In the United States Court of Federal Claims

No. 14-957 C

(Filed UNDER SEAL March 17, 2015)

Publicly Reissued April 10, 2015

TRACEY SWOPE, 

 Plaintiff,

v.

THE UNITED STATES,

 Defendant.

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ORDER

Plaintiff filed suit against the government, alleging that the government 

breached a settlement agreement entered into by the parties to resolve a dispute 

regarding plaintiff’s employment with the Department of Veteran’s Affairs in 

Durham, North Carolina. See Doc. 1 at 2. On December 8, 2014, the government 

filed a motion to dismiss plaintiff’s case, alleging that this court lacks jurisdiction to 

decide the matter. See Doc. 6 at 5. 

Plaintiff was employed as a Prosthetic Representative Supervisor for the 

Department of Veteran’s Affairs from September 7, 2004, until about December 1, 

2011. See Doc. 1 at 2-3. On May 9, 2012, the parties entered into an agreement to

settle an employment dispute. See id. at 2. As part of the settlement agreement, 

plaintiff was allowed to voluntarily resign, and the agency agreed to expunge the 

documentation in her employment records indicating that she was resigning in 

response to notification of an adverse action. See id. at 2-3. In addition, the agency 

agreed to provide her with a neutral reference letter. See Doc. 7 at 4-5. Plaintiff 

alleges that the documentation in her file was not timely expunged, and as a result, 

she was unable to obtain employment for a period of two years. See Doc. 1 at 3.

The government’s argument that plaintiff’s claims should be dismissed is 

based on the terms of the settlement agreement, which provides, in relevant part:

This agreement is made part of the MSPB record of this appeal and will 

be enforceable as such. The MSPB shall have continuing jurisdiction 

to determine if any party has been in breach of the agreement and the 
rights to which the non-breaching party may be entitled to including 

permitting Appellant to continue the above-captioned appeal.

See Doc. 7 at 6. The government contends that, pursuant to this provision, the 

MSPB, or Merit Systems Protection Board, retains exclusive jurisdiction over any 

dispute arising from the settlement agreement. See Doc. 6 at 8-12. The government 

also asserts that this court lacks jurisdiction because, based on the same provision, 

money damages are unavailable for any alleged breach. See Doc. 12 at 17-18.

In response, plaintiff argues that the MSPB does not have exclusive 

jurisdiction, see Doc. 11 at 15, and that monetary damages are an appropriate and 

available remedy for the government’s breach, see id. at 16. 

I. STANDARD OF REVIEW

The government styles its motion as a motion to dismiss for lack of subject 

matter jurisdiction, or in the alternative, a motion to dismiss for failure to state a 

claim on which relief may be granted. See Doc. 6. Neither the initial brief, nor the 

reply in support of the motion, make any substantive argument on the basis that 

plaintiff fails to state a claim. See Docs. 6, 12. As such, the court will only analyze 

the government’s position as a challenge to its jurisdiction.

Plaintiff bears the burden to demonstrate, by a preponderance of the evidence,

that the court has jurisdiction to hear her case. Brandt v. United States, 710 F.3d 

1369, 1373 (Fed. Cir. 2013). Here, plaintiff has alleged that the court has jurisdiction 

pursuant to the Tucker Act, 28 U.S.C. § 1491(a)(1), which states that: 

The United States Court of Federal Claims shall have jurisdiction to 

render judgment upon any claim against the United States 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, or for liquidated or unliquidated damages in 

cases not sounding in tort.

Because the Tucker Act is not itself a substantive basis for relief, plaintiff “must 

identify and plead an independent contractual relationship, Constitutional provision, 

federal statute, and/or executive agency regulation that provides a substantive right 

to money damages.” Stevens v. United States, 118 Fed. Cl. 707, 710-711 (2014) 

(citing Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004); Fisher v. United 

States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)). In this case, plaintiff claims that she 
is owed damages for the government’s breach of the contract she entered into to 

settle her employment related claims against the Department of Veteran’s Affairs. 

See Doc. 1 at 2, 5.

“In determining jurisdiction, a court must accept as true all undisputed facts 

asserted in the plaintiff's complaint and draw all reasonable inferences in favor of 

the plaintiff.” Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed.

Cir. 2011) (citing Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995)). But if 

the court lacks subject matter jurisdiction, it must dismiss the case. See Rebish v. 

United States, No. 14-1022C, 2015 WL 868925, at *2 (Fed. Cl. Feb. 27, 2015)

(citing Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006); Steel Co. v. Citizens for 

a Better Env’t, 523 U.S. 83, 94-95 (1998)). 

