Gardner v. United States , 439 F. App'x 879 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
SANDRA JOHNSON GARDNER,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2011-5065
__________________________
Appeal from the United States Court of Federal
Claims in case no. 10-CV-451, Judge George W. Miller.
______________________________
Decided: July 26, 2011
______________________________
SANDRA JOHNSON GARDNER, of Birmingham, Alabama,
pro se.
JANE C. DEMPSEY, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for defendant-appellee. With
her on the brief were TONY WEST, Assistant Attorney
Division, JEANNE E. DAVIDSON, Director, and MARTIN F.
HOCKEY, JR., Assistant Director.
__________________________
GARDNER v. US 2
Before RADER, Chief Judge, FRIEDMAN * , and LINN, Circuit
Judges.
PER CURIAM.
Sandra Gardner appeals from the Court of Federal
Claims, which dismissed her complaint as outside of its
jurisdiction. This court agrees that Ms. Gardner’s claim is
beyond the Court of Federal Claims’ jurisdiction.
I
Ms. Gardner began working as a licensed practical
nurse for the United States Department of Veterans
Affairs (“VA”) in 1997 at its Birmingham VA Medical
Center. In 2000 and 2001, Ms. Gardner filed several
formal complaints with the Equal Employment Opportu-
nity Commission (“EEOC”). The complaints, which were
based on several different incidents, alleged that Ms.
Gardner was discriminated against on the basis of race,
sex, and disability. Additionally, the later filed com-
plaints alleged that Ms. Gardner was subjected to retalia-
tory action for her earlier complaints. The complaints
were consolidated into two different proceedings. The
first proceeding ended in a determination that the evi-
dence did not demonstrate proof of unlawful discrimina-
tion.
The second proceeding, central to Ms. Gardner’s pre-
sent appeal, focused on allegations of discrimination on
the basis of sex, disability, and retaliatory actions for
previous complaints. The administrative judge deter-
mined that one of the two complaints, Case No. 2001-
2958, stated claims identical to claims Ms. Gardner
brought in Hampton v. Department of Veterans Affairs, a
proceeding in the Northern District of Alabama. The
* Judge Friedman, who passed away July 6, 2011,
did not participate in this decision.
3 GARDNER v. US
administrative judge notified the parties, who agreed, and
dismissed the claims of Case No. 2001-2958.
The administrative judge concluded that Ms. Gardner
had been subjected to unlawful retaliatory treatment for
previous complaints. However, the administrative judge
also determined that Ms. Gardner had not been discrimi-
nated against on the basis of sex or a disability. In a final
order, the VA accepted the administrative decision “in its
entirety,” including the recommended corrective actions.
This included paying Ms. Gardner $20,000.00 in compen-
satory damages. The record indicates that the VA com-
plied with the order and instituted the administrative
judge’s recommendations.
In the Hampton litigation, the district court judge en-
tered summary judgment in favor of the VA after Ms.
Gardner and the other plaintiffs failed to respond to the
VA’s requests for admissions. The plaintiffs appealed,
and the Eleventh Circuit dismissed the case as frivolous.
Ms. Gardner then filed another case in the Northern
District of Alabama, based on the same alleged facts
raised in her previous complaints. The district court
found that the claims were barred by res judicata, and the
Eleventh Circuit agreed. Gardner v. Nicholson, No. 05-
14243, 2006 WL 1490124 (11th Cir. May 30, 2006).
Ms. Gardner filed the present complaint in the Court
of Federal Claims on July 12, 2010. Ms. Gardner con-
tends that the United States owes her $10,200,000.00, the
amount sought in the Hampton litigation. Ms. Gardner’s
theory seems to be that because the VA accepted the
administrative judge’s conclusions concerning retaliatory
discrimination, the VA somehow accepted all of Ms.
Gardner’s allegations. The United States moved to dis-
miss the case, contending that the Court of Federal
Claims lacked jurisdiction to hear Ms. Gardner’s case.
