Case Information
*1 In the United States Court of Federal Claims No. 13-270C
(Filed November 14, 2013) ************************************ * 28 U.S.C. § 1500; 28 U.S.C. §
RICHARD HIGBIE, * 1491; subject matter
* jurisdiction. Plaintiff, *
*
v. *
*
THE UNITED STATES, *
*
Defendant. *
*
*************************************
OPINION AND ORDER
In this action, Plaintiff Richard Higbie (“Higbie”) alleges that the United States (the “Government”) breached the confidentiality provision of an “Agreement to Mediate” (“Mediation Agreement”). Higbie seeks $500,000 in compensation for this alleged breach. Higbie’s original action was filed in the United States District Court for the Northern District of Texas and the pertinent portion of that action was transferred to this Court on April 17, 2013. Higbie filed his transfer complaint in this Court on July 15, 2013. The Government then filed the instant motion to dismiss, pursuant to the Rules of the Court of Federal Claims (“RCFC”) 12(b)(1) and 12(b)(6), and the briefing was completed on October 25, 2013.
Because the Court finds that the Government’s Tucker Act challenge requires dismissal of this case, it does not reach the merits of the Government’s 12(b)(6) arguments. For the reasons that follow, the Government’s motion to dismiss is GRANTED.
I. Background [1] Higbie is an employee of the Bureau of Diplomatic Security (“BDS”), a division of the U.S. Department of State (“State Department”). Compl. at ¶ 2. On January 15, 2009, Higbie contacted an EEO counselor complaining that the State Department had *2 discriminated against him. Id. at ¶ 5. The case was referred to mediation. Id. at ¶ 6. Prior to engaging in mediation, the parties signed a document entitled “EEO/Alternative Dispute Resolution Agreement to Mediate” (“Mediation Agreement”). Id. After the mediation fell apart, an EEO investigator undertook an investigation and prеpared a report. Id. at ¶ 7. During the investigation, Government officials Marion Cotter (“Cotter”) and Jeffrey Thomas (“Thomas”) provided affidavits. See id. at ¶¶ 8-9.
On October 5, 2011, Higbie filed suit in the Northern District of Texas. Higbie alleged that the State Department retaliated against him (Count I), created a hostile work environment (Count II), and that the agency had breached the confidentiality clause of the 2009 Mediation Agreement (Count III). Count III was rooted in thе affidavits filed by Cotter and Thomas. Higbie took the position that the affidavits violated the confidentiality provision of the Mediation Agreement by disclosing “information held under strict confidentiality guidelines set by the aforementioned [Mediation Agreement].” See Dkt. 1 (“Texas Compl.”) at ¶ 54. Higbie alleged that the affidavits “demonstrated a willful attempt by [Cotter and Thomas] to further discriminate and retaliate against the Plaintiff for engaging in related рrotected activity.” Id. at ¶ 55. Higbie also asserted that the breach of the confidentiality clause constituted a violation of the Alternative Dispute Resolution Act of 1996 (“ADRA”). at ¶ 86.
The State Department filed a motion to dismiss Count III and Higbie was granted leave to file an amended complaint, which he filed on June 25, 2012. The Amended Complaint was similar to the original complaint; the major difference was that, instead of assеrting a violation of the ADRA, Higbie’s amended complaint alleged that the same actions created a cause of action “[p]ursuant to the common laws of the State of Texas.” Compare id. at ¶ 86 with Dkt. 10 (“Texas Am. Compl.”) at ¶ 97.
On January 29, 2013, Higbie filed a motion for leave to file a second amended complaint and a motion to transfer his contract claim to this Court. Both motions were granted and, on February 8, 2013, Higbie filed another amended complaint which still stated a cause of action for breach of the confidentiality clause of the Mediation Agreement. See Dkt. 35 (“Texas Sec. Am. Compl.”) at ¶ 109.
The contract claim was transferred to this Court on April 17, 2013. Unlike the various complaints filed in the Northern District of Texas, Higbie’s Complaint here states only one cause of action for the breach of the Mediation Agreement. See Compl. at ¶¶ 11-12. On September 13, 2013, pursuant to RCFC 12(b)(1) and 12(b)(6) the Government moved to dismiss Higbiе’s action in front of this Court.
