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# FILED No. 18-104C 

### Filed 

### July 18,2018 

### NOT FOR 

### PUBLICATION

STEVEN J.

### OLIVA. 

## 1gg 

## I B 20tB U.S. COURT OF FEDERAL CLAIMS 

### Pro se; 

### RCFC 

### l2(b)(6); Failure 

### to State a 

### Claim; Breach

### of Contract; 

### In Forma Pauperis. 

### Plaintiff,

THE I.JNITED STATES, Defendant.

Steven 

### J.

### Oliva,Fair Oaks Ranch,

### TX, 

### plaintiffpro se. 

### David R. 

### Pehlke,Trial Attomey, Elizabeth 

### M. Hosford, Assistant 

### Director, Robert E' 

### Kirschman, -/r., 

### Director, Chad 

### A. Readler, 

### Acting Assistant 

### Attomey General, 

### Commercial 

### Litigation Branch,

### Civil Division, United States Department 

### of Justice, Washington, 

### DC, 

### for defendant. 

### MEMORANDUM OPINION AND ORDER GRIGGSBY. Judge 

# I, INTRODUCTION Plaintiffpro se, Steven J. 

### Oliva, brings this action to recover monetary damages 

### from the government 

### in connection 

### with an alleged breach 

### of an Equal 

### Employment Opportunity C'EEO") settlement agreement (the 

### "settlement Agreement") by and between 

### plaintiff and the 

### United States Department 

### of Veterans

### Affairs (the "Y

## A"), See

### generally 

### Compl The government has moved 

### to dismiss this matter 

### for failure to state a

### claim upon

### which relief may be granted, pursuant

### to Rule 12(b)(6) 

### ofthe Rules 

### of the 

### United States 

### Court 

### ofFederal Claims 

### ("RCFC"). See 

### generally Def. 

### Mot. Plaintiffhas also moved 

### to proceed in

### this ma$et 

### informa pauperis' See 

### generally PL IFP 

### Mot.



## ?0r,b 301,0 

## 8000 

## qlB6 q?e0For the reasons discussed 

### below,the

### Court: (1) 

### GRANTS-IN-PART and 

### DENIES-INPART the 

### government's motion to dismiss and 

### (2) 

### GRANTS 

### plaintiff s

### motion to proceed 

### in Jbrma 

### pauperis. 

# II. FACTUAL AND PROCEDURAL BACKGROUNDI 

# A. Factual Background Inthis action, 

### plaintiffpro se, Steven J. 

### Oliva, seeks to recover certain 

### relocation incentive payments 

### from the govemment 

### in connection 

### with the alleged breach 

### ofthe Settlement Agreement that he entered 

### into

### with the

### VA on or about January 30, 201

### 5. See 

### generally Compl.; see

### also id. at 

### Ex. 1

### at 

### 1-2. Inthe 

### complaint, 

### plaintiff alleges that the

### VA breached the Seltlement Agreement on

### two occasions. Compl. at

### 2. First, 

### plaintiff alleges that the

### VA breached the agreement 

### in March

### 20i5, when the agency 

### "provided a reference 

### which included the disclosure 

### of [a letter 

### of reprimand that

### plaintiff received 

### in January 

### 2015]." 

## Id. Second, 

### plaintiff alleges that the

### VA also breached the Settlement Agreement 

### in February 2016, when the agency 

### provided his prospective employer 

### with: 

## (l) information that 

### plaintiff "was

### ona 'l'emporary 

### Duty Assignment;" (2) the 

### identity 

### of 

### plaintiffs current 

### supervisor-Floretta Hardmon; and (3) the contact 

### information for Ms. Hardmon. 1d. 

### Plaintiff further alleges that, as a result 

### ofthese breaches, he lost the 

### opportunity to

secure 

### two different employment positions 

### "that would have included 

### relocation incentives and advancement 

### of his

### career." Id. at

### 3. As relief, 

### plaintiff seeks

### to recover the "payment 

### of [the] 

### relocation incentives [that] he

### would have received 

### ifnot for the

### two instances 

### ofthe agency breaching 

### the [Settlement 

### Agreement,]" in the amount 

### of $1'12,628.00. 1d. at Prayer 

### for Relief;

see also 

### Civil Cover Sheet.



# l. The Settlement 

### Agreement In January2015, 

### plaintiff received a letter 

### of reprimand 

### for accusing asupervisor 

### ofpreselecting an

### applicant for a

### position. Compl. at2; 

### Def. 

### Mot. at

## 2. On January 30, 2015,

### plaintiff

IThe facts recited in this Memorandum Opinion and Order are taken from the complaint ("Compl."), the government's motion to dismiss ("Def. Mot."), and plaintifPs response to the government's motion to dismiss ("P1. Resp."). Unless otherwise noted, the facts recited herein are undisputed.entered 

