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# /tltrsl @[uims No. 13-651C (Filed May 

### 7,2014) NOT FOR 

### PUBLICATION
* * * * r. :kt( * * * * * rk* tl * * * * * * * * *


### * 

### KAMINI HAWN, 

### Plaintiff,

THE 

### UNITED STATES,

Defendant.



### ************************

MEMORANDUM OPINION AND ORDER WOLSKI, Judge. Pending before 

### the Court is defendant's motion to dismiss the complaint for lack of subject-matter

### jurisdiction and for

### failure to state aclaim uponwhich 

### relief
can be granted, under the Rules ofthe 

### United States Court of Federal Claims (RCFC) 12(bX1) and 12(bX6). For the reasons set

### forth below, the Court finds 

### that 

### it lacks 

### jurisdiction over 

### plaintiff s

### claims. Defendant's motion to dismiss is 

### GRANTED. 

## I. BACKGROUND 

### Plaintiff, proceeding pro se,

### filed her complaint 

### in this court on September 6, 

### 2013. Compl. 

### at 1. Plaintiff alleges 

### that the Defense Language 

### Institute, United States

### Army Garrison, Presidio of Monterrey, 

### California (DLI), 

### retaliated against her when she informed the Inspector General's office (IG) about perceived harassment and 

### discrimination and

### that the 

### DLI then breached theterms ofthe related settlement agreement. Compl. 

### at 

### 1-2. The relevant facts have been alleged
as follows. 

### Plaintiffwas employed as a 

### Hindu language 

### instructor at the 

### DLI from 

### April 2007 

### until June 2009 under a

### pair of

### thirteen-month temporary 

### appointments. PI.'s 

## FILED
MAY ? 2OI4
,EiiaSR'u8h?fisObjection to Def.'s Mot. to Dismiss (Pl.'s Opp'n), Ex. 1

### at 

### 1-2' OnJune 2, 2009, she

fiIed a harassment complaint through the Department ofthe 

### Army Inspector General Action Request 

### System. Compl., Ex. 2

### at 

### 1-6. The complaint was closed on June 12. 2009, whenthe dean

### ofplaintiffs department atthe 

### DLI found no evidence to substantiate the harassm 

### ent. Id.. at

### 6. on June 19, 2009, 

### plaintiff was informed 

### that her appointment would not be extended. Pl.'s 

### opp'n, Ex.

### 4. Though the 

### letter indicates 

### that 

### plaintiffs term 

### will not be extended, the paperwork confirming her appointment through 

### July of2010 had already been processed' Pl"s Opp'n, 

### Ex' 1at 

## f-i. plui.ttlff makes much of

### this distinction. Pl.'s Opp'n 

### at 1-2 ("Extension 

### of contract was reversed[,] which is breach of

### contract."). one week 

### later on June 26, 2009, 

### plaintiff was removed from her position as a language 

### instructor atthe 

### DLI. Pl.'s Opp'n, Ex. 4. 

### Plaintiff then fiIed claims 

### with the Equal 

### opportunity office and the 

### u.s. Merit systems Protection Board 04SPB), alleging

### that she was discriminated against on the basis 

### ofher age and 

### religion and

### that she was dismissed because

### of 

### hlr whistleblowing 

### activities. See PI.'s Opp'n, Ex. 8

### at 13' On

### April 21, 2010'the EEOC issued a decision denying 

### plaintiffs claim and advising 

### plaintiff ofthe 90-day period 

### within which she could

### file a complaint 

### in district court. see compl., Ex. 1

### at

a. 

