Townsend v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
LORRAINE TOWNSEND,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant- Appellee.
__________________________
2012-5020
__________________________
Appeal from the United States Court of Federal
Claims in Case No. 11-CV-312, Senior Judge Eric G.
Bruggink.
___________________________
Decided: March 8, 2012
___________________________
LORRAINE TOWNSEND, of Arlington, Virginia, pro se.
DELISA M. SANCHEZ, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for defendant-appellee.
With her on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and HAROLD
D. LESTER, JR., Assistant Director. Of counsel was KAREN
TOWNSEND v. US 2
A. NAPPO, Counsel, United States Department of Navy, of
Washington, DC.
__________________________
Before BRYSON, MAYER, and MOORE, Circuit Judges.
PER CURIAM.
DECISION
Lorraine Townsend appeals from an order of the
Court of Federal Claims dismissing her claims for lack of
subject matter jurisdiction and for failure to state a claim
upon which relief can be granted. We affirm.
BACKGROUND
Ms. Townsend was employed as an auditor for the
Department of the Navy from July 20, 1986, to June 26,
2009. Throughout most of her tenure, Ms. Townsend was
given good evaluations and was regularly promoted. In
January 2004, Ms. Townsend filed a complaint with the
Equal Employment Opportunity Commission (“EEOC”)
alleging workplace discrimination because she did not
receive a bonus and a promotion. In 2005 and 2006, she
supplemented her discrimination complaint to include
subsequent denials of bonuses and promotions. After her
job performance was rated as unsatisfactory the following
year, Ms. Townsend again amended her complaint to
include that rating. She amended her complaint in 2008
after again receiving unsatisfactory ratings.
In 2008, Ms. Townsend and the Navy entered a set-
tlement of her EEOC complaint whereby the Navy agreed
to increase her rating and pay for 2007 if she maintained
“good behavior” for six months. The settlement agree-
ment defined “good behavior” as “turn[ing] in all of her
3 TOWNSEND v. US
assignments” and “not rais[ing] her voice to her co-
workers or her supervisors [and] not contradict[ing] her
superiors in front of the auditees.” The Navy later deter-
mined that Ms. Townsend had not maintained “good
behavior” during that six-month period, and it therefore
did not increase her rating or pay for 2007. Ms. Town-
send complained that the Navy had breached the settle-
ment agreement, but the agency rejected her claim. She
then filed an appeal with the EEOC asserting that the
Navy had breached the settlement agreement, but EEOC
rejected her claim. In its opinion addressing her claim of
breach, the EEOC noted that the agency had introduced
statements from employees indicating that Ms. Townsend
had raised her voice to agency employees on at least two
occasions, to a co-worker and a supervisor, within the six-
month period. The EEOC stated that Ms. Townsend had
sought to explain those situations and had complained
about the terms of the agreement, but had failed to pro-
vide any documentation to indicate that she had complied
with the “good behavior” clause of the agreement. The
EEOC therefore found that Ms. Townsend had breached
the settlement agreement and that the agency was there-
fore not obligated to comply with its part of the agree-
ment. Ms. Townsend sought reconsideration of that
decision, which the EEOC denied.
In June 2009, the Navy terminated Ms. Townsend’s
employment for poor performance. She appealed her
termination to the Merit Systems Protection Board.
Following a two-day evidentiary hearing, the administra-
tive judge who was assigned to the case held that the
Navy’s decision to remove Ms. Townsend was justified.
The administrative judge also rejected her affirmative
defenses of age discrimination and retaliation for having
filed EEO claims.
TOWNSEND v. US 4
Ms. Townsend then filed a complaint in the United
States District Court for the District of Columbia in which
she again raised her claims of age discrimination and
retaliation, as well as claims asserting improper removal,
breach of contract, and denial of various constitutional
rights. The district court dismissed some of her claims on
jurisdictional grounds and granted summary judgment as
to others. Townsend v. Mabus, 736 F. Supp. 2d 250(D.D.C. 2010). As to her claim of breach of contract, the
district court understood that claim to be based on her
contention that the Navy had breached the EEOC settle-
ment agreement in 2009. The court noted that it did not
have jurisdiction to address that claim and that contract
claims against the government are ordinarily within the
jurisdiction of the Court of Federal Claims. Id. at 251-52
n.2. The United States Court of Appeals for the District
of Columbia Circuit affirmed the district court’s order; as
to the breach of contract claim, it noted, as had the dis-
trict court, that claims based on contracts with the gov-
ernment fall within the jurisdiction of the Court of
Federal Claims, not the district courts. Townsend v. Dep’t
of the Navy, No. 10-5332, 2011 U.S. App. LEXIS 17664(D.C. Cir. Mar. 23, 2011) (unpublished).