### into the Settlement Agreement 

### with the

### VA to resolve a

### formal grievance that he 

### brought

after 

### receiving the 

### letter of 

### reprimand. Compl. at 2. Pursuant 

### to the terms 

### ofthe Settlement Agreement, 

### plaintiff agreed 

### towithdraw his 

### informal EEO 

### complaint and

### to consider his 

### formal grievance resolved 

### in exchange 

### for the

### VA's commitment to undertake the remedial measures delineated 

### in the Settlement 

### Agreement. Id. at 

### 2,8x.7 at 

### 1-2. Among the remedial measures that the

### VA would undertake, the

### VA agreed 

### to: 

### [Provide 

### a]written reference

### for 

### Mr. Oliva and assurance

## of a positive verbal 

### reference,

# if requested-A written reference

## will be provided 

### by 

## Mr. Eitutis' Should 

### Mr. Eitutis be asked 

### to provide averbal reference, he

### will not 

### mention the retracted 

### Reprimand and

## will limit information provided 

### to that set

### forth 

### in the 

### written reference. 

### Id. at 

### Ex. 1

### aI 

## l.



## 2. The 

### March 2015 

### Breach 

### Plaintiff alleges that 

### in March 2015, the

### VA provided a reference

### which included the disclosure 

### of the January 2015 letter 

### of reprimand.2 

### Id. 

### at2. Plaintiff further alleges that the

### VA breached the Settlement Agreement when the agency disclosed the letter 

### of reprimand 

### to a 

### potential 

### employer. 1d. 

### In 2015, 

### plaintiff pursued a

### claim 

### with the

### vA's office of Resolution Management 

### alleging thatthe

### VA breached the Settlement Agreement 

### by disclosing the letter 

### of reprimand. 

### 1d The

### office of Resolution Management determined thatthe

## vA breached the Settlement Agreement 

### in this 

### regard. 

### Id. 

### at2,Ex. I at 

### 1. But, the 

### Office of Resolution Management also 

### foundthatthe Settlement Agreement was 

### voidable, because the agreement 

### did not contain certain language contained in the Older 

### Workers Benefits Protection 

### Act. Id. atEx. 

## I at 1; see also 29 IJ .5.C. S

### 626(0(2). And so,the

### VA offered 

### plaintiff the 

### option to either elect 

### tovoid the

2

### plaintiff has also attachedto the complaint several emails regarding contacts by either Mr. Eitutis, or Ms. Hardmon and 

### plaintiffs prospective employers. compl. Ex. 

### 1at4-6. In a February 12,2016, email from Mr. Eitutis

### toplaintiff, Mr. Eitutis confirms that he had been contacted by one of 

### plaintiff s prospective employirs for a reference. 

### Id. atEx.1 at

### 5. A February 24,2016, email from Ms. Hardmon io 

### plaintiff also states that one of plaintiffls prospective employers had contacted her andthat Ms. Haidmon had provided a positive referen ce. 

### Id. 

### atEx.I at

### 5-6. Lastly, an

### April22,20l6, email from one of 

### plaintiff spiospective irnployers to plaintiff states that the prospective employer leamed during the reference check that Ms. Hardmon was