II. Legal Standard
A motion brought pursuant to RCFC 12(b)(1) challenges the Court’s subject
matter jurisdiction. RCFC 12(b)(1). When faced with a motion to dismiss for lack of
subject matter jurisdiction, a court must assume that all undisputed facts alleged in the
complaint are true, and it must draw all reasonable inferences in the plaintiff’s favor.
*3
Scheuer v. Rhodes
,
III. Discussion
The Government raises two arguments as to why this Court lacks jurisdiction to hear Higbie’s case. First, it argues that Higbie’s Complaint herе is barred by operation of 28 U.S.C. § 1500. Second, the Government argues that the Court lacks jurisdiction because the Mediation Agreement does not create a right to money damages.
a. 28 U.S.C. § 1500 Does Not Bar Higbie’s Action in this Court The Government first argues that Higbie’s claim is barred by operation of 28 U.S.C. § 1500, which provides:
The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his аssignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.
“The rule is more straightforward than its complex wording suggests. The CFC has no
jurisdiction over a claim if the plaintiff has anоther suit
for or in respect to
that claim
pending against the United States or its agents.”
United States v. Tohono O’Odham
Nation
,
The Supreme Court emphasized in
Tohono
that § 1500 “bars jurisdiction in the
CFC not only if the plaintiff sues on an identical claim elsewhere—a suit ‘for’ the same
claim—but also if the plaintiff’s other action is related although not identical—a suit ‘in
respect to’ the same claim.”
Id.
at 1728. Thus, the Supreme Court determined that
“[t]wo suits are for or in respect to the same claim, precluding jurisdiction in the CFC, if
they are based on
substantially the same operative facts
, regardless of the relief sought in
each suit.” at 1731 (emphasis added). Applying the Supreme Court’s ruling in
Tohono
, the Federal Circuit has explained that, “[t]o determine whether § 1500 applies, a
court must make two inquiries: (1) whether there is an earlier-filed ‘suit or process’
pending in another court, and, if so, (2) whether the claims asserted in the earlier-filed
case are ‘for or in respect to’ the same claim(s) asserted in the later-filed Court of Federal
Claims action.”
Brandt v. United States
,
The first
Brandt
inquiry must be answered in the affirmative. Because Higbie’s
claim before this Court was removed from his already-pending action in the Northern
District of Texas, the Texas case qualifies as an earlier-filed suit.
See Griffin v. United
*4
States
,
The true dispute revolves around the second Brandt inquiry. The Government asserts that Higbie’s claim here revolves around substantially the same operative facts as his action in the Northern District of Texas, such that the Texas action is “for or in respect to” the same claim asserted here. See Gov’t Mot. at 9-10. Essentially, the Government argues that the breach of the confidentiality clause is cited by Higbie in support of his retaliation claim, such that Higbie’s claim here is “in respect to” his retaliation claim in Texas.
Higbie responds that the contract claim was severed from the Texas case, while the non-contract сlaims in the Texas case are unrelated to the breach of the confidentiality clause. His position appears to be that the severance of the contract claim from the Texas case renders his action here unrelated to the Texas proceedings. Further, Higbie claims that his case in Texas no longer asserts the breach of the confidentiality clause as part of his retaliation claim.
Although the parties dispute which version of Higbie’s Texas complaint—the
Second Amended Complaint or the Third—controls, that point is irrelevant to the Court’s
decision. The true question is whether Higbie’s claims in Texas are “for or in respect to”
substantially the same operative facts as is his case here.
See Tohono
,
Higbie’s claim here is for breach of contract, while his claims in Texas are for discrimination and retaliаtion. It appears to the Court that the only indication that these claims are remotely based on the same operative facts are two paragraphs which appear in both Higbie’s Second and Third Amended Complaints. The first of these paragraphs states:
In separate affidavits, both “Responding Officials” Marion Cotter (Special Agent in Charge of the Houston Field Office) and Jeffery Thomas (Supervisоry Special Agent of the Houston Field Office) provided the EEO assigned Investigator, Robert Maddern, information held under strict confidentiality guidelines set for by the aforementioned ADR Mediation [Agreement]. Both respective Responding Officials included in their affidavits information concerning the underlying facts of the ADR proceeding and records generated as part of the proceeding that are strictly prohibited from being made part of the EEO complaint record.
