Baker v. United States , 711 F. App'x 982 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PATRICK BAKER,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-1884
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00343-TCW, Judge Thomas C.
Wheeler.
______________________
Decided: October 6, 2017
______________________
PATRICK BAKER, Foreman, AR, pro se.
DANIEL S. HERZFELD, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,
JR., CLAUDIA BURKE.
______________________
Before LOURIE, O’MALLEY, and TARANTO, Circuit Judges.
2 BAKER v. UNITED STATES
PER CURIAM.
Patrick Baker appeals from a decision of the Court of
Federal Claims (“the Claims Court”) granting the De-
partment of the Army’s (“the Army” or “government”)
motion for summary judgment that the Army did not
breach a negotiated settlement agreement. See Baker v.
United States, 131 Fed. Cl. 62, 66 (2017) (“Claims Court
Decision”). For the reasons that follow, we affirm.
BACKGROUND
Baker worked at the Army’s Red River Army Depot in
Texarkana, Texas. On November 12, 2008, he and a
coworker consumed an alcoholic beverage before coming
to work, and they admitted to doing so when questioned
by a supervisor. In response, according to Baker, the
Army gave him a choice: voluntarily resign or be fired.
Baker chose to resign. After doing so, he learned that the
coworker had been allowed to continue his employment,
and Baker filed a racial discrimination claim against the
Army.
On August 11, 2009, Baker entered into a settlement
agreement with the Army (“the Agreement”), wherein the
Army agreed to “[p]lace [Baker] on a time limited ap-
pointment as a Heavy Mobile Equipment Repairer WG-
5803-08 in the Directorate for Maintenance Production,
Travel Division, effective not later than September 14,
2009.” Resp’t’s App. 12. By signing the Agreement,
Baker agreed that “[he] understands that his appointment
is contingent upon his meeting physical requirements for
the aforementioned position and meeting all suitability
requirements for placement.” Id. (emphases added).
Soon after executing the Agreement, Baker was ar-
rested and charged with “second degree domestic battery,
a terroristic act,” a felony under Arkansas law, which is
punishable by a three to ten year imprisonment and a
$10,000 fine. Baker was initially unable to pay his bond
BAKER v. UNITED STATES 3
and thus remained in custody until October 26, 2009. In
December 2009, Baker pleaded guilty to third degree
domestic battery, a misdemeanor, and was sentenced in
December 2010 to twelve months’ probation. While Baker
was in custody, an Army human resources specialist, Ms.
Shirley Hickson, attempted unsuccessfully several times
to contact him in order to complete the hiring process by
September 14, 2009, the deadline established by the
Agreement. Ms. Hickson finally made contact with Baker
on October 22, 2009.
In November 2009, the Army learned that felony
charges had been brought against Baker. Ms. Hickson
informed him that the Army would not be able to hire him
at that time because the then-pending charges “rendered
him unsuitable for employment.” Claims Court Decision,
131 Fed. Cl. at 64 (internal quotation marks omitted).
Baker unsuccessfully appealed the decision to the Army
and to the Equal Employment Opportunity Commission.
On April 1, 2015, Baker filed a complaint in the
Claims Court, alleging racial discrimination, defamation
of character, emotional stress, retaliation, and breach of
contract. The court dismissed all of Baker’s claims for
lack of subject-matter jurisdiction. See Baker v. United
States, 123 Fed. Cl. 203, 205 (2015), aff’d in part, rev’d in
part and remanded, 642 F. App’x 989 (Fed. Cir. 2016). On
appeal, we affirmed the dismissal, except as to Baker’s
breach of contract claim, which it found to be money-
mandating under the Tucker Act, and which it found
Baker had sufficiently pleaded, in light of the leniency
afforded pro se plaintiffs. See Baker v. United States, 642
F. App’x 989, 993 (Fed. Cir. 2016) (“[The Claims Court’s]
characterization fails to give [Baker’s] handwritten,
informal, pro se complaint the reading it warrants. Taken
as a whole, and read generously, Mr. Baker’s complaint
alleges that the Army breached the settlement agreement
by not giving him the promised job, seemingly because it
viewed his conviction as rendering him unsuitable.”).
4 BAKER v. UNITED STATES
This court remanded the case for further proceedings on
Baker’s breach of contract claim. Id.
On remand, Baker moved for summary judgment, ar-
guing that this court’s decision entitled him to summary
judgment on his breach of contract claim. See Claims
Court Decision, 131 Fed. Cl. at 64. In response, the
government filed a cross-motion for summary judgment,
arguing that Baker’s admission of pending criminal
charges rendered him unsuitable for employment. The
government also argued that, due to Baker’s incarcera-
tion, he was unavailable to perform the work contemplat-
ed in the Agreement on September 14, 2009, the agreed-
upon date. Id.
The Claims Court granted the government’s motion,
finding that this court’s previous decision, Baker, 642 F.
App’x at 993, did not entitle Baker to summary judgment.
Rather, the court explained, it merely required the court
to consider the merits of his breach of contract claim.
Claims Court Decision, 131 Fed. Cl. at 64–65. Upon
considering the merits, the court concluded that the
government was entitled to summary judgment because
Baker’s pending criminal charges rendered him unsuita-
ble for employment and because Baker was unavailable to
perform the employment contemplated by the agreement.
Id. at 65–66.
The Claims Court pointed to the terms of the Agree-
ment, which conditioned Baker’s employment on “his
meeting . . . all suitability requirements for placement.”