### plaintiffs current supervisor. Id. at 

### Ex l at 5'Settlement Agreement and to pursue an EEO 

### claim, or 

### to elect 

### to 

### ratify the Settlement

Agreement and

### to seek

### specific performance as a 

### remedy. Compl. 

### Ex. 1

### at 

### 1. After 

### plaintiff elected 

### to ratifu the Settlement Agreement, the parties 

### ratified the agreement 

### on JluJy 

### 7,2015. Id. 

## 3. The 

### February 2016 

### Breach Thereafter, 

### plaintiff continued his

## effoff to secure

### future employment. See 

### id.

### at2;PL Resp. 

### Ex. 

## I at 

### 1-3. Inthis regard,

### plaintiff alleges that the

### VA breached the Settlement Agreement again 

### in February 2016, 

### by 

### informing a 

### potential employer that 

### plaintiff was on a temporary 

### duty assignment andthat 

### plaintiff scurrent supervisor was Floretta Hardmon, and 

### by providing Ms. Hardmon's contact 

### information. Compl. at 2. 

### Plaintiff also alleges thatthe

### VA breached the Settlement Agreement when 

### Ms. Hardmon 

### provided an

### employment reference

### for 

### plaintiff "which was 

### not in accordance 

### with the 

### written reference," because 

### Ms. Hardmon was not a person designated to 

### provide this reference under theterms 

### ofthe Settlement 

### Agreement. 

## Id. And so,

### plaintiff contends that he 

### "was not selecled 

### for the 

### position ofHealthcare Administrator due

### to the evasive 

### employment reference 

### check." rd. 

## 4, The Relocation Incentive Regulations Also relevant to

### this breach 

### of contract dispute, the 

### Office ofPersonnel Management 

### (.'OPM') has promulgated regulations 

### goveming the payment 

### of relocation incentives 

### for federal 

### employees. See 

### generally 5 

### C.F.R. $$ 575.201,e1 

### seq. Under these regulations, an agency may pay a 

### relocation incentive to a current employee 

### who must relocate 

### to accept a

### position in a 

### different geographic area

### ifthe agency determines thatthe 

### position is 

### likely be

### difficult to

## fill in the absence

### ofan incentive. 5 

### C.F.R. S575.201. 

### Specifically, a 

### relocation incentive may be paid 

### to an employee

## who- (1) Must relocate 

### to a 

### different geographic area 

### (permanently 

### ortemporarily) to accept acovered 

### position in an agency when the 

### position is 

### likely to be

### difficult to

## fill; and 

### (2) Is an employee 

### of thefederal govemment 

### immediately before the relocation. See 5 

### C.F.R. $ 575.205(a).These regulations also 

### provide that, before 

### paying such a 

### relocation incentive, an agency

must establish a 

### relocation incentive plan 

### which includes, among other things, the required documentation 

### for determining that a

### position is 

### likely to be

### difficult to

## fill and the requirements 

### for determining the amount 

### of the 

### relocation 

### incentive. 5 

### C.F.R. $

### 575.207(a). In addition, the regulations require that the authorized agency 

### official review and approve the 

### relocation incentive 

### determination before the agency pays the 

### incentive. 5 

### C.F.R. $ 575.207(b).3 

# B. Procedural 

### History Plaintiff commenced this action on January

### 22,2018. See 

### generally 

### Compl. On January 

### 22,2018, 

### plaintiff filed a 

### motion to proceed in

### forma 

### pauperis. See

### generally Pl. IFP 

### Mot. On

### April 23,2018, the government 

### filed a

### motion to dismiss this matter, pursuant 

### to RCFC 12(b)(6). See 

### generally Def. 

### Mot. On 

### May 3,2018, 

### plaintiff filed a response and 

### opposition tothe 

### govemment's motion to dismiss. See 

### generally Pl. 

### Resp. On 

### May 17, 2018, the government 

### filed a 

### reply in support 

### of its 

### motion todismiss. See 

### generally Def. Reply. These matters 

### having been

### fully briefed, the Court resolves the pending 

### motions' 

# III, LEGAL STANDARDS 

# A. Pra Se

### Litigants Plaintiff is proceeding 

### in this 

### matterpro se,

### without the 

### benefit

### ofcounsel.Andso,the Court applies the pleading requirements 

### leniently. Beriont v. GTE Labs., 

### lnc.,535 

### F.App'x919, 925-26 n.2 (Fed. 

### Cir. 2013) 

### (citing McZeal v. 

### Sprint Nextel 

### Corp.,50l F.3d 1354, 1356 (Fed. 

### Cir. 

### 2007)). When 

### determining whether a

### complaint 

### fiedby a

### pro se

### plaintiff is 

### sufficient to 

### survive a

### motion to dismiss, 

### this Court affords more leeway underthe rules

### toprd se

### plaintiffs than 

### plaintiffs who are represented 

### by counsel. See Haines v.

### Kerner,404U'S.519'520'925- Ct. 594-96 (1972) 

### (holding that

### pro se complaints, 

### "however 

### inartfully pleaded," are held

### to ,'less stringent standards than 

### formal pleadings drafted 

### by lawyers"); Matthev)s 

### v. United States, 750 

### F.3d 1320, 1322 (Fed. 

### Cir. 

### 2014). But,there 

### "is no 

### duty on the part 

### of the

### trial court to

rThe regulations also require that an intended recipientof a relocation incentive agree inwriting to a specified period of employment with the agency before the agency can paythe relocation incentive. 5 C.F.R. $ s75.210(a).create a

