Filed: Jul. 18, 2018
Latest Update: Mar. 03, 2020
Summary: ffiffi[ffigru,-&t lln tltt @nftr! btsttg [,turt of feltrsl @lsims No. 18-104C Filed July 18,2018 NOT FOR PUBLICATION FILED 1gg I B 20tB STEVEN J. OLIVA. U.S. COURT OF FEDERAL CLAIMS Plaintiff, Pro se; RCFC l2(b)(6); Failure to State a Claim; Breach of Contract; In Forma Pauperis. THE I.JNITED STATES, Defendant. Steven J. Oliva,Fair Oaks Ranch, TX, plaintiffpro se. David R. Pehlke,Trial Attomey, Elizabeth M. Hosford, Assistant Director, Robert E' Kirschman, -/r., Director, Chad A. Readler, Acting
Summary: ffiffi[ffigru,-&t lln tltt @nftr! btsttg [,turt of feltrsl @lsims No. 18-104C Filed July 18,2018 NOT FOR PUBLICATION FILED 1gg I B 20tB STEVEN J. OLIVA. U.S. COURT OF FEDERAL CLAIMS Plaintiff, Pro se; RCFC l2(b)(6); Failure to State a Claim; Breach of Contract; In Forma Pauperis. THE I.JNITED STATES, Defendant. Steven J. Oliva,Fair Oaks Ranch, TX, plaintiffpro se. David R. Pehlke,Trial Attomey, Elizabeth M. Hosford, Assistant Director, Robert E' Kirschman, -/r., Director, Chad A. Readler, Acting ..
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ffiffi[ffigru,-&t
lln tltt @nftr! btsttg [,turt of feltrsl @lsims
No. 18-104C
Filed July 18,2018
NOT FOR PUBLICATION
FILED
1gg I B 20tB
STEVEN J. OLIVA. U.S. COURT OF
FEDERAL CLAIMS
Plaintiff, Pro se; RCFC l2(b)(6); Failure to State a
Claim; Breach of Contract; In Forma
Pauperis.
THE I.JNITED STATES,
Defendant.
Steven J. Oliva,Fair Oaks Ranch, TX, plaintiffpro se.
David R. Pehlke,Trial Attomey, Elizabeth M. Hosford, Assistant Director, Robert E'
Kirschman, -/r., Director, Chad A. Readler, Acting Assistant Attomey General, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for
defendant.
MEMORANDUM OPINION AND ORDER
GRIGGSBY. Judge
I, INTRODUCTION
Plaintiff pro se, Steven J. Oliva, brings this action to recover monetary damages from the
government in connection with an alleged breach of an Equal Employment Opportunity C'EEO")
settlement agreement (the "settlement Agreement") by and between plaintiff and the United
States Department of Veterans Affairs (the "Y A"), See generally Compl The government has
moved to dismiss this matter for failure to state a claim upon which relief may be granted,
pursuant to Rule 12(b)(6) ofthe Rules of the United States Court ofFederal Claims ("RCFC").
See generally Def. Mot. Plaintiffhas also moved to proceed in this ma$et informa pauperis'
See generally PL IFP Mot.
?0r,b 301,0 8000 qlB6 q?e0
For the reasons discussed below, the Court: (1) GRANTS-IN-PART and DENIES-IN-
PART the government's motion to dismiss and (2) GRANTS plaintiff s motion to proceed in
Jbrma pauperis.
II. FACTUAL AND PROCEDURAL BACKGROUNDI
A. Factual Background
In this action, plaintiff pro se, Steven J. Oliva, seeks to recover certain relocation
incentive payments from the govemment in connection with the alleged breach of the Settlement
Agreement that he entered into with the VA on or about January 3 0, 201 5. See generally
Compl.; see also id. at Ex. 1 at 1-2. In the complaint, plaintiff alleges that the VA breached the
Seltlement Agreement on two occasions. Compl. at 2. First, plaintiff alleges that the VA
breached the agreement in March 20i5, when the agency "provided a reference which included
the disclosure of [a letter of reprimand that plaintiff received in January 2015]."
Id. Second,
plaintiff alleges that the VA also breached the Settlement Agreement in February 2016, when the
agency provided his prospective employer with: (l) information that plaintiff "was ona
'l'emporary Duty Assignment;" (2) the identity of plaintiffs current supervisor-Floretta
Hardmon; and (3) the contact information for Ms. Hardmon. 1d.
