DOBYNS v. USA

Filing 37

PUBLISHED OPINION (Redacted to 33 filed under sealed). Signed by Judge Francis M. Allegra. (si)

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In The United States Court of Federal Claims
No. 08-700C (Filed: January 15, 2010) Reissued: February 1, 20101
__________

JAY ANTHONY DOBYNS,
Plaintiff,

v. THE UNITED STATES, Defendant.

* Contract case; Motion to dismiss under * RCFC 12(b)(1) and (b)(6); Jurisdiction; Tort * claim arising primarily under contract; * Breach of settlement agreement; Agreement * to comply with applicable laws; Breach of * covenant of good faith and fair dealing; * Failure to state a claim; Twombly and Iqbal * examined; Impact on Conley; Plausibility * standard; Second amended complaint stated * plausible breach claims; Freedom of * Information Act. _________ OPINION __________

James Bernard Reed, Baird, Williams & Greer, Phoenix, AZ, for plaintiff. Kent Christopher Kiffner, Civil Division, United States Department of Justice, Washington, D.C., with whom was Assistant Attorney General Tony West, for defendant. ALLEGRA, Judge: In this case, an agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) alleges that, following a highly successful undercover operation, ATF failed to protect him and his family from threats and violence, and otherwise subjected him to a hostile work environment. He asserts that ATF's malfeasance and misfeasance in these and other regards violated an agreement he had with the agency settling a prior employment dispute, thereby giving rise to contract claims over which this court has jurisdiction under the Tucker Act, 28 U.S.C. § 1491. Defendant argues otherwise, registering its objections in a motion to dismiss almost all of plaintiff's claims under RCFC 12(b)(1) and (b)(6).

An unredacted version of this opinion was issued under seal on January 15, 2010. The parties were given an opportunity to propose redactions, but no such proposals were made.

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I.

BACKGROUND A brief recitation of the facts provides necessary context.2

Plaintiff, Jay Anthony Dobyns, has been employed as a Special Agent with ATF since 1987 and has performed extensive undercover investigative work. For a period of twenty-one months, between 2001 and 2003, plaintiff was the lead undercover agent in "Operation Black Biscuit," an operation that infiltrated the Hell's Angels motorcycle gang. Operation Black Biscuit represented the first-ever penetration of the Hell's Angels and led to the indictment of more than sixteen members of that organization. During the operation, plaintiff was stationed in ATF's Tucson, Arizona field office and lived locally with his family. Following the conclusion of the operation, plaintiff's identity became publically known, subjecting him to threats and retaliation from members and associates of the Hell's Angels. At or around this time, plaintiff's relationship with his employer deteriorated. Plaintiff alleges that, from 2004 to 2007, ATF ignored numerous retaliatory threats made against him and his family by the Hell's Angels, and took insufficient and ineffective action to protect plaintiff and his family or to "backstop" their identities.3 Plaintiff alleges that when he complained to his superiors about this treatment, he became the target of widespread retaliatory actions within ATF, which included character attacks on his personal and professional reputation, among them claims that he was psychologically unfit to perform his job. At or around this time, plaintiff filed an agency grievance with ATF, as well as complaints with ATF's Office of Special Counsel and the Department of Justice's Office of Inspector General (OIG). On September 20, 2007, plaintiff entered into a settlement agreement with ATF which, as stated therein, was intended "to fully resolve and settle any and all issues and disputes rising out of [plaintiff's] employment with [ATF]." The settlement agreement provided that plaintiff would receive $373,000 in "full and final settlement for any and all claims that have been brought or could have been brought up to the date of [the] Agreement." More than this, ATF undertook several prospective obligations ­ ! In paragraph 2, ATF agreed that "[s]hould any threat assessment indicate that the threat to [plaintiff] and his family has increased from the assessment completed in June 2007, the [ATF] agrees to

These facts are drawn from plaintiff's complaint and, for purposes of this motion, are assumed to be correct. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (discussed below). As described in a report referenced in plaintiff's complaint, "[b]ackstopping is essentially the covert establishment of a fictitious identity for the agent." Office of the Inspector General, U.S. Dept. of Justice, OIG Report on Allegations by Bureau of Alcohol, Tobacco, Firearms and Explosives Special Agent Jay Dobyns, at 3 (2008) (hereinafter "OIG Report"). Under this process, fictitious items of identification are provided to the agent and his or her family members, and various other fictitious records (e.g., voter registration) are generated. Id. -23

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fully review the findings with [plaintiff] and get input from [plaintiff] if a transfer is necessitated." ! In paragraph 6, "[plaintiff] agrees that he will comply with [ATF] requirements and will seek permission for any outside employment, including speaking, writing, teaching or consulting." Correspondingly, "[ATF] agrees that it will handle such requests in a manner consistent with [ATF] practice and procedure." In paragraph 10, ATF agreed "that it will comply with all laws regarding or otherwise affecting [plaintiff's] employment by the agency."

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Additionally, paragraph 13 of the agreement provided for an administrative remedy in the event of a dispute over the settlement, ultimately authorizing an "appeal to the Equal Employment Opportunity Commission (EEOC) for a determination as to whether the Department has complied with the terms of the [settlement agreement]." In August, 2008, plaintiff's home in Tucson was destroyed by a fire. Plaintiff and his family fortunately were spared. The fire was subsequently determined to be arson. Plaintiff believes this fire was set by members of the Hell's Angels (or their agents) with the intent to kill him and his family in retaliation for his involvement with Operation Black Biscuit. He avers that ATF's response to this incident was wholly inadequate, unreliable and inconsistent with established ATF procedures. Specifically, he alleges that a single ATF investigator was dispatched belatedly to the scene, thirty hours after the incident, and that ATF's pursuit of the investigation was halting and erratic ­ first, it refused to get involved at all, then it took over the investigation from the local police, and, later, it shifted the investigation to the Federal Bureau of Investigation. Plaintiff further alleges that, although ATF internal procedures require that a threatened agent receive support and information from ATF following an incident, he received none. Plaintiff complained to his supervisor regarding ATF's poor handling of the incident and its failure to follow internal protocols concerning the investigation. Plaintiff alleges that on the same day he lodged these complaints, he learned that ATF had named him as a suspect in the arson and attempted murder of his family. He allegedly told his supervisor that, to clear his name, he was willing to submit to a polygraph, make all his personal information available for investigation and provide a verifiable alibi. However, he avers that ATF ignored this offer and refused to strike him from the suspect list. Plaintiff further alleges that his supervisors attempted to manipulate the official investigative finding as to the cause of the fire from arson to "undetermined," in an attempt to shift attention away from the agency's inadequate response and investigation. On September 2, 2008, the OIG released a report concerning plaintiff's complaints of mistreatment. The OIG report concluded that, between 2004 to 2007, ATF had responded inappropriately in investigating the threats against plaintiff and in relocating plaintiff and his family. OIG Report, supra, at 1, 11, 15, 19. In this regard, the report found ­ -3-