### claim 

### which [the 

### plaintiffJ has not spelled 

### out in his 

### pleading." Lengen 

### v. United States,

100 Fed. 

### Cl. 317, 328 

### (2011) (brackets 

### existing) (intemal quotation marks 

### omitted) (quoting Scogin 

### v. United 

### States,33 Fed. 

### Cl. 

### 285,293 (1995)). 

### Wh\le "a 

### pro se

### plaintiffis held

### to a Iess stringent standard thanthat 

### of a

### plaintiff represented 

### by an

### altomey

. . . the

### pro se

### plaintiff, nevertheless, bears the burden 

### ofestablishing the Court's 

### jurisdiction by apreponderance 

### of the 

### evidence." Riles

### v. United 

### States,93 Fed. Cl. 163, 

### 165(2010)(citingTaylorv.UnitedStates,303F.3d1357,1359(Fed.Cir.2002)). Andso, the 

### Court may excuse 

### ambiguities, but 

### not defects, 

### in the 

### complaint. See 

### Colbert v. 

### United 

### States,6lT F.

### App'x 981, 983 (Fed. 

### Cir. 2015); see also Demes v. United 

### States,52 Fed. 

### Cl. 365, 368 (2002) 

### ("[T]he leniency afforded 

### pro se 

### litigants 

### with respect 

### to mere

### formalities does not relieve them 

### ofjurisdictional requirements."). 

# B. RCFC 

### l2(bx6) When 

### deciding a 

### motion to dismiss based upon 

### failure to state a

### claim upon 

### which 

### relief

can be granted pursuant

### to RCFC 12(bX6), 

### this Court must assume that

### all undisputed facts alleged in the 

### complaint aretrue and draw 

### all reasonable inferences in the 

### non-movant's favor. 

### Erickson v. 

### Pardus,55l U.S. 

### 89,94 (2007); see

### also RCFC 

### l2(b)(6). To survive a 

### motion to dismiss pursuant

### to RCFC 12(bX6), a

### complaint must contain facts

### sufficient to "state a

### claimto 

### reliefthat is plausible on its 

### face." Bell

### Atl. Corp. v. 

### Twombly,550 U.S. 544,570 (2007); see also

### Ashcrofr v. 

### Iqbal,556 U.S. 

### 662,678 

### (2009). And so,when the 

### complaint fails to "state a 

### claim to relief that is plausible on its face," the Court must dismiss the

### complaint. Iqbal, 556 U.S. at

### 678. On the other hand, 

### "[w]hen there are

### well-pleaded factual allegations, a

### court should assume

### their

### veracity" and determine whether 

### it is plausible, based upon thesefacts,to 

### find against 

### defendant. 

### Id. at679. 

# C. Jurisdiction And Breach 

### Of Contract Claims Under the 

### Tucker Act, the Court possesses subject-matter

### jurisdiction to consider express or 

### implied-in-fact contract claims against the 

### United States. See

### Aboo

### v. Uniled States, 86 Fed. 

### Cl. 618, 626-27 

### (2009). Plaintiff bears the burden 

### of proving the existence 

### of a contract 

### with the 

### United States and he must demonstrate thatthere is 

### "something morethan a

### cloud of evidence that could be consistent 

### with a contract 

### to prove a contract and enlorceable contract 

### rights." D 

### & N 

### Bankv. United 

### States,33l F.3d 1374, 1377 (Fed. 

### Cir. 2003).

### To pursue a breach 

### of contract 

### claim against the 

### United States under the 

### Tucker

### Act, a



### plaintiffmust have 

### privity of contract 

### with the 

### United States. 

### Flexfab, L.L.C. v. United States, 424 

### F.3d 1254, 1263 (Fed. 

### Cir. 2005) 

### (citations omitted) 

### ("[T]he 'govemment consents to be sued

### only by those 

### with whom 

### it has

### privity of contract.

## "'). Plaintiff must also support his contract 

### claim 

### with well-pleaded allegations going 

### to each element 

### of a

### contract. See Crewzers 

### Fire Crew Transp., 

### Inc. v. United 

### Stdtes,741 F.3d 1380, 1382 (Fed. 

### Cir. 2014) 

### (holding that

### to invoke 

### thejurisdiction of this Court under the

### Tucker

### Act, a

### plaintiff must present a

### well-pleaded allegation that its claims arose out

### ofa valid contract 

### with the 

### United States); see a/so RCFC 

### 9(k) 

### ("ln pleading a

### claim founded on a contract or treaty, a

### party must 

### identify the substantive 

### provisions 

### ofthe contract or treaty on

### which the party 

### relies."); Gonzalez-McCaulley 

### Inv. Grp., 

### Inc. v. United Stales, 93 Fed. 

### CI. 710, 715 (2010). The requirements 

### for establishing a contract 

### with the 

### United States are 

### identical 

### for express and 

### implied-in-fact contracts. See 

### Night Vision 

### Corp.v. United 

### States,469 

### F.3d1369, 1375 (Fed. 

### Cir. 2006); 

### Huntington Promotional 

### & Supply, 

### L.L.C. v. United States, I 14 Fed. 

### Cl. 760,767 (2014) ("The elements are the same

### for an express 

### or implied-in-fact contract.

. . 