Plaintiff further alleges that, as a result ofthese breaches, he lost the opportunity to
secure two different employment positions "that would have included relocation incentives and
advancement of his career." Id. at 3. As relief, plaintiff seeks to recover the "payment of [the]
relocation incentives [that] he would have received ifnot for the two instances ofthe agency
breaching the [Settlement Agreement,]" in the amount of $1'12,628.00. 1d. at Prayer for Relief;
see also Civil Cover Sheet.
l. The Settlement Agreement
In January 2015, plaintiff received a letter of reprimand for accusing a supervisor ofpre-
selecting an applicant for a position. Compl. at 2; Def. Mot. at 2. On January 30, 2015, plaintiff
I The facts recited in this Memorandum Opinion and Order are taken from the complaint ("Compl."), the
government's motion to dismiss ("Def. Mot."), and plaintifPs response to the government's motion to
dismiss ("P1. Resp."). Unless otherwise noted, the facts recited herein are undisputed.
entered into the Settlement Agreement with the VA to resolve a formal grievance that he brought
after receiving the letter of reprimand. Compl. at 2.
Pursuant to the terms of the Settlement Agreement, plaintiff agreed to withdraw his
informal EEO complaint and to consider his formal grievance resolved in exchange for the VA's
commitment to undertake the remedial measures delineated in the Settlement Agreement. Id. at
2,8x.7 at 1-2. Among the remedial measures that the VA would undertake, the VA agreed to:
[Provide a] written reference for Mr. Oliva and assurance of a positive verbal
reference, if requested-A written reference will be provided by Mr. Eitutis'
Should Mr. Eitutis be asked to provide a verbal reference, he will not mention the
retracted Reprimand and will limit information provided to that set forth in the
written reference.
Id. at Ex. 1 aI l.
2. The March 2015 Breach
Plaintiff alleges that in March 2015, the VA provided a reference which included the
disclosure of the January 2015 letter of reprimand.2 Id. at2. Plaintiff further alleges that the VA
breached the Settlement Agreement when the agency disclosed the letter of reprimand to a
potential employer. 1d.
In 2015, plaintiff pursued a claim with the vA's office of Resolution Management
alleging that the VA breached the Settlement Agreement by disclosing the letter of reprimand.
1d The office of Resolution Management determined that the vA breached the Settlement
Agreement in this regard. Id. at2,Ex. I at 1. But, the Office of Resolution Management also
found that the Settlement Agreement was voidable, because the agreement did not contain
certain language contained in the Older Workers Benefits Protection Act.
Id. atEx. I at 1; see
also 29 IJ .5.C. S 626(0(2). And so, the VA offered plaintiff the option to either elect to void the
2 plaintiff has also attached to the complaint several emails regarding contacts by either Mr. Eitutis, or
Ms. Hardmon and plaintiffs prospective employers. compl. Ex. 1at4-6. In a February 12,2016, email
from Mr. Eitutis toplaintiff, Mr. Eitutis confirms that he had been contacted by one of plaintiff s
prospective employirs for a reference.
Id. atEx.1 at 5. A February 24,2016, email from Ms. Hardmon
io plaintiff also states that one of plaintiffls prospective employers had contacted her and that Ms.
Haidmon had provided a positive referen ce.
Id. atEx.I at 5-6. Lastly, an April22,20l6, email from one
of plaintiff s piospective irnployers to plaintiff states that the prospective employer leamed during the
reference check that Ms. Hardmon was plaintiffs current supervisor.
Id. at Ex l at 5'
Settlement Agreement and to pursue an EEO claim, or to elect to ratify the Settlement
Agreement and to seek specific performance as a remedy. Compl. Ex. 1 at 1. After plaintiff
elected to ratifu the Settlement Agreement, the parties ratified the agreement on JluJy 7,2015.
Id.
3. The February 2016 Breach
Thereafter, plaintiff continued his effoff to secure future employment. See id. at2;PL
Resp. Ex. I at 1-3. In this regard, plaintiff alleges that the VA breached the Settlement
Agreement again in February 2016, by informing a potential employer that plaintiff was on a
temporary duty assignment and that plaintiff s current supervisor was Floretta Hardmon, and by
providing Ms. Hardmon's contact information. Compl. at 2.
