Oliva v. United States ( 2020 )

Case: 19-2059 Document: 43 Page: 1 Filed: 06/15/2020
United States Court of Appeals
for the Federal Circuit
______________________
STEVEN J. OLIVA,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2019-2059
______________________
Appeal from the United States Court of Federal Claims
in No. 1:18-cv-00104-LKG, Judge Lydia Kay Griggsby.
______________________
Decided: June 15, 2020
______________________
HAN PARK, Covington & Burling LLP, Washington, DC,
argued for plaintiff-appellant. Also represented by
RICHARD L. RAINEY; JENNIFER CIELUCH, New York, NY.
DAVID PEHLKE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee. Also represented
by JOSEPH H. HUNT, ELIZABETH MARIE HOSFORD, ROBERT
EDWARD KIRSCHMAN, JR.
______________________
Before NEWMAN, DYK, and WALLACH, Circuit Judges.
Case: 19-2059 Document: 43 Page: 2 Filed: 06/15/2020
2 OLIVA v. UNITED STATES
DYK, Circuit Judge.
Steven J. Oliva appeals a decision of the Court of Fed-
eral Claims (“Claims Court”) dismissing his complaint for
failure to state a plausible claim for breach of contract dam-
ages. We reverse and remand for further proceedings.
BACKGROUND
Mr. Oliva periodically worked for the United States De-
partment of Veterans Affairs (“VA”) between 2000 and
2016. Starting in 2012, Mr. Oliva worked as an Associate
Director of Pharmacy Customer Care at the Health Re-
source Center in Waco, Texas. On January 9, 2015, the VA
issued a letter of reprimand to Mr. Oliva for accusing a su-
pervisor of improperly pre-selecting an applicant for a po-
sition. Mr. Oliva filed a formal grievance challenging the
letter of reprimand on the ground that his email consti-
tuted protected whistleblowing. On January 30, Mr. Oliva
entered into an Equal Employment Opportunity settle-
ment agreement (“the Settlement Agreement”) with the VA
to resolve his grievance. The Settlement Agreement stated
that the VA would provide:
[A] [w]ritten reference for Mr. Oliva and the assur-
ance of a positive verbal reference, if requested[.]
A written reference will be provided by [Mr. Oliva’s
supervisor]. Should [the supervisor] be asked to
provide a verbal reference, he will not mention the
retracted [r]eprimand [letter] and will limit infor-
mation provided to that set forth in the written ref-
erence.
J.A. 96.
Mr. Oliva’s amended complaint alleged that he “was
wrongfully terminated from his employment with the [VA]
in April 2016.” J.A. 91. The parties appear to agree that
his termination was for performance reasons.
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OLIVA v. UNITED STATES 3
On January 22, 2018, Mr. Oliva filed a pro se complaint
in the Claims Court, alleging that the VA had breached the
Settlement Agreement on two occasions. The first alleged
breach was in March 2015, when Mr. Oliva applied for a
position as an Associate Director in the VA’s medical center
in El Paso, Texas. According to the complaint, when the
VA in Waco was contacted to provide a reference in support
of his application, it disclosed the existence of the repri-
mand letter. Mr. Oliva asserted that as a result, he did not
receive an offer of employment at the El Paso position. Mr.
Oliva alleged that but for the breach, he would have been
hired for the position. The second alleged breach was in
February 2016, when Mr. Oliva applied for a second posi-
tion as a Healthcare Administrator in the VA’s healthcare
center in Greenville, North Carolina. According to the com-
plaint, a VA representative in Waco violated the Settle-
ment Agreement by disclosing that Mr. Oliva was on a
Temporary Duty Assignment, as well as the identity and
contact information of his supervisor at the time. Mr. Oliva
stated that, as a result, he did not receive an offer of em-
ployment for the Greenville position. Mr. Oliva’s complaint
again alleges that but for the alleged breach, he would have
been hired for the Greenville position. He also alleges that
he would have received salary and a relocation incentive
payment from the VA if he had been hired for either job.
The government moved to dismiss Mr. Oliva’s com-
plaint for failure to state a claim for breach of contract. The
Claims Court held that Mr. Oliva’s complaint “plausibly al-
leged that the government breached the Settlement Agree-
ment by disclosing his letter of reprimand—and the fact
that plaintiff was on a temporary duty assignment—and
that these alleged breaches resulted in the loss of future
employment opportunities.” J.A. 80. On the other hand,
the Claims Court held that “the most generous reading of
the complaint shows that [the] plaintiff has not stated a
plausible claim to recover relocation incentive payments
from the government.” Id. The Claims Court referred Mr.