With regard to ATF's response to specific threats against Dobyns, we found that ATF appropriately decided to relocate Dobyns and his family to Santa Maria, California, in September 2004, following the receipt of the first of four specific threats made against him. However, due to a series of miscommunications among the ATF managers responsible for implementing this decision, the transfer was handled as a standard change of duty station rather than an emergency relocation. As a result, Dobyns and his family were not provided appropriate support resources to protect their identities and location that normally accompany an emergency relocation. Upon receipt of another threat, ATF became aware that the move to Santa Maria had been mishandled. As a result, ATF relocated Dobyns and his family to Los Angeles with the appropriate safeguards in place. With regard to the three other threats, we found that ATF needlessly and inappropriately delayed its responses to two of the threats. We also concluded that ATF should have done more to investigate two of the threats. Id. at 1. In so concluding, the OIG determined that, in responding to various threats made against plaintiff during this period, ATF had not always followed its internal procedures for assessing, evaluating and responding to threats against agents. Among these were ATF Order 3210.7C, which concerns reporting procedures for threats against agents; ATF Order 3250.1A, which sets forth emergency move procedures when an agent receives a threat; and ATF Order 3040.2, which provides additional guidance regarding assessment of threats against ATF agents. Id. at 3-6. The OIG opined that ATF should have taken threats against Agent Dobyns and his family "more seriously," id. at 11; see also id. at 15; and that its responses to various threats were "inadequate," "incomplete," and "unnecessarily" or "needlessly" delayed, id. at 15, 19. On October 2, 2008, plaintiff (and his family) filed suit in this court, seeking damages for breach of contract and other ATF actions. On December 30, 2008, defendant moved to dismiss this complaint under RCFC 12(b)(1), 12(b)(2) and 12(b)(6). After the motion was fully briefed, the court issued an order setting a status conference. In response to that order, on April 1, 2009, plaintiff filed a motion to file a first amended complaint, in which only he was listed as a plaintiff. The court granted the latter motion following a status conference held on April 15, 2009. On May 15, 2009, defendant filed a notice that it was renewing its motion to dismiss. On May 19, 2009, plaintiff filed a motion to further amend his pleadings. On May 20, 2009, the court granted this second motion to amend and established a briefing schedule on the defendant's renewed motion to dismiss. Following the completion of briefing, oral argument on the motion was held on September 9, 2009. II. DISCUSSION

Plaintiff's original complaint contained numerous legal defects ­ it listed twenty-seven private individuals as defendants; presented a number of claims that solely sounded in tort, e.g., harassment, discrimination, slander, defamation; asserted contract claims on behalf of individuals (Agent Dobyns' wife and children) who lacked privity with the United States; and invoked a variety of statutes, e.g., the Crime Victims' Rights Act, 18 U.S.C. § 3771, the violations of which -4-

do not give rise to jurisdiction in this court either independently or under the Tucker Act, 28 U.S.C. § 1491(a).4 His first amended complaint corrected some, but not all, of these problems. But, these are not the complaints before the court. And defendant acknowledges ­ as it must ­ that most of the deficiencies it previously cited have been remedied in plaintiff's second amended complaint. That most recent complaint views plaintiff's claims almost entirely through the prism of alleged breaches of the 2007 settlement agreement. Nevertheless, defendant persists in seeking to dismiss virtually all the counts of this most recent complaint, either as ones over which this court lacks jurisdiction or those which fail to state a claim.5 A. Jurisdiction ­ RCFC 12(b)(1)

Defendant first argues that, despite the refinements made by the two successive amendments, the majority of plaintiff's claims still sound in tort and thus must be dismissed for lack of jurisdiction. To be sure, plaintiff continues to raise claims involving misrepresentation, slander, harassment and defamation. Yet, as is evident from the second amended complaint, all the aforementioned claims, save one, now arise in the context of alleged breaches of the settlement agreement. The Tucker Act waives sovereign immunity in all actions brought in this court "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 . . . in cases not sounding in tort." 28 U.S.C. § 1491(a)(1) (emphasis added). As the highlighted terms indicate, this court lacks jurisdiction to entertain tort claims, which, instead, are generally heard by district courts under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1), 2671. See Shearin v. United States, 992 F.2d 1195, 1197 (Fed. Cir. 1993). Yet, in Bird & Sons, Inc. v. United States, 420 F.2d 1051, 1054 (Ct. Cl. 1970), the Court of Claims stated that "`an action may be maintained in this court which arises primarily from a contractual undertaking regardless of the fact that the loss resulted from the negligent manner in which defendant performed its contract'" (quoting Chain Belt Co. v. United States, 115 F. Supp. 701, 711-12 (Ct. Cl. 1953)). More recently, the Federal Circuit has instructed that "[i]t is well established that where a tort claim stems from a breach of contract, the cause of action is ultimately one arising in contract, and thus is properly

For a brief sampling of the many cases demonstrating these deficiencies, see, e.g., Jentoft v. United States, 450 F.3d 1342, 1349 (Fed. Cir. 2006) (court lacks jurisdiction over claims sounding solely in tort); Brown v. United States, 105 F.3d 621, 624 (Fed. Cir. 1997) (court lacks jurisdiction over suits against Federal officials); Chancellor Manor v. United States, 331 F.3d 891, 899 (Fed. Cir. 2003) (no contract jurisdiction absent privity); Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1554 (Fed. Cir. 1994) (indicating that outside of contract, a substantive right enforceable against the United States for money damages must be based on a "money-mandating" statute). Plaintiff asserts that defendant should be estopped from seeking to dismiss his second amended complaint because defendant's counsel had agreed to the changes made by plaintiff. As discussed at oral argument, the court has considered this argument and finds it to be without merit. -55

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within the exclusive jurisdiction of the Court of Federal Claims . . ." Awad v. United States, 301 F.3d 1367, 1372 (Fed. Cir. 2002); see also Wood v. United States, 961 F.2d 195, 197 (Fed. Cir. 1982) ("Where the claim is essentially for breach of contact and the liability depends on the government's alleged promise, jurisdiction is based on the Tucker Act not on the Federal Tort Claims Act."); SGS-92-X003 v. United States, 74 Fed. Cl. 637, 655 (2006).6 Hoping to distinguish these cases, defendant seizes upon snippets from two prior decisions of this court. On brief, it asserts that "the Second Amended Complaint is `nothing more than an attempt to reframe certain of [Mr. Dobyns'] tort claims as arising under' his Settlement Agreement with ATF," quoting Edelmann v. United States, 76 Fed. Cl. 376, 381 (2007). It likewise suggests that "parties cannot `disguise or mask a substantive claim in tort as one in contract in order to attempt to secure claims court jurisdiction,'" quoting Reforestacion de Sarapiqui v. United States, 26 Cl. Ct. 177, 187 (1992), aff'd, 985 F.2d 583 (Fed. Cir. 1992). It is difficult, though, to understand what solace defendant derives from these cases. They hardly stand for the proposition that a plaintiff may not frame its claims so as to bring them within this court's jurisdiction. Nor do they suggest that claims which, on their face, appear proper should be dismissed if, when bathed in a skeptical acid, an underlying "tactical motivation" is revealed.7

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In Chain Belt, the Court of Claims explained the rationale for this rule thusly ­

While it is true that this court does not have jurisdiction over claims sounding primarily in tort, an action may be maintained in this court which arises primarily from a contractual undertaking regardless of the fact that the loss resulted from the negligent manner in which defendant performed its contract. Chippewa Indians of Minnesota v. United States, 91 Ct. Cl. 97, 130, 131. A tortious breach of contract is not a tort independent of the contract so as to preclude an action under the Tucker Act. 28 U.S.C.A. §§ 1346, 2401, 2402. United States v. Huff, 5 Cir., 165 F.2d 720, 723. In the Huff case, the Government had leased lands occupied by others as grazing lands under leases. The Government desired the land for military purposes, and it was agreed that it would have the right to let down any wire on the then existing wire fences but that following the crossing of the fences by troops, the Government would re-staple the wire and leave the fences in as good condition and repair as they were at the time of entry on the premises by the Government. The Government failed to restaple the fences in a reasonable time and the grazing tenants were damaged. The court held that this failure of the Government was a tortious breach of contract but that such a breach was not a tort independent of the contract such as would preclude action under the Tucker Act. See also Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 59 S. Ct. 516, 83 L.Ed. 784. Chain Belt, 115 F. Supp. at 711-12. One is reminded of Holmes ­ "[a] man may have as bad a heart as he chooses, if his conduct is within the rules. In other words, the standards of the law are external standards." Oliver Wendell Holmes, Jr., The Common Law 110 (Dover ed. 1991). -67

Both cases, rather, involved tort claims that purportedly derived from implied-in-fact, oral agreements ­ contracts, as it turns out, that were found not to exist. See Edelmann, 76 Fed. Cl. at 381; Reforestacion de Sarapiqui, 26 Cl. Ct. at 188-89.8 These cases thus represent no grand departure from the well-established line of Federal Circuit decisions discussed above (nor could they), but instead stand for the unremarkable proposition that a tort claim cannot arise "primarily" from a contract if there is none. The situation here, of course, is quite different. There is an express written contract here and, defendant's pettifoggery notwithstanding, plaintiff's core claims are based upon the alleged breach of that agreement (or the covenants associated therewith). That should be ­ and is ­ enough.9 As a fallback position, defendant asserts that plaintiff has insufficiently interlaced his claims with the allegedly-breached terms of the settlement agreement. While the second amended complaint could be clearer in this regard, ultimately, there is little mystery as to which portions of the settlement agreement (a scant six pages in length) are claimed to have been breached. To dispel any ambiguity in this regard, one need only juxtapose the complaint against the settlement agreement (which defendant submitted to the court for consideration as part of its motion and which the court deems part of the second amended complaint).10 Doing so, it is

In Reforestacion de Sarapiqui, this court briefly considered whether such claims could be based upon a written agreement between the parties, but discounted that theory as plaintiff had admitted that the written agreement was not breached by the United States. 26 Cl. Ct. at 188. For a strikingly similar case, see SGS-92-X003, 74 Fed. Cl. at 655 (no lack of jurisdiction where claim alleged that government negligently breached promises to maintain the secrecy of informant's identity and protect her from harm or injury, where "complaint is framed as a breach of contract action, not a negligence or intentional tort action"); see also Bird & Sons, 420 F.2d at 1054 ("where an alleged `negligent act' constitutes a breach of a contractually created duty, the Tucker Act does not preclude relief"). At oral argument, defendant admitted that it could not rely upon this agreement in its arguments, yet deny plaintiff that opportunity. This court, in fact, has often considered the content of a contract attached to a complaint in considering a motion to dismiss. See, e.g., Phang v. United States, 87 Fed. Cl. 321, 324 (2009); Patterson v. United States, 84 Fed. Cl. 583, 585 n.1 (2008); Commonwealth Edison Co. v. United States, 46 Fed. Cl. 29, 46 (2000), aff'd, 271 F.3d 1327 (Fed. Cir. 2001), cert. denied, 525 U.S. 1096 (2002); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Even though it submitted the settlement agreement for the court's consideration, defendant argues that plaintiff has not met the standard for pleading a contract claim set out in RCFC 9(k). The latter rule states that "[i]n pleading a claim founded on a contract . . . , a party must identify the substantive provisions of the contract . . . on which the party relies." Id. It goes on to state ­ in language not cited by defendant ­ that "[i]n lieu of a description, the party may annex to the complaint a copy of the contract . . . , indicating the relevant provisions." Id. In the court's view, a comparison of the second amended complaint to the settlement agreement, not to mention defendant's arguments on brief, leaves little doubt which substantive provisions of the agreement are operative here. See Mendez-710 9

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readily apparent that various provisions of the complaint, in particular, assert that ATF did not comply with paragraph 2 of the settlement agreement in terms of how it approached the assessment of threats to plaintiff and his family, including that posed by the alleged arson attack on their home. Plaintiff also asserts that he did not timely receive payment of the amounts required to be paid under paragraph 3 of the settlement agreement. In addition, he makes out a dozen or so other separate and related claims that defendant breached paragraph 10 of the agreement, which states that "[t]he Agency agrees that it will comply with all laws regarding or otherwise affecting [Mr. Dobyns'] employment by the [ATF]."11 These include assertions (Second Amended Complaint, ¶ 148) that the agency has, since the settlement agreement was executed in 2007, failed to take steps to: (i) prevent ATF managers from retaliating against plaintiff and otherwise creating "hostile work conditions" for him; (ii) protect plaintiff and his family, including failing to provide him and his family with adequate covert identification in violation of "ATF agent safety protection policy;" (iii) investigate properly the arson of plaintiff's home; and (iv) refused timely to comply with nine requests for information under the Freedom of Information Act. Finally, the complaint asserts that (id. at ¶ 148) the "ATF's continuing, selective enforcement and application of ATF's media policy" violated the settlement agreement, with the latter reference tied to paragraph 6 of the agreement, in which ATF agreed that it would handle requests for speaking requests "in a manner consistent with Agency practice and procedure." Defendant takes no issue, at least in terms of jurisdiction, with plaintiff's claim that he was not paid on a timely basis in breach of paragraph 3 of the settlement agreement. Nor does it seriously contest, for jurisdictional purposes, plaintiff's claim that ATF violated its media policy. But, it strenuously contests plaintiff's reliance upon paragraph 10 of the settlement agreement in asserting that the violation of various statutes, regulations and agency policies gave rise to a compensable breach of the settlement agreement. The plain language of the agreement, however, suggests otherwise, as it states that ATF "agrees that it will comply with all laws regarding or otherwise affecting [Mr. Dobyns'] employment by the Agency." Under contract construction principles, of course, that plain meaning is ordinarily controlling.12 Defendant, moreover, offers Cardenas v. United States, 88 Fed. Cl. 162, 168 (2009) (describing the requirements of RCFC 9(k)). Defendant also flatly errs in asserting that the settlement agreement in question is not the sort of "contract" upon which jurisdiction may be premised under the Tucker Act. The decisional law on this point is decidedly to the contrary. See Stovall v. United States, 71 Fed. Cl. 696, 701-02 (2006) (stating that "decisional law leaves no doubt that settlement agreements generally fall within" the definition of express or implied contract with the United States as used by the Tucker Act); see also Greco v. Dep't of Army, 852 F.2d 558, 560 (Fed. Cir. 1988) ("It is axiomatic that a settlement agreement is a contract."); Cook v. United States, 85 Fed. Cl. 820, 822-23 (2009); Greenhill v. United States, 81 Fed. Cl. 786, 790 (2008); Taylor v. United States, 73 Fed. Cl. 532, 545 (2006). See Stockton E. Water Dist. v. United States, 583 F.3d 1344, 1362 n.35 (Fed. Cir. 2009) ("Ordinarily when a provision is found to have a plain meaning, that is deemed to -812 11

no competing construction of this language. Indeed, it does not argue that it is ambiguous, except seemingly to say that the language cannot mean what it says. The latter jeremiad, however, is little more than an invitation to ignore the language altogether, which the court is not at liberty to do, for it must instead "interpret the contract in a manner that gives meaning to all of its provisions." McAbee Constr., 97 F.3d at 1435.13 Despite defendant's entreaties, the court thus cannot render this language "surplusage." Granite Constr., 962 F.2d at 1003. Nor is the clause in question too general to be enforced. This is not a case, like several cited by defendant, in which special construction rules come into play requiring that the incorporation of laws by reference be specific. See, e.g., Northrop Grumman Info. Tech., Inc. v. United States, 535 F.3d 1339, 1345 (Fed. Cir. 2008); Smithson v. United States, 847 F.2d 791, 794 (Fed. Cir. 1988), cert. denied, 488 U.S. 1004 (1989); see also St. Christopher Assocs., L.P. v. United States, 511 F.3d 1376, 1384 (Fed. Cir. 2008). These cases do not involve clauses in which the United States expressly agreed to comply with one or more categories of laws, but rather instances in which the plaintiff sought to imply as much based upon provisions indicating, for example, that an agreement was "subject to" a given set of regulations. See, e.g., Smithson, 847 F.2d at 794. It was in the latter context that the Federal Circuit opined in Northrop Grumman, 535 F.3d at 1345, that "the language used in a contract to incorporate extrinsic material by reference must explicitly, or at least precisely, identify the written material being incorporated and must clearly communicate that the purpose of the reference is to incorporate the referenced material into the contract."14

conclusively establish the parties intent."); McAbee Constr. Inc. v. United States, 97 F.3d 1431, 1434-35 (Fed. Cir. 1996) (same); Ace Constructors, Inc. v. United States, 499 F.3d 1357, 1361 (Fed. Cir. 2007) (same); Alaska Lumber & Pulp Co. v. Madigan, 2 F.3d 389, 392 (Fed. Cir. 1993) ("if the provisions are clear and unambiguous, they must be given their plain and ordinary meaning"); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991). See also United Int'l Investigative Servs. v. United States, 109 F.3d 734, 737 (Fed. Cir. 1997) (the court "must interpret [a contract] as a whole and `in a manner which gives reasonable meaning to all its parts'" (quoting Granite Constr. Co. v. United States, 962 F.3d 998, 1003 (Fed. Cir. 1992), cert. denied, 506 U.S. 1048 (1993))); Arizona v. United States, 575 F.2d 855, 863 (Ct. Cl. 1978) ("[A]n interpretation which gives a reasonable meaning to all parts will be preferred to one which leaves a portion of it useless, inexplicable, inoperative, void, insignificant, meaningless, superfluous, or achieves a weird and whimsical result."); Spectrum Sciences and Software, Inc. v. United States, 84 Fed. Cl. 716, 735 (2008) (same); Franconia Assocs. v. United States, 61 Fed. Cl. 718, 730 (2004) (same). Moreover, in Northrop Grumman, the Federal Circuit specifically rejected the notion that incorporations by reference had to be accomplished through some "magic words," stating "a requirement that contract language be explicit or otherwise clear and precise does not amount to a rule that contracting parties must use a rote phrase or a formalistic template to effect an incorporation by reference." 535 F.3d at 1345. -914 13

The situation here is starkly different. To begin with, paragraph 10 of the settlement agreement does not purport to incorporate, by reference, any particular statutes or regulations. Rather, by design, it sweeps more broadly, undoubtedly to afford plaintiff a contractual remedy should ATF, in the future, not comply with all laws regarding or affecting his employment.15 And it is precisely that remedy which plaintiff now seeks to invoke ­ a remedy not unlike that afforded private disputants under similarly-worded contract clauses.16 Whether it was wise for ATF to agree to such a provision here ­ one way in which defendant attempts to frame this issue ­ is, of course, quite immaterial. What is relevant is that the agency did so agree.17 Hence, it appears that breaches of paragraph 10 of the settlement agreement do give rise to contract claims under the Tucker Act and that plaintiff has properly invoked this jurisdiction as to such claims.18 Finally, defendant claims that this court lacks jurisdiction over various claims made by plaintiff that defendant violated the covenant of good faith and fair dealing associated with the settlement agreement. Plaintiff asserts that the agency's harsh treatment of him subsequent to the settlement agreement violated the covenant of good faith and fair dealing associated with the portions of that agreement that promoted him, assigned him to a new position, terminated various disciplinary actions pending against him, ordered various matters expunged from his personnel

Although defendant does not argue otherwise, it should be noted that, in a variety of contexts, the word "laws" has been construed to include not only statutes, but properly promulgated regulations, court decisions and other actions having the effect of law. See, e.g., City of New York v. FCC, 486 U.S. 57, 63 (1988). See Green v. Begley Co., 2008 WL 4449065, at *4 (S.D. Ohio Sept. 29, 2008) (breach of contract action existed where defendant allegedly failed to comply with "all applicable laws, ordinances, rules and regulations"); Int'l Gateway Exch., LLC v. Western Union Fin. Servs., 333 F. Supp. 2d 131, 145-56 (S.D.N.Y. 2004) (party could pursue damages for breach of agreement to "comply in all material respects with all banking and consumer protection laws and regulations"); see also Shurland v. Bacci Café & Pizzeria on Ogden, Inc., 259 F.R.D. 151, 163 (N.D. Ill. 2009); Beringer v. Standard Parking O'Hare Jt. Venture, 2008 WL 4890501, at *6 (N.D. Ill. Nov. 12, 2008). Defendant's assertion that no reasonable person would agree to such sweeping language seems strangely off key given the government's practice of regularly requiring the persons with whom it deals to do the same thing. See 48 C.F.R. § 52.212-4(q) (requiring procurement contractors to "comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract"); 24 C.F.R. § 883.310(b)(6) (making a similar requirement for recipients of Federal housing assistance). As will be discussed below, this is not to say that all of the claims raised by plaintiff relate to violations of "laws regarding or otherwise affecting [Mr. Dobyns'] employment by the [ATF]." -1018 17 16

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file, and resolved various discrimination and retaliation claims then pending against the agency.19 But, in a well-rehearsed argument, defendant claims that plaintiff cannot predicate jurisdiction upon a breach of the covenant absent corresponding violations of the underlying agreement. This court and the Federal Circuit, however, have repeatedly rejected this argument.20 They have done so reasoning, inter alia, that "[s]uch covenants require each party . . . `not to act so as to destroy the reasonable expectations of the other party regarding the fruits of the contract.'" Info Sys. & Networks, 81 Fed. Cl. at 750 (quoting Centex, 395 F.3d at 1304); see also Market St. Assocs. L.P. v. Frey, 941 F.2d 588, 594 (7th Cir. 1991) (Posner, J.) (indicating that a breach of the covenant occurs when there has been "sharp dealing"). The rationale of these cases fits plaintiff's case like a glove ­ that defendant, with one hand restored plaintiff to his proper position and emoluments, but, with the other, frustrated his enjoyment of the same. Such a claim manifestly may be maintained in this court. Defendant's arguments to the contrary are unpersuasive. While plaintiff's second amended complaint is no model of clarity, the question here is not whether plaintiff could have exhibited better draftsmanship. Rather, it is whether the second amended complaint, when viewed overall, adequately invokes this court's jurisdiction. And, the answer to that question is ­ yes. Accordingly, the court must deny that portion of defendant's motion predicated upon RCFC 12(b)(1).21

In this regard, he avers, inter alia, that ATF "knowingly and willfully allowed managers to perpetuate a hostile work environment . . . , including harassment and whistleblower retaliation" (¶ 37); "knowingly and willfully continued prior or then-existing internal affairs investigations, along with reformatting and ordering new internal affairs investigations into [him] on over eleven different occasions" (¶ 38); and "sought to add to the [family's] misery . . . by serving Dobyns with a relocation transfer" (¶ 143). See Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed. Cir. 2005); Jay Cashman, Inc. v. United States, 88 Fed. Cl. 297, 308 (2009); Info. Sys. & Networks Corp. v. United States, 81 Fed. Cl. 740, 750-51 (2008), aff'd, 2009 WL 4755696 (Fed. Cir. Dec. 14, 2009); North Star Alaska Housing Corp. v. United States, 76 Fed. Cl. 158, 188 (2007). Defendant asserts that the administrative review procedure set forth at paragraph 13 of the settlement agreement represents plaintiff's sole remedy for breach of the settlement agreement. In support of this argument, it cites Doe v. United States, 513 F.3d 1348, 1355-56 (Fed. Cir. 2008). But, that case involved a statute which, by its terms, offered the "exclusive" procedure for dealing with breaches of a collective bargaining agreement, id. at 1355 (citing 5 U.S.C. § 7121(a)(1)), and thus is inapposite. Various cases in this court have correctly refused to construe contract clauses as precluding relief that would otherwise lie under the Tucker Act, unless the language to that effect is unmistakable. See, e.g., Patterson v. United States, 84 Fed. Cl. 583, 585 (2008); Greenhill v. United States, 81 Fed. Cl. 786, 791 (2008). That is not the case here. -1121 20

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B.

Failure to State a Claim

Defendant's arguments under RCFC 12(b)(6) ­ particularly as framed at oral argument ­ raise serious questions regarding the standard to be employed by this court in assessing whether plaintiff's complaint fails to state a claim. In one way or another, those arguments revolve around the notion that despite its 147 counts and 43 typed pages, plaintiff's complaint lacks specificity ­ that it is, to quote one of defendant's briefs, "nothing more than `an unadorned, the defendant-unlawfully-harmed-me accusation.'" (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). This is true, defendant asseverates, both because of the complaint's lack of factual specificity, as well as its failure to establish nexuses between the actions averred and the breach of particular paragraphs in the settlement agreement at issue. Defendant grounds these claims on the new pleading precision it argues is demanded by two recent Supreme Court cases ­ Twombly and Iqbal. A full discussion of those cases is thus in order.22 1. Standard of review

In Twombly, the Supreme Court held that allegations of parallel conduct by competitors, without more specifics, were insufficient to plead an antitrust violation under the Sherman Act, 15 U.S.C. § 1. 550 U.S. at 548-49. While the Court disclaimed any intent to require the "heightened fact pleading of specifics," id. at 570, it opined that, to state a claim under Rule 12(b)(6), a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." 550 U.S. at 570.23 "[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," the Court further explained, id. at 555 (citing the language in Rule 8), yet "[f]actual allegations must be enough to raise a right to relief above the speculative level" and cross "the line from conceivable to plausible." Id. In so holding, the Court rejected that portion of Justice Black's opinion in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), in which he wrote of "the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly held that "[t]he phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard," 550 U.S. at 563, one that merely "described the breadth of opportunity to prove what an adequate complaint claims, not the minimum standard of adequate pleading to govern a complaint's survival." Id.

To say the least, these cases have drawn considerable attention. See, e.g., "Statistical Information on Motions to Dismiss re Twombly/Iqbal: Dec 2009) and "Caselaw Study on PostIqbal Cases (Rev. 1/12/10)" both available at http://www.uscourts.gov/rules (as last viewed on Jan. 12, 2010 at 1:15 pm). Both RCFC 12 and RCFC 8, which will be discussed in greater detail below, are virtually identical to their federal rules counterparts. -1223

22

Two years later, in Iqbal, the Supreme Court clarified that Twombly's "plausibility" standard applies to all civil cases.24 Iqbal concerned claims by a Muslim that aliens who were detained on immigration charges following the September 11 attacks were selectively placed in their restrictive conditions depending upon their race and religion. 129 S. Ct. at 1951. The Court found that the allegations in the complaint were insufficient to state a discrimination claim under the "plausibility" standard. Id. at 1952. The Court began "by identifying the allegations in the complaint that are not entitled to the assumption of truth." Id. at 1951. Employing language from Twombly, it described such allegations ­ in this case, the paragraphs describing the prongs of a constitutional discrimination claim ­ as those "that offer[] `labels and conclusions' or `a formulaic recitation of the elements of a cause of action.'" Id. at 1949 (quoting Twombly, 550 U.S. at 555). Such "bare assertions," which do no more than state legal conclusions, are "not entitled to be assumed true," the Court concluded ­ they, rather, are "disentitle[d] . . . to the presumption of truth" even if cast in the form of a factual allegation. 129 S. Ct. at 1951 (citing Twombly, 550 U.S. at 555). Having culled these legal conclusions from the complaint, the Court proceeded to evaluate the remainder thereof under the "plausibility" standard. That standard "is not akin to a `probability requirement,'" the Court explained, and "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S. Ct. at 1949. Inter alia, it provides that "[w]here a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of entitlement to relief.'" Id. at 1949 (quoting Twombly, 550 U.S. at 557). Determining whether this line is passed is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1949-50; see also Petro-Hunt, LLC v. United States, 2009 WL 3765495, at *19 (Fed. Cl. Nov. 6, 2009). That said, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged ­ but has not `show[n]' ­ that the pleader is entitled to relief." 129 S. Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)). In combination, Twombly and Iqbal prescribe a two-pronged approach to evaluating the sufficiency of a complaint ­ the court must first disregard any legal conclusions, such as the recitation of legal formulae, and then must subject the surviving allegations, presumed to be true, to the "plausibility" standard. See Kenney Orthopedic, LLC v. United States, 88 Fed. Cl. 688, 697 (2009). While this much is clear, "Iqbal and Twombly contain few guidelines to help the lower courts discern the difference between a `plausible' and an implausible claim and a `conclusion' from a `detailed fact.'" Riley v. Vilsack, 2009 WL 3416255, at *7 (W.D. Wis. Oct. 21, 2009); see also Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 630 (6th Cir. 2009). This lack of guidance has caused the courts to "reach varying conclusions about whether notice pleading remains or has been supplanted by something new." A. Benjamin Spencer, "Understanding Pleading Doctrine," 108 Mich. L. Rev. 1, 7 (2009) (hereinafter "Spencer"); see
24

Notably, Iqbal was decided over the dissent of Justice Souter, the author of the majority opinion in Twombly, who characterized the 5-4 majority opinion as "bespeak[ing] a fundamental misunderstanding of the enquiry that Twombly demands." 129 S. Ct. at 1959; see also Smith v. Duffey, 576 F.3d 336, 340 (7th Cir. 2009) (making this same observation). -13-

also "Pleading Standards," 123 Harv. L. Rev. 252, 261-62 (2009).25 The disparate judicial thinking on this subject may be arrayed over a spectrum, with the placement of a given decision dependent upon three variables. The first variable involves the extent to which a given court adheres to the "notice pleading" concept in Conley or, conversely, how that court views what was abrogated in Twombly. The second concerns how a court defines what sort of claims are vel non entitled to be presumed true ­ where, for example, the line is drawn between factual claims and mere recitations of legal elements. The last variable focuses on how restrictively a given court has applied the "plausibility" standard first enunciated in Twombly and then elaborated upon in Iqbal. See Spencer, supra, at 7-8. This last variable is dominant, as it has the potential of driving the other two. On one end of that spectrum are decisions that construe Twombly and Iqbal in minimalist terms. These cases continue to view the Rule 8(a) pleading standard in forgiving terms, refusing to budge from all or nearly all the traditional concepts identified with notice pleading26 ­ many of these decisions unflinchingly continue to cite precedents that predate the Supreme Court's decisions, some going so far as to quote the very "no set of facts" language in Conley that, of course, was jettisoned in Twombly.27 On the other end of the spectrum are decisions that view

25

The Third Circuit has explained how this confusion was engendered, thusly ­

What makes Twombly's impact on the Rule 12(b)(6) standard initially so confusing is that it introduces a new "plausibility" paradigm for evaluating the sufficiency of complaints. At the same time, however, the Supreme Court never said that it intended a drastic change in the law, and indeed strove to convey the opposite impression; even in rejecting Conley's "no set of facts" language, the Court does not appear to have believed that it was really changing the Rule 8 or Rule 12(b)(6) framework. Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008); see also Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 337 n.4 (6th Cir. 2007) ("We have noted some uncertainty concerning the scope of Bell Atlantic Corp. v. Twombly. . ."); Spencer, supra, at 7; see generally Smith, 576 F.3d at 339-40 (noting that Twombly is "fast becoming the citation du jour in Rule 12(b)(6) cases"); Robert L. Rothman, "Twombly and Iqbal: A License to Dismiss," 35 Litig. 1 (2009). See Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008) (stating that Twombly "did not . . . supplant the basic notice-pleading standard"); Mull v. Abbott Labs., 563 F. Supp. 2d 925, 930 (N.D. Ill. 2008) ("[T]he Court did not adopt a fact-pleading standard to supplant the notice-pleading standard that has long applied in federal court."). See, e.g., Grand River Enters. Six Nations, Ltd. v. Beebe, 574 F.3d 929, 935 (8th Cir. 2009) ("The motion should be granted if `it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief.'" (quoting Taxi Connection v. Dakota, Minn. & E. R.R. Corp., 513 F.3d 823, 826 (8th Cir. 2009))); White v. Gregory, 2009 WL 4506593, at *1 (S.D. -1427 26

the Supreme Court opinions as having established a fundamentally-different, significantlyheightened pleading standard.28 These decisions hold that the adoption of the "plausibility" standard worked a sea change, supplanting Conley's notice pleading in favor of a modified factpleading standard that denies the presumption of truth to any claim that has any significant legal dimension.29 Some of these decisions, moreover, could be viewed as exhibiting an increased willingness to discount individual factual allegations as implausible. See, e.g., Mayor and City Council of Baltimore v. Wells Fargo Bank, N.A., 2010 WL 46401, at *2-3 (D. Md. Jan. 6, 2010); Feeley v. Total Realty Mgmt, 2009 WL 2902505, at *4-5 (E.D. Va. Aug. 28, 2009). Between the ends of this spectrum (some might say between the horns of this dilemma), there is, of course, a middle. The cases in this central sector perceive varying degrees of tension between the "notice pleading" requirement of Conley and at least some iterations of the "plausibility" standard and assumption-of-truth principle.30 They recognize that a given complaint might not be viewed as crossing the "plausibility" threshold unless it pleads significantly more facts than might have been previously thought necessary. They ponder how, to use the words of Twombly, a court should strike the balance between holding that "a complaint . . . does not need detailed factual allegations," but that "[f]actual allegations must be enough to raise a right to relief above the speculative level." 550 U.S. at 555. Finally, while recognizing that Iqbal makes clear that the new standard applies to all civil cases, these cases hint at the

Ga. Dec. 3, 2009); Anderson v. United States, 2009 WL 4722229, at *3 (E.D. Wash. Dec. 2, 2009) (citing Pillsbury, Madison and Sutro v. Lerner, 31 F.3d 924, 928 (9th Cir. 1994)); DePhillips v. United States, 2009 WL 4505882, at *1 (D. Md. Nov. 23, 2009) (citing Herlihy v. Ply-Gem Indus., Inc., 752 F. Supp. 1282, 1285 (D. Md. 1990)); see also NicSand, Inc. v. 3M Co., 507 F.3d 442, 460 (6th Cir. 2007) (Martin, J., dissenting). See, e.g., Kasten v. Ford Motor Co., 2009 WL 3628012, at *2 (E.D. Mich. Oct. 30, 2009) ("Together, Iqbal and Twombly form a substantial departure from the traditional standard set forth by Justice Black in Conley . . ."). See, e.g., Travel Agent Comm. Antitrust Litigation, 583 F.3d 896, 911 (6th Cir. 2009) (construing Twombly as requiring a plaintiff to plead enough specific facts "to raise a reasonable expectation that discovery will reveal evidence" establishing a claim); id. at 912 (Merritt, J., dissenting) (stating that the majority has "seriously misapplied the new standard by requiring not simple `plausibility,' but by requiring the plaintiff to present at the pleading stage a strong probability of winning the case"); Riley, 2009 WL 3416255, at *1 (in Twombly, "the Supreme Court `retired' the standard from Conley with little fanfare," thereby "reinvigorat[ing] motion practice under Fed. R. Civ. P. 12(b)(6)"); Cacho-Torres v. Miranda-Lopez, 2009 WL 1034873, at *2 n.1 (D.P.R. Apr. 16, 2009) ("Twombly abrogated the standard for notice pleading established in Conley . . ."). See, e.g., Phillips, 515 F.3d at 231; McShane v. Merchants Ins. Co., 2009 WL 3837245, at *2 (W.D. Pa. Nov. 16, 2009). -1530 29 28

prospect that the standard might resonate differently depending upon the legal and factual scenario encountered.31 Defendant's position, perhaps not surprisingly, leans toward the side of the spectrum that views Twombly and Iqbal as having significantly heightened pleading standards. Yet, for several reasons, this court believes that a middle of the road perspective ­ one that views the Supreme Court as having made several significant changes, to be sure, but not as having, sub silentio, entirely reworked Rule 8 ­ represents the most accurate statement of the law. Under this view, the basic concept of notice pleading, as construed in Conley, survives. As Justice Black once wrote, "[t]he Federal Rules of Civil Procedure do not require a claimant to set out in detail all the facts upon which he bases his claim." Conley, 355 U.S. at 47. This approach stems directly from the language of Rule 8(a)(2), which, virtually since its adoption, has stated that a claim for relief need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief."32 Any notion that the Supreme Court intended to go farther ­ that is, to replace the notice pleading standard in Conley with some heightened form of fact-pleading ­ is belied by that part of Twombly in which the Court stated that "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." 550 U.S. at 561. This statement would not be accurate, of course, if all the facts "consistent with the allegations in the complaint" had to be in the complaint, ab initio. One arguing otherwise must deal with the line of decisions that post-dates Twombly in which the Court has reaffirmed the traditional notice pleading concept enunciated in Conley. A few weeks after it decided Twombly, the Supreme Court thus held in Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam), that under Rule 8, "[s]pecific facts are not necessary; the statement need only `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'"33 As these and other recent decisions attest, the notice standard neither requires

See, e.g., Smith, 576 F.3d at 339-40; Brace v. Massachusetts, 2009 WL 4756348, at *6 (D. Mass. Dec. 10, 2009); see also U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 185 (5th Cir. 2009) ("The new reading raises a hurdle in front of what courts had previously seen as a plaintiff's nigh immediate access to discovery ­ modest in its demands but wide in its scope."); Tooley v. Napolitano, 2009 WL 3818372, at *1 (D.C. Cir. Nov. 17, 2009). The Supreme Court in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002), compared this general language in Rule 8 to the "greater particularity" required by Rule 9(b). The latter rule states that "[i]n alleging fraud or mistake, a party must state with particularity the circumstances . . ." See also RCFC 8(b). In Erickson, the Court held that a prisoner's pro se complaint stating that the doctor's decision to withhold his prescribed Hepatitis C medication was "endangering his life" and causing "continued damage to [his] liver," was a sufficient allegation of substantial harm to survive a motion to dismiss. 551 U.S. at 91, 94. It rejected the heightened pleading standard used by the court of appeals as "departing in [a] stark . . . manner from the pleading standard mandated by the Federal Rules of Civil Procedure." Id. at 90. For other post-Twombly decisions -1633 32

31

a claimant to "plead facts establishing a prima facie case" nor to "set forth all facts on which he relies to support his claim." Swierkiewicz, 534 U.S. at 511-13. To view the law otherwise is to take a grand somersault backwards toward the form/code pleading rules that Rule 8, not to mention the remainder of the 1937 rules, were designed to replace.34 Yet, there is no indication that the Supreme Court intended, sans an actual modification of Rule 8, such a retrogression. See Iqbal, 129 S. Ct. at 1950 ("Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era."). As an added point in its favor, the more measured reading of Rule 8 (and the Supreme Court's interpretations thereof) is reinforced by the remainder of the Federal Rules of Civil Procedure, particularly the provisions for discovery, pretrial and summary judgment. See Clark, 2 F.R.D. at 468 (the new pleading rules "fit in naturally with, and are supplemented by, rules for discovery, pre-trial, and summary judgment"). This interpretation recognizes that "discovery," as the name implies, serves more than to verify facts already known (and pled). Rather, as noted by the drafters of Rule 26, "[t]he purpose of discovery is to allow a broad search for facts, the names of witnesses, or any other matters which may aid a party in the preparation or presentation of his case." Fed. R. Civ. P. 26(b) advisory committee notes, 1946 amend.; see also Osage Tribe of Indians of Okla. v. United States, 84 Fed. Cl. 495, 497 (2008). The year after these comments were written, the Supreme Court emphasized that "[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." Hickman v. Taylor, 329 U.S. 495, 507

reaffirming the notice pleading standard, see Bridge v. Phoenix Bond & Indem. Co., 128 S. Ct. 2131, 2135 n.1 (2008); Iqbal, 129 S. Ct. at 1940; Tellabs, 551 U.S. at 319; see also Thomas v. Rhode Island, 542 F.3d 944, 948 n.4 (1st Cir. 2008); Petro-Hunt, 2009 WL 3765495, at *19; Spencer, supra, at 6-7. In 1943, Judge Charles Clark of the Second Circuit, who the Supreme Court has described as one of the "principal draftsman" of the Federal Rules, Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 283 (1988), remarked that one of the principal purposes of the form pleading concept was to induce admissions. Charles E. Clark, "Simplified Pleading," 2 F.R.D. 456, 460 (1943). He noted, however, that over time, the practice was viewed as "at best wasteful, inefficient, and time-consuming, and at most productive of confusion as to the real merits of the cause and even of actual denial of justice." Id. Commenting on the advent of notice pleading, Judge Clark further explained ­ This is a sound approach so far as it goes; but content must still be given to the word "notice." It cannot be defined so literally as to mean all the details of the parties' claims, or else the rule is no advance. The notice in mind is rather that of the general nature of the case and the circumstances or events upon which it is based, so as to differentiate it from other acts or events, to inform the opponent of the affair or transaction to be litigated ­ but not of details which he should ascertain for himself in preparing his defense ­ and to tell the court of the broad outlines of the case. Id. at 460-61. -1734

(1947).35 For discovery to have that leveling effect ­ particularly, where there is an initial informational imbalance among the parties, and, especially, where one of the litigants is a government agency that has privileged access to information36 ­ a claimant must not be required, ab initio, to aver all or nearly all the facts subservient to its claims. See al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009) ("Twombly and Iqbal do not require that the complaint include all facts necessary to carry the plaintiff's burden."). Rather, the "simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Swierkiewicz, 534 U.S. at 512.37 It does not, as

In Hickman, of course, the Supreme Court also famously stated ­ "No longer can the time-honored cry of `fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case." Id. at 507; see also United States v. Procter & Gamble, Co, 356 U.S. 677, 682-83 (1958). A set of well-known commentators has described the relationship between the new pleading and discovery rules adopted in 1937 in interesting terms, thusly ­ To understand the significance of the changes made by the discovery rules, it should be remembered that under the prior procedure the means by which parties could narrow the issues and discover information needed to prepare for trial were very limited. Under the philosophy that a judicial proceeding was a battle of wits rather than a search for the truth, each side was protected to a large extent against disclosure of its case. As already pointed out, the federal rules relieved the pleadings of their top­heavy burden of formulating issues and disclosing facts. Under the procedure installed by the rules, the pleadings were called upon only to give notice generally of the issues involved in the case. The discovery procedures of Rules 26 to 37, together with pretrial hearings under Rule 16, provide the means for determining the precise issues and obtaining the information that each party needs to prepare for trial. 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2001 (2d ed. 1990) (hereinafter "Wright, Miller & Marcus"). One of the reasons why Congress passed the Freedom of Information Act, 5 U.S.C. § 552, was "`to prevent a citizen from losing a controversy with an agency because of some obscure and hidden order or opinion which the agency knows about but which has been unavailable to the citizen simply because he has no way in which to discover it.'" Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 30 (1974) (quoting S. Rep. No. 813, 89th Cong., 1st Sess. 7 (1965)). See also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168-69 (1993) (noting that in the absence of an amendment to Rule 8 imposing a "heightened pleading standard," "federal courts and litigant must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later"); Conley, 355 U.S. at 47-48 ("`[n]otice pleading' is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both -1837 36

35

defendant seemingly would have it, "collapse discovery, summary judgment and trial into the pleading stages of a case." Petro-Hunt, 2009 WL 3765495, at *19; see also Riley, 2009 WL 3416255, at *9 ("Thus after Iqbal and Twombly, a court assessing the sufficiency of the complaint should ask: if all the facts the plaintiff alleges in his complaint are accepted as true, but all the conclusions are rejected, is it still plausible . . . to believe that additional discovery will fill in whatever gaps are left in the complaint?" (emphasis in original)). Nonetheless, it cannot ­ and should not ­ be denied that Twombly and Iqbal did more than repackage old notice-pleading standards in new terminology. In abrogating the "no set of facts" language from Conley, the Court plainly intended that Rule 8(a) be construed less hospitably ­ of a fashion that would not so readily "unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 129 S. Ct. at 1950. But, a review of these twin opinions, and the many cases decided in their aftermath, suggests that, properly construed, the impact of the new standards falls most heavily on two relatively narrow bands of cases ­ those few in which the rejected Conley language might otherwise have been salvific and those involving complex claims with multiple factual facets, especially those in which "factually suggestive" allegations are needed to distinguish between legal and actionable conduct. At least some courts have concluded that these bands are what Justice Kennedy had in mind in Iqbal when, writing on behalf of the majority, he wrote that "determining whether a complaint states a plausible claim will . . . be a context-specific task." 129 S. Ct. at 1950; see also Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009) (citing this passage and indicating that "the height of the pleading requirement is relative to circumstances"); al-Kidd, 580 F.3d at 974-76 (drawing a distinction between the allegations in Iqbal and a more typical civil rights case); Courie, 577 F.3d at 630 ("Exactly how implausible is `implausible' remains to be seen, as such a malleable standard will have to be worked out in practice."); Spencer, supra, at 14 ("it appears that legal claims that apply liability to factual scenarios that otherwise do not bespeak wrongdoing will be those that tend to require greater factual substantiation to traverse the plausibility threshold"); see generally, Riley, 2009 WL 3416255, at *8 ("So long as the plaintiff avoids using legal or factual conclusions, any allegations that raise the complaint above sheer speculation are sufficient."). All this tends to show that, beyond the few specific changes they wrought, Twombly and Iqbal probably are best seen merely as restating, in slightly different terms, propositions long held.38 After all, the most lenient interpretations of Conley aside, it has never been the case that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

claims and defense and to define more narrowly the disputed facts and issues."); 5 Wright, Miller & Marcus, supra, at § 1202. Indeed, in Twombly, the Court commented that an otherwise "wellpleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely." 550 U.S. at 556. See Aktieselskabet AF 21 November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008) (concluding that Twombly "leaves the long-standing fundamentals of notice pleading intact"); Limestone Dev. Corp. v. Village of Lemont, 520 F.3d 797, 803-04 (7th Cir. 2008) (cautioning that Twombly "must not be overread"). -1938

statements" were sufficient to state a claim. Iqbal, 129 S. Ct. at 1949.39 And, if this is true, it becomes important to recognize, then, what these cases do not hold. Mainly and specifically, they do not treat the newly-minted "plausibility" paradigm as altering the way in which courts should apply other long-standing pleading requirements. Thus, the Supreme Court did not, by requiring plausibility, transmogrify the "short and plain" pleading requirement of Rule 8 into a pedantical one that requires the extensive pleading of specific facts or every variation or corollary of a claim. Nor did the Court really alter how the presumption of truth accorded factual allegations has been applied for more than a half century ­ either in defining what is "factual" or in allowing courts more liberty to second-guess factual allegations in the guise of applying the new plausibility standard. See Courie, 577 F.3d at 629-30. In short, that these well-established rules were restated in the context of decisions that made other changes does not mean that they themselves were changed. See McShane, 2009 WL 3837245, at *2 ("nothing in Twombly or Iqbal has changed other pleading standards for a Rule 12(b)(6) motion to dismiss"). Having completed this tour d'horizon, the court must now consider the impact of this new standard on the second amended complaint before it. 2. Plaintiff's Complaint

Recall, defendant asserts that "[t]he vast majority of the allegations [in] the Second Amended Complaint are conclusions that have no factual support in [the] pleading." It contends that plaintiff has failed to demonstrate, with adequate specificity, which duties imposed by the contract were breached by defendant. Nor, it claims, has plaintiff provided enough factual details regarding the specific actions that effectuated the alleged breaches. However, a review of the second amended complaint, in light of the pleading requirements of RCFC 8, suggests that defendant's arguments are mistaken. Before proceeding, first, a bit more context is required. Although not precisely grouped in this fashion, the claims in plaintiff's second amended complaint readily can be organized into five categories, to wit, that ATF:

A small sampling of prior cases that have made this point includes ­ Palda v. General Dynamics Corp., 47 F.