Ms. Townsend then filed the present case in the Court
of Federal Claims. In her complaint she raised all of the
same issues that she had raised before the district court.
Her complaint alluded to the agency’s asserted breach of
the EEOC settlement agreement and, in particular, to her
claim that the denial of her request to cross-examine
individuals who had made statements regarding that
issue denied her due process. She made no other refer-
ences in her complaint to any breach of contract. In her
opposition to the government’s motion to dismiss her
complaint, however, Ms. Townsend argued that her
employment with the government “is an employment
5 TOWNSEND v. US
contract” and that pursuant to her employment contract,
she had the right “not to be terminated without just
cause; and the right for the United States[] agency to
comply with federal regulations.”
The Court of Federal Claims dismissed Ms. Town-
send’s complaint. The court interpreted her complaint to
allege violations of her rights under the Fourteenth
Amendment to the Constitution and Title VII of the Civil
Rights Act of 1964 “in connection with personnel actions
taken and not taken during her employment with the
Navy.” The court added that Ms. Townsend had alleged
that “her rights were violated when the Navy did not
consider her for a promotion, did not give her a bonus,
gave her a poor performance rating, placed her on admin-
istrative leave, and eventually terminated her employ-
ment.” The court first explained that it lacked
jurisdiction over civil rights claims brought under the
Fourteenth Amendment and the Civil Rights Act of 1964.
The court then noted that, to the extent Ms. Townsend’s
complaint could be construed to allege statutory and
constitutional objections to her ratings and termination,
her claims had to be dismissed on res judicata grounds
because they had already been considered and rejected by
the United States District Court for the District of Co-
lumbia, which had held that there was a valid, non-
discriminatory basis for Ms. Townsend’s performance
ratings and termination. Finally, the court noted that in
her response to the motion to dismiss, Ms. Townsend
alleged that the Navy had breached an employment
contract with her. The court held, however, that she had
failed to allege in her complaint or in any other submis-
sion to the court any facts that would give rise to a valid
contract claim within the court’s jurisdiction, because the
benefits of federal employment flow from appointment,
not from a contractual or quasi-contractual relationship.
TOWNSEND v. US 6
DISCUSSION
On appeal, Ms. Townsend asserts that she was wrong-
fully terminated and that her termination was effected
without the benefit of procedures required by agency
regulations and due process. She adds that she has not
had an opportunity to fully contest her termination in
court.
The proper forum for Ms. Townsend to challenge her
removal was the Merit Systems Protection Board. In fact,
not only did she take advantage of her right to challenge
her removal in that forum, she was afforded a full adver-
sary hearing before the Board. Following the hearing, the
Board administrative judge issued a lengthy opinion
denying all of Ms. Townsend’s claims, including her claim
that her removal was unjustified, that the agency was
guilty of age discrimination, that the agency retaliated
against her for engaging in protected equal employment
opportunity activities, and that the agency committed
harmful procedural error in failing to follow statutory and
regulatory requirements relating to her removal.
In the aftermath of that decision, Ms. Townsend filed
an action in district court raising a variety of constitu-
tional and statutory claims relating to her removal. The
district court granted summary judgment as to all of
those claims on the ground that Ms. Townsend had failed
to adduce any specific facts showing that there was a
genuine issue for trial on those claims. With respect to
Ms. Townsend’s assertion that the agency had breached
the July 2008 EEOC settlement agreement, the district
court held that the claim fell outside its jurisdiction;
because the court concluded that the Court of Federal
Claims “may have jurisdiction over plaintiff’s claims that
the government violated the settlement agreement be-
7 TOWNSEND v. US
tween the parties,” the court dismissed that claim without
prejudice. Townsend v. Mabus, 736 F. Supp. 2d at 254
n.5.
Before the Court of Federal Claims, and again on ap-
peal before this court, Ms. Townsend has focused on her
alleged wrongful termination. She alleged that she was
terminated without the required procedural measures
and in violation of various statutory and constitutional
protections. The Court of Federal Claims correctly held
that it lacked jurisdiction over those claims and that, in
any case, the issues relating to her removal had already
been resolved in other proceedings. By the time Ms.
Townsend filed her complaint in the Court of Federal
Claims, the removal appeal before the Merit Systems
Protection Board and the discrimination action before the
district court had both become final. The Court of Federal
Claims therefore properly held that efforts to obtain
further review of her removal action in another forum
were barred both because the Court of Federal Claims
lacks jurisdiction over federal employee appeals from
adverse agency actions, see United States v. Fausto, 484
U.S. 439 (1988), and because her removal challenges had
already been decided by other jurisdictionally competent
forums and were thus barred by principles of res judicata.