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4 OLIVA v. UNITED STATES
Oliva to a pro bono attorney to assist him in filing an
amended complaint.
On September 26, 2018, Mr. Oliva, now represented by
counsel, filed an amended complaint repeating the allega-
tions of the first complaint and seeking (1) $289,564 in lost
salary and (2) either $86,304 in lost relocation incentive
pay with respect to the El Paso position or $87,312 in lost
relocation incentive pay with respect to the Greenville po-
sition. The Claims Court dismissed the amended com-
plaint, holding that Mr. Oliva had not stated plausible
claims to recover lost salary or relocation incentive pay. On
the issue of lost salary, the Claims Court held that Mr.
Oliva had “allege[d] in the amended complaint that the VA
breached the Settlement Agreement,” but that “the factual
allegations in the amended complaint show that the termi-
nation of [Mr. Oliva]’s employment in April 2016 [for per-
formance reasons], rather than the VA’s alleged breach of
the Settlement Agreement in February 2016, was the prox-
imate cause of [Mr. Oliva]’s lost salary.” J.A. 11–12. On
the issue of relocation incentive pay, the Claims Court held
that Mr. Oliva had not alleged the prerequisite facts that
would have made him eligible for such pay under the Office
of Personnel Management (“OPM”) regulations because he
had alleged neither (1) that he had the required status—
i.e., that he was a “federal employee” with “a ‘Fully Suc-
cessful,’ or equivalent, rating of record immediately before
he would have relocated”—nor (2) that “the VA determined
the amount of relocation pay that he would have received.”
J.A. 9–11. Mr. Oliva appeals, and we have jurisdiction un-
der 28 U.S.C. § 1295(a)(3). 1
1 The Claims Court had jurisdiction over Mr. Oliva’s
breach of contract claim. See 28 U.S.C. § 1491(a)(1);
Holmes v. United States, 657 F.3d 1303, 1312 (Fed. Cir.
2011); Cunningham v. United States, 748 F.3d 1172
(Fed. Cir. 2014).
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OLIVA v. UNITED STATES 5
DISCUSSION
The Claims Court may dismiss a complaint if it fails “to
state a claim upon which relief can be granted.” Ct. Fed.
Cl. R. 12(b)(6). We review the Claims Court’s dismissal for
failure to state a claim de novo. Jones v. United States, 846
F.3d 1343, 1351 (Fed. Cir. 2017). To survive a motion to
dismiss, the complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled
to relief,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007), with “sufficient factual matter . . . to state a claim
to relief that is plausible on its face,” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). We take all plausible factual allega-
tions in the complaint as true and construe the facts in the
light most favorable to the non-moving party. Jones, 846
F.3d at 1351.
To recover for a breach of contract, “a party must allege
and establish: (1) a valid contract between the parties, (2)
an obligation or duty arising out of the contract, (3) a
breach of that duty, and (4) damages caused by the breach.”
San Carlos Irrigation & Drainage Dist. v. United States,
877 F.2d 957, 959 (Fed. Cir. 1989). “Contract remedies are
designed to make the nonbreaching party whole.” Cal. Fed.
Bank v. United States, 395 F.3d 1263, 1267 (Fed. Cir.
2005). “One way to achieve that end is to give the non-
breaching party ‘expectancy damages,’ i.e., the benefits the
nonbreaching party expected to receive in the absence of a
breach.” Id. For expectancy damages, the party must
“show that the claimed damages . . . would not have oc-
curred but for the breach.” Fifth Third Bank v. United
States, 518 F.3d 1368, 1374 (Fed. Cir. 2008). But-for or
proximate causation requires “that the causal connection
between the breach and the loss . . . be definitively estab-
lished.” Cal. Fed. Bank, 395 F.3d at 1267–68 (internal quo-
tation marks and citations omitted).
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6 OLIVA v. UNITED STATES
I
Mr. Oliva argues that the Claims Court erred when it
held that Mr. Oliva had failed to state a plausible claim to
recover lost salary based on a finding that “the termination
of [Mr. Oliva]’s employment [for performance reasons] in
April 2016,” rather than the VA’s alleged breaches of the
Settlement Agreement was “the proximate cause of [Mr.
Oliva]’s lost salary.” J.A. 12. We agree with Mr. Oliva.