Plaintiff also alleges that the VA breached the Settlement Agreement when Ms. Hardmon
provided an employment reference for plaintiff "which was not in accordance with the written
reference," because Ms. Hardmon was not a person designated to provide this reference under
the terms of the Settlement Agreement. Id. And so, plaintiff contends that he "was not selecled
for the position ofHealthcare Administrator due to the evasive employment reference check."
rd.
4, The Relocation Incentive Regulations
Also relevant to this breach of contract dispute, the Office ofPersonnel Management
(.'OPM') has promulgated regulations goveming the payment of relocation incentives for federal
employees. See generally 5 C.F.R. $$ 575.201,e1 seq. Under these regulations, an agency may
pay a relocation incentive to a current employee who must relocate to accept a position in a
different geographic area ifthe agency determines that the position is likely be difficult to fill in
the absence ofan incentive. 5 C.F.R. S 575.201.
Specifically, a relocation incentive may be paid to an employee who-
(1) Must relocate to a different geographic area (permanently or temporarily) to
accept a covered position in an agency when the position is likely to be difficult
to fill; and
(2) Is an employee of the federal govemment immediately before the relocation.
See 5 C.F.R. $ 575.205(a).
These regulations also provide that, before paying such a relocation incentive, an agency
must establish a relocation incentive plan which includes, among other things, the required
documentation for determining that a position is likely to be difficult to fill and the requirements
for determining the amount of the relocation incentive. 5 C.F.R. $ 575.207(a). In addition, the
regulations require that the authorized agency official review and approve the relocation
incentive determination before the agency pays the incentive. 5 C.F.R. $ 575.207(b).3
B. Procedural History
Plaintiff commenced this action on January 22,2018. See generally Compl. On January
22,2018, plaintiff filed a motion to proceed in forma pauperis. See generally Pl. IFP Mot.
On April 23,2018, the government filed a motion to dismiss this matter, pursuant to
RCFC 12(b)(6). See generally Def. Mot. On May 3,2018, plaintiff filed a response and
opposition to the govemment's motion to dismiss. See generally Pl. Resp. On May 17, 2018,
the government filed a reply in support of its motion to dismiss. See generally Def. Reply.
These matters having been fully briefed, the Court resolves the pending motions'
III, LEGAL STANDARDS
A. Pra Se Litigants
Plaintiff is proceeding in this matterpro se, without the benefit ofcounsel. Andso,the
Court applies the pleading requirements leniently. Beriont v. GTE Labs., lnc.,535 F.App'x919,
925-26 n.2 (Fed. Cir. 2013) (citing McZeal v. Sprint Nextel Corp.,50l F.3d 1354, 1356 (Fed.
Cir. 2007)). When determining whether a complaint fiedby a pro se plaintiff is sufficient to
survive a motion to dismiss, this Court affords more leeway under the rules toprd se plaintiffs
than plaintiffs who are represented by counsel. See Haines v. Kerner,404U'S.519'520'925-
Ct. 594-96 (1972) (holding that pro se complaints, "however inartfully pleaded," are held to
,'less stringent standards than formal pleadings drafted by lawyers"); Matthev)s v. United States,
750 F.3d 1320, 1322 (Fed. Cir. 2014). But, there "is no duty on the part of the trial court to
r The regulations also require that an intended recipient of a relocation incentive agree in writing to a
specified period of employment with the agency before the agency can pay the relocation incentive. 5
C.F.R. $ s75.210(a).
create a claim which [the plaintiffJ has not spelled out in his pleading." Lengen v. United States,
100 Fed. Cl. 317, 328 (2011) (brackets existing) (intemal quotation marks omitted) (quoting
Scogin v. United States,33 Fed. Cl. 285,293 (1995)).
Wh\le "a pro se plaintiffis held to a Iess stringent standard than that of a plaintiff
represented by an altomey . . . the pro se plaintiff, nevertheless, bears the burden ofestablishing
the Court's jurisdiction by a preponderance of the evidence." Riles v. United States,93 Fed. Cl.
163, 165(2010)(citingTaylorv.UnitedStates,303F.3d1357,1359(Fed.Cir.2002)). Andso,
the Court may excuse ambiguities, but not defects, in the complaint. See Colbert v. United
States,6lT F. App'x 981, 983 (Fed. Cir. 2015); see also Demes v. United States,52 Fed. Cl. 365,
368 (2002) ("[T]he leniency afforded pro se litigants with respect to mere formalities does not
relieve them ofjurisdictional requirements.").