### Plaintiff reached asettlement agreement 

### with the

### Army onAugust 30, 2010. Pl.'s Opp'n, Ex.

### 6. As 

### part ofthe settlement defendant agreed to "[a]ccept employment

### with the 

### bepartment ofthe 

### Army 

### in a language 

### instructor capacity for

u

### p"tioa of

### thirteen (13) months 

### if she successfully passes the 

### Urdu OPI test" and 

### ptuintiff, in

### turn, agreed to

### withdraw and dismiss her claims 

### with prejudice. 

### Id. at 

## i-S. Plalntiff later sought to set aside 

### this agreement, contending the government had misrepresented the demand for language 

### instructors at 

### DLI during the settlement 

### negotiations. Mot. to Dismiss, Ex. B at 2; Compl. 

### at2; see

### compl- Ex. B. 

### An 

### adninistrative lawjudge (ALJ) atthe MSPB set aside the settlement and considered 

### plaintiff s

### whistleblowing allegations. Mot. to Dismiss, Ex. B at

### 2. on March 

### 2, ZOLZ, tl.re

### ALJ issued a 

### ruling finding

### that the

### Army had established by clear and convincing evidence 

### that 

### it would haveterminated 

### plaintiff absent the 

### whistleblowing 

### activity. Id.



### on March 27,2012, following the

### AIJ,s ruling, 

### plaintiff appealed to have her

case reviewed bythe

### full MSPB and requested

### that she "be immediately reinstated 

### into a pay status

### with back pay and back 

### benefits." see Mot. to Dismiss, Ex. A 

### at 

### 1- 

### 2. Th; d11 MSpB issued

### final orders denying 

### relief on

### August 1and September 13, 2012, 

### finding 

### that no new evidence warranted reversing theALJ's decision, and 

### informing 

### plaintiff that she could appealthe decision to the Federal

### circuit. .Id., Ex.

### A at 

### i-+, n*. B

### at 

### 1-4. (You have a 

### right to request the 

### United States Court 

### of

aAppeals for the Federal 

### Circuit review 

### this

### final decision [no 

### later than 60 days

after 

### this order].").
Instead of appealing to the Federal 

### Circuit, 

### plaintiff frled acomplaint against the 

### DLI in the 

### United states 

### District court for the 

### Northern 

### District of 

### california
on September 26,2012, seemingly alleging

### that the government had discriminated against her 

### in violation of

### Title 

### VII ofthe 

### Civil Rights Act,42 U'S.C. S2000(e) et. seq., andthe Age 

### Discrimination 

### in EmploymentAct, 29 U'S.C. S621 et. 

### seq' See Compl., Ex. 1

### at 1. The 

### District Court granted defendant's motion to dismiss 

### plaintiffs claims on

### July 29, 2O13. 

### Hawn u. McHugh, No. 5:12-cv-05014, 2013

### WL 395838?, at 

### *4 (N.D' Cal.

### Julv 29,2013).r The court informed 

### plaintiff that 

### if she wanted to continue to pursue her 

### retaliation claim, the proper course was an appeal to the Federal 

### Circuit, not a new complaint 

### in the 

### District Court. 1d' 

### at*4 n.2.


### Plaintiff filed acomplaint 

### in this court on September 6, 2013, alleging 

### that she was 

### fraudulently induced to enter 

### into asettlement agreement 

### with the 

### united states 

### Army. Plaintiff claims 

### that defendant's actions led to her 

### unfair dismissal, "mental anguish and 

### [indigence]." Compl' at 

### 3. As a remedy 

### plaintiff seeks to be reinstated 

### in herjob atthe 

### DLIwith full pay, benefrts, tenure and 

### back'pay. 'Id' at 3. Defendant frled a motion to dismiss 

### in lieu of an answer on November 4, 2013, containing two 

### principle argumentsfor 

### dismissal' First, defendant argues 

### that the Court does not have

### jurisdiction over 

### plaintiffs claim becausethe Court lacks

### jurisdiction over claims 

### thatfall 

### within the

### jurisdiction ofthe 

### MSPB. Mot. to Dismiss at 3 

### (citing Contreras u. 

### United States, 64 Fed' Cl. 583, 587 (2005)'

### aff'd 168 F.App'x 938 (Fed. Cir. 2006)). Inasmuch as

### plaintiffs claim is an appeal ofthe MSFB decision, defendant argues 

### that the Court has no

### jurisdiction to hear appeals from the 

### MSPB. 

### Id. at 3-4 (citing 5 U.S.C. S7703(bX1Xa)). Second, defendant argues 

### in the 

### alternative that 

### plaintiffs claims should be dismissed because she failed to state aclaim uponwhich relief can be granted under RCFC 

### I2b)(6). Id. at 

### 5-7. Since 

### plaintiff failed to "allege any basis for

### jurisdiction," defendant argues 

### that the complaint should be dismissed. 

### Id. at 6 (citing RCFC 8(aX1)). 

### Alternatively, the government contends 

### that 

### plaintiffs failure to present a

### prirna facie contracL claim based onthe settlement agreement should cause the 

### court to dismiss her 

### claim. Id. at 6-7 (citing BelI

### AtI. Corp- u.Twombly,550 

### U.S' 544, 555 (2007)).

1