Relying on the district court’s statement that the
Court of Federal Claims might have jurisdiction over her
contract-based claim of breach of the July 2008 EEOC
settlement agreement, Ms. Townsend argued before the
Court of Federal Claims that her employment with the
Navy was “an employment contract” and that the Navy’s
conduct in removing her breached that contract. In fact,
however, it is well settled that employment within the
federal civil service system is a product of appointment,
not contract, and that removal from federal civil service
TOWNSEND v. US 8
does not give rise to an action for breach of contract
within the jurisdiction of the Court of Federal Claims.
See United States v. Hopkins, 427 U.S. 123, 128 (1976).
Ms. Townsend was an appointed federal employee and, as
such, cannot assert a breach of contract claim against the
government that would lie in the Court of Federal Claims.
Hamlet v. United States, 63 F.3d 1097, 1101 (Fed. Cir.
1995).
Contrary to Ms. Townsend’s characterization, the is-
sue that the district court noted might be within the
jurisdiction of the Court of Federal Claims was not the
alleged breach of her employment contract by her wrong-
ful removal, but the alleged breach of the July 2008
EEOC settlement agreement. As this court has held, the
breach of a settlement agreement can fall within the
jurisdiction of the Court of Federal Claims under the
Tucker Act, 28 U.S.C. § 1491(a)(1). See Holmes v. United
States, 657 F.3d 1303 (Fed. Cir. 2011). However, Ms.
Townsend did not focus on that breach-of-contract claim
before the Court of Federal Claims; instead, she repeat-
edly stated that her claim arose from her removal from
federal service and the breach of her purported “employ-
ment contract” with the United States. The only refer-
ence to the July 2008 EEOC settlement agreement in her
complaint before the Court of Federal Claims was in
paragraph 15 of the complaint, which reads in its en-
tirety:
Plaintiff filed a non compliance request to the
EEOC settlement agreement of July 2008 request-
ing a hearing to cross exam the individuals that
made unsworn or unauthorized statements. Re-
quest was denied which was in violation of consti-
tutional rights of Amendment 14 of due process.
9 TOWNSEND v. US
It is not clear that the quoted paragraph was intended
to state a separate claim for breach of the EEOC settle-
ment agreement. Instead, that paragraph appears to be
part of the complaint’s recitation of the events leading to
Ms. Townsend’s removal, which she contends was effected
for unlawful reasons and without due process. 1 In light of
the fact that Ms. Townsend’s briefing before the Court of
Federal Claims focused on the claim that the Navy
breached her employment contract by removing her
without just cause and without due process, it was rea-
sonable for the Court of Federal Claims to treat her
contract claim as directed to her removal, not to the
previous dispute over the July 2008 EEOC settlement
agreement. Because the Court of Federal Claims cor-
1 Ms. Townsend’s allegation of noncompliance with
the July 2008 settlement agreement was addressed and
rejected by the EEOC. Many of the same allegations were
also at issue in the Merit Systems Protection Board
proceeding, where the administrative judge upheld the
charges against Ms. Townsend after an adversary hearing
at which she was given the opportunity to call witnesses
and cross-examine the witnesses against her. Thus, even
if the Court of Federal Claims had treated her settlement
agreement allegations as constituting a separate breach-
of-contract claim, the claim would appear to be foreclosed
by the doctrine of issue preclusion based on the prior
Merit Systems Protection Board and EEOC decisions. See
Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104,
107 (1991) (giving preclusive effect to prior administrative
determination); Univ. of Tenn. v. Elliott, 478 U.S. 788,
797 (1986) (“[I]t is sound policy to apply principles of issue
preclusion to the fact-finding of administrative bodies
acting in a judicial capacity.”); United States v. Utah
Constr. & Mining Co., 384 U.S. 394, 421-22 (1966) (same);
Tex. Instruments Inc. v. Cypress Semiconductor Corp., 90
F.3d 1558, 1568 (Fed. Cir. 1996) (administrative agency
decision may be given preclusive effect in subsequent
court action unless Congress has indicated it intended
otherwise).
TOWNSEND v. US 10
rectly held that Ms. Townsend has no contract-based
right to challenge her removal from federal service, the
court properly ruled that her complaint had to be dis-
missed.
In short, Ms. Townsend has already had two opportu-
nities to challenge her removal: before the Merit Systems
Protection Board and before the United States District
Court for the District of Columbia. She complains that
she has not had an opportunity to present her side of the
case regarding her removal and has not had the chance to
challenge the evidence against her. To the contrary, she
had that opportunity before the Merit Systems Protection
Board, although she did not prevail in that forum despite
having a full hearing on the propriety of her removal. She
then failed to make a showing sufficient to persuade the
district court that there were disputed facts relating to
her constitutional and statutory challenges to her re-
moval. The Court of Federal Claims properly held that
she is not entitled to a third opportunity to challenge her
removal in yet another forum.
No costs.
AFFIRMED