B. RCFC l2(bx6)
When deciding a motion to dismiss based upon failure to state a claim upon which relief
can be granted pursuant to RCFC 12(bX6), this Court must assume that all undisputed facts
alleged in the complaint are true and draw all reasonable inferences in the non-movant's favor.
Erickson v. Pardus,55l U.S. 89,94 (2007); see also RCFC l2(b)(6). To survive a motion to
dismiss pursuant to RCFC 12(bX6), a complaint must contain facts sufficient to "state a claim to
reliefthat is plausible on its face." Bell Atl. Corp. v. Twombly,550 U.S. 544,570 (2007); see
also Ashcrofr v. Iqbal,556 U.S. 662,678 (2009). And so, when the complaint fails to "state a
claim to relief that is plausible on its face," the Court must dismiss the complaint. Iqbal, 556
U.S. at 678. On the other hand, "[w]hen there are well-pleaded factual allegations, a court
should assume their veracity" and determine whether it is plausible, based upon these facts, to
find against defendant.
Id. at679.
C. Jurisdiction And Breach Of Contract Claims
Under the Tucker Act, the Court possesses subject-matter jurisdiction to consider express
or implied-in-fact contract claims against the United States. See Aboo v. Uniled States, 86 Fed.
Cl. 618, 626-27 (2009). Plaintiff bears the burden of proving the existence of a contract with the
United States and he must demonstrate that there is "something more than a cloud of evidence
that could be consistent with a contract to prove a contract and enlorceable contract rights." D &
N Bankv. United States,33l F.3d 1374, 1377 (Fed. Cir. 2003).
To pursue a breach of contract claim against the United States under the Tucker Act, a
plaintiffmust have privity of contract with the United States. Flexfab, L.L.C. v. United States,
424 F.3d 1254, 1263 (Fed. Cir. 2005) (citations omitted) ("[T]he 'govemment consents to be
sued only by those with whom it has privity of contract. "'). Plaintiff must also support his
contract claim with well-pleaded allegations going to each element of a contract. See Crewzers
Fire Crew Transp., Inc. v. United Stdtes,741 F.3d 1380, 1382 (Fed. Cir. 2014) (holding that to
invoke thejurisdiction of this Court under the Tucker Act, a plaintiff must present a well-pleaded
allegation that its claims arose out ofa valid contract with the United States); see a/so RCFC
9(k) ("ln pleading a claim founded on a contract or treaty, a party must identify the substantive
provisions ofthe contract or treaty on which the party relies."); Gonzalez-McCaulley Inv. Grp.,
Inc. v. United Stales, 93 Fed. CI. 710, 715 (2010).
The requirements for establishing a contract with the United States are identical for
express and implied-in-fact contracts. See Night Vision Corp. v. United States,469 F.3d1369,
1375 (Fed. Cir. 2006); Huntington Promotional & Supply, L.L.C. v. United States, I 14 Fed. Cl.
760,767 (2014) ("The elements are the same for an express or implied-in-fact contract. . . .").
Specifically, a plaintiff must show: (1) mutuality of intent; (2) consideration; (3) lack of
ambiguity in the offer and acceptance; and (4) actual authority to bind the govemment in
contract on the part of the govemment official whose conduct is relied upon. Kam'Almaz v.
[Jnited Stdtes,682 F.3d 1364, 1368 (Fed. Cir. 2012); see also Trauma Serv. Grp. v. United
States,l04 F.3d 1321, 1325 (Fed. Cir. 1997). A govemment official's authority to bind the
United States must be express or implied. Roy v. United States,38 Fed. Cl. 184, 188-89 (1997),
dismissed, 124 F .3d 224 (Fed. Cir. 1997). And so, "the [g]ovemment, unlike private parties,
cannot be bound by the apparent authority of its agents." Id. at 187.
Specifically relevant to this matter, the United States Court ofAppeals for the Federal
Circuit has held "that Tucker Act jurisdiction may be exercised in a suit alleging breach ofa
Title VII settlement agreement." Holmes v. United States,657 F.3d 1303,1312 (Fed. Cir. 2011)
("We do not view Title VII's comprehensive scheme as a bar to the exercise of [Tucker Act]
jurisdiction."). The Federal Circuit has also held that, "when a breach of contract claim is
brought in [this Court], the plaintiff comes armed with the presumption that money damages are
available, so that normally no further inquiry is required [to establish subject-matter
jurisdictionl." Id. at1314. But, the Federal Circuit has recognized that that the mere existence
of a contract does not always means that Tucker Act jurisdiction exists. 1d.
