral Claims, as well as its interpretation and application of
the governing law, de novo.” Premier Office Complex of
Parma, LLC v. United States, 916 F.3d 1006, 2019 WL
660923, at *3 (Fed. Cir. 2019) (quoting Hartman v. United
States, 694 F.3d 96, 101 (Fed. Cir. 2012)). “The Rules of
the Court of Federal Claims (‘RCFC’) provide that sum-
mary judgment is appropriate ‘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.’” Id.(quoting RCFC 56(a)).
III.
As noted above, Ms. VanDesande appeals the decisions
of the Court of Federal Claims in VanDesande I and
VanDesande II. She argues that, in VanDesande I, the
VANDESANDE v. UNITED STATES 7
court erred in holding that paragraphs 1 and 2 of the Stip-
ulation Agreement did not require the Postal Service to re-
instate her to her prior letter carrier position with pay. She
also argues that the court erred in not requiring the Postal
Services to pay her entire tax liability. She makes two ar-
guments with respect to VanDesande II. First, she urges
that the court erred in rejecting her claim that the Postal
Service breached paragraph 21 of the Stipulation Agree-
ment when it terminated her from her position in June of
2007. Second, she challenges the ruling of the court on her
claim relating to the 2003 tax consequences. Specifically,
she contends that the court erred in rejecting her claim
that she substantially complied with paragraph 29 of the
Stipulation Agreement when she attached her accountant’s
tax calculations to her motion for reconsideration in the
EEOC proceeding.
Having reviewed the two decisions of the Court of Fed-
eral Claims that are before us and having considered the
arguments of the parties, both in their briefs and at oral
argument, we find no error in the ruling of the court in
VanDesande I concerning Ms. VanDesande’s reinstate-
ment claim. We also find no error in the ruling of the court
in VanDesande I limiting the scope of Ms. VanDesande’s
tax consequences to the increased tax liability she incurred
due to the lump sum and back pay payments she received.
Turning to VanDesande II, we find no error in the decision
of the court concerning Ms. VanDesande’s termination
claim. We do conclude, however, that the court erred when,
in connection with Ms. VanDesande’s 2003 tax conse-
quences claim, it ruled that Ms. VanDesande had failed to
substantially comply with the service requirement of para-
graph 29 of the Stipulation Agreement.
IV.
Whether a party has substantially complied with the
provisions of a contract is a question of fact. Thoen v.
United States, 765 F.2d 1110, 1115 (Fed. Cir. 1985). The
8 VANDESANDE v. UNITED STATES
facts relating to whether Ms. VanDesande substantially
complied with the service requirement of paragraph 29 of
the Stipulation Agreement are not in dispute. The issue
thus comes down to whether, when Ms. VanDesande
served her accountant’s calculations by attaching them to
her motion for reconsideration, the government “obtained,
for all intents and purposes, all the benefits it reasonably
anticipated receiving under [paragraph 29 of the Stipula-
tion Agreement.]” Kinetic Builder’s Inc. v. Peters, 226 F.3d
1307, 1315–16 (Fed. Cir. 2000) (citing Franklin E. Penny
Co. v. United States, 524 F.2d 668, 677 (Ct. Cl. 1975)). We
conclude that it did.
We agree with the Court of Federal Claims that a pur-
pose of paragraph 29’s service requirement was to ensure
that the Postal Service receive Ms. VanDesande’s account-
ant-prepared calculations. We also agree with the court
that another purpose of the requirement was to activate
the payment and dispute resolution provisions of para-
graph 14 of the Agreement. In our view, both of those pur-
poses were served. First, when the Postal Service received
Ms. VanDesande’s motion for reconsideration, it also re-
ceived her accountant-prepared calculations. And second,
in view of the prior correspondence between Ms.
VanDesande’s representative and the representative of the
Postal Service, it seems clear that the purpose of the ac-
countant-prepared calculations was to activate paragraph
14’s payment and dispute resolution provisions. We thus
hold that the attachment of the accountant-prepared cal-
culations to the motion for reconsideration constituted sub-
stantial compliance with the service requirement of
paragraph 29 of the Stipulation Agreement. The decision
of the Court of Federal Claims to the contrary is therefore
reversed.
Having concluded that there was substantial compli-
ance with paragraph 29 of the Stipulation Agreement, we
normally would remand to the Court of Federal Claims for
it to decide the amount of 2003 tax consequences to which
VANDESANDE v. UNITED STATES 9
Ms. VanDesande is entitled, since the court has not ad-
dressed that issue. We do not believe that is necessary
here, however. On appeal, Ms. VanDesande has not chal-
lenged the Michaelson calculation of $33,691 for 2003 tax
consequences. At the same time, both in briefing and at
oral argument, the government stated that it would
promptly pay that amount to Ms. VanDesande. Under
these circumstances, we hold that Ms. VanDesande is en-
titled to recover the sum of $33,691 for her 2003 tax conse-
quences. In view of our affirmance of the ruling of the
Court of Federal Claims in VanDesande I regarding the
scope of the Postal Service’s liability with respect to tax
consequences, this is the entire principal amount of tax
consequences recovery to which Ms. VanDesande is enti-
tled.
That leaves two matters to be addressed on remand.
First, paragraph 14 of the Stipulation Agreement provides
that Ms. VanDesande is entitled to interest at the “Federal
Judgment Rate” on any tax consequences payment not
made within 180 days of the receipt of her accountant’s cal-
culations. That means that Ms. VanDesande is entitled to
interest on the sum of $33,691 starting 180 days from May
15, 2006, until the date of payment. Second, paragraph 14
of the Stipulation Agreement also provides that the Postal
Service “shall be responsible for all costs, legal fees and ac-
countant fees incurred by the Complainant to enforce this
provision of the Stipulation Agreement.” Appellant’s App.
89.
On remand, after receiving the views of the parties, it
will be for the Court of Federal Claims to determine (1) the
amount of interest and (2) the amount of reasonable costs,
reasonable legal fees, and reasonable accountant fees to
which Ms. VanDesande is entitled under paragraph 14 of
the Stipulation Agreement. We commend counsel for Ms.
VanDesande and counsel for the government for the candor
and forthrightness they both exhibited at oral argument.
We urge them to continue in that spirit so that, on remand,
10 VANDESANDE v. UNITED STATES
they may assist the Court of Federal Claims in bringing
this lengthy dispute to a conclusion.
CONCLUSION
The decision of the Court of Federal Claims in
VanDesande I is affirmed. The decision of the Court of Fed-
eral Claims in VanDesande II is affirmed-in-part and re-
versed-in-part. VanDesande II is remanded to the court
(1) for entry of judgment for Ms. VanDesande in the
amount of $33,691; (2) for determination of the amount of
interest to which Ms. VanDesande is entitled on that
amount; and (3) for determination of the amount of reason-
able costs, reasonable legal fees, and reasonable account-
ant fees to which Ms. VanDesande is entitled.
AFFIRMED-IN-PART, REVERSED-IN-PART, AND
REMANDED
COSTS
Each party shall bear its own costs.