Baker v. United States , 642 F. App'x 989 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PATRICK BAKER,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-1005
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00343-TCW, Judge Thomas C.
Wheeler.
______________________
Decided: March 15, 2016
______________________
PATRICK BAKER, Texarkana, AR, pro se.
DANIEL S. HERZFELD, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
CLAUDIA BURKE.
______________________
Before TARANTO, LINN, and HUGHES, Circuit Judges.
2 BAKER v. US
PER CURIAM.
After Patrick Baker quit his employment with the
United States Army under threat of discharge for drink-
ing before work, Mr. Baker charged the Army with racial
discrimination in threatening to fire him when it allowed
his coworker to continue working despite engaging in the
same conduct. The parties settled the dispute, with the
Army agreeing to employ Mr. Baker, subject to his meet-
ing certain physical and suitability requirements, and to
pay Mr. Baker and his lawyer. When the Army later
refused to employ him, Mr. Baker filed administrative
charges against the Army, alleging racial discrimination.
And when he was unable to secure administrative relief,
Mr. Baker filed the present action in the Court of Federal
Claims, alleging that the Army racially discriminated
against him, committed various torts, wrongfully gar-
nished his tax refund, and breached the settlement
agreement.
The court dismissed the case. Baker v. United States,
123 Fed. Cl. 203 (2015). It concluded that it lacked juris-
diction over Mr. Baker’s racial-discrimination claim, tort
claims, or wrongful-garnishment claim. And it concluded
that it lacked jurisdiction over the breach-of-contract
claim and, in the alternative, that Mr. Baker had not
adequately pleaded an actual contract breach.
We affirm the court’s dismissal of all claims except
the contract claim, as to which we reverse and remand.
BACKGROUND
Mr. Baker worked at the Army’s Red River Army
Depot in Texarkana, Texas. The morning of November
12, 2008, he and a coworker drank alcohol before coming
to work, and they admitted to doing so when questioned
by a supervisor. According to Mr. Baker, the army depot
gave him a choice: voluntarily resign and return to a job
BAKER v. US 3
he had held with a private company or be fired. He chose
to resign.
Mr. Baker’s resignation set off two series of events
that led him to file the current lawsuit in the Court of
Federal Claims. First, although Mr. Baker resigned in
the middle of a pay period, the Army erroneously paid
him for the entire period. Realizing the mistake, the
Defense Finance and Accounting Service attempted to
secure the overpaid amount from Mr. Baker. When he did
not pay, the Internal Revenue Service subtracted the
amount due from the tax refund he was to receive. Mr.
Baker now challenges that setoff as a wrongful garnish-
ment of his tax refund.
Second, shortly after he resigned, Mr. Baker learned
that the Army let his drink-sharing coworker stay in his
job, and in early 2009, Mr. Baker filed an administrative
claim that the Army had engaged in racial discrimination
in treating him and his coworker differently. In August
2009, the Army and Mr. Baker executed a Negotiated
Settlement Agreement of claims described as arising
under, e.g., Title VII of the Civil Rights Act of 1964, as
amended. The Army agreed to appoint Mr. Baker as a
“Heavy Mobile Equipment Repairer WG-5803-08 in the
Directorate for Maintenance Production, Travel Division
effective not later than September 14, 2009,” subject to
“his meeting physical requirements for the . . . position
and meeting all suitability requirements for placement.”
S.A. 38. The Army also promised to pay $5,000 to Mr.
Baker and the same amount to his attorney. The agree-
ment includes two paragraphs about procedures for
handling a breach:
6. If the complainant believes that the Army has
failed to comply with the terms of this settlement
agreement, the complainant shall notify the Di-
rector, Equal Employment Opportunity Compli-
ance and Complaints Review (EEOCCR), . . . in
4 BAKER v. US
writing, of the alleged noncompliance within 30
calendar days of when the complainant knew or
should have known of the alleged noncompliance.
...
7. The complainant may request that the terms of
the settlement agreement be specifically imple-
mented or, alternatively, the complaint be rein-
stated for further processing from the point
processing ceased. If the Director, EEOCCR has
not responded to the complainant in writing, or if
the complainant is not satisfied with the attempts
to resolve the matter, the complainant may appeal
to the Equal Employment Opportunity Commis-
sion (EEOC) for a determination as to whether or
not the Army has complied with the terms of this
settlement agreement. The Complainant may file
such an appeal to the EEOC 35 calendar days af-
ter service of the allegation of noncompliance up-
on EEOCCR, but not later than 30 calendar days
after receipt of the Army determination.
S.A. 39 (emphases in original).
Soon after executing the settlement agreement, Mr.
