Appeal from the United States Court of Federal Claims in No. 1:13-cv-00270-EJD, Judge Edward J. Damich.
DAMON MATHIAS, Schulman Mathias PLLC, of Dallas, Texas, argued for plaintiff-appellant.
DOMENIQUE GRACE KIRCHNER, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. On the brief were STUART F. DELERY, Assistant Attorney General, ROBERT E. KIRSCHMAN, JR., Director, STEVEN J. GILLINGHAM, Assistant Director, and MICHAEL P. GOODMAN, Trial Attorney.
Before LOURIE, REYNA, and TARANTO, Circuit Judges. OPINION filed by Circuit Judge REYNA. Dissenting opinion filed by Circuit Judge TARANTO.
Reyna, Circuit Judge.
Richard Higbie appeals the Court of Federal Claims' dismissal of his claim for money damages against the United States Government for alleged breach of a confidentiality provision in an alternative dispute resolution agreement. The Court of Federal Claims determined that a purely non-monetary form of relief was available for any potential breach and, as a result, required Mr. Higbie to show the agreement could be fairly interpreted to contemplate damages. The Court of Federal Claims found that Mr. Higbie failed to make the required showing and dismissed his case for lack of jurisdiction under the Tucker Act. We agree that Mr. Higbie has not shown that the agreement in question can be fairly interpreted to contemplate money damages in the event of breach. As a result, the Court of Federal Claims lacked jurisdiction under the Tucker Act. We therefore affirm.
Mr. Higbie was employed as a Senior Criminal Investigator in the Dallas office of the Bureau of Diplomatic Security, a division of the United States State Department (" State Department" ). In January 2009, Mr. Higbie contacted an equal employment opportunity (" EEO" ) counsel to complain of alleged reprisal by the State Department for activity he had engaged in which he claimed was protected under the Civil Rights Act of 1964. Mr. Higbie filed a formal complaint in April 2009 and submitted a request that his complaint be processed through the State Department's alternative dispute resolution (" ADR" ) program. The Government approved his case for mediation.
During the lead up to the mediation, Mr. Higbie repeatedly inquired whether the mediation proceedings would be confidential. On several occasions, a State Department representative confirmed that they would be. According to Mr. Higbie, he was " purposefully negotiating" for confidentiality of the mediation by his repeated
questions so as to prevent his supervisors from " using anything that occurred" during the proceedings against him in his employment.
Three of Mr. Higbie's supervisors, including Marian Cotter and Jeffrey Thomas, signed the mediation agreement that would govern the proceedings. That agreement included the following confidentiality provision:
Mediation is a confidential process. Any documents submitted to the mediator(s) and statements made during the mediation are for settlement purposes only.
J.A. 127 (underlining in original). The parties did not resolve their dispute through mediation, and the EEO investigation continued. After the mediation, Ms. Cotter and Mr. Thomas provided affidavits to the EEO investigator, which are the basis for Mr. Higbie's claim for breach of contract. In their affidavits, Ms. Cotter and Mr. Thomas discussed the nature and content of Mr. Higbie's statements in the mediation proceedings and cast his participation in the proceedings in a negative light.
In October 2011, Mr. Higbie filed suit in the Federal District Court for the Northern District of Texas, asserting numerous causes of action, including claims for retaliation and discrimination. Mr. Higbie's complaint also included a claim for violation of the Alternative Dispute Resolution Act of 1996 (" ADRA claim" ) arising out of the two affidavits, provided by Ms. Cotter and Mr. Thomas, to the EEO-assigned investigator. According to Mr. Higbie, the information obtained through the mediation process was governed by a strict confidentiality provision outlined in the mediation agreement, and the disclosure of the affidavits constituted a breach of that provision.
The State Department moved to dismiss the ADRA claim for failure to state a claim upon which relief can be granted because the ADRA statute does not provide for recovery of money damages for breach of a confidentiality agreement. The district court granted the motion and also granted Mr. Higbie leave to file an amended complaint. Through amendment, Mr. Higbie removed his ADRA claim and, in its stead, alleged a claim sounding in contract for breach of the confidentiality provision. Mr. Higbie moved to transfer the newly added contract claim to the Court of Federal Claims. The district court granted the motion, leaving Mr. Higbie's other claims pending before the district court. Mr. Higbie then filed a transfer complaint in the Court of Federal Claims.
After the transfer, the Government moved in the Court of Federal Claims to dismiss Mr. Higbie's complaint for lack of jurisdiction on the grounds that the mediation agreement did not meet the judicially-imposed requirement that the agreement in question be moneymandating. In opposing the motion, Mr. Higbie argued that all mediation agreements contemplate money damages for breach of confidentiality agreements. Mr. Higbie drew support from a single case from California dealing with money damages, a single state statute from Florida discussing money damages for breach of confidentiality in mediation, and a series of other cases having no relation to the award of money damages for breach of a confidentiality provision.
The Court of Federal Claims found Mr. Higbie's arguments unpersuasive. The court acknowledged the presumption that a damages remedy is available for breach of contract. Where a purely non-monetary remedy exists, however, the court explained that it can require a showing that the contract can be fairly read to contemplate monetary damages before it may exercise
jurisdiction under the Tucker Act. Here, the court found the agreement in the dispute " clearly does not contemplate money damages," nor does it " address anything remotely monetary." Higbie v. United States, 113 Fed.Cl. 358, 364 (2013). Further, it found that the non-binding authorities Mr. Higbie cited do not establish that money damages should be awarded for any breach of mediation confidentiality in this case. Id. at 365. Thus, the Court of Federal Claims concluded that Mr. Higbie had not met his burden of showing the ...