Case: 19-2059 Document: 43 Page: 1 Filed: 06/15/2020
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`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`STEVEN J. OLIVA,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`______________________
`
`2019-2059
`______________________
`
`Appeal from the United States Court of Federal Claims
`in No. 1:18-cv-00104-LKG, Judge Lydia Kay Griggsby.
`______________________
`
`Decided: June 15, 2020
`______________________
`
`HAN PARK, Covington & Burling LLP, Washington, DC,
`argued for plaintiff-appellant.
` Also represented by
`RICHARD L. RAINEY; JENNIFER CIELUCH, New York, NY.
`
` DAVID PEHLKE, Commercial Litigation Branch, Civil
`Division, United States Department of Justice, Washing-
`ton, DC, argued for defendant-appellee. Also represented
`by JOSEPH H. HUNT, ELIZABETH MARIE HOSFORD, ROBERT
`EDWARD KIRSCHMAN, JR.
` ______________________
`
`Before NEWMAN, DYK, and WALLACH, Circuit Judges.
`
`

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`Case: 19-2059 Document: 43 Page: 2 Filed: 06/15/2020
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`2
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`OLIVA v. UNITED STATES
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`DYK, Circuit Judge.
`Steven J. Oliva appeals a decision of the Court of Fed-
`eral Claims (“Claims Court”) dismissing his complaint for
`failure to state a plausible claim for breach of contract dam-
`ages. We reverse and remand for further proceedings.
`BACKGROUND
`Mr. Oliva periodically worked for the United States De-
`partment of Veterans Affairs (“VA”) between 2000 and
`2016. Starting in 2012, Mr. Oliva worked as an Associate
`Director of Pharmacy Customer Care at the Health Re-
`source Center in Waco, Texas. On January 9, 2015, the VA
`issued a letter of reprimand to Mr. Oliva for accusing a su-
`pervisor of improperly pre-selecting an applicant for a po-
`sition. Mr. Oliva filed a formal grievance challenging the
`letter of reprimand on the ground that his email consti-
`tuted protected whistleblowing. On January 30, Mr. Oliva
`entered into an Equal Employment Opportunity settle-
`ment agreement (“the Settlement Agreement”) with the VA
`to resolve his grievance. The Settlement Agreement stated
`that the VA would provide:
`[A] [w]ritten reference for Mr. Oliva and the assur-
`ance of a positive verbal reference, if requested[.]
`A written reference will be provided by [Mr. Oliva’s
`supervisor]. Should [the supervisor] be asked to
`provide a verbal reference, he will not mention the
`retracted [r]eprimand [letter] and will limit infor-
`mation provided to that set forth in the written ref-
`erence.
`J.A. 96.
`Mr. Oliva’s amended complaint alleged that he “was
`wrongfully terminated from his employment with the [VA]
`in April 2016.” J.A. 91. The parties appear to agree that
`his termination was for performance reasons.
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`Case: 19-2059 Document: 43 Page: 3 Filed: 06/15/2020
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`OLIVA v. UNITED STATES
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`3
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` On January 22, 2018, Mr. Oliva filed a pro se complaint
`in the Claims Court, alleging that the VA had breached the
`Settlement Agreement on two occasions. The first alleged
`breach was in March 2015, when Mr. Oliva applied for a
`position as an Associate Director in the VA’s medical center
`in El Paso, Texas. According to the complaint, when the
`VA in Waco was contacted to provide a reference in support
`of his application, it disclosed the existence of the repri-
`mand letter. Mr. Oliva asserted that as a result, he did not
`receive an offer of employment at the El Paso position. Mr.