For example, a contract that expressly disavows money damages would not give rise to
Tucker Act jurisdiction. .ld. Similarly, a Title VII settlement agreement that involves purely
nonmonetaxy relief would not give rise to Tucker Act jurisdiction. Id. at 1315. And so, the
Court may require a demonstration that a settlement agreement could fairly be interpreted as
contemplating money damages in the event of breach, to establish subjecfmatter jurisdiction. /d.
To that end, the Federal Circuit has held that a settlement agreement that inherently
relates to monetary compensation, "through relationship to [a plaintiff s] future employment,"
contemplates money damages in the event of brcach. Id' at 1316. The absence ofany language
in a settlement agreement indicating that the parties did not intend for money damages to be
available in the event ofa breach also shows that such an agteement contemplates the payment
of money damages in the event of a breach. 1d.
Iv. LEGALANALYSM
The govemment has moved to dismiss this matter pursuant to RCFC l2(bX6), upon the
grounds that: (1) plaintiff fails to state a plausible claim to recover relocation incentive
payments and (2) plaintiff fails to plausibly allege that the VA breached the Settlement
Agreement by disclosing his letter of reprimand and failing to provide plaintiff with ajob
reference in the manner specified by the Settlement Agreement. ,see Del Mot. at 6-9.
plaintiff counters in his response and opposition to the govemment's motion to dismiss
that he has alleged viable claims to recover relocation incentive payments and for breach of
contract in the complaint, because relocation incentives were authorized for the employment
opportunities that he maintains have been lost due to the VA's actions. Pl.Resp.atl-2. Plaintiff
also contends that the VA's decision to disclose his temporary duty assignment resulted in
plaintiffs loss of an employment opportunity. 1d. And so, plaintiff requests that the Court deny
the government's motion to dismiss.
Plaintiff has also moved to proceed in this matter in forma pauperis. See generally Pl'
IFP Mot.
For the reasons discussed below, the most generous reading ofthe complaint shows that
plaintiffhas not stated a plausible claim to recover relocation incentive payments from the
govemment. Plaintiff has, however, plausibly alleged that the government breached the
Settlement Agreement by disclosing his letter of rcprimand-and the fact that plaintiff was on a
temporary duty assignment-and that these alleged breaches resulted in the loss of future
employment opportunities. In addition, plaintiff has shown that he satisfies the statutory
requirements to proceed in this matter without paying the Court's filing fee. And so, for the
reasons discussed below, the Court: (1) GRANTS-IN-PART and DENIES-IN-PART the
government's motion to dismiss and (2) GRANTS plaintiff s motion to proceed informa
pauperis. RCFC 12(bX1).
A. The Court May Consider Plaintiff s Breach Of Contract Claims
As a preliminary matter, the Court possesses subject-matter jurisdiction to consider
plaintiff s breach of contract claims arising under the Settlement Agreement. In this action,
plaintiffseeks to recover relocation incentive payments due to the govemment's alleged material
breaches of the Settlement Agreement that he entered into with the vA to resolve certain
employment discrimination claims, See generally Compl.; see also id. atEx. 1 at 1-2; Def' Mot'
Ex. I at 1-2. The l]nited States Court ofAppeals for the Federal Circuit has held "that Tucker
Act jurisdiction may be exercised in a suit alleging breach of a Title VII settlement agreement."
Holmes,657 F.3d at 1312. The Federal Circuit has also held that a settlement agreement that
inherently relates to monetary compensation, "through relationship to [a plaintiffs] future
employment," contemplates money damages in the event of breach and may form the basis for
establishing the Court's jurisdiction under the Tucker Act.
Id. at 1316.
A review ofthe Settlement Agreement at issue in this case makes clear that this
agreement contains provisions that inherently relate to monetary compensation through
relationship to plaintiff s efforts to secure future employment. The settlement Agreement
provides that, among other things, the VA would provide a *ritten reference for Mr. Oliva "and
the assurance ofa positive verbal reference, ifrequested." Def. Mot. Ex. I at2. Because the
court finds that the settlement Agreement relates to plaintiff s efforts to secure future
employment and, thus, contemplates money damages in the event ofa breach of that agreement,
the Court may consider plaintiff s breach of contract clums. Holmes,657 F.3d at 1316.4
B. Plaintiff Fails To State A Plausible Claim For Relocation Incentives
Tuming to the merits of plaintiff s claims, a careful review of the complaint makes clear
that plaintiff fails to plausibly allege that he is entitled to recover relocation incentive payments
in this action. Plaintiff seeks to recover $172,628.00 in relocation incentive payments that he
would have allegedly received if selected for two employment opportunities with the VA.
