Higbie v. United States
2015 U.S. App. LEXIS 541
| Fed. Cir. | 2015Background
- Higbie, a Senior Criminal Investigator for the State Department, pursued an EEO/retaliation claim and requested ADR mediation in 2009.
- During negotiations, Higbie sought confidentiality of the mediation; the State Department confirmed confidentiality on multiple occasions.
- Three supervisors signed the mediation agreement containing a confidentiality clause: documents and statements are for settlement purposes only.
- Mediation failed; affidavits by Cotter and Thomas were used in EEO investigation to critique Higbie’s mediation participation.
- Higbie filed suit in 2011 alleging various claims including an ADRA claim; the district court dismissed the ADRA claim and Higbie added a contract breach claim.
- Higbie transferred the contract breach claim to the Court of Federal Claims, which dismissed for lack of Tucker Act jurisdiction; Higbie appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the mediation contract is money-mandating | Higbie contends the agreement can fairly be read to contemplate monetary damages | Government asserts the clause provides a non-monetary remedy only (evidentiary exclusion) and no money damages | No; agreement is not money-mandating; non-monetary relief suffices, jurisdiction lacking |
| Whether any statutory/criminal-law-based exceptions apply to create money-mandating relief | Holmes and related authority imply a default damages remedy applies to breach of contract | Exceptions (criminal-context or Rick’s Mushroom) do not apply to mediation contracts here | No; exceptions do not authorize money damages jurisdiction in this mediation context |
Key Cases Cited
- Holmes v. United States, 657 F.3d 1303 (Fed. Cir. 2011) (default money damages rule for contract breaches; money-mandating inquiry often unnecessary)
- Sanders v. United States, 252 F.3d 1329 (Fed. Cir. 2001) (criminal-context exception to money-mandating is narrow)
- Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338 (Fed. Cir. 2008) (limited cost-sharing contract where money damages not clearly mandated)
- Navajo Nation v. United States, 556 U.S. 287 (U.S. 2009) (Tucker Act requires a money-mandating source of substantive law)
- Kania v. United States, 650 F.2d 264 (Ct. Cl. 1981) (criminal-context exception origin; authority requirement)
- Cunningham v. United States, 748 F.3d 1172 (Fed. Cir. 2014) (distinguishes boilerplate mediation terms from money-mandating, but discussed relevant context)