Resp’t’s App. 12. The court found that standard Army
procedure was to “assess[] suitability, in part, with Option
Form 306 which specifically asks whether the applicant
has any pending criminal charges.” Claims Court Deci-
sion, 131 Fed. Cl. at 65. Furthermore, the court found
that according to the Army’s Suitability Processing Hand-
book, criminal charges will render an applicant with
pending criminal charges unsuitable for employment until
BAKER v. UNITED STATES 5
the “case is disposed.” Id. (internal quotation marks
omitted); see also Resp’t’s App. 42 (The Suitability Pro-
cessing Handbook, which states that “[c]riminal activity
creates doubt about a person’s judgment, reliability, and
trustworthiness” because “[b]y its very nature, it calls into
question a person’s ability or willingness to comply with
laws, rules, and regulations” and that “pending charges of
a nature that are potentially disqualifying cannot be
adjudicated until the case is disposed”).
Because Baker had informed the Army that he was
currently facing criminal felony charges, the Claims Court
concluded that the Army “properly found Mr. Baker
unsuitable using standard Army procedures” and thus did
not breach the terms of the Agreement. Claims Court
Decision, 131 Fed. Cl. at 65. The court also found that,
due to his incarceration and probation, Baker was una-
vailable to perform the job contemplated in the Agree-
ment and thus “did not satisfy a condition precedent to
receiving compensation under the agreement.” Id. at 66.
For those reasons, the Claims Court granted the gov-
ernment’s motion for summary judgment. Baker timely
appealed. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).
DISCUSSION
This court “review[s] the Claims Court’s grant of
summary judgment de novo.” Amergen Energy Co. v.
United States, 779 F.3d 1368, 1372 (Fed. Cir. 2015).
Summary judgment is appropriate if there is no genuine
dispute as to any material fact and the moving party is
entitled to a judgment as a matter of law. See Fed. R. Civ.
P. 56(a); Consol. Edison Co. v. Richardson, 232 F.3d 1380,
1383 (Fed. Cir. 2000). On a motion for summary judg-
ment, “all evidence must be viewed in the light most
favorable to the nonmoving party, and all reasonable
factual inferences should be drawn in favor of the non-
6 BAKER v. UNITED STATES
moving party.” Dairyland Power Coop. v. United States,
16 F.3d 1197, 1202 (Fed. Cir. 1994).
Baker argues that the Claims Court misapplied the
governing law, specifically 5 C.F.R. § 731.202. Baker also
contends that the Claims Court’s grant of summary
judgment contradicts this court’s previous decision revers-
ing the court’s dismissal for lack of subject-matter juris-
diction. See Baker, 642 F. App’x at 993.
The government responds that the Claims Court cor-
rectly applied the law and that this court’s previous
decision merely required the Claims Court to consider the
merits of Baker’s claim, not to rule in his favor.
We agree with the government. Although Baker dis-
putes some background facts, the material facts in this
case appear to be undisputed. Specifically, Baker does
not dispute that the Agreement conditioned Baker’s
employment on his meeting suitability requirements; that
the Army learned of Baker’s pending criminal charges; or
that its suitability determination was based on those
charges. Thus, summary judgment was an appropriate
action on remand from this court, so long as the govern-
ment was entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(a). We conclude that it was.
An agency operating by delegation from the Office of
Personnel Management (“OPM”) “must base [a] suitabil-
ity determination on the presence or absence of one or
more specific factors,” including “criminal or dishonest
conduct.” 5 C.F.R. § 731.202(a), (b)(2). Indeed, OPM’s
Suitability Process Handbook states that “[c]riminal
activity creates doubt about a person’s judgment, reliabil-
ity, and trustworthiness” because “[b]y its very nature, it
calls into question a person’s ability or willingness to
comply with laws, rules, and regulations.” Resp’t’s App.
42. The Handbook specifies that “pending charges of a
nature that are potentially disqualifying cannot be adju-
dicated until the case is disposed.” Id.
BAKER v. UNITED STATES 7
Baker does not dispute that his charges were still
pending and thus that the case could not be disposed of by
September 14, 2009. In fact, Baker’s attorney had con-
tacted the Army on November 4, 2009, indicating that
Baker was awaiting confirmation from the prosecutor
about a plea bargain, but that the prosecutor “[could not]
dispose of the case right now.” Id. at 36. Furthermore,
the Agreement specifically conditioned Baker’s employ-
ment “upon his meeting . . . all suitability requirements
for placement.” Id. at 12.
Thus, the Claims Court correctly concluded that the
government was entitled to judgment as a matter of law.
The terms of the Agreement allowed the Army to evaluate
Baker’s suitability for employment and, finding him
unsuitable, to refuse employment for his having failed to
meet “all suitability requirements.” Id. And the Army’s
determination of unsuitability based on Baker’s pending
criminal charges was in accordance with law. See 5
C.F.R. § 731.202(a), (b)(2).
Because we conclude that the Claims Court correctly
determined that the government was entitled to withhold
employment based on its suitability determination, we
need not address the court’s finding that Baker was
unavailable for employment and thus failed to meet a
condition precedent of the Agreement.
CONCLUSION
We have considered the remaining arguments but
find them to be unpersuasive. For the foregoing reasons,
we affirm the decision of the Claims Court.
AFFIRMED
COSTS
No costs.