Second Am. Compl. at ¶ 54; Third Am. Compl. at ¶ 54. Immediately after this paragraph, both versions of Higbie’s Texas complaint state that “[t]his demonstrated a *5 willful attempt by the Responding Officials to further discriminate and retaliate against the Plaintiff for engaging in related protected activity.” Second Am. Compl. at ¶ 55; Third Am. Compl. at ¶ 55 (emphasis added). In other words, in the Texas proceedings Higbie has asserted that the Government’s alleged breach of the Mediation Agreement supports his claim for retaliation. The Government relies on these two paragraphs in support of its assertion that Higbie’s claim here is barred by §1500 due to the Texas case.
Higbie responds that the breach of confidentiality is “incapable of serving as an
adverse employment action that would allow Plaintiff to prevail on his retaliation claim
or hostile work environment claim…” Pltf. Resp. аt 6. The Court is not concerned with
this point, and makes no judgment as to the viability of Higbie’s assertion of the breach
in support of his retaliation claim. In this Court’s mind, the key is that the alleged
disclosure of confidential information is a single fact which, if true, would be dispositive
as to Higbie’s contractual claim. Meanwhile, Higbie’s retaliation claim requires
far more
than the simple fact of disclosure. In an instance such as this, where a single faсt would
be dispositive in one case and somewhere between completely irrelevant and minimally
relevant in another, the two cases are not “based on substantially the same
operative
facts.”
Tohono
,
Because the operative facts in the case before this Court differ substantially from the operative facts before the Eastern District of Texas, this Court concludes that § 1500 does not divest the Court of jurisdiction to hear Higbie’s claim. This is not dispositive, however, because the same cannot be said for the Government’s other argument for dismissal.
b. The Mediation Agreement is Not Money-Mandating
The Government posits that the Mediation Agreement did not contemplate the
award of money damages in the case of a breach, such that this case falls beyond the
jurisdiction circumscribed by the Tucker Act. Pursuant to the Tucker Act, 28 U.S.C. §
1491, this Court maintains jurisdiction over “any claim against the United States founded
еither upon the Constitution, or any Act of Congress or any regulation of an executive
department, or upon any
express or implied contract
with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1)
(emphasis added). The Tucker Act itself does not create a substantive cause of action,
which means that “a plaintiff must identify a separate source of substantive law that
creates the right to money damages.”
Fisher v. United States
,
The Government argues that nothing in the Mediation Agreement indicates the intent to allow money damages in the event of a breach. Instead, it argues that the logical remedy for breach of a confidentiality clause in a mediation agreement is excluding from judicial proceedings any evidence derivеd from the mediation. Gov’t Mot. at 13. Higbie responds that there is a presumption, in the civil context, that a damages remedy is *6 available upon the breach of an agreement. Pltf. Resp. at 9 (citing Holmes , 657 F.3d at 1313-14).
Higbie is correct, of course, that there is a presumption that a damages remedy is
available in the civil context.
See Holmes
,
Instead, where a contract could reasonably be interpreted to involve purely
nonmonetary relief, this Court may require a plaintiff to render proof that the contract can
“fairly be interpreted as mandating compensation by the Federal Government.”
Id.
(quoting
United States v. Navajo Nation
,
Higbie next attempts to demonstrate that the Mediation Agreement can fairly be
interpreted to mandate money damages. The basis for this argument is unclear, at best.
For example, Higbie again relies on
Holmes
, which addressed settlement agreements
pursuant to Title VII and found that the settlement agreements could fairly be construed
to include monetary.
See Holmes
,
No such issue arises here. The Mediation Agreement did not address anything
remotely monetary; it is limited to the parties’ conduct during and after the mediation
process. The entire document is full of statements pertaining to the limitations upon
mediation. Docket No. 5-1 at 9-11. While Higbie notes that the
Holmes
court
attached significanсe to the fact that “there is no language in the agreements indicating
that the parties did not intend for money damages to be available in the event of breach,”
Holmes
,
After arguing that Holmes mandates a finding that the Mediation Agreement provides for money damages, Higbie turns to a series of citations that speak generally to the issue of confidential mediation. Pltf. Resp. at 10-11. Nothing in these citations indicates that money damages are awarded for breach of mediation confidentiality.