### An amended complaint was subsequently filed, alleging age discrimination, 

### but

## it
was dismissed as

### time-barred. Hau;n u. McHugh, No. 5:12-cv-05OI4' 

### 20l4WL 232303 at *1 (N.D. CaI. Jan. 21,2014).

-3-

### Plaintiff, in opposing the motion, argues 

### that her claim is based onthe early



### termination of her appointment "which 

### is [a] breach of

### contract." Pl.'s Opp'n 

### at 1. She also claims 

### that the settlement agreement was "breached due to the Agency's 

### fraud and lies," and 

### lists the elements 

### ofher purported fraud claim against the 

### government. Pl.'s Opp'n at 2,

### 5. Plaintiff also makes some references, of unclear 

### import, to equitable 

### tolling and the Federal Circuit's 

### jurisdiction over appeals 

### of MSPB decisions concerning claims of 

### retaliation against

### whistleblowers. 

### Id. at 2-4. 

### In its reply 

### in support of 

### its motion to dismiss, the government reiterates 

### its argument 

### that, to the extent 

### plaintiff is appealing the decision ofthe MSPB, the 

### matter is outside our

### jurisdiction; 

### that the settlement agreement cannot support her claim because 

### it has been set-aside; and

### that 

### plaintiffs claims related to the 

### termination of herfederal employment cannot be heard 

### in this 

### court. Def.'s Reply to PI.'s Resp.to Def.'s Mot. to Dismiss at 3. 

## II. DISCUSSION
Under RCFC 12GX1), claims brought before

### this court must be dismissed when 

### it is shown

### that the court lacks 

### jurisdiction over

### their subject 

### matter. When considering a motionto dismiss for lack of subject-matter

### jurisdiction, courts

### will normally accept as

### true all factual allegations made bythe pleader and draw 

### all reasonable inferences 

### in the 

### light most favorable to

### that 

### party. See Scheuer u. Rhodes, 416 U.S. 232, 236 (I97 4); 

### Hxton u. 

### B&B Plastics, 

### Inc., 291 F.3d 1324, 1326 (Fed. 

### Cir. 2002) 

### (requiring

### that on a motionto dismiss for lack ofsubject-matter 

### jurisdiction the court views "the alleged facts in the complaint as

### true, and 

### if the facts reveal any reasonable basis uponwhich the non-movant may prevail, dismissal is 

### inappropriate"); CBY Design 

### Builders u. United States, 

### I05 Fed. Cl. 303, 325 (2012).
While apro se

### plaintiffs fiIings are to be 

### liberally construed, see Erichson v. 

### Pardus,551 U.S. 89, 94 (2007), 

### this lenient standard cannot save claims which are outside the court's

### jurisdiction from being dismissed, see, e.9., Henhe u. United States,60 F.3d 795, 799 (Fed. 

### Cir. 1995). The 

### party invoking a court's

### jurisdiction bearsthe burden of establishing 

### it, and must 

### ultimately do so by a preponderance 

### of the evidence. See 

### McNutt u. GMAC,298 U.S. 178, 189 (1936); Reynolds u.

### Army 

### & Air Force Exch. Seru., 846 F.2d 746, 748 (Fed. 

### Cir. L998); Rocouich u. United States, 933 F.2d 991, 993 (Fed. 

### Cir. 1991). 

### After considering defendant's argument and

### plaintiffs response and surreply, the court 

### GRANTS defendant's motionto dismiss 

### pursuant to RCFC 12(bX1)., Our court lacks

### jurisdiction over matters 

### thatfall within the

### jurisdiction
2 Because we conclude 

### that 

### plaintiffs claims are not

### within our

### jurisdiction, we do not reachthe government's 

### alternative argument.ofthe 

### MSPB. See Contreras,64 Fed. Cl. at 587 (holding

### that where "a 

### matter falls



### within the competence of the MSPB, 

### this Court is

### without jurisdiction") (citing 

### Lindahl u. OPM,470 U.S. 768 (1985)). The Court does not have

### jurisdiction over matters 

### falling 

### within the competence ofthe MSPB, 

### including 

### plaintiff scomplaint. 

### 1d. This is so even where, as appearsto bethe case here,the MSPB can afford a 

### plaintiff no 

### relief



## . United States u. Fausto, 484 U.S. 439, 455 (1988); McGee u. United States, SCI. 

### Ct.480,481 (1984).
There are three 