Compl. at 3; see generally Civil Cover Sheet. In his response and opposition to the
govemment's motion to dismiss, plaintiff argues that he states a plausible claim to recover these
payments, because the position descriptions for the two employment opportunities-a VA health
system administrator position based in Greenville, SC and a VA health system administrator
position based in El Paso Tx-state that relocation expenses are authorized, or may be
authorized, for these positions. Pl. Resp. at 1, Ex. I at 1-2.
Plaintiff does not, however, allege any facts in the complaint to show that he would have
actually received relocation incentive payments had he secured either ofthese employment
opportunities. See generally Compl. Indeed, as the govemment correctly notes in its motion to
dismiss, the OPM regulations that govem the authorization and payment of relocation incentives
make clear that the fact that relocation incentives are authorized for a particular employment
opportunity, alone, is not sufficient to demonstrate that such incentives would have actually been
paid to plaintiff. DelMot.at6. Rather, these regulations provide that the payment ofrelocation
incentives must be made on a case-by-case basis and the regulations also require that the
sovemment establish a relocation incentive plan, and determine the amount ofthe relocation
4 Plaintiff s employment discrimination claims appear to be based upon the Age Discrimination in
Employment Act (the.,ADEA"). Def.Ex.2at1-2. Similar to Title VII employment discrimination
claims, ADEA claims are enforced and reviewed by the EEOC and subject to judicial review by the tl.S.
district courts. See 29 U.S.C. g 633a(b) and (c). Additionally, the Court notes that it does not possess
subject-matter jurisdiction to consider plaintiff s criminal law claim that the selecting official for one of
the positions to which plaintiffapplied violated Title 18, United States Code, Sections l00l and 150'1.
Joshua v. UnitedStates,lT F.3d 378,379 (Fed. Cir. 1994).
10
incentives, before authorizing the payment ofany relocation incentives. See 5 C.F.R. $$
57 5.205; 5'/ 5.207 (a); and 575.208(a)(1).
Because plaintiff alleges no facts in the complaint to show that he was eligible to receive
relocation incentives under the OPM's regulations, plaintiffs claim to recover such incentives is
speculative at best. ,See generally Compl. Given this, the Court must dismiss plaintiff s claim
for lost relocation incentives, pursuant to RCFC 12(b)(6).
C. Plaintiff Plausibly Alleges Breach Of Contract Claims
The Court is less persuaded by the govemment's argument that the Court should dismiss
plaintiff s breach ofcontract claims based upon the VA's alleged breach ofthe Settlemenl
Agreement in March 2015 and February 2016.
First, a careful reading of the complaint shows that plaintiff states a plausible breach of
contract claim based upon the VA's alleged failure to provide references in the manner
prescribed by the Settlement Agreement and the agency's disclosure ofthe fact that plaintiff was
on a temporary duty assignment. In this regard, plaintiff clearly alleges in the complaint that he
,,was
not selected for the position of Healthcare Administrator due to the evasive employment
reference check." Compl. at2. And so, plaintiff sufficiently alleges that the VA's breach of the
Settlement Agreement, by failing to provide a reference in the manner prescribed by the
settlement Agreement, resulted in his loss of an employment opportunity. Id.; see also Pl. Resp.
aI2-4.
The govemment argues, nonetheless, that plaintiff has not stated a plausible breach of
contract claim, because thejob references that the VA provided were either neutral or positive.
Def. Mot. at I . But, even if the Court accepts the govemment's representation in this regard as
true, plaintiff persuasively argues that the undisputed fact that the incorrect individual provided
this job reference-and that the reference disclosed that plaintiff was serving in a temporary duty
assignment-co uld have negatively impacted plaintiff s efforts to secure future employment. Pl.
Resp. at 2.