`Oliva alleged that but for the breach, he would have been
`hired for the position. The second alleged breach was in
`February 2016, when Mr. Oliva applied for a second posi-
`tion as a Healthcare Administrator in the VA’s healthcare
`center in Greenville, North Carolina. According to the com-
`plaint, a VA representative in Waco violated the Settle-
`ment Agreement by disclosing that Mr. Oliva was on a
`Temporary Duty Assignment, as well as the identity and
`contact information of his supervisor at the time. Mr. Oliva
`stated that, as a result, he did not receive an offer of em-
`ployment for the Greenville position. Mr. Oliva’s complaint
`again alleges that but for the alleged breach, he would have
`been hired for the Greenville position. He also alleges that
`he would have received salary and a relocation incentive
`payment from the VA if he had been hired for either job.
`The government moved to dismiss Mr. Oliva’s com-
`plaint for failure to state a claim for breach of contract. The
`Claims Court held that Mr. Oliva’s complaint “plausibly al-
`leged that the government breached the Settlement Agree-
`ment by disclosing his letter of reprimand—and the fact
`that plaintiff was on a temporary duty assignment—and
`that these alleged breaches resulted in the loss of future
`employment opportunities.” J.A. 80. On the other hand,
`the Claims Court held that “the most generous reading of
`the complaint shows that [the] plaintiff has not stated a
`plausible claim to recover relocation incentive payments
`from the government.” Id. The Claims Court referred Mr.
`
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`Case: 19-2059 Document: 43 Page: 4 Filed: 06/15/2020
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`4
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`OLIVA v. UNITED STATES
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`Oliva to a pro bono attorney to assist him in filing an
`amended complaint.
`On September 26, 2018, Mr. Oliva, now represented by
`counsel, filed an amended complaint repeating the allega-
`tions of the first complaint and seeking (1) $289,564 in lost
`salary and (2) either $86,304 in lost relocation incentive
`pay with respect to the El Paso position or $87,312 in lost
`relocation incentive pay with respect to the Greenville po-
`sition. The Claims Court dismissed the amended com-
`plaint, holding that Mr. Oliva had not stated plausible
`claims to recover lost salary or relocation incentive pay. On
`the issue of lost salary, the Claims Court held that Mr.
`Oliva had “allege[d] in the amended complaint that the VA
`breached the Settlement Agreement,” but that “the factual
`allegations in the amended complaint show that the termi-
`nation of [Mr. Oliva]’s employment in April 2016 [for per-
`formance reasons], rather than the VA’s alleged breach of
`the Settlement Agreement in February 2016, was the prox-
`imate cause of [Mr. Oliva]’s lost salary.” J.A. 11–12. On
`the issue of relocation incentive pay, the Claims Court held
`that Mr. Oliva had not alleged the prerequisite facts that
`would have made him eligible for such pay under the Office
`of Personnel Management (“OPM”) regulations because he
`had alleged neither (1) that he had the required status—
`i.e., that he was a “federal employee” with “a ‘Fully Suc-
`cessful,’ or equivalent, rating of record immediately before
`he would have relocated”—nor (2) that “the VA determined
`the amount of relocation pay that he would have received.”
`J.A. 9–11. Mr. Oliva appeals, and we have jurisdiction un-
`der 28 U.S.C. § 1295(a)(3).1
`
`
`1 The Claims Court had jurisdiction over Mr. Oliva’s
`breach of contract claim. See 28 U.S.C. § 1491(a)(1);
`Holmes v. United States, 657 F.3d 1303, 1312 (Fed. Cir.
`2011); Cunningham v. United States, 748 F.3d 1172
`(Fed. Cir. 2014).
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`OLIVA v. UNITED STATES
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`DISCUSSION
`The Claims Court may dismiss a complaint if it fails “to
`state a claim upon which relief can be granted.” Ct. Fed.
`Cl. R. 12(b)(6). We review the Claims Court’s dismissal for
`failure to state a claim de novo. Jones v. United States, 846
`F.3d 1343, 1351 (Fed. Cir. 2017). To survive a motion to
`dismiss, the complaint must provide “a short and plain
`statement of the claim showing that the pleader is entitled
`to relief,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
`(2007), with “sufficient factual matter . . . to state a claim
`to relief that is plausible on its face,” Ashcroft v. Iqbal, 556
`U.S. 662, 678 (2009). We take all plausible factual allega-
`tions in the complaint as true and construe the facts in the
`light most favorable to the non-moving party. Jones, 846
`F.3d at 1351.