### ."). Specifically, a

### plaintiff must

### show: (1) 

### mutuality 

### of intent; (2) consideration; 

### (3) lack

### of ambiguity in the

### offer and acceptance; and 

### (4) actual 

### authority to bind the govemment 

### in contract on the part 

### of the govemment 

### official whose conduct is 

### relied 

### upon. Kam'Almaz v. [Jnited 

### Stdtes,682 F.3d 1364, 1368 (Fed. 

### Cir. 2012); see

### also Trauma Serv. 

### Grp. v. United 

### States,l04 F.3d 1321, 1325 (Fed. 

### Cir. 1997). 

### A govemment 

### official's authority to 

### bind the 

### United States must be express or 

### implied. Roy

### v. United 

### States,38 Fed. 

### Cl. 184, 188-89 (1997), dismissed, 124 F .3d 224 (Fed. 

### Cir. 1997). 

### And so, 

### "the [g]ovemment, unlike private parties, cannot be bound by the apparent 

### authority 

### of its 

### agents." Id. at 187. 

### Specifically relevant tothis matter, the 

### United States

### Court 

### ofAppeals for the Federal 

### Circuit has held 

### "that TuckerAct

### jurisdiction may be exercised 

### in a suit 

### alleging breach 

### ofa Title 

### VII settlement 

### agreement." Holmes 

### v. United 

### States,657 F.3d 1303,1312 (Fed. 

### Cir. 2011) 

### ("We do not

### viewTitle 

### VII's comprehensive scheme as a bar 

### to the exercise 

### of [Tucker

### Act] 

### jurisdiction."). The Federal 

### Circuit has also held that, 

### "when a breach 

### of contract 

### claim is brought 

### in [this Court], the 

### plaintiff comes armed

### with the presumption that money damages are available, sothat 

### normally no

### further 

### inquiry is required 

### [to establish subject-matter

### jurisdictionl." Id. at1314. But,the Federal 

### Circuit has recognized that that the mere existence



### of a contract does not always means that 

### TuckerAct

### jurisdiction exists. 1d. For example, a contract that expressly disavows money damages 

### would not give rise to 

### TuckerAct

### jurisdiction. .ld. Similarly, a

### Title 

### VII settlement agreement that 

### involves purely nonmonetaxy 

### relief would not give rise 

### to Tucker Act

### jurisdiction. Id. at 1315. 

### And so, the 

### Court may require ademonstration that asettlement agreement 

### could

### fairly be interpreted as 

### contemplating money damages 

### in the event 

### of breach, 

### to establish 

### subjecfmatter 

### jurisdiction. /d. To that end, the Federal 

### Circuit has held that asettlement agreement that 

### inherently relates 

### to monetary compensation, 

### "through relationship

### to [a

### plaintiff s] future 

### employment," contemplates money damages 

### in the event 

### of brcach. 

### Id' at 1316. The absence

### ofany language 

### in a settlement agreement 

### indicating that the parties 

### did not intend 

### for money damages 

### to be available 

### in the event

### ofa breach also shows that such an agteement contemplates the payment 

### of money damages 

### in the event 

### of a 

### breach. 1d. 

# Iv. LEGALANALYSM The govemment has moved 

### to dismiss this matter pursuant

### to RCFC 

### l2(bX6), upon the grounds

### that: (1) 

### plaintiff fails to state a plausible 

### claim to recover 

### relocation incentive payments and 

### (2) 

### plaintiff fails to plausibly allege that the

### VA breached the Settlement Agreement 

### by disclosing his letter 

### of reprimand and 

### failing to provide 

### plaintiff with 

### ajob reference 

### in the manner specified by the Settlement 

### Agreement. ,see

### Del Mot. at6-9. 

### plaintiff counters 

### in his response and 

### opposition tothe 

### govemment's motion to dismiss that he has alleged 

### viable claims 

### to recover 

### relocation incentive payments and 

### for breach 

### of contract 

### in the 

### complaint, because 

### relocation incentives were authorized 

### for the employment opportunities that he maintains have been lost duetothe

### VA's actions. 

### Pl.Resp.atl-2. Plaintiff also contends that the

### VA's decision 

### to disclose his temporary 

### duty assignment resulted 

### in 

### plaintiffs loss 

### of an

### employment

### opportunity. 1d.

### And so,

### plaintiff requests thatthe Court deny the 

### government's motion to dismiss. 

### Plaintiff has also moved to proceed in this matter in

### forma 

### pauperis. See

### generally 

### Pl' IFP 

### Mot.Forthe reasons discussed below, the most generous reading 

### ofthe complaint shows 

### that



### plaintiffhas not stated a plausible 

### claim to recover 

### relocation incentive payments 

### from the 

### govemment. 

### Plaintiff has, however, 

### plausibly alleged that the government breached the Settlement Agreement 

### by disclosing his letter 

### of 

### rcprimand-and thefact that 

### plaintiff was on a temporary 

### duty 

### assignment-and that these alleged breaches resulted 

### in the loss

### of future 

### employment

### opportunities. In addition, 

### plaintiff has shownthat he satisfiesthe statutory requirements to proceed 

### in this matter 

### without paying the 

### Court's 

### filing fee. And so,

### for the

reasons discussed 