Baker was charged by Arkansas with the offense of do-
mestic battery in the third degree. He pleaded guilty and
was sentenced to probation for twelve months. After his
conviction, his complaint in this case suggests, he unsuc-
cessfully asked for the job promised in the settlement
agreement. Separately, it appears, sometime later he
applied for a job with URS Corporation, a government
contractor, to do work for URS at the Red River Army
Depot. But an Army official determined that Mr. Baker’s
criminal conviction rendered him unfit to work at the
depot, a determination that disqualified him from the
URS job.
In October 2013, Mr. Baker filed a new administrative
claim of racial discrimination. Both the Army and the
BAKER v. US 5
Equal Employment Opportunity Commission dismissed
his complaint as untimely. Thereafter, Mr. Baker filed a
suit in the United States District Court for the Eastern
District of Texas. The district court retained a retaliation
claim against URS, but it dismissed all claims against the
Army for lack of jurisdiction. It explained that it lacked
jurisdiction over Mr. Baker’s discrimination claims be-
cause he failed to exhaust administrative remedies and
that it lacked jurisdiction over his breach-of-contract
claim because he sought damages exceeding the $10,000
limit in the Little Tucker Act, 28 U.S.C. § 1346(a)(2), so
the Court of Federal Claims had exclusive jurisdiction.
Mr. Baker then filed the present action in the Court of
Federal Claims. He asserts four types of claims: (1) a
discrimination claim under Title VII; (2) tort claims for
defamation of character, infliction of emotional distress,
and retaliation; (3) a claim of wrongful garnishment of his
tax refund; and (4) a breach-of-contract claim. The gov-
ernment filed a motion to dismiss the case, which the
court granted. The court concluded that the Title VII and
tort claims fell outside its jurisdiction. Baker, 123 Fed.
Cl. at 205. It drew the same conclusion as to the wrong-
ful-garnishment and breach-of-contract claims, finding no
money-mandating statute or contract provision. Id. at
205–06. Finally, the court determined that the breach-of-
contract claim independently failed because Mr. Baker
did not plead a breach of the settlement agreement. Id. at
206.
Mr. Baker appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(3).
DISCUSSION
We review the dismissal of Mr. Baker’s complaint de
novo, there being no factual or discretionary determina-
tions by the Court of Federal Claims to which we owe
deference. Kam-Almaz v. United States, 682 F.3d 1364,
1368 (Fed. Cir. 2012) (dismissal for lack of jurisdiction);
6 BAKER v. US
Laguna Hermosa Corp. v. United States, 671 F.3d 1284,
1288 (Fed. Cir. 2012) (dismissal for failure to state a
claim).
The only jurisdictional grant at issue here is the
Tucker Act, which gives the Court of Federal Claims
“jurisdiction to render judgment upon any claim against
the United States founded either upon the Constitution,
or any Act of Congress or any regulation of an executive
department, or upon any express or implied contract with
the United States, or for liquidated or unliquidated dam-
ages in cases not sounding in tort.” 28 U.S.C.
§ 1491(a)(1). While we agree with the Court of Federal
Claims that Mr. Baker’s Title VII, tort, and wrongful-
garnishment claims do not fall within that limited grant
of jurisdiction, we conclude that his breach-of-contract
claim does.
The Court of Federal Claims lacks jurisdiction over
Mr. Baker’s Title VII discrimination claim. Congress has
provided that federal district courts have jurisdiction over
an aggrieved employee’s employment-discrimination
action under Title VII. See 42 U.S.C. §§ 2000e-5(f)(3),
2000e-16(c). And the Supreme Court has described Title
VII as “an exclusive, pre-emptive administrative and
judicial scheme for the redress of federal employment
discrimination.” Brown v. Gen. Servs. Admin., 425 U.S.
820, 829 (1976). Such a specific, comprehensive scheme of
administrative and judicial review is inconsistent with
the Court of Federal Claims asserting jurisdiction under
the Tucker Act. United States v. Bormes, 133 S. Ct. 12, 18
(2012); Wilson v. United States, 405 F.3d 1002, 1009 (Fed.
Cir. 2005); see Gardner v. United States, 439 F. App’x 879,
881 (Fed. Cir. 2011) (“The Court of Federal Claims . . .
does not have jurisdiction over Title VII claims.”).
Mr. Baker’s tort claims also are outside the Tucker
Act. Nothing in that Act identifies tort claims as covered;
to the contrary, its listing of covered topics excludes
BAKER v. US 7
claims “sounding in tort.” Mr. Baker pleads defamation of
character, infliction of emotional distress, and retaliation,
all of which have long been recognized as tort claims. See
Farmer v. United Bhd. of Carpenters & Joiners of Am.,
Local 25, 430 U.S. 290, 302–03 (1977) (defamation and
infliction of emotional distress); Qualls v. United States,
678 F.2d 190, 193 (Ct. Cl. 1982) (retaliation). Therefore,
the Court of Federal Claims correctly held that it lacks
jurisdiction over Mr. Baker’s tort claims.