`To recover for a breach of contract, “a party must allege
`and establish: (1) a valid contract between the parties, (2)
`an obligation or duty arising out of the contract, (3) a
`breach of that duty, and (4) damages caused by the breach.”
`San Carlos Irrigation & Drainage Dist. v. United States,
`877 F.2d 957, 959 (Fed. Cir. 1989). “Contract remedies are
`designed to make the nonbreaching party whole.” Cal. Fed.
`Bank v. United States, 395 F.3d 1263, 1267 (Fed. Cir.
`2005). “One way to achieve that end is to give the non-
`breaching party ‘expectancy damages,’ i.e., the benefits the
`nonbreaching party expected to receive in the absence of a
`breach.” Id. For expectancy damages, the party must
`“show that the claimed damages . . . would not have oc-
`curred but for the breach.” Fifth Third Bank v. United
`States, 518 F.3d 1368, 1374 (Fed. Cir. 2008). But-for or
`proximate causation requires “that the causal connection
`between the breach and the loss . . . be definitively estab-
`lished.” Cal. Fed. Bank, 395 F.3d at 1267–68 (internal quo-
`tation marks and citations omitted).
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`Case: 19-2059 Document: 43 Page: 6 Filed: 06/15/2020
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`6
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`OLIVA v. UNITED STATES
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`I
`Mr. Oliva argues that the Claims Court erred when it
`held that Mr. Oliva had failed to state a plausible claim to
`recover lost salary based on a finding that “the termination
`of [Mr. Oliva]’s employment [for performance reasons] in
`April 2016,” rather than the VA’s alleged breaches of the
`Settlement Agreement was “the proximate cause of [Mr.
`Oliva]’s lost salary.” J.A. 12. We agree with Mr. Oliva.
`Mr. Oliva plausibly claimed that the alleged breaches
`were the cause of his lost salary. “‘[D]amages for breach of
`contract require a showing of causation,’ which in turn ne-
`cessitates a ‘comparison between the breach and non-
`breach worlds.’” Vt. Yankee Nuclear Power Corp. v. En-
`tergy Nuclear Vt. Yankee, LLC, 683 F.3d 1330, 1349 (Fed.
`Cir. 2012) (quoting Yankee Atomic Elec. Co. v. United
`States, 536 F.3d 1268, 1273 (Fed. Cir. 2008)). With respect
`to the 2015 breach, the amended complaint alleged that
`“[a]s a result of the [VA]’s non-conforming reference [dis-
`closing the existence of the reprimand letter], [Mr. Oliva]
`did not receive an offer of employment for the El Paso,
`Texas position.” J.A. 88. Similarly, with respect to the
`2016 breach, the amended complaint alleged that “[a]s a
`result of the [VA]’s non-conforming reference [disclosing
`that Mr. Oliva was on a Temporary Duty Assignment and
`the identity of Mr. Oliva’s supervisor], [Mr. Oliva] did not
`receive an offer of employment for the Greenville, North
`Carolina position.” J.A. 90. Here, the amended complaint
`pleaded a non-breach world in which Mr. Oliva would have
`been employed at either El Paso or Greenville and, there-
`fore, would not have been terminated by the VA from his
`existing position. See Johnson v. City of Shelby, 574 U.S.
`10, 12 (2014) (holding that the plaintiffs’ had pleaded a sub-
`stantively plausible claim when they “stated simply, con-
`cisely, and directly events that, [the plaintiffs] alleged,
`entitled them to damages”). We conclude that Mr. Oliva
`has alleged facts sufficient to support his lost salary claim.