Mr. Oliva plausibly claimed that the alleged breaches
were the cause of his lost salary. “‘[D]amages for breach of
contract require a showing of causation,’ which in turn ne-
cessitates a ‘comparison between the breach and non-
breach worlds.’” Vt. Yankee Nuclear Power Corp. v. En-
tergy Nuclear Vt. Yankee, LLC, 683 F.3d 1330, 1349 (Fed.
Cir. 2012) (quoting Yankee Atomic Elec. Co. v. United
States, 536 F.3d 1268, 1273 (Fed. Cir. 2008)). With respect
to the 2015 breach, the amended complaint alleged that
“[a]s a result of the [VA]’s non-conforming reference [dis-
closing the existence of the reprimand letter], [Mr. Oliva]
did not receive an offer of employment for the El Paso,
Texas position.” J.A. 88. Similarly, with respect to the
2016 breach, the amended complaint alleged that “[a]s a
result of the [VA]’s non-conforming reference [disclosing
that Mr. Oliva was on a Temporary Duty Assignment and
the identity of Mr. Oliva’s supervisor], [Mr. Oliva] did not
receive an offer of employment for the Greenville, North
Carolina position.” J.A. 90. Here, the amended complaint
pleaded a non-breach world in which Mr. Oliva would have
been employed at either El Paso or Greenville and, there-
fore, would not have been terminated by the VA from his
existing position. See Johnson v. City of Shelby, 574 U.S.
10, 12 (2014) (holding that the plaintiffs’ had pleaded a sub-
stantively plausible claim when they “stated simply, con-
cisely, and directly events that, [the plaintiffs] alleged,
entitled them to damages”). We conclude that Mr. Oliva
has alleged facts sufficient to support his lost salary claim.
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OLIVA v. UNITED STATES 7
We do not see how Mr. Oliva’s termination in April
2016 from his Waco job undercuts the plausibility of these
allegations. “To analyze expectancy damages one looks at
what would have happened had the contract been per-
formed.” Stockton East Water District v. United States, 761
F.3d 1344, 1352 (Fed. Cir. 2014) (internal quotation marks
and citation omitted).
The government argues that because “the amended
complaint dates the lost salary claim from the moment of
termination,” Mr. Oliva has effectively claimed that “the
cause of the alleged lost salary was Mr. Oliva’s termina-
tion, not the alleged breach[es].” Appellee’s Br. 17. The
government’s position is unpersuasive. As outlined above,
Mr. Oliva alleged that, had he been offered employment at
El Paso or Greenville, he would have left his employment
at Waco before he was terminated. J.A. 88, 90; Energy Nw.
v. United States, 641 F.3d 1300, 1305 (Fed. Cir. 2011) (“[A]
plaintiff seeking damages must submit a hypothetical
model establishing what its costs would have been in the
absence of breach.” (citation omitted)). On a motion to dis-
miss, we are obligated to draw all reasonable inferences in
favor of Mr. Oliva and accept as true his plausible factual
allegation that he would have received an offer of employ-
ment at either El Paso or Greenville but for the alleged
breaches. 2 See Amoco Oil Co. v. United States, 234 F.3d
1374, 1376 (Fed. Cir. 2000) (“On a motion to dismiss for
failure state a claim, any factual allegations in the com-
plaint are assumed to be true and all inferences are drawn
in favor of the plaintiff.”). There is no requirement that Mr.
Oliva “prove [his] case at the pleading stage.” In re Bill of
Lading Transmission & Processing Sys. Patent Litig., 681
2 There is no suggestion on the record here that the
reasons for Mr. Oliva’s termination from the Waco position
would have led to termination from the El Paso or Green-
ville positions.
Case: 19-2059 Document: 43 Page: 8 Filed: 06/15/2020
8 OLIVA v. UNITED STATES
F.3d 1323, 1339 (Fed. Cir. 2012) (citing Skinner v. Switzer,
562 U.S. 521, 529–30 (2011)).
We conclude that the Claims Court erred when it held
that Mr. Oliva had failed to state a plausible claim to re-
cover for lost salary.
II
Mr. Oliva argues that the Claims Court erred when it
dismissed his claim for relocation incentive pay as an addi-
tional demand of damages. We agree with Mr. Oliva.
Mr. Oliva plausibly alleged entitlement to lost reloca-
tion incentive pay. As we noted in Crow Creek Sioux Tribe
v. United States, 900 F.3d 1350, 1354 (Fed. Cir. 2018),
“there is no need to allege details of the damages calcula-
tion in the complaint.” See also In re Johnson & Johnson
Talcum Powder Prods. Mktg., Sales Practices & Liab.