The undisputed fact that the settlement Agreement requires that plaintiff s original
supervisor-Mr. Eitutis-provide job reference also suggests that the VA recognized that
the
allowing Ms. Hardmon to provide the reference could negatively impact plaintiff s efforts to
1l
secure future employment. See generally Compl.; Def. Mot.; see also Def , Mot. Ex. 1 at 2.
Given this, the Court declines to dismiss plaintiffs breach of contract claim based upon the
February 2016 breach of the Settlement Agreement. RCFC 12(bX6).
Plaintiff similarly states a plausible claim that the VA breached the Settlement
Agreement in March 2015, when the agency disclosed his letter of reprimand to a potential
employer. Compl. at 2. In this regard, there is no dispute that the VA's Office of Resolution
Management determined that the VA breached the Settlement Agreement by making this
disclosure. Id.;Def. Mot. at 8; Def. Mot. Ex.2 at4.
The govemment's argument that plaintiff fails to explain how the discloswe of the letter
of reprimand resulted in the loss of a job offer is also misguided. Def. Mot. at 8. As plaintiff
argues in his response and opposition to the government's motion to dismiss, the letter of
reprimand was an adverse personnel action and the disclosure of this letter to a potential
employer certainly couldhave negatively impacted plaintiff s prospects for future employment.
pl. Resp. at 2. Given this, plaintiffhas at least plausibly alleged that the disclosure of the letter
of reprimand resulted in his loss of future employment opportunities'
Because plaintiff has plausibly alleged in the complaint that the vA breached the
in his
settlement Agreement in March 2015 and February 2016, and that these breaches resulted
loss of employment opportunities, the court declines to dismiss plaintiffs breach of contract
claims.
D. The Court Grants Plaintiffs' Motion To Proceed In Forma Pauperis
As a final matter, plaintiff has moved to proceed in this matler informa pauperis' see
generallyPI.IFP Mot. The court may authorize the commencement of a lawsuit without
prepayment of fees when a plaintiff submits an affidavit including a statement ofall assets, a
declaration that he is unable to pay the fees, and a statement ofthe nature of the
action and a
beliefthat he is entitled to redress. ,See 28 U.S.C. $ 19i5(a)(1); see also ld $ 2503(d)'
In his
application for waiver ofthe Court's filing fee, plaintiff provides a statement ofhis
assets and
and states that "because of [his] poverty, [he is] unable to pay" the Courts
fees' See
liabilities
generally PI.IFP Mot. Because the court finds that plaintiff satisfies the statutory requirements
toproceedinformapauperis,theCourtGRANTSplaintiffsmotiontoptoceedinforma
pauperls.
t2
V. CONCLUSION
In sum, the most generous reading ofthe complaint makes clear that plaintiff fails to state
a plausible claim to recover relocation incentive payments. Plaintiffs has, however, plausibly
alleged that the VA breached the Settlement Agreement in March 2015 and February 2016, and
that these alleged breaches resulted in his loss of future employment opportunities. In addition,
plaintiffhas shown that he satisfies the statutory requirements to proceed in this matter without
paying the Court's filing fee. And so, for the foregoing reasons, the Court:
L GRANTS the govemment's motion to dismiss with respect to plaintiff s claim to
recover relocation incentive payments;
2. DENIES the government's motion to dismiss with respect to plaintifPs breach of
contract claims regarding the March 2015 and February 2016 breaches; and
3. GRANTS plaintiff s motion to proceed in forma pauperis-
The Court further requests that plaintiff consent to the Court's refenal ofthis case to the
court of Federal claims Bar Association Pro Bono/Atlomey Refenal Pilot Program for the
potential representation ofplaintiffby counsel. In the event that plaintiff consents to such
referral, the Court makes no representation that the Bar Association will be successful in
identifying possible pro 6ono counsel for plaintiff. If the Bar Association is able to identiff
possible counsel, plaintiffis not obligated to engage any particular attomey, nor is an attomey
obligated to represent plaintiff. The Court does not endorse representation by any individual
attomey. All decisions concerning representation, if any, will be by mutual agreement between
plaintiff and an attomey.
And so, it is further ORDERED that on or before August 17' 2018:
1. Plaintiff shall FILE a notice indicating whether he consents to referral ofthis
case to the Court of Federal Claims Bar Association Pro Bono/Attorney
Referral Pilot Program; and
2. The parties shall FILE a joint status report setting forth a proposed schedule for
the filing of the government's answer and for discovery.
IJ
IT IS SO ORDERED.
t4