### different ways the Court could read 

### plaintiffs complaint, and under any ofthese readings we lack

### jurisdiction over

## it. First, to the extent 

### that plaintiff is appealing the MSPB's denial onthe merits of her 

### retaliation or whistleblower claim, which is suggested by her reference to having "exhausted 

### all of her 

### administrative remedies," we clearly lack

### jurisdiction over

## it. Under 5 U.S.C. $7703OX1)(a) a 

### "petition to review a

### final order or

### final decision of

### the |MSPBI shall befrled 

### in the 

### United States Court ofAppeals for the Federal 

### Circuit." As the Supreme Court explained, the

### jurisdiction granted under 5 U.S.C. S7703G)(1) is exclusive to the Court ofAppeals for the Federal 

### Circuit. Lind'ahl u. OPM,470 U.S. 768, 776 (1985). Thus 

### if plaintiff seeks to have

### this Court review the decisions of the MSPB, the complaint must be dismissed for lack of

### jurisdiction.
The second possible reading

### ofplaintiffs complaint is

### that she is 

### attempting to appeal, or 

### relitigate, the merits 

### ofher disputed early 

### termination. This reading is suggested by 

### plaintiffs references to the "[e]xtension of [her] contract" being "reversed" and

### this constituting a "breach of

### contract." Pl.'s Opp'n 

### at 

### 1-2. The problem 

### with this reading is

### that claims regarding the 

### termination of Federal employees are, absent special circumstances not present here, heard by the MSPB. See McGee, SCI. Ct. at 481 (holding

### that the remedies provided bythe 

### Civil Reform Act are "all-inclusive" 

### with respect to claims regarding dismissal of

### temporarily appointed employee); Hamlet u. United States, 873 F.2d 1414, 

### l4I7 n.5 (Fed. Cir. 1989) (explaining 

### that breach of contract actions byfederal employees based on 

### their employment are precluded). Review is excluded 

### in this court even 

### if, as was the case here, the 

### merits ofthe dismissal are not reviewable by the 

### MSPB. 1d,, Def.'s Mot., Ex. A at 2; Fausto,484 U.S. 

### at 455; McGee, 5 CI. Ct. 

### at 481.
The

### third possible reading

### ofplaintiffs complaint is

### that she is suing for breach 

### ofher settlement agreement.3 Though breach 

### ofa settlement agreement 3 To 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. $ 1491(a) ((2012) ("The 

### United States Court of Federal Claims shall have

### jurisdiction upon any claim against the 

### United States

. . . not sounding 

### in tort."); Phu Mang Phang u. United States,388 F.App'x 961. 963 Ged. 

### Cir.

## 2010).

_s_between afederal employee and the government can 

### fall 

### within our

### jurisdiction,

Holrnes u. United States,657 F.3d 1303, 1312 (Fed. 

### Cir. 2011), we cannot assert 

### jurisdiction over the settlement agreement because, as the 

### plaintiff admits, 

### it has been set

### aside. Compl. 

### l[ 2; Def.'s Mot., Ex. B at 2. Having concluded 

### that the Court lacks 

### jurisdiction over 

### plaintiffs claims, the Court addresses whether the interests 

### ofjustice are served by 

### transferring 

### plaintiffs clairns to another 

### court. See 28 U.S.C. $ 1631 (2012) ("[T]he court shall,

## if it is 

### in the 

### interest ofjustice, transfer [a

### civil action] to any other such court 

### in which the action or appeal could have been 

### brought."). Section 1631 

### permits transfer of aclaim only to acourt where the claim "could have been brought at the 

### time 

### it was

### fiIed." Title 5 Section 7703(bX1)(A) 

### inturn states 

### that appeals of MSPB decisions must befiled 

### in the 

### United States Court ofAppeals for the Federal 

### Circuit 

### "within 60 days after the 

### petitioner received notice 

### ofthe frnal order or decision 

### of the board."a The MSPB decisions were issued on

### August 12,2012, and September 13,2072, roughly one year before the complaint wasfiled 

### in this case. 

### Plaintiff has not claimed the MSPB failed to 

### inform her ofthese decisions 

### in a

### timely fashion. The burdenwould be on her to show 

### that she did not have

### timely notice 

### ofthe decision. Since she has failed to carry 

### that burden, her appealwould not have been 

### timely when

### filed and as such the Court cannot 

### transfer 

### plaintiffs caseto the Federal 

### Circuit. 

## III. CONCLUSION
For the reasons stated above, defendant's motion to dismiss 

### this casefor lack ofsubject-matter 

### jurisdiction, under RCFC 12(b)(1), is

### GRANTED' The Cierk shall closethe case. No costs shall be awarded.



### IT IS SO 

### ORDERED,

a On November 27 , 2012,after the relevant date 

### in this case, Congress changed the language of 5 U.S.C. S77030)(1) to state

### that appeals must befiled 

### "within 60 days 

### after the MSBP issues notice ofthe

### final order or the decision ofthe board." Judge

-6-