Although Higbie does not raise another argument in direct response to the Government’s assertion that the Mediation Agreement does not contemplate money damages, his response to the Government’s 12(b)(6) argument touches on the same issue. There, the Government argued that Higbie’s claim for $500,000 is completely arbitrary (it is). Higbie’s response to this argument attempts to raise the specter of money damages for a breach of confidentiality, so the Court deems it appropriate to consider that portion of Higbie’s argument here. Most of Higbie’s citations here fail once again to raise anything resembling a money award for breach of mediation confidentiality, but a few of the sources do at least require further analysis.
Higbie first relies on a case from the Supreme Court of California which notes that “confidentiality is essential to effective mediation.” Foxgate Homeowner’s Ass’n, Inc. v. Bramalea California, Inc. , 26 Cal.4 th 1, 15 (2001). Although Higbie himself fails to point this out, the case did address the possibility of money sanctions for a violation of court-ordered mediation. Foxgate , however, is unpersuasive for two reasons. First, it is a California case analyzing California law, and it is therefore not сontrolling over a Texas contract claim. Second, the actions that gave rise to the request for sanctions had nothing to do with a breach of confidentiality in mediations. Rather, they mirror Higbie’s actions as alleged in the Cotter and Thomas affidavits: a refusal to participate in mediation in good faith. Even with these points in mind, the monetary sanctions in Foxgate were overturned, and the court recognized that the appropriate remedy was exclusion of the evidence or, in cases where the evidence was disclosed during proceedings, a new hearing or trial. See id. at 18 (“Any reference to a mediation during any subsequent trial is an irregularity in the proceedings of the trial… Any reference to a mediation during any other subsequent noncriminal proceeding is grounds for vacating or modifying the decision in that proceeding, in whole оr in part, and granting a new or further hearing on all or part of the issues, if the reference materially affected the substantial rights of the party requesting relief.”). Thus, aside from the overturned monetary sanctions, this decision actually undermines Higbie’s argument by showing that the proper remedy for breach of mediation confidentiality is exclusion of the improper evidence or a new hearing. This is precisely the point that the Government makes.
After another long series of citations to sources that have absolutely nothing to do
with money damages, Higbie refers this Court to a series of confidentiality cases that do
award money damages. The first is
Hallmark Cards v. Murley
,
Finally, Higbie informs the Court that statutes “providing causes of action for money damages [for breaching mediation confidentiality] are becoming more common each year.” Pltf. Rеsp. at 18. In support of this point, Higbie cites one law—a Florida state law. Meanwhile, Higbie’s Complaint makes clear that all the facts relevant to his case occurred in Texas. The Florida law is irrelevant to his cause of action.
In sum, the Government has properly raised concerns over the question of whether the Mediation Agreement contemplates the award of money damages in case of brеach. Higbie, by relying only on unrelated or otherwise uninformative sources instead of the contract at issue, has failed to respond to the Government’s argument. Dismissal is therefore appropriate on the basis that the Mediation Agreement cannot fairly be interpreted as contemplating money damages in the event of breach.
IV. Conclusion
As the foregoing makes clear, this Court lacks jurisdiction over Higbie’s claim. Althоugh Higbie’s action is not barred here because it is not “for or in respect to” the same claim that he has asserted in the Northern District of Texas, his action is barred because the Mediation Agreement cannot fairly be interpreted as contemplating money damages in the event of breach.
For these reasons, the Government’s motion to dismiss is GRANTED and this action is dismissed. The Clerk is directed to mark this case closеd and enter judgment accordingly.
s/ Edward J. Damich EDWARD J. DAMICH Judge
Notes
[1] Unless specifically stated, all “Dkt.” references in this section refer to the docket filings in Higbie’s case pending in the Northern District of Texas at Case No. 3:11-cv-02636-L. Any citations to “Compl.” refer to Higbie’s Transfer Complaint, found at Docket No. 5 in this Court’s record.
[2] It appears that this case is
Southwestern Energy Production Co. v. Berry-Helfand
, --
S.W.3d ---,