GARDNER v. US 4
The court, construing Ms. Gardner’s pro se complaint
liberally, found that Ms. Gardner alleged jurisdiction
under 28 U.S.C. § 1491, the Tucker Act. As for the sub-
stantive basis for her Tucker Act claim, the court found
that Ms. Gardner alleged causes of action based on a
breach of contract theory and under Title VII of the Civil
Rights Act. The court ultimately concluded that Ms.
Gardner had failed to allege a “non-frivolous” basis for
jurisdiction and dismissed the case. Ms. Gardner filed a
timely appeal.
II
The Tucker Act establishes jurisdiction in the Court of
Federal Claims for claims against the United States
“founded” upon “any Act of Congress . . . or upon any
express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding
in tort.” 28 U.S.C. § 1491(a)(1). The Act, “of course, is
itself only a jurisdictional statute; it does not create any
substantive right enforceable against the United States
for money damages.” Perri v. United States, 340 F.3d
1337, 1340 (Fed. Cir. 2003) (quoting United States v.
Testan, 424 U.S. 392, 398 (1976)). A plaintiff must there-
fore also allege a substantive basis for her complaint that
falls within the parameters of the Tucker Act. For the
reasons explained below, this court agrees that Ms. Gard-
ner has failed to identify a substantive basis for her
claims under the Tucker Act.
Ms. Gardner contends she is attempting to enforce a
contract with the VA, creating jurisdiction under the
Tucker Act. Specifically, she contends that the VA en-
tered into a contract with her by accepting the findings of
the administrative judge and implementing the recom-
mendations in an order. The record, though, indicates
that the VA has already complied with the recommenda-
5 GARDNER v. US
tions of the administrative judge. Regardless, for pur-
poses of establishing jurisdiction, Ms. Gardner has failed
to establish that the VA’s administrative order creates a
contract between herself and the United States. Ms.
Gardner does not point to a single case where an adminis-
trative order was treated as a contract.
Moreover, Ms. Gardner fails to allege how the admin-
istrative order contains any of the essential attributes of a
government contract, such as “mutuality of intent” be-
tween the two parties. See Hanlin v. United States, 316
F.3d 1325, 1328 (Fed. Cir. 2003). The order at issue here
was not part of a settlement or consent decree, but was
arrived at after a decision issued by an administrative
judge. The VA’s order is therefore more similar to a
“judicial decree” than a contract. Cf. United States v. ITT
Continental Baking Co., 420 U.S. 223, 237 n.10 (1975)
(contrasting “judicial decrees” and “administrative orders”
with “contracts”). This court agrees with the Court of
Federal Claims that Ms. Gardner has failed to present
even a “non-frivolous allegation” that the VA order consti-
tutes a contract. Hanlin, 214 F.3d at 1321.
Next, Ms. Gardner contends that Title VII of the Civil
Rights Act provides a substantive basis for jurisdiction
under the Tucker Act. The Court of Federal Claims,
however, does not have jurisdiction over Title VII claims.
See Taylor v. United States, No. 2008-5064, 2009 WL
330866, *3 (Fed. Cir. Feb. 11, 2009) (unpublished). This
court has explained that where a “specific and compre-
hensive scheme for administrative and judicial review is
provided by Congress, the Court of Federal Claims'
Tucker Act jurisdiction over the subject matter covered by
the scheme is preempted.” Wilson v. United States, 405
F.3d 1002, 1009 (Fed. Cir. 2005) (citations omitted). The
Supreme Court has found Title VII to be “an exclusive,
pre-emptive administrative and judicial scheme for the
GARDNER v. US 6
redress of federal employment discrimination.” Brown v.
General Services Administration, 425 U.S. 820, 829
(1975). The Court further noted that Title VII “permits
an aggrieved employee to file a civil action in a federal
district court.” Id. at 832; see also 42 U.S.C. § 2000e-
5(f)(3). Title VII claims are properly asserted in the
appropriate district court, as the VA informed Ms. Gard-
ner. The Court of Federal Claims was correct in conclud-
ing that Ms. Gardner’s Title VII claim was not properly
before it.
III
The appeal is AFFIRMED.