II. THE SETTLEMENT AGREEMENT DOES NOT PROVIDE FOR 

EXCLUSIVE JURISDICTION WITH THE MSPB

The government claims that the express language of the settlement agreement 

places exclusive jurisdiction over this dispute with the MSPB. In particular, the 

government emphasizes the word “shall” to indicate that the MSPB’s exclusive 

jurisdiction is mandatory. See id. 6 at 11. The court agrees that the word “shall” 

indicates the mandatory nature of its subject. But in this case, the language of the 

agreement simply says that the MSPB “shall have” jurisdiction, not that it “shall 

have” exclusive jurisdiction.

The government supports its argument by pointing to Outlaw v. United States, 

116 Fed. Cl. 656 (2014). The agreement language in the Outlaw case, however, 

undercutsits position. In Outlaw, the court held that it lacked jurisdiction to consider 

plaintiff’s claim for damages resulting from the government’s breach of a settlement 

agreement because the language of the agreement provided that the “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.” Outlaw, 116 Fed. 

Cl. at 663. The term “sole” used in the Outlaw agreement dictates the exclusivity 

that is lacking in the agreement at issue here.

The settlement agreement is an express contract between plaintiff and the 

United States, and the terms of the agreement do not divest the court of jurisdiction. 

The court will consider plaintiff’s case so long as the substantive basis for her claim

is money-mandating.
III. MONETARY DAMAGES ARE AN APPROPRIATE REMEDY FOR 

PLAINTIFF’S ALLEGED INJURY

Despite the fact that the settlement agreement is a contract between plaintiff 

and the United States, the breach will only give rise to Tucker Act jurisdiction if the 

plaintiff can “demonstrate[e] that the agreement[ ] could fairly be interpreted as 

contemplating money damages in the event of a breach.” Holmes v. United States,

657 F.3d 1303, 1315 (2011). Generally, there is a presumption that damages are 

available for a breach of contract. See id. at 1314. However, “[a] settlement that 

involved ‘purely non-monetary relief’—such as a transfer from one office to 

another—would not suffice for establishing Tucker Act jurisdiction.” Cunningham 

v. United States, 748 F.3d 1172, 1176 (2014).

Here, the government argues that the settlement agreement does not 

contemplate money damages because plaintiff “explicitly agreed to provide the 

MSPB with continuing jurisdiction,” and that the “MSPB does not provide monetary 

remedies in breach of contract cases.” See Doc. 12 at 17. Because the MSPB does 

not have exclusive jurisdiction in the case, this reasoning is unpersuasive.

In addition, the Federal Circuit has held that the money-mandating 

requirement is met when the agreement at issue is meant “to prevent [the former 

employee] from being denied future employment,” because such an agreement 

“inherently relate[s] to monetary compensation through [the employee’s] future 

employment.” See Holmes, 657 F.3d at 1316. In Holmes v. United States, the 

Circuit concluded that the settlement agreement contemplated money damages 

because in it the government had agreed to expunge the plaintiff’s disciplinary 

record and provide him with a neutral reference. See id. In Cunningham v. United 

States, the Circuit held that the agreement contemplated money damages because it 

“limited what information OPM could disclose and required OPM to remove 

[plaintiff’s] termination letter from his personnel file.” 748 F.3d at 1177. Similarly, 

in this case, the government agreed both to recode plaintiff’s employment 

documentation to indicate that she had voluntarily resigned, and to provide her with 

a neutral reference letter.

The only basis on which the government distinguishes Holmes or 

Cunningham, aside from its previously dispatched argument relating to MSPB 

jurisdiction, is its argument that plaintiff in this case limited her future employment 

options in ways that the plaintiff in Cunningham did not. See Doc. 12 at 14. The 

government posits that plaintiff’s case is more like Outlaw, in that Mr. Outlaw 

agreed to retire from federal service, and plaintiff agreed not to seek employment in 
the “Mid-Atlantic region of the [Department of Veteran’s Affairs] for thirty years.” 

See Doc. 12 at 16. The court disagrees. Agreeing to avoid one region of one agency 

simply is not analogous to retirement.

The court finds that the terms of the settlement agreement were meant to 

prevent plaintiff from being denied future employment outside of the Mid-Atlantic 

region of the Department of Veterans Affairs. And because there is no language in 

the agreement that specifically limits the availability of money damages in the event 

of a breach, that finding is a sufficient basis for this court’s jurisdiction under Federal 

Circuit precedent.

The government’s motion to dismiss is DENIED.

SO ORDERED.

s/James F. Merow 

James F. Merow

Senior Judge