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`OLIVA v. UNITED STATES
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`7
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`We do not see how Mr. Oliva’s termination in April
`2016 from his Waco job undercuts the plausibility of these
`allegations. “To analyze expectancy damages one looks at
`what would have happened had the contract been per-
`formed.” Stockton East Water District v. United States, 761
`F.3d 1344, 1352 (Fed. Cir. 2014) (internal quotation marks
`and citation omitted).
`The government argues that because “the amended
`complaint dates the lost salary claim from the moment of
`termination,” Mr. Oliva has effectively claimed that “the
`cause of the alleged lost salary was Mr. Oliva’s termina-
`tion, not the alleged breach[es].” Appellee’s Br. 17. The
`government’s position is unpersuasive. As outlined above,
`Mr. Oliva alleged that, had he been offered employment at
`El Paso or Greenville, he would have left his employment
`at Waco before he was terminated. J.A. 88, 90; Energy Nw.
`v. United States, 641 F.3d 1300, 1305 (Fed. Cir. 2011) (“[A]
`plaintiff seeking damages must submit a hypothetical
`model establishing what its costs would have been in the
`absence of breach.” (citation omitted)). On a motion to dis-
`miss, we are obligated to draw all reasonable inferences in
`favor of Mr. Oliva and accept as true his plausible factual
`allegation that he would have received an offer of employ-
`ment at either El Paso or Greenville but for the alleged
`breaches.2 See Amoco Oil Co. v. United States, 234 F.3d
`1374, 1376 (Fed. Cir. 2000) (“On a motion to dismiss for
`failure state a claim, any factual allegations in the com-
`plaint are assumed to be true and all inferences are drawn
`in favor of the plaintiff.”). There is no requirement that Mr.
`Oliva “prove [his] case at the pleading stage.” In re Bill of
`Lading Transmission & Processing Sys. Patent Litig., 681
`
`
`2 There is no suggestion on the record here that the
`reasons for Mr. Oliva’s termination from the Waco position
`would have led to termination from the El Paso or Green-
`ville positions.
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`OLIVA v. UNITED STATES
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`F.3d 1323, 1339 (Fed. Cir. 2012) (citing Skinner v. Switzer,
`562 U.S. 521, 529–30 (2011)).
`We conclude that the Claims Court erred when it held
`that Mr. Oliva had failed to state a plausible claim to re-
`cover for lost salary.
`
`II
`Mr. Oliva argues that the Claims Court erred when it
`dismissed his claim for relocation incentive pay as an addi-
`tional demand of damages. We agree with Mr. Oliva.
`Mr. Oliva plausibly alleged entitlement to lost reloca-
`tion incentive pay. As we noted in Crow Creek Sioux Tribe
`v. United States, 900 F.3d 1350, 1354 (Fed. Cir. 2018),
`“there is no need to allege details of the damages calcula-
`tion in the complaint.” See also In re Johnson & Johnson
`Talcum Powder Prods. Mktg., Sales Practices & Liab.
`Litig., 903 F.3d 278, 287 (3d Cir. 2018) (holding that “a
`plaintiff need not develop detailed economic models at the
`pleading stage” and only needs to allege facts “that, if
`proven true, would permit a factfinder to determine that
`[]he suffered at least some economic injury”); 5A C. Wright
`& A. Miller, Federal Practice and Procedure § 1310 (4th
`ed.) (noting that “[g]eneral damages[, which] typically are
`those elements of injury that are proximate and foreseea-
`ble consequences of the defendant’s conduct” and “can be
`alleged without particularity under Federal Rule of Civil
`Procedure 8(a)”); 24 Williston on Contracts § 64:16 (4th ed.)
`(“With respect to . . . [pleading] general damages, no alle-
`gation describing the elements of those damages ordinarily
`need be made.”).3
`
`
`3 There is no suggestion that Mr. Oliva’s allegation
`of lost relocation incentive pay is a request for special dam-
`ages, nor did the Claims Court invoke the heightened
`pleading standard for special damages under Court of Fed-
`eral Claims Rule 9(g).