### below, the

### Court: (1)

### GRANTS-IN-PART and 

### DENIES-IN-PART the 

### government's motion to dismiss and 

### (2) 

### GRANTS 

### plaintiff s

### motion

### to proceed 

### informa pauperis. RCFC 12(bX1). 

# A. The

### Court May Consider 

### Plaintiff s 

### Breach 

### Of Contract Claims As a

### preliminary matter, the Court possesses subject-matter

### jurisdiction to consider 

### plaintiff s breach 

### of contract claims arising underthe Settlement 

### Agreement. Inthis action, 

### plaintiffseeks to recover 

### relocation incentive payments due

### to the 

### govemment's alleged material breaches 

### of the Settlement Agreement that he entered 

### into 

### with the

## vA to resolve certain 

### employment

### discrimination claims, See 

### generally Compl.; see also 

### id. 

### atEx. 1

### at 1-2; 

### Def' 

### Mot' Ex. 

## I at 

### 1-2. The 

### l]nited States Court 

### ofAppeals for the Federal 

### Circuit has held 

### "that Tucker Act

### jurisdiction may be exercised 

### in a suit 

### alleging breach 

### of a

### Title

### VII settlement agreement." 

### Holmes,657 F.3d 

### at 1312. The Federal 

### Circuit has also held that asettlement agreement 

### that inherently relates to monetary compensation, 

### "through relationship

### to [a

### plaintiffs] future 

### employment," contemplates money damages 

### in the event 

### of breach and may 

### form the basis 

### for establishing the Court's 

### jurisdiction under the 

### Tucker

### Act. Id. at 1316. 

### A review 

### ofthe Settlement Agreement at issue 

### in this case makes clear that

### this agreement contains 

### provisions that 

### inherently relate to monetary compensation 

### through relationship to 

### plaintiff s

### effortsto secure

### future employment. The 

### settlement Agreement provides that, among other things, the

### VA would provide a

### *ritten reference 

### for 

### Mr. Oliva "and the assurance 

### ofa positive verbal reference, 

### ifrequested." Def. 

### Mot. Ex. 

## Iat2. Because the 

### court finds that the

### settlement Agreement relates 

### to

### plaintiff s

### effortsto securefuture

### employment and, thus, contemplates money damages in the event

### ofa breach 

### of that agreement,

the Court may consider 

### plaintiff s breach 

### of contract 

### clums. Holmes,657 F.3d

### at 1316.4 

## B. Plaintiff Fails 

### To State 

### A Plausible 

### Claim 

### For Relocation Incentives Tuming to the 

### merits of

### plaintiff sclaims, a careful 

### review ofthe 

### complaint makes clear that 

### plaintiff fails to plausibly allegethat he is entitled 

### to recover 

### relocation incentive payments 

### in this 

### action. Plaintiff seeks 

### to recover $172,628.00 

### in relocation incentive paymentsthat he 

### would have 

### allegedly received 

### if selected 

### for

### two employment 

### opportunities

### with the

### VA. Compl. at 3; see 

### generally 

### Civil Cover 

### Sheet. In his response and 

### opposition tothe 

### govemment's motion to dismiss, 

### plaintiff arguesthat he states a plausible 

### claim to recover these payments, becausethe 

### position descriptions 

### for the 

### two employment

### opportunities-a VA health system 

### administrator position based 

### in Greenville, SC and a

### VA health system 

### administrator position based 

### in El Paso

## Tx-state that 

### relocation expenses areauthorized, or may be authorized, 

### for these 

### positions. Pl. Resp. 

### at 1, 

### Ex. 

## I at 1-2. 

### Plaintiff does not, however, allege any facts in the 

### complaint to show that he

### would have 

### actually received 

### relocation incentive payments had he secured either 

### ofthese employment 

### opportunities. See 

### generally 

### Compl. Indeed, asthe govemment 

### correctly notes 

### in its 

### motion to dismiss, the 

### OPM regulations that govem the

### authorization and payment 

### of relocation incentives make clear that thefact that 

### relocation incentives areauthorized 

### for a 

### particular employment 

### opportunity, alone, is 

### not sufficient to demonstrate that such incentives 

### would have actually been paid 

### to

### plaintiff. 

## DelMot.at6. Rather, these regulations 

### provide thatthe payment 

### ofrelocation incentives must be made on a case-by-case basis andthe regulations also require that the sovemment establish a 

### relocation incentive plan, and determine the amount 

### ofthe relocation

4 

### Plaintiff semployment discrimination claims appear to be based upon the Age Discrimination in Employment Act 

### (the.,ADEA"). 

### Def.Ex.2at1-2. Similar to Title 

### VII employment discrimination claims,

### ADEA claims are enforced and reviewed by the EEOC and subject to

### judicial review by thetl.S. district courts. See 29 U.S.C. g633a(b) and 

### (c). Additionally, the Court notes that it does not possess subject-matter jurisdiction to consider 

### plaintiff scriminal law claim that the selecting 

### official for one

### of the positions towhich plaintiffapplied violated 

### Title 18, United States Code, Sections 

### l00l and 150'1. Joshua v. UnitedStates,lT F.3d 378,379 (Fed. 

### Cir. 1994).

10incentives, before 

### authorizing the payment 

### ofany relocation incentives. See 5 

### C.F.R. $$

575.205; 5'/5.207 (a); and 575.208(a)(1). Because 

### plaintiff alleges no facts in the 

### complaint to show that hewas 

### eligible to receive 

### relocation incentives under the 

### OPM's regulations, 

### plaintiffs claim to recover such incentives is speculative at 

### best. ,See

### generally 

### Compl. Given this, the Court must dismiss 

### plaintiff s

### claim 

### for lost 

### relocation incentives, pursuant

### to RCFC 12(b)(6). 

## C. Plaintiff Plausibly Alleges Breach 

### Of Contract Claims The 

### Court is less persuaded by the 

### govemment's argument that the 

### Court should dismiss 

### plaintiff s breach 

### ofcontract claims based upon the

### VA's alleged breach 

### ofthe Settlemenl Agreement 

### in March 2015 and February 2016. 

### First, a careful reading 

### of the 

### complaint shows that

### plaintiff states aplausible breach 

### of contract 

### claim based upon the

### VA's alleged 

### failure to 

### provide references 

### in the manner prescribed 

### by the Settlement Agreement and the agency's disclosure 

### ofthe fact that

### plaintiff was
on atemporary 

### duty assignment. Inthis regard,

### plaintiff clearly alleges 

### in the 

### complaint that he ,,was 

### not selected 

### for the 

### position 

### of Healthcare 

### Administrator due 

### tothe evasive 

### employment reference

### check." Compl.

## at2. And so,

### plaintiff sufficiently alleges thatthe

### VA's breach 

### of the Settlement Agreement, 

### by 

### failing to provide a reference in the manner prescribed 

### by the 

### settlement Agreement, resulted 

### in his loss 

### of an employment 

### opportunity. Id.; see also Pl. Resp. 

### aI2-4. The govemment argues, nonetheless, that 

### plaintiff has 

### not stated aplausible breach 

### of contract 

### claim, because

### thejob references that the

### VA provided were either neutral or positive. 

### Def. 

### Mot. at I

## . But, even 

### if the Court accepts the 

### govemment's representation in 

### this regard as true, 

### plaintiff persuasively argues thatthe undisputed fact that the 

### incorrect individual provided this

### job reference-and that the reference disclosed that

### plaintiff wasserving 

### in atemporary 

### duty assignment-co 

### uld have 

### negatively impacted 

### plaintiff s

### effortsto secure

### future employment. Pl. Resp. at 2. The undisputed fact that the settlement Agreement requires that 

### plaintiff s

### original 

### supervisor-Mr. 

### Eitutis-provide the

### job reference also suggeststhat the

### VA recognized 

### that allowing Ms. Hardmon 

### to provide the reference 

### could negatively impact 

### plaintiff s

### efforts to



### 1lsecure 

### future employment. See 

### generally Compl.; 

### Def. 

### Mot.; seealso 

### Def,

### Mot. Ex. 1at 2.



### Given this, the 

### Court declines

### to dismiss 

### plaintiffs breach 

### of contract 

### claim based upon the February 2016 breach 

### of the Settlement 

### Agreement. RCFC 12(bX6). 

### Plaintiff similarly states a plausible 

### claim thatthe

### VA breached the Settlement Agreement 

### in March 2015, when the agency disclosed his letter 

### of reprimand 

### to a

### potential 

### employer. Compl. at

### 2. Inthis regard,there is no dispute thatthe

### VA's Office of Resolution Management determined thatthe

### VA breached the Settlement Agreement 

### by making 

### this disclosure. 

### Id.;Def. Mot. at 8; 

### Def. 

### Mot. 

### Ex.2 at4. The 

### govemment's argument that 

### plaintiff fails to explain how the

### discloswe ofthe 

### letter 

### of reprimand resulted in the loss 

### of a

### job offer is also 

### misguided. Def. 