Mr. Baker’s claim of wrongful garnishment of his tax
refund under the Debt Collection Improvement Act, 31
U.S.C. §§ 3701, 3702, 3711, 3716, fares no better. Alt-
hough the Tucker Act covers a claim “founded . . . upon
. . . any Act of Congress,” the particular statute must be
one that mandates monetary relief against the United
States when violated. See United States v. Navajo Na-
tion, 556 U.S. 287, 290–91 (2009); United States v. Testan,
424 U.S. 392, 400 (1976); Fisher v. United States, 402 F.3d
1167, 1172 (Fed. Cir. 2005) (en banc in relevant part).
The statutory provisions relied on by Mr. Baker authorize
an agency to withhold funds payable by the United States
to a person to satisfy a claim, but they do not authorize
monetary relief for a violation. See McNeil v. United
States, 78 Fed. Cl. 211, 228 (2007), aff’d, 293 F. App’x 758
(Fed. Cir. 2008). If there is a remedy for a violation, it is
not through the Act of Congress portion of the Tucker Act.
Cf. Miller v. Office of Personnel Mgmt., 449 F.3d 1374,
1385 (Fed. Cir. 2006) (Dyk, J., dissenting) (noting that
some courts have assumed the availability of Administra-
tive Procedure Act review of agency determinations to
make offsets under the Debt Collection Improvement Act).
With respect to Mr. Baker’s breach-of-contract claim,
the Court of Federal Claims erred in dismissing for lack of
jurisdiction. In Holmes v. United States, 657 F.3d 1303
(Fed. Cir. 2011), this court noted that “when a breach of
contract claim is brought in the Court of Federal Claims
8 BAKER v. US
under the Tucker Act, the plaintiff comes armed with the
presumption that money damages are available.” Id. at
1314. The court then squarely held that the Tucker Act is
available for a claim seeking monetary relief for a breach
of provisions of a settlement agreement, specifically of a
Title VII claim, relating to future employment. Id. at
1315–16; see also Cunningham v. United States, 748 F.3d
1172, 1176 (Fed. Cir. 2014). In Holmes, the court also
expressly concluded that the Tucker Act monetary remedy
is available notwithstanding the provision of non-
monetary remedial options like those set forth in the
Settlement Agreement paragraphs 6 and 7 quoted above.
657 F.3d at 1316. Those options were available in Holmes
by EEOC regulation, but we do not see why the result is
any different when they are written into the contract in
non-exclusive form.
Contrary to the Court of Federal Claims’ conclusion,
Baker, 123 Fed. Cl. at 206, this court did not alter the
foregoing law as to certain settlement agreements in
Higbie v. United States, 778 F.3d 990 (Fed. Cir. 2015).
The court in Higbie itself recognized that “[t]ypically, in a
contract case, the presumption that money damages are
available satisfies the Tucker Act’s money-mandating
requirement.” Id. at 993 (citing Holmes, 657 F.3d at
1314). But the court found no damages available for the
particular contract breach at issue, which did not involve
future-employment-related provisions of a Title VII
settlement agreement. Rather, it involved a confidentiali-
ty provision of a mediation agreement in “boilerplate
common to agreements associated with similar mediation
proceedings,” for which the agreement specified exclusion
of evidence as the remedy for breach. Id. at 995 n.1, 994.
In rejecting application of the Tucker Act for that con-
tract, the court pointedly distinguished “a settlement
agreement that created specific duties owed by the Gov-
ernment to th[e] particular plaintiff,” as in Cunningham.
Id. at 995 n.1.
BAKER v. US 9
This case is covered by Holmes and Cunningham, not
Higbie. Mr. Baker alleges that the Army breached the
Title VII settlement agreement, specifically a provision
crafted particularly for him and concerning his future
employment, and that he is entitled to $350,000 in dam-
ages. And the agreement contains no language that
limits monetary relief for breach of the job provision, but
only language of the very type held not to bar monetary
relief in Holmes. The Court of Federal Claims therefore
erred in holding that it lacked Tucker Act jurisdiction
over Mr. Baker’s contract claim.
The Court of Federal Claims held, in the alternative,
that the claim must be dismissed for failure of the com-
plaint to plead a breach. Baker, 123 Fed. Cl. at 206. That
characterization fails to give the handwritten, informal,
pro se complaint the reading it warrants. Taken as a
whole, and read generously, Mr. Baker’s complaint alleges
that the Army breached the settlement agreement by not
giving him the promised job, seemingly because it viewed
his conviction as rendering him unsuitable. The dismissal
of the complaint is therefore reversed, and the case re-
manded for further proceedings.
CONCLUSION
For the foregoing reasons, we affirm the Court of
Federal Claims’ dismissal of all claims except the breach-
of-contract claim, as to which we reverse and remand.
No costs.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED