OUTLAW v. USA

Filing 14

REPORTED OPINION denying 9 Motion to Dismiss - Rule 12(b)(1). The Clerk is directed to enter judgment. Signed by Chief Judge Patricia E. Campbell-Smith. (hw1) Copy to parties.

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No. 13-833 C
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JAMES F. OUTLAW,

Plaintiff,

THE TINITED STATES,

Subject Matter Jurisdiction;
RCFC l2(bxl); Breach of
Settlement Agreement; Invalid
Settlement Agreement; Merit
Systems Protection Board Final
Order

Defendant.

James F. Outlaw, Ewa Beach, Haw., pro se.

John S. Groat, Trial Attorney, with whom were Stuart F. Delerv, Assistant Attomey
General; Bryant G. Snee, Acting Director; and Patricia M. McCarthv, Assistant Director,
Commercial Litigation Branch, Civil Division, United States Department of Justice,
Washington, D.C., for defendant. Annette Perry, Department of the Army, Washington,
D.C., of counsel.

OPINION AND ORDER OF DISMISSAL

CAMPBELL-SMITH, Chief Judee.
This is a breach of contract claim based on the alleged breach of a July 27 ,2011
Negotiated Settlement Agreement (July 27 ,2011NSA) between James F. Outlaw
(plaintiff or Mr. Outlaw) and the U.S. Department of the Army (defendant or the Army).
Defendant moved for dismissal for lack of subject matter jurisdiction, alleging that
because the July 27 ,2011 NSA does not provide for money damages as a remedy for an
asserted breach, Mr. Outlaw cannot meet the iurisdictional requirement that his claim
must be money mandating.

Mr. Outlaw responds that several provisions in the NSA provide for the payment
of monies to him, and thus, the jurisidictional requirement is satisfied. Alternatively, Mr.
Outlaw alleges that the July 27,2011 NSA is invalid due to fraud.

The motion has been fully briefed and is ripe for decision. Oral argument was
neither requested by the parties nor deemed necessary by the court. For the reasons
explained below, the court GRANTS defendant's motion to dismiss for lack of subject
matter jurisdiction.

L

Background

Plaintiff filed his complaint in this court on October 23,20l,3.1 ECF No. l.
Plaintiff brings his claim without the assistance of counsel. Mr. Outlaw filed five
exhibits with his Complaint, marked as Pl.'s Exs. 1-5. ECF Nos. 1-2 to 1-6. Mr. Outlaw
also filed five exhibits with his opposition, marked as Pl.'s Exs. P-1 to P-5. ECF Nos.
10-1 to 10-5.
Mr. Outlaw and the Army entered into the July 27,2011 NSA to settle a
discrimination complaint filed by Mr. Outlaw with the United States Equal Employment
Opportunity Commission (EEOC). Compl. Jftf 7-8; Pl.'s Ex. l, at tlfl 1,3' 5a (Idy 27,
2011NSA).
The July 27,2011NSA provided that the Army would make a lump sum payment
to Mr. Outlaw, Pl.'s Ex. 1, at'!f 4a., reverse his February l 8, 201 1 removal from Federal
Service, and purge certain paperwork from his official personnel file regarding his
absence without leave from November 2, 2010 to February 18, 201l, id. at fl 4b.

In return, Mr. Outlaw agreed, inter alia, to withdraw his EEOC complaint, id. at tl
and to voluntarily retire from Federal Service effective November 1,2010, id. atfl
"J,

The July 27,2}ll NSA also set forth a process by which Mr. Outlaw could
complain of any alleged breach by the Army.

believes that the Army has failed to comply with the terms
of this Settlement Agreement despite having first sought the assistance of
the EEO Officer to resolve the noncompliance concerns' [Mr. Outlaw] shall

If [Mr. Outlaw]

I

It is noted that Mr. Outlaw previously filed a claim in this court on September 23,
201 l, for an alleged breach of an earlier NSA with the Army signed on April 5,2007.
See Pl.'s Opp'n i; First Am. Compl. U 8, Outlaw v. United States, No. l1-526 (Fed' Cl'
Nov. 29, 2011), ECF No. 5. The court dismissed that complaint, as the allegations
therein were settled by the same hily 27,2011 NSA that is the focus of this action. See
Pl.'s Opp'n 1; Outlaw v. United States, 104 Fed. CL.226 (2012). Mr. Outlaw's previous
claim is not relevant to the instant case.

notiry the EEO/Civil Rights Office . . . (EEOCCR), . . . in writing, of the
alleged noncompliance within 30 calendar days of when [Mr. Outlaw]
knew or should have known ofthe alleged noncompliance. . . . The parties
agree that [Mr. Outlaw's] sole remedy for an alleged aeency breach of this
Settlement Agreement is to request that the terms of the Settlement
Agreement allesedly breached be implemented. If the Director for
EEOCCR has not responded to [Mr. Outlaw] in writing or if [Mr. Outlaw]
is not satisfied with the attempts to resolve the matter, [Mr. Outlaw] may
appeal to the Equal Employment Opportunity Commission for a
determination as to whether the Army has complied with the terms of this
Settlement Agreement.

Id. at tl 8 (second emphasis added).
On January 31,2014, defendant filed a motion to dismiss for lack of subjectmatter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court
Federal Claims (RCFC). Def.'s Mot., ECF No. 9. Plaintiff filed his opposition on
February 24,2014. Pl.'s Opp'n, ECF No. 10. Defendant filed a reply on March I l,
2014. Def.'s Reply, ECF No. 1 1.

II.

of

Legal Standards

Complaints filed by pro se plaintiffs are held to "less stringent standards than
formal pleadings drafted by lawyers." Haines v. Kerner. 404 U'S. 519' 520 (1972).
Nevertheless, "'the leniency afforded to a p!e_!e litigant with respect to mere formalities
does not relieve [his] burden to meet jurisdictional requirements."' Zulueta v. United
States, 553 Fed. App'x. 983, 985 (Fed. Cir. 2014) (quoting Kelley v. Sec'y. U.S. Dep't of
Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987)). In evaluating subj ect-matter jurisdiction,
.,.the allegations stated in the complaint are taken as true andjurisdiction is decided on
the face of the pleadings."' Folden v. United States ,379 F .3d 1344, 1354 (Fed. Cir.
2004) (quoting Shearin v. United States,992F.2d I195, I195-96 (Fed. Cir. 1993)).

A pro se plaintiffs filings are to be liberally construed. See Erickson v. Pardus,
551 U.S. 89,94 (200'7). Nonetheless, every plaintiff must satisfu this court's jurisdiction.
See Hebert v. United States, 114 Fed. Cl. 590, 593 (2014) ("Though p1q-!c litigants are
.less stringent standards than formal pleadings drafted by lawyers,' failures to
held to
comply with the Court's jurisdictional requirements are not excused"' (quoting Hampel v.
United States, 97 Fed. CL.235,237 (201l))); see also Kelley v. Sec'y. U.S' Deo't of
Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987) (finding that the court may not set separate
jurisdictional rules for pro se plaintiffs). The party invoking a court's jurisdiction bears
the burden of establishing it, and must ultimately do so by a preponderance of the
evidence. See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U'S. 178, 189

1936); Rocovich v. United States ,933 F .2d 991,993 (Fed. Cir. 1991); Reynolds v
Army & Air Force Exch. Serv., 846 F.2d 746,748 (Fed. Cir. 1988).
(

The court may question its own subject-matter jurisdiction at any time. RCFC
12(h)(3) ("Ifthe court determines at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action."); Folden, 379 F.3d at 1354 ("Subject-matter jurisdiction
may be challenged at any time . . . by the court sua sponte. "). Subj ect-matter jurisdiction,
which involves a court's power to hear a case, may "'never be forfeited or waived."'
Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 535
u.s. 625, 630 (2002)).
The Tucker Act provides for this court's jurisdiction over "any claim against the
United States founded either upon the Constitution, or any Act ofCongress or any
regulation ofan executive department, or upon any express or implied contract with the
United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28
u.s.c. $ raer@)(t) (2012).

ilI.

Discussion

Mr. Outlaw's allegations in his complaint vary somewhat from the assertions he
made in his opposition to defendant's motion to dismiss, and from the statements he
made during a telephonic status conference conducted by the court regarding what claim
he intended to bring in this court. Construing Mr. Outlaw's allegations in his complaint
liberally, as the court is obliged to do for a pro se plaintiff, see Erickson, 551 U.S. at 94,
the court understands Mr. Outlaw to be asking for: (1) review of a Merit Systems
Protection Board Final Order, as well as the two preceding Initial Decisions, and a
finding that they were in error; (2) review of the July 27,2011NSA and a finding that it
is invalid and/or fraudulent; and (3) review of the JuJy 27,2011 NSA and a finding that
the Army breached it.
Yet in his opposition, Mr, Outlaw states that he does "not allege 'breach of a
settlement agreement' in this case, thus Defendant's arguments referenc[ing] settlement
[agreement] breach are moot." Pl.'s Opp'n 1. Mr. Outlaw further states that he opposes
defendant's motion to dismiss, "because [his claim] is based on a Settlement Agreement
which is 'Invalid,ifraudulent and Unenforceable."' Id. He "now ask[s] the Court to
review" that settlement asreement. Id.
On January 16,2014, the court held a telephonic status conference to "confirm the
scope of and basis for plaintiff s claim." Order, Jan. 17,2014, ECF No. 8. Based on the
discussion, the court observed that

Mr. Outlaw agree[s] that his complaint is effectively a challenge ro the July
27 ,20II Negotiated Settlement Agreement (NSA) he executed with

defendant. See Pl.'s Ex. l. But he asserts that the settlement agreement is
invalid, and further, that this court has jurisdiction to consider his claim
because the NSA contains several provisions directing the payment of
money.

ld. at l-2.
Mr. Outlaw has not moved to amend his complaint to withdraw any of the
allegations he made therein regarding a breach of the NSA. Accordingly, the court
considers whether it has jurisdiction over the claims asserted in Mr. Outlaw's complaint;
the court does not limit its consideration of the complaint based on any later asserted
disavowal of the breach claim in plaintiff s opposition.
The court reviews each possible claim in turn.

A.

Review of the MSPB Administrative Decisions

Mr. Outlaw made the following allegations and requests for relief in his complaint.

Plaintiff now comes to the U.S. Court of Federal Claims requesting review
of the MSPB AJ ruling that the luly 27,2011 NSA between the parties
resolved Plaintiff s appeal.'
Compl. tf 15.

In DE-0752-ll-0514-I-l (Exhibit [S]3). the AJ erred in his decision
Plaintiff was not an employee at the time of filing

that

case.

Id. at fl 20.

to

monetary relief, Plaintiff hereby seeks a
declaration by the Court that . . . the AJ ened in his ruling that Plaintiff was
not an employee at the time of filing case'

Incidental and collateral

Id. at1l22.

2

" Appeal" is the term applied by the Merit Systems Protection Board to the initial
request by a complainant to appeal a decision or action taken by an agency. See Pl.'s Ex.
2, at l.

3

The reference in the Complaint is to exhibit 3, which is an error.

Defendant has not addressed expressly whether this court has jurisdiction to
review a decision of the Merit Systems Protection Board. The court considers sua sponte
whether it has iurisdiction over such a claim.

Mr. Outlaw received two separate Initial Decisions from the Merit Systems
Protection Board, each issued by an Administrative Judge (AJ). The first decision was
issued on March 7, 2012, in which the AJ found that Mr. Outlaw "was not an employee
after November 1,2010, and accordingly he haId] not established jurisdiction over his
claim that the agency suspended him from duty after that date." Pl.'s Ex. 5, at 5. Thisis
the decision to which Mr. Outlaw refers in paragraphs 20 and 22 of his Complaint.
On April 6,2012,4 a MSPB AJ issued a decision in response to a separate appeal
by Mr. Outlaw that the July 27,2011 NSA was unlawful, involuntary, or the result of
fraud or mutual mistake. See Pl.'s Ex. 4, at 2. According to the MSPB, Mr. Outlaw's
"appeal of his February 2011 removal [from Federal Service] . . . was dismissed as
specifically provided for by the terms of the parties' July 27,20ll settlement agreement."
Id. This is the MSPB AJ ruling to which Mr. Outlaw appears to refer in paragraph l5 of
his Complaint.

Mr. Outlaw was unsuccessful in his pursuit of both appeals, and he petitioned for
review of both Initial Decisions. On October 19.2012- the MSPB issued one Final Order
denying both petitions. Pl.'s Ex. 4. On December 21,2012, Mr. Outlaw filed a petition
for review of the MSPB Final Order with the United States Court of Appeals for the
Federal Circuit. Pl.'s Ex. P-2. The Federal Circuit dismissed Mr. Outlaw's petition as
untimely.s Order 2, Outlaw v. Dep't of the Army, No. 2013-3061 (Fed. Cir. June 19,
2013). ECF No. 8.

"

The April 6, 2}l2Initial Decision is not in the record. Information about this
decision was taken from the October 19,2012 MSPB Final Order denying Mr. Outlaw's
petition for review of the April 6,2012Initial Decision. See Pl.'s 8x.4, at 2-4; see also
Pl.'s Ex. 3, at I (EEOC Denial of Consideration stating that the October 19, 2012 MPSB
Final Order upheld the April 6, 2012 MSPB Administrative Judge ruling that the July 27,
2011 settlement agreement between the parties resolved Mr. Outlaw's appeal.).

t

Although Mr. Outlaw reported in his opposition that he filed a petition for review
with the Federal Circuit, Pl.'s Opp'n 2, he did not report that his petition was dismissed
as untimely, or file a copy of the dismissal order with his opposition. Rather, Mr. Outlaw
stated: "[T]he court stipulated that it does not have jurisdiction to review cases involving
bona fide claims of discrimination that were raised before and considered by the MPSB.
If one is unwilling to abandon the discrimination claims forever, one must proceed in a
district court or the Equal Employment Opportunity Commission." Id. In fact, the
Federal Circuit said only that because "Mr. Outlaw's petition was not received within 60
days of the date he received the Board's decision, we must dismiss his petition as

Jurisdiction for judicial review of a MSPB Final Order rests with the Federal
Circuit. 5 U.S.C. $ 7703(bXlXA) ("[A] petition to review a final order or final decision
of the Board shall be hled in the United States Court ofAppeals for the Federal
Circuit."). The October 19,2012 Final Order stated as much, informing Mr. Outlaw, as
the appellant, that he had the right to request review of the final decision from the Court
of Appeals for the Federal Circuit. Pl.'s Ex.4, at 6. The case law of this court similarly
states that it has no jurisdiction to review a MSPB Final Order. E.g., De Maio v. United
States, 93 Fed. Cl. 205,209-11 (2010) (stating, in detail, that judicial review of MSPB
claims rests with the Federal Circuit, not the Court of Federal Claims); see also Grant v.
United States, No. 13-473C,2014 WL 128634, at *3 (Fed. Cl. Jan.7, 2014) (same)'
The court has no jurisdiction to review the October 19,2012 MSPB Final Order,
Pl.'s Ex. 4, the March 7,2012lnitial Decision, Pl.'s Ex. 5, or the April 6, 2012lnitial
Decision. To the extent that Mr. Outlaw requests that this court review a decision or
order issued by either the Merit Systems Protection Board or a MSPB Administrative
Judge, the claim is dismissed for lack of subject matter jurisdiction.

B.

Review of the Julv 27.2011NSA to Determine Whether It Is Invalid and/or
Fraudulent

Mr. Outlaw made the following allegations and requests for relief in his complaint.
The July 27,2011NSA is invalid/fraudulent and not signed by an "Official
with Approval Authority" as required by statute. A fraudulent NSA cannot
resolve Plaintiff s appeal.

Compl.'ll

16.

The retirement application, which resulted from said NSA, also

is
but, by a non-civilian personnel

invalid/fraudulent (not signed by Plaintiff,
officer (CPO) on an Application for Immediate Retirement (AIR), but
applied retroactively, illegally).
Id. at'll 17.

The NSA contains mutual mistakes (settlement agreement cannot override/void a Judge's ruling).
Id. at 11 18.

untimely." Order 2, Outlaw v. Dep't of the Army, No. 2013-3061 (Fed. Cir. June
2013), ECF No. 8.

19,

The NSA was coerced, is unfair and Plaintiff suffered

numerous
social security benefits already paid,

compensatory damages (retum of
payment of Federal Income Taxes on income not received, illegal taking
performance award and salary already paid (without due process), as well
as Life Insurance coverage [(]not requested).
Id. attT 19.

An actual dispute has arisen between Plaintiff and the Agency with respect
to the validity, interpretation and terms of the NSA . . . .
Id. at'li 21.

Incidental and collateral

to

monetary relief, Plaintiff hereby seeks

a

declaration by the Court that the NSA is invalid/fraudulent . . . .

Id.

atl22.

Defendant has not addressed expressly whether this court has jurisdiction to
review the NSA to determine whether it is either invalid or fraudulent. The court
considers sua sponte whether it has jurisdiction over such a claim.
The claims of fraud, invalidity, and coercion that Mr. Outlaw now makes in this
court are the same allegations that Mr. Outlaw made in one of his two appeals before the
MSPB, which was the subject of the April 6, 2012lnitial Decision issued by an
Administrative Judge. See Pl.'s Ex. 4, at 2-4. The administrative judge denied Mr.
Outlaw's appeal, and on October 19,2012, the MSPB issued a Final Order denying Mr.
Outlaw's petition for review of that Initial Decision. Pl.'s Ex. 4. According to the
MSPB, thc

administrative judge fully informed [Mr. Outlaw] of the nonfrivolous
allegations he would have to assert to show that he had not voluntarily
entered into the parties' settlement agreement or that the agreement was
unlawful, involuntary, or the result of fraud or mutual mistake. [Mr.
Outlaw'sl jurisdictional responses failed to raise allegations of fact that, if
proven, would show that he had not voluntarily entered into the parties'
settlement agreement or that the agreement was unlawful, involuntary, or
the result of fraud or mutual mistake.

[Mr. Outlaw] simply asserts that the settlement agreement is invalid
because it is unlawful, involuntary, and resulted from mutual mistake and
bad faith on the part of the agency. [Mr. Outlaw's] pro forma assertions are
insufficient to show error in the administrative judge's explained findings
that the settlement agreement was not unlawful, was not unfair, or the result
of agency bad faith or duress, and that the appellant knowingly and
voluntarily entered into the agreement.

ld. at 2-3 (intemal citations omitted).
In effect, Mr. Outlaw again asks this court to review either the April 6, 2012lnitial
Decision issued by an Administrative Judge, or the October 19,2012 Final Order issued
by the MPSB. As discussed supra Part IILA., this court has no jurisdiction to review
either the Initial Decision or the Final Order.
This court also lacks jurisdiction over a claim that the July 27, 201I NSA is
invalid, because no money damages are available as relief to plaintiff for such a claim.
This court has previously addressed this issue.

Plaintiffs allegations instead amount to a claim that the 2002 settlement
agreement is void or invalid. As such, the relief sought by plaintiff would
be [a] rescission of the settlement agreement and not money damages.
"Rescission has the effect ofvoiding a contract from its inception, i.e., as
it never existed. It is an equitable doctrine which is grounded on mutual
mistake, fraud, or illegality in the formation of the contract." Dow Chem.
Co. v. United States,226F.3d 1334, 1345 (Fed. Cir.2000) (citations
omitted). However, this court cannot award an equitable remedy in the
absence of a viable claim for money damages. See. e.g., Pauley Petroleum
Inc. v. United States, 219 Ct. Cl. 24, 591 F.2d 1308, 1315-16 (1979)
(noting that while the Court of Claims had "no jurisdiction to grant specific
equitable relief," it could employ equitable doctrines in arriving at a
monetary judgment). Thus, in the absence of a claim for money damages
for breach of contract, this court cannot fashion a remedy for plaintiff'

if

Taylor v. United States, 73 Fed. C1.532,546 (2006).
As discussed infra Part III.C., a breach of the July 27 ,201 t NSA can yield no
money damages for plaintiff. While plaintiff makes a general claim to "monetary
damages in excess of $10,000 as a remedy for the invalid/fraudulent contract and
suspension," Compl. tl l, a mere claim for damages does not guarantee that such a
remedy is actually available.

As to Mr. Outlaw's other claims, fraud and coercion are tort claims-over which
this court has no Tucker Act jurisdiction. The Federal Circuit affirmed this court's
dismissal for lack ofjurisdiction over similar tort claims, hnding that "the government's
duty not to knowingly make misrepresentations to induce [the complainant] to sign the
plea agreement did not arise from the government's obligations under the agreement but
from tort law. Thus, the Claims Court correctly held that it lacked jurisdiction over [the
complainant'sl tort claims." Phu Mane Phang v. United States, 388 F. App'x 961, 963
(Fed. Cir. 2010). Further,

[t]o the extent that plaintiff is contending that the government committed
fraud against her by inducing her to enter the settlement agreement, that
claim is outside our subject matter jurisdiction. 28 U.S.C. $ la91(a) (2012)
("The United States Court ofFederal Claims shall have jurisdiction upon
any claim against the United States . . . not sounding in tort."); Phu Mang
Phang v. United States, 388 F. App'x 961, 963 (Fed. Cir. 2010).
Hawn v. United States, No. l3-651C, 2014 WL 1814380, at *4 n.3 (Fed. Cl. May 7,
20r4).
To the extent that Mr. Outlaw requests that this court review the July 27,2011
NSA to determine whether it is invalid or fraudulent. the claim is dismissed for lack of
subject matter jurisdiction.

C.

Breachofthe luly27,20l1 NSA

Mr. Outlaw made the following allegations and requests for relief in his complaint.

On August 30, 2011, Plaintiff filed an Appeal6 with the Merit Systems
Protection Board (MSPB) because the agency
had failed to
restore/reemploy/reinstate him as specified in the NSA.
Compl. fl 9. (Plaintiff appears to complain that defendant failed to comply with
certain provisions in the July 27 ,20 I I NSA in which the Army was required to
"cancel [Mr. Outlaw's] removal from Federal Service which was effective
February 18, 2011." Pl.'s Ex. I, at2.)

An actual dispute has arisen between Plaintiff and the Agency . . . with
respect to a breach ofthe NSA by the Agency.

'

Plaintiff s August 30,2011 appeal is Pl.'s Ex. 2, which was decided by the March
7.2012lnitial Decision. Pl.'s Ex. 5.
10

Compl. at fl 21.
Incidental and collateral to monetary relief, Plaintiff also seeks injunctive
relief so as to require the Agency to restore Plaintiff s employment position
at Schofield Barracks in Hawaii, or in lieu thereof to compensate Plaintifl'
for his loss of salary & benefits of the position from which he was illegally
retired and suspended.
Id. atX23.

Plaintiff requests an entry of judgment against Defendant [flor
reinstatement . . . to his position in Hawaii, and return of all salary and
benefits due him since November l, 2010 to the present.
ld. at4.
In response, defendant moves to dismiss plaintiffs claim for breach of contract on
the ground that the JuIy 27,2011 NSA "cannot be construed as providing Mr. Outlaw any
entitlement to monetary damages as required to confer jurisdiction under the Tucker
Act." Def.'s Mot, 1-2. Given the limited waiver of sovereign immunity for this court to
have jurisdiction, argues defendant, the NSA must "fairly be interpreted as mandating
compensation by the Federal Government." Id. at 6 (quoting Holmes v. United States,
657 F.3d 1303, 1315 (Fed. Cir. 2011)).
Defendant correctly points out first, that under Federal Circuit precedent, the
presumption of money damages for a breach of contract claim is not always sufficient,
and second, that this court must "require a demonstration that the agreements could fairly
be interpreted as contemplating money damages in the event of breach," as purely
nonmonetary relief will not suffice to provide this court with jurisdiction. Id. at 7
(quoting Holmes, 657 F.3d at 1315).
The July 27 ,2011 NSA provides that "[t]he parties agree that the Complainant's
sole remedy for an alleged agency breach of this Settlement Agreement is to request that
the terms of the Settlement Agreement allegedly breached be implemented." Pl.'s Ex. 1,
at fl 8. Defendant points to this language and says that the "express terms ofthe NSA
preclude fairly interpreting it as contemplating money damages," and thus under Holmes,
the Jufy 27,2071NSA fails to provide this court with jurisdiction. Def.'sMot.7.

Plaintifftook the position during the January 16,2014 telephonic status
conference call that the NSA provided the requisite money mandating authority, because
the NSA contains several provisions directing the Army to pay him money. See Jan. 17 ,
2014 Order 2.

11

According to the Federal Circuit, "settlement agreements resolving Title VII
disputes are not pe! re beyond the Tucker Act jurisdiction of the Court of Federal
Claims." Holmes, 657 F.3d at 1312. The Federal Circuit also said that the
"govemment's consent to suit under the Tucker Act does not extend to every contract,"
Id. at 1314 (quoting Rick's Mushroom Service. Inc. v. United States, 521 F.3d 1338,1343
(Fed. Cir. 2008)), and that a "contract expressly disavowing money damages would not
give rise to Tucker Act jurisdiction." Id.
In Holmes, the court found there was jurisdiction, as

the purpose of documenting and expunging Mr. Holmes's record clearly
was to prevent Mr. Holmes from being denied future employment based on
his record as the Narry maintained it prior to the agreements. In short, the
agreements inherently relate to monetary compensation through
relationship to Mr. Holmes's future employment. Further. there is no
language in the aereements indicating that the parties did not intend for
money damases to be available in the event ofbreach.
Holmes, 657 F.3d at 1316 (emphasis added).

Like Holmes, Mr. Outlaw brought a discrimination complaint and the settlement
agreement in which he entered included provisions that inherently related to money. See
Compl. U 7 ("Plaintiff filed several Equal Employment Opportunity ("EEO') complaints
against the Army for, among other bas[e]s, discrimination . . . ."); Ex. I, at fl 1-3
(referring to Mr. Outlaw's discrimination complaint and Title VII of the Civil Rights Act
of 1964); Ex. 1, at'tf 4 (providing that the Army will give Mr. Outlaw a lump sum cash
payment and cancel his removal from Federal Service).
Unlike Holmes, however, the July 27 ,2011NSA includes language indicating that
the parties did not intend for money damages to be available in the event of breach. "The
parties agree that [Mr. Outlaw's] sole remedy for an alleged agency breach of this
Settlement Agreement is to request that the terms of the Settlement Agreement allegedly
breached be implemented." Pl.'s Ex. 1, at tl 8, The terms of the NSA detail the actions
the parties respectively are to undertake; there is no allowance for the payment of money.
Moreover, Mr. Outlaw was represented by counsel during the settlement proceedings,
whose signature appears along with Mr. Outlaw's on the July 27,2011NSA. See id. at 8.
Defendant is correct, the express language in the July 27,2011NSA indicates that
there was no intention to provide relief through money damages. Thus, the NSA fails to
provide money mandating authority for plaintiff s claim.
To the extent that Mr. Outlaw alleges a breach of contract claim for the July 27,
2011 NSA, the claim is dismissed for lack of subject matter jurisdiction.

t2

fV.

Conclusion

For the reasons set forth above, defendant's motion to dismiss for lack of subject
matter jurisdiction pursuant to RCFC l2OXl) is GRANTED. The Clerk is directed to
enter judgment accordingly.

ITIS

SO ORDERED.

l3