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`Case: 19-2059 Document: 43 Page: 9 Filed: 06/15/2020
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`OLIVA v. UNITED STATES
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`9
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`The Claims Court noted that although Mr. Oliva had
`“plausibly alleged that the VA determined that a relocation
`incentive would be provided for [the Greenville] position,
`[Mr. Oliva] fail[ed] to sufficiently allege facts in the
`amended complaint to show that he would have been eligi-
`ble to receive this [relocation] pay.” J.A. 9.
`The government relies on OPM regulations providing
`that relocation pay is only available to “an employee
`who . . . [i]s an employee of the Federal Government imme-
`diately before the relocation.” 5 C.F.R. § 575.205(a)(2).
`Furthermore, “[a] relocation incentive may be paid only
`when the employee’s rating of record . . . for the position
`held immediately before the move is at least ‘Fully Success-
`ful’ or equivalent.” Id. at § 575.205(c).
`The Claims Court adopted this position and held that
`Mr. Oliva was required to allege the date “when he learned
`that the VA would not offer him the Greenville Position”
`and that “he was a federal employee” with a “Fully Success-
`ful, or equivalent, rating of record” “when he learned this
`information” because the OPM regulations state that the
`employee must have the requisite status for relocation “im-
`mediately before relocation.” J.A. 10. Mr. Oliva’s amended
`complaint stated that “[b]ut for the VA’s breach of the Set-
`tlement Agreement, [he] would have received relocation in-
`centive pay.” J.A. 92.
`The Claims Court also held that Mr. Oliva had alleged
`“no facts in the amended complaint to show that the VA
`determined the amount of relocation pay that he would
`have received to accept the Greenville Position.” J.A. 11.
`The Claims Court held that Mr. Oliva’s claim was also not
`supported because he had “not explain[ed] how he calcu-
`lated the $87,312.00 in relocation incentive pay that he
`seeks in the amended complaint.” J.A. 11. However, such
`detailed allegations as to the damages calculation were not
`required.
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`OLIVA v. UNITED STATES
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`The amended complaint set forth sufficient factual al-
`legations to plausibly claim that Mr. Oliva was entitled to
`receive relocation incentive pay. Accordingly, we conclude
`that the Claims Court erred when it dismissed his claim.
`III
`We note that Mr. Oliva has also filed a complaint with
`the Merit Systems Protection Board (“Board”), which we
`address in a contemporaneously issued decision. See Oliva
`v. Dep’t of Veterans Affairs, No. 19-1990. During oral argu-
`ment, the government suggested that Mr. Oliva was at-
`tempting to obtain double recovery by simultaneously
`filing complaints before the Claims Court and the Board.
`“The purpose of damages for breach of contract is generally
`to put the wronged party in as good a position as he would
`have been had the contract been fully performed.” S. Cal.
`Fed. Sav. & Loan Ass’n v. United States, 422 F.3d 1319,
`1332 (Fed. Cir. 2005). “[D]ouble recovery for the same in-
`jury is inappropriate” when the two causes of action arise
`from the “same operative facts.” Tex. Advanced Optoelec-
`tronic Sols., Inc. v. Renesas Elecs. Am., Inc., 895 F.3d 1304,
`1328 (Fed. Cir. 2018) (alteration in original) (quoting Aero
`Prods. Int’l, Inc. v. Intex Recreation Corp., 466 F.3d 1000,
`1017, 1019 (Fed. Cir. 2006)). Mr. Oliva admits that he can-
`not recover twice for the same injury. There is no possibil-
`ity of double recovery because we hold in Oliva, No. 19-
`1990, that Mr. Oliva cannot recover on his Whistleblower
`Protection Act theory for damages for loss of the El Paso
`job.
`
`REVERSED AND REMANDED
`COSTS
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`Costs to appellant.
`
`