### Mot. at

### 8. As 

### plaintiff argues in his response and

### opposition tothe 

### government's motion to dismiss, the letter 

### of reprimand was an adverse personnel action and the disclosure 

### of this letter 

### to a 

### potential employer 

### certainly couldhave negatively impacted 

### plaintiff s prospects 

### for future employment. 

### pl. Resp. at

## 2. Given this, 

### plaintiffhas at least 

### plausibly alleged thatthe disclosure 

### of the 

### letter of reprimand resulted 

### in his loss 

### of future employment 

### opportunities' Because 

### plaintiff has 

### plausibly alleged in the 

### complaint thatthe

## vA breached the 

### settlement Agreement 

### in March 2015 and February 2016, and that these breaches resulted 

### in his loss

### of employment opportunities,the

### court declines to dismiss 

### plaintiffs breach 

### of contract claims. 

# D. The

### Court Grants 

### Plaintiffs' Motion To Proceed 

### In Forma Pauperis As a

### final matter, 

### plaintiff has moved 

### to proceed 

### in

### this matler 

### informa 

### pauperis' see 

### generallyPI.IFP 

### Mot. The 

### court may authorize the commencement 

### of a 

### lawsuit

### without prepayment 

### of feeswhen a

### plaintiff submits an

### affidavit including a statement 

### ofall assets, a declaration that he is unable 

### to pay the fees, and a statement 

### ofthe nature 

### of the action and a 

### beliefthat he is entitled 

### to redress. ,See 28 

### U.S.C. $ 19i5(a)(1); see also 

## ld $

### 2503(d)' In his 

### application for waiver 

### ofthe Court's 

### filing fee, 

### plaintiff provides a statement 

### ofhis assets and 

### liabilities and states that "because 

### of [his] poverty, [he 

### is] unableto 

### pay" the Courts 

### fees' See 

### generally 

### PI.IFP 

### Mot. Because the

### court finds that

### plaintiff satisfiesthe statutory requirements 

### toproceedinformapauperis,theCourtGRANTSplaintiffsmotiontoptoceedinforma pauperls. 

### t2

# V. CONCLUSION

In sum, the most generous reading 

### ofthe complaint makes clear that 

### plaintiff fails to state

a plausible 

### claim to recover 

### relocation incentive 

### payments. 

### Plaintiffs has, however, 

### plausibly alleged that the

### VA breached the Settlement Agreement 

### in March 2015 and February 2016, and that these alleged breaches resulted 

### in his loss 

### of future employment 

### opportunities. In addition, 

### plaintiffhas shown that he satisfiesthe statutory requirements 

### to proceed 

### in this matter

### without paying the 

### Court's 

### filing fee. And so,

### for the

### foregoing reasons, the Court: 

# L GRANTS the 

### govemment's motion to dismiss 

### with respect 

### to

### plaintiff s

### claim to recover 

### relocation incentive payments; 

# 2. DENIES the 

### government's motion to dismiss 

### with respect 

### to 

### plaintifPs breach 

### of contract claims regarding the 

### March 2015 and February 2016 breaches; and 

## 3. GRANTS 

### plaintiff s

### motion 

### to proceed in

### forma pauperisThe Court 

### further requests that 

### plaintiff consent tothe Court's 

### refenal 

### ofthis case 

### to the 

### court of Federal 

### claims Bar Association 

### Pro Bono/Atlomey Refenal 

### Pilot Program 

### for the 

### potential representation 

### ofplaintiffby counsel. Inthe event that 

### plaintiff consents 

### to such 

### referral, the Court makes no representation that the Bar 

### Association

### will be successful 

### in identifying possible 

### pro 6ono counsel 

### for 

### plaintiff. If the Bar 

### Association is able

### to 

### identiff possible counsel,

### plaintiffis not obligated 

### to engage any 

### particular attomey, nor is an attomey obligated 

### to represent 

### plaintiff. The Court does not endorse representation by any 

### individual attomey. 

### All decisions concerning representation, 

### if any,

### will be by 

### mutual agreement between 

### plaintiff and an attomey. 

### And so, 

### it is

### further 

### ORDERED that on or before 

### August 17' 2018: 

## 1. Plaintiff shall 

## FILE a 

### notice indicating whether he consents 

### to 

### referral 

### ofthis case

### tothe Court of Federal Claims Bar

### Association Pro 

### Bono/Attorney Referral Pilot Program; and 

## 2. The parties shall 

## FILE a

### joint status 

### report setting 

### forth a 

### proposed schedule 

### for the

### filing of the 

### government's answer and

### for discovery.

IJ

### IT IS SO 

### ORDERED.



### t4