Litig., 903 F.3d 278, 287 (3d Cir. 2018) (holding that “a
plaintiff need not develop detailed economic models at the
pleading stage” and only needs to allege facts “that, if
proven true, would permit a factfinder to determine that
[]he suffered at least some economic injury”); 5A C. Wright
& A. Miller, Federal Practice and Procedure § 1310 (4th
ed.) (noting that “[g]eneral damages[, which] typically are
those elements of injury that are proximate and foreseea-
ble consequences of the defendant’s conduct” and “can be
alleged without particularity under Federal Rule of Civil
Procedure 8(a)”); 24 Williston on Contracts § 64:16 (4th ed.)
(“With respect to . . . [pleading] general damages, no alle-
gation describing the elements of those damages ordinarily
need be made.”). 3
3 There is no suggestion that Mr. Oliva’s allegation
of lost relocation incentive pay is a request for special dam-
ages, nor did the Claims Court invoke the heightened
pleading standard for special damages under Court of Fed-
eral Claims Rule 9(g).
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OLIVA v. UNITED STATES 9
The Claims Court noted that although Mr. Oliva had
“plausibly alleged that the VA determined that a relocation
incentive would be provided for [the Greenville] position,
[Mr. Oliva] fail[ed] to sufficiently allege facts in the
amended complaint to show that he would have been eligi-
ble to receive this [relocation] pay.” J.A. 9.
The government relies on OPM regulations providing
that relocation pay is only available to “an employee
who . . . [i]s an employee of the Federal Government imme-
diately before the relocation.” 5 C.F.R. § 575.205(a)(2).
Furthermore, “[a] relocation incentive may be paid only
when the employee’s rating of record . . . for the position
held immediately before the move is at least ‘Fully Success-
ful’ or equivalent.” Id. at § 575.205(c).
The Claims Court adopted this position and held that
Mr. Oliva was required to allege the date “when he learned
that the VA would not offer him the Greenville Position”
and that “he was a federal employee” with a “Fully Success-
ful, or equivalent, rating of record” “when he learned this
information” because the OPM regulations state that the
employee must have the requisite status for relocation “im-
mediately before relocation.” J.A. 10. Mr. Oliva’s amended
complaint stated that “[b]ut for the VA’s breach of the Set-
tlement Agreement, [he] would have received relocation in-
centive pay.” J.A. 92.
The Claims Court also held that Mr. Oliva had alleged
“no facts in the amended complaint to show that the VA
determined the amount of relocation pay that he would
have received to accept the Greenville Position.” J.A. 11.
The Claims Court held that Mr. Oliva’s claim was also not
supported because he had “not explain[ed] how he calcu-
lated the $87,312.00 in relocation incentive pay that he
seeks in the amended complaint.” J.A. 11. However, such
detailed allegations as to the damages calculation were not
required.
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10 OLIVA v. UNITED STATES
The amended complaint set forth sufficient factual al-
legations to plausibly claim that Mr. Oliva was entitled to
receive relocation incentive pay. Accordingly, we conclude
that the Claims Court erred when it dismissed his claim.
III
We note that Mr. Oliva has also filed a complaint with
the Merit Systems Protection Board (“Board”), which we
address in a contemporaneously issued decision. See Oliva
v. Dep’t of Veterans Affairs, No. 19-1990. During oral argu-
ment, the government suggested that Mr. Oliva was at-
tempting to obtain double recovery by simultaneously
filing complaints before the Claims Court and the Board.
“The purpose of damages for breach of contract is generally
to put the wronged party in as good a position as he would
have been had the contract been fully performed.” S. Cal.
Fed. Sav. & Loan Ass’n v. United States, 422 F.3d 1319,
1332 (Fed. Cir. 2005). “[D]ouble recovery for the same in-
jury is inappropriate” when the two causes of action arise
from the “same operative facts.” Tex. Advanced Optoelec-
tronic Sols., Inc. v. Renesas Elecs. Am., Inc., 895 F.3d 1304,
1328 (Fed. Cir. 2018) (alteration in original) (quoting Aero
Prods. Int’l, Inc. v. Intex Recreation Corp., 466 F.3d 1000,
1017, 1019 (Fed. Cir. 2006)). Mr. Oliva admits that he can-
not recover twice for the same injury. There is no possibil-
ity of double recovery because we hold in Oliva, No. 19-
1990, that Mr. Oliva cannot recover on his Whistleblower
Protection Act theory for damages for loss of the El Paso
job.
REVERSED AND REMANDED
COSTS
Costs to appellant.