Brizuela v. United States

103 Fed. Cl. 635, 2012 U.S. Claims LEXIS 80, 2012 WL 640018
United States Court of Federal Claims·Decided February 29, 2012·No. No. 09-797C·Published·Cited by 20 cases

Opinion

OPINION

BRUGGINK, Judge.

This is an action for breach of an Equal Employment Opportunity Commission settlement agreement. Pending is defendant’s motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Rules of the Court of Federal Claims (RCFC). The matter is fully briefed. Oral argument is deemed unnecessary. For the reasons set out below we grant the motion to dismiss.

BACKGROUND

Francisco Brizuela, plaintiff, was employed as a mail handler in Amarillo, Texas, by the United States Postal Service (“USPS”) until he was terminated on April 3, 1985, during his initial probationary period. Compl. ¶ 19; Def.’s Ex. B. On April 16, 1985, plaintiff filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) against the USPS. The complaint alleged the USPS discriminated against him on the basis of national origin.

Plaintiff entered into a settlement agreement with the USPS on June 18, 1985 (the “Agreement”). Def.’s Ex. A. The Agreement provided, in part, that plaintiff could “submit a request for reinstatement into the Amarillo, Texas Post Office as a ... Career Mail Handler.” Id. Per the Agreement, plaintiffs reinstatement request would receive “full, fair, and just consideration” upon the availability of a mail handler position in the Amarillo Post Office and plaintiff would experience “no acts of reprisals and/or retaliations” for filing the EEOC complaint. Id. The Agreement also provided that “if and/or when there is a favorable consideration given to the re-instatement” plaintiff would serve a 90-day probationary period. Id.

On June 19, 1985, plaintiff submitted a request to be reinstated as a mail handler at the Amarillo Post Office. In a letter dated July 31, 1985, the Amarillo Postmaster, Donald S. Boyd, informed plaintiff that the Amarillo Post Office was not hiring. The letter also informed plaintiff that his reinstatement request would be “placed on file for one year.” Pl.’s Ex. 3.

Nearly sixteen years later, in February 2001, plaintiff contacted the Amarillo Post Office and provided it with copies of his 1985 reinstatement request, the Agreement, and the July 31, 1985 letter. The Amarillo Post Office discovered that plaintiff had recently applied for a position at the San Diego Post Office and now resided in San Diego. Plaintiff was advised to contact the human resources department of the San Diego Post Office.

Plaintiffs application to the San Diego Post Office represented that he had never been terminated from any job. Upon review of plaintiffs application and his USPS personnel file, the San Diego Post Office discovered plaintiffs 1985 termination from the Amarillo Post Office and asked him for an explanation. After plaintiff provided an explanation for his termination, plaintiff was hired as a custodian and laborer by the San Diego Post Office in November of 2004.

On February 13, 2006, plaintiff filed an agency complaint with the USPS alleging breach of the Agreement. On April 6, 2006, the USPS issued a final agency decision finding that the USPS had not breached the Agreement. Def.’s Ex. E. Plaintiff appealed to the EEOC, and the USPS’s decision was affirmed by the EEOC on September 10, 2007. Def.’s Ex. F.

Plaintiff filed a complaint in the United States District Court for the Southern District of California on December 11, 2007. On August 13, 2009, the District Court determined that plaintiffs claim was for breach of contract and ordered the suit transferred to this court. Plaintiff filed his transferred complaint on December 22, 2009, and amended the complaint on August 3, 2010. The case was stayed on November 5, 2010, because the Federal Circuit’s resolution of Holmes v. United States, 657 F.3d 1303 (Fed.Cir.2011), was directly relevant and potentially controlling of the resolution of the issues presented here.

Plaintiff asserts that the USPS breached the Agreement by failing to fully and fairly consider him for reinstatement and for fail[638] ure to ensure that he did not experience any “acts of reprisal and/or retaliation.” Compl. ¶ 30. Plaintiff further alleges that the USPS breached the implied covenant of good faith and fair dealing because the USPS did not perform under the Agreement as reasonably expected. Plaintiff also makes a claim that the Postmaster, within the course and scope of his authority for the USPS, intentionally deceived plaintiff in the July 31, 1985 letter by stating that the Amarillo Post Office was not hiring new employees.

Defendant filed a motion to dismiss for lack of subject matter jurisdiction under RCFC 12(b)(1). Defendant makes two arguments: (1) that the Agreement is not money-mandating, therefore, this court does not have jurisdiction under the Tucker Act; and (2) this court does not have jurisdiction because plaintiffs claims are barred by the six-year statute of limitations set forth in the Tucker Act, 28 U.S.C. § 2501 (2006). We agree only with the second contention.

DISCUSSION

Jurisdiction is a threshold matter. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). If the court determines that it lacks subject-matter jurisdiction, it must dismiss the action. RCFC 12(h)(3). In considering defendant’s motion to dismiss, we must assume factual allegations in the complaint are true and draw all reasonable inferences in plaintiffs favor. Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995). Plaintiff, however, bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988).

I. The court has jurisdiction over breach of the EEOC agreement

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Brizuela v. United States, 103 Fed. Cl. 635, 2012 U.S. Claims LEXIS 80, 2012 WL 640018 